This article first appeared in Local Government Lawyer online. This was Local Goverment Lawyer's most read article of 2014 in its ‘transport and highways’ category.

Robert Ashurst provides an easy reference good practice guide to dealing effectively with claims caused by potholes.

Potholes form when the surface of a highway erodes and a hollow develops in the shape of a small pot or pan. They can be caused by hot weather or heavy rain - but predominately arise when water or frost seeps into cracks in the road. The subsequent damage to both people and vehicles can give rise to claims.

Potholes can cause injury

It may seem obvious, but, if unrepaired, an individual may slip, trip or fall into a pothole and suffer injury. However, that does not automatically mean that you have to pay damages. To succeed with a claim against a highway authority for personal injury a claimant must prove that the authority failed to maintain or repair the highway.

Specifically, claimants must prove that:

  1. the highway was in such a condition that it was dangerous to traffic or pedestrians and danger could reasonably be anticipated from its continued use;
  2. the dangerous condition was created by the highway authority’s failure to maintain or repair the highway; and
  3. the injury was caused by the authority’s failure to maintain the highway.

Special defence

If a claimant succeeds in proving that the highway was dangerous, an authority can raise a special defence under section 58(1) of the Highways Act 1980. The authority must prove that they took such care - as in all the circumstances was reasonably required - to secure that the particular part of the highway was not dangerous to traffic. The burden is on the local authority to prove that the steps taken were reasonable.

Establishing this defence

To avail itself of this defence, an authority must demonstrate that it has devised and implemented a system for regular inspection and maintenance of the highway (including the footway) and also for recording defects and repair. It must be able to detail and evidence the inspection procedures and the criteria for identifying when defects require attention and/or repair.

Inspection criteria

Safety inspections should be carried out in accordance with the Code of Good Practice for Highway Maintenance Management, published by the Institute of Highways and Transportation. Roads should have a hierarchy classification based on their usage and location and this clarification should dictate the frequency of all safety inspections. Major roads, such as ‘A’ roads, should be inspected monthly, while secondary and local roads should be inspected every three to six months. All other roads such as local access roads should be inspected at least annually.

Inspections should be conducted on foot and a written record should be maintained of all defects. If it is not safe to conduct an inspection on foot, then a driven inspection should be conducted. Driven inspections should be carried out at an appropriate speed of 10-20mph. There should be a driver and an inspector because one individual cannot drive safely and look for defects. It is also important to record maintenance.

Proving defects are minor

This can be done in two ways:

An authority must also show compliance with their duty under Section 41 of the Highways Act 1980 in that the defect was not dangerous to traffic or pedestrians, and that no danger could reasonably have been anticipated.

An authority may argue that the risk posed by the alleged defect was of such a low order that the costs of remedying such minor defects all over the country would be enormous and disproportionate. It is important that an unreasonably high standard is not imposed on authorities - otherwise scarce resources would be diverted from situations where maintenance and repair of the highways is more urgently needed.

Complaints system

An authority must have a system to enable members of the public to report defects 24 hours a day, seven days a week. This procedure may be via telephone and/or the internet.

An authority must keep a historical record of all complaints they receive and be able to demonstrate a clear procedure for dealing with them.

Any complaints must be communicated to the appropriate individual/team that should assess the severity of the defect and take necessary action within appropriate timescales. Response times will vary depending on the risk of injury posed by a pothole.

Those which pose a significant risk of causing injury should be repaired within hours. Minor defects should be monitored and/or repaired within 28 days. Those repairing the potholes should document the time/date/method of the repair.

Defending a claim

If an authority has a good system of inspection/maintenance and the necessary records to support witness evidence then they will increase their prospects of defending such claims.

From a legal perspective, we would therefore advocate:

A properly thought out and approved inspection system;

Recording all inspections and details of the defects;

Ensuring all maintenance is carried out properly and the repairs are recorded; and

Accurately record all complaints.

If you follow the above processes this will improve your chances of defending pothole claims.