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Tis the season to be watchful. Pot holes and your rights

03rd November 2015

As the nights draw in and the weather turns cooler and wetter we can be sure of one thing – pot holes! But what are your rights if you hit one? The Highway Authority (HA) has an obligation to maintain our highways but not to improve them. They have a defence to any claim if they can show that they have exercised ‘reasonable care’ in ensuring the road is safe.

But what is ‘reasonable care’? If a car or bike hits a large hole in the road then surely the HA has failed in its duty? Not necessarily. Much depends upon:

• the nature of the road, i.e. is it a main highway where traffic volumes are expected   to be higher?
• the standard of maintenance appropriate for a road of that character and used by that traffic volume
• the state of repair in which a reasonable person would have expected to find the highway
• whether the HA knew or ought to have known the condition of that part of the highway where an accident happened i.e. have pot holes already been reported?
• whether warning notices advising road users of the condition of the road had been displayed where the HA could not have reasonably been expected to repair that part of the highway before the accident occurred.

The Highway Authority has a duty to inspect the roads, ensure their safety, and fix any defects which might make them unsafe. They have a duty to fix dangerous potholes once brought to their attention. Where an accident occurs between reporting and repair one must look at how quickly the HA reacted or ought to have reacted. Here, a court would look at the size of the defect, the amount of the traffic using that piece of road and the dangers posed. Obviously the greater the danger, the less tolerant of delays a court would be. If there is a serious defect, warning notices should be erected.

Q. What do I do if I hit a pothole and want to make a claim?

A. Take several photos of the hole and the surrounding road, to include its
depth. Ideally use a tape measure or ruler to show depth and width.
Note clearly the name of the road and where on that road the hole is. Also note the date
and time.

Whether a claim succeeds might depend upon when the HA last inspected the road and if it can be shown that they knew, or ought to have known, that a danger existed which required fixing.

Paul Lewis. Partner and Head of accident management

George Ide
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