Anyone know anything about highway law (in partic. maintenance duties and responsibilities)

[Pennies]

My Council is saying that because they claim they didn't know about a pothole they don't have to compensate me for damage done to my car. Is this the case?

[MerlinsBeard]

it depends who owns the road. If its a council owned road they should be responsible fo rthe upkeep of it, which includes potholes

[karen999]

I agree with mumof monsters - if the road is owned by the council then they are responsible for the upkeep of it and this includes ensuring that the land they own does not pose a danger. They would be even more so responsible if they knew of the potholes existence....you say that they did not know of it?

If cars suffer damage as a result of a pothole, a Highway Authority can be sued for damages for failure to repair a highway (Section 41 of the
Highways Act 1980)...I think

There are defences available to the authority and they are outlined in secion 58 which basically state that it will be a defence against 3rd party claims if it can be established that reasonable care has been taken to secure that the part of the highway to which the action relates to a level commensurate with the volume of ordinary traffic such that it was 'not dangerous to traffic'

See [[potholes.co.uk] - for info about claiming!

Good Luck

[Pennies]

Thank you for this info.

The deal is that on a Friday I damaged my car. I returned to the site early morning on the Sunday to take photos and measure the pothole but arrived to see signage and a temporary fix to the hole.

They're saying they didn't know about it but the fact that they had done a repair so soon after suggest otherwise, wouldn't you say?

I read this article though that would suggest that there's no obligation unless it's a reactive response though telegraph article.

Am I interpreting that correctly?

[karen999]

Impressed at you going to site and taking photos etc (usually referred to in the legal world as 'locus inspection!')

Not meaning to sound bloody stupid but I take it these signs etc were not there on the Friday? When did you report the damage? If it was on the same day then this only strengthens your case.

And anyway they have a 'duty to maintain' the highway.....could you tell me what kind of road it is, ie an A,B or C road?

Sorry to be a pain!!

[Pennies]

Karen999 ho ho re. going to the site. I'm married to a solicitor. Can't write a shopping list without dotting the i's and crossing the t's!

OK...

Damage occurred 9th March mid morning - no signage or anything at all at that point. At the time a bloke passed me whilst I was checking out the damage and said he'd damaged his car previously at the same spot. As his car was fixed and he was pretty furious about the whole thing I'd eat my hat if he hadn't flagged it up to the council. Later that day (approx 4.30) I rang them to get the address for sending in a claim and gave a fairly rudimentary explanation of where it happenend (didn't know the area). On the 11th ( a Sunday) I returned to the spot to take better photos and to measure accurately the depth of the pothole but by then (9am) it had been temporarily repaired. Whilst I was there on that occasion a bloke drove passed and told me that he knew of 6 other people who'd had damage from the site. I accept that this is just anecdotal evidence but nonetheless it shows a pretty clear indication that this hole had been causing problems for a while.

IMO there's no way they didn't know about it, surely.

Also, though, Essex are saying they inspected the road in June 06 but the incident happened in March 07 and they seem to think that nothing can happen to a road in 9 months through a very hot summer and snowy winter (thinking contraction and expansion due to cold and heat here). Surely it isn't inconceivable that a pothole could occur within the time frame of an annual inspection. With this in mind then, surely it means that council responsibility (and therefore liability) becomes a reactive one rather than a proactive one.

If you take that further then surely it means that there's no fairness in the system because it requires a pothole to be reported (and lets face it that only really happens when it's caused damage) and so the initial person to claim will get it refused because the council can claim ignorance. So technically subsequent claimers should get compensation but without proof that they weren't the first to claim then the council can basically cite ignorance for all claims?

Sorry for the rant but I'm feeling very annoyed about this. It's taken me nine months to get nowhere.

[Pennies]

Oooh, I wrote my letter on the 11th and it was in the first class post by the next day, so it would have reached them by the 13th or 14th.

[karen999]

Pennies - pursue this because as far as I can see, you are correct and I think the council know it.....they have a duty to maintain the roads and they know it. They failed in their duty to do so. I would call them and ask to speak to their legal dept....once you start spouting legislation and sections you may get their attention!

There is also a lot of case law on local authority liabililty (sorry, will have a look for you as soon as I have finished my Indian takeaway!!)

Why don't you get your dh to call them and exert his legal expertise???

IMO you have a strong case and you should pursue it...

[Pennies]

Thanks Karen.

Sadly DH's legal expertise only extends to hedge funds and makes a dead end stop right there! I reckon we can compose a pretty mean letter between the two of us though.

Thanks again for your help.

[karen999]

I know absolutely nothing about hedge funds!! All power to him...sounds complicated! Have you called the council to see where they are at in dealing with your letter? Have you spoken to their legal dept?

I would keep on at them...let them know that you will not be fobbed off. Why should you be out of pocket because of their negligence?

Keep me posted....these things always wind me up....Christ if they are still being eejits in a few days I will call them and give them what for!!!!

[Pennies]

WEll the thing is I did keep calling them and today I finally got my letter telling me they weren't culpable and weren't going to cough up. I was on the point of taking further legal action because it had taken them so long to respond to me. Anyway this is where we are and I can barely see for red mist.

[Pennies]

What sort of law to do you then? Anything has to be more exciting than hedge funds.

[karen999]

Keep persuing it because this will be their standard response letter!!!

In response to your question, I have just finshed my law degree (in Scotland) It has taken me five years as have been doing it part time. Have mainly worked in criminal law as a paralegal and my partner is a criminal solicitor advocate.

Hope you don't feel cheated!!! One of my best subjects at uni was delict (tort in English law)....basically the law of negligence....

The thing about law is not necessarily that you have to 'know' it but knowing where to 'find' it....

In order to succeed in an action based on negligence it is necessary for the pursuer to prove that:

1 The defender owed him a duty of care
2 The duty of care which the law imposes on the defender has been brfeached
3 The defenders donduct caused the pursuer injury and that
4 The injury was hot too remote

I think the same principles apply in English law.....and if so then you have a case....

[Pennies]

Hmmm - I remember DH doing tort at Uni.

I reckon I can fulfill all off those criteria. I shall fight them on the beaches....

[karen999]

Don't you mean the 'bReaches' LOLxx

If you can get them on those you are laughing!!

[Pennies]

Oooh you lawyers - second cousins to comedians the lot of you!