With a recent Confused.com survey showing that two thirds of UK motorists encounter between one and five potholes every day, we've got a step-by-step guide on what to do if your car is damaged by a pothole.
1. Take photographs of the pothole
The most important thing to do is get evidence. As well as taking photos of the pothole itself, make sure you take photos of the surrounding area – for example, capture if it’s on a blind bend or over the brow of a hill as this will be helpful for your claim.
2. Measure the pothole and its location
You MUST be able to identify the exact pothole you hit, take down the road name and where it is on the road. Most importantly where was the pothole positioned on the road? For example, was it in the middle of the road or in the regular wheel tracks? If you can’t prove which pothole it was that you hit, this can weaken your claim. Make sure you measure the pothole; if you don’t have a tape measure to had use a ruler, book or even your shoe as a guide to show the size of the pothole.
3. Get details
Make a simple sketch of the area showing where the pothole is, including the surrounding features. These features might include the speed limit, a nearby school, kerb edging etc. Also, note if it is a busy road and how wide it is. If you have a witness to the incident make sure to take down their details too!
4. Before you make your claim
Before making your claim, ask for the following documents from the Council:
- Dates of all safety inspections undertaken on the carriageway in the two years preceding the date of your incident.
- Details of all carriageway defects identified during safety inspections in the two years preceding your incident.
- Details of how carriageway safety inspections are undertaken, including whether walked or driven, the speed of the inspection vehicle and the number of persons in the vehicle.
- The intended frequency of carriageway safety inspections.
- Details of all complaints and/or enquiries relating to the carriageway, received in the two years preceding your incident.
- The hierarchy classification of repairing the roads.
- The road/section number.
- The defect intervention criteria adopted in relation to the identification of all categories of carriageway potholes (in other words, how they define a pothole as requiring attention.
- The time period(s) adopted between identification and repair (temporary and permanent) of all categories of carriageway defects.
- Whether or not the authority has formally adopted all or part of the standards contained within the national code of practice for highways maintenance management.
- Ask them to reply within 20 working days in accordance with the Freedom of Information Act and if they don’t then send a copy of your first request and ask them to reply within 10 working days of the second letter.
- If they don’t reply to either, don’t panic, but go onto the next step. It isn’t the end of the world and the lack of reply just makes the council look bad.
5. Report the pothole
Report the pothole to the council as soon as possible. This will give a record that someone has reported it. Also if it does go to Court then they will want to know why you didn’t report it as soon as you could, in order to help others as well as yourself.
6. Make your claim
When writing a letter or email to your council to report the pothole make sure you include the following information - a full description of the accident, where it was and at what time, your photographs and the sketch plan of the area. Make sure to include a copy of the repair bill/receipt for the damage caused.
7. Your claim may get rejected
It is likely that the council will defend the claim under section 58 of the Highways Act by stating that they have a reasonable system of repair. Don’t panic! As this is their first automatic step to try and refuse to pay you and there is more that you can do to get your claim resolved.
8. Do some background reading
Before you go back to the council to discuss the claim further take a look at their guidance website to see the procedures for repairing roads and dealing with claims for damage. Also check what the council is liable for, and whether their documents (that you have been supplied with) says they have carried this out.
9. Be willing to negotiate
If the council makes you an offer, seriously consider it, as the next step will be Court proceedings. If they haven’t made an offer and you have got this far, they either think that they have a good case, or just have a block policy of refusing claims until they get to Court.
It is extremely likely that your claim is below the Small Claims Limit (presently £5000). That means that if you use a solicitor to progress your case, you won’t be able to get the costs back and you will pay them win lose or draw. If you believe you still have a case, then you can issue the proceedings online at https://www.moneyclaim.gov.uk/web/mcol/welcome. This is the County Court system but through the internet.
10. Stay patient and keep copies!
Remember to always act reasonably and fairly. When speaking to the council remain calm and professional. Lastly make sure you keep copies of all the letters you send and receive – if you go to Court you will have to provide a copy of this correspondence for the Court to consider.
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