Compensation for injuries caused by potholes

Category: Personal Injury

Every year many pedestrians and cyclists are injured through potholes in the highway.

Back To Basics

The local authority who are responsible for the highway owe a duty of care under Section 41 of the Highways Act 1980 to maintain the highway.  It has long since been established that the highway does not need to be perfectly level or flat but that if the Highway Authority allows defects to arise due to lack of maintenance which are deemed to be dangerous then a person who is injured by the pothole is on the face of it entitled to bring a claim for compensation against the Highway Authority.

However, there is one very important factor which cannot be ignored.  That is the so-called statutory defence which is laid down by Section 58 of the Highways Act. Section 58 is quite detailed but in essence it provides that if the Highway Authority can prove that they have taken reasonable care to ensure that the highway was not dangerous then they have a defence to a claim even though they have failed to repair a dangerous defect. When considering the defence the Court will look at how frequently the highway was inspected and also the Highway Authority’s set system for responding to defect reports.  It is beyond argument that the Highway Authority cannot rely on a lack of money or resources as part of the defence.

Lee Crawley V Barnsley

A case ended up in the Court of Appeal last year on the issue of the statutory defence.

The case concerned Lee Crawley who brought a claim for compensation against Barnsley Metropolitan Borough Council.  The facts were these.

On the evening of Saturday 28 January 2012 Mr Crawley went out jogging.

On his way home he ran across Hilltop Avenue in Barnsley.  This is a quiet residential road.  Unfortunately, unbeknown to Mr Crawley there was a dangerous pothole in the middle of the carriageway of Hilltop Avenue which he did not notice and his ankle turned over and he sustained an injury to his left ankle.

Because this was only a minor access road it was deemed reasonable for the Council to inspect the road once a year.  The road had been inspected on 6 September 2011 and the Highway’s Inspector had noted a number of defects which were repaired by 10 October 2011.

Therefore, at the time of the Claimant’s accident, the road was not due to be inspected for another seven months.  However, in this particular case, at 4.20pm on Friday 27 January 2012, the day before the accident, a member of the public telephoned the Council to report the presence of a number of deep potholes in Hilltop Avenue.  The resident was concerned that they were so deep that they would cause damage to his vehicle.  The person at the Council Call Centre logged it onto the system and forwarded it to the Highways Inspectors.

The Council’s routine Highway Inspector who had carried out the inspection in September 2011 did not ordinarily work weekends so he only picked up the report from the previous Friday afternoon on the morning of Monday 30 January.  He went off to inspect the pothole and agreed that it was dangerous and said that it needed to be repaired within 24 hours.    It was therefore categorised as what is called a category 1 defect, i.e. those defects that require prompt attention because they represented an immediate or imminent hazard, or because there is a risk of short-term structure deterioration.   The pothole was subsequently repaired on Tuesday 31 January.

The three Judges in the Court of Appeal were split as to whether or not the Council should be liable to compensate Mr Crawley.   The main reason for the Claimant’s injury, in this case, was that the pothole was reported on Friday afternoon and not actioned until Monday morning because of the intervening weekend.   If the pothole had been reported on the Monday then it is likely that it would have been repaired by Tuesday or Wednesday at the latest. One of the Court of Appeal Judges felt that the fact that most people did not work weekends was relevant.  The Judge felt that this reported pothole was not one that called for an overnight response nor did it necessitate urgent attention by the emergency standby team during the weekend.  The Judge felt that the Council had acted perfectly reasonably in inspecting on the next working day and then having the defect repaired the following working day after that.

However, the other two Judges in the Court of Appeal felt that that was wrong. They pointed to the fact that this was a dangerous defect and it was categorised as a category 1 defect.  As soon as it had been recognised as a category 1 defect it required immediate attention either by immediate repair or by being rendered unsafe by the immediate placing of a notice, fencing or coning followed by a repair as soon as possible.    When the defect was reported by telephone on the Friday afternoon, there was a real risk that this could have been a category 1 defect because the way in which it was described. In this case, there was a failure to make any out of hours evaluation of potentially serious and dangerous defects other than those reported by the emergency services.

As one of the Judges said it may be perfectly reasonable to have reduced staff and activity over a weekend but there was must be some means of responding quickly to complaints from the public of serious and dangerous defects in the road.  The Court also confirmed that any argument by the Council that even if they had a system in place it would not have prevented the accident due to the short space of time between the report and the accident was irrelevant.   The fact that that they did have a system in place was the end of the matter and they could not rely on the Section 58 defence.  Accordingly, Mr Crawley was entitled to his compensation.

If you are a pedestrian or cyclist who has been injured through a pothole in the highway please contact the Personal Injury Team at Nash & Co and ask to speak to Michael Shiers, for a free without obligation assessment of your case.  You can reach Michael by calling 01752  827025 or by emailing [email protected]. Even in cases where the Council has admitted their liability it is often worth getting professional advice to make sure you receive the appropriate level of compensation for your injuries and losses.