THE COMPENSATION culture has a lot to answer for but when you’ve just been told that the pothole you drove through has damaged your car to the tune of £250, any scruples you might have are sure to disappear, like the air from your punctured tyre.
But who to call and how to claim? Below, we bring you a guide, with thanks to the Citizens Advice Bureau and potholes.co.uk
What you’re up against
As you are about to see, claiming compensation for pothole damage to your car is a time-consuming process, and there’s no guarantee you’ll be successful. One hurdle you’re likely to encounter early on is Section 58 of the Highways Act 1980. This statutory defence allows a council or highways agency to defend claims on the grounds that it has taken reasonable measures to ensure that problems such as potholes are found and dealt with swiftly.
It should have a system in place ensuring this and if it has followed it, your claim might fail, at least in its eyes. Your job is to prove it hasn’t followed the system, which you may be able to do by making a Freedom of Information (FOI) request and asking it to provide evidence of inspections and maintenance.
Another point to remember is that potholes less than 40mm deep are not generally considered as being dangerous to vehicles, although they could easily throw a cyclist off their bicycle.
It’s not known what proportion of claims for compensation have been successful in recent months, only that the number of claims has risen. Whatever the outcome, you can expect yours, including the FOI request (allow 20 working days for this), to take from 2-5 months.
The good news
Still keen to make your claim? Then take heart from Nick Freeman, a lawyer and Driving’s Mr Loophole. He recommends drivers with an honest claim should take the responsible authority to task and that, providing they have sufficient evidence, they ought to succeed.
“Quoting Section 58 is a bully-boy’s tactic,” he says. “Don’t be intimidated and instead, tell the authority you will take it to the small claims court. In my experience, officials quickly back down. In any case, it’s the authority’s duty to keep the road surface in a reasonable condition. Applying common sense, a judge will easily decide whether it has fulfilled this simple requirement and adjudicate accordingly.”
HOW TO CLAIM
1. Gather evidence
Assuming it’s safe to, take a photograph of the pothole as soon as possible. Measure it and make a sketch of the area noting if the hole is on a bend or hidden from view.
2. Find out who is responsible for the road
Local councils are responsible for most roads. Motorways and major trunk roads in England are the responsibility of the Highways Agency, in Scotland they are the responsibility of Transport for Scotland and in Wales, the Welsh Assembly Government. The road may be privately owned, in which case your claim is on the owner or owners, which can make things more complicated.
3. Check if the authority has been looking after the road properly
Assuming the road is publicly owned and managed, you need to submit a Freedom of Information (FOI) request to find out if the authority has been maintaining the road as it should (the council or agency will tell you its FOI email address). Don’t mention it’s in connection with a claim; you just want to know the dates of inspections in the past two years, and any defects recorded.
Download a copy of Well-maintained Highways, the code of practice for road maintenance management. You don’t need to read all of it; just get a feel for the standards authorities should be striving to achieve and the defence they’re likely to mount. In any case, it helps to show some knowledge of it.
4. Submit your claim
Having received the authority’s reply to your FOI request and compared it with guidelines in the code, above, if you think you have a case, now is the time to submit your claim. Write a clear and detailed letter to the authority setting out your case, supplying evidence of the state of the road, and the damage to your car and the costs of repairing it ‒ and then stand by for the inevitable Section 58 response by return. It may say it wants to see the damage to your car. Don’t worry if, naturally enough, you’ve had it repaired. The photograph you took, timed and dated, of the pothole and your car, will be sufficient.
5. Disputing Section 58
If the authority is hiding behind Section 58, try to see things from its point of view. Armed with your evidence gathered at the scene, your FOI information and the highways maintenance code of practice, judge if its Section 58 defence is reasonable. At the same time, don’t get too bogged down in the detail. Always keep in mind the authority’s simple duty to maintain the road in a reasonable condition. A pothole deep enough to damage your car is hardly reasonable.
6. And so to court…
If the authority still believes it has no case to answer, but you are equally certain it has, then the small claims court is your next stop. You won’t need any legal representation. Simply come armed with your evidence and let common sense prevail. According to Nick Freeman, you might find that, impressed by the strength of your conviction, the authority backs down before it gets to this point.