Accident claims question:
I damaged a tyre due to a pothole in February. New tyre cost £119. I claimed against the County Council with full detail maps etc. They have now eventually rejected my claim on the basis that "they inspect the roads every 3 months and the relevant section was inspected on 16 December 2009 and there were no defects". They repaired my pothole on 3rd March and claim the council has discharged it's duty of care and taken reasonable steps to ensure the safety of the highway. They claim this is a valid defence under S58(1) Highways Act 1980. Is this correct? The damaged area was clearly (I have photos) part of a previous repair that had broken up in the cold weather so I wonder if, as the weather was so bad, they should have taken steps to examine the road surfaces more frequently than every 3 months as they would have been aware that frost and snow does cause road surfaces to breaK up. Could one use this argument in the Small Claims Court?
Responses:
Clive Thomas' response
The Council have a statutory defence under the Highways Act if they can prove that they took “such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic".Typically Councils rely on their records of inspection and maintenance to establish this defence.
You can argue that in the circumstances they should have inspected more regularly. However if the Council have documents confirming their inspections then ,unless they had been put on notice of the problem by a complaint about it or another incident before yours, a Court is unlikely to find in your favour.
You are entitled to request copies of relevant documents and I would suggest that you request -
1.the inspection and maintenance records for the 12 months prior to your accident.
2. Details of any other accidents or complaints in the 12 months prior to your accident.
3. The records relating to the previous repair that you refer to.
Then see whether this throws up anything that assists your claim.
Best of luck and I hope this is helpful
Clive Thomas
Bill Willcocks' response
I agree with Clive.
There is one other thing you might try and that is to see if any local residents can give a statement to say that the hole was there BEFORE the most recent inspection preceding your accident for which the Council has a record. That way you might be able to show that there inspection was not up to scratch which may improve your chances of success.
Bill Willcocks
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