Successfully Defending Winter Damage Claims

Following the severe weather during the last two winters, Local Authorities and their Insurers have faced an increase in claims from the public for damage to their vehicles as a result of the pothole damage to the roads. Langleys have now defended a number of claims arising out accidents which occurred in the winter of 2009 – 2010. However it will be welcome news to Insurers that so far these claims have been successfully defended.

The duty upon a Local Authority to maintain highways maintainable at public expense falls under section 41(1) of the Highways Act 1980.  The defence to these claims lies within section 58. If the Local Authority can show they had a reasonable and practicable system in place, then the statutory defence is available. The burden of proving there were appropriate systems in place is on the Local Authority.

 

The first success at trial involved a Claimant who sought to recover the costs of repairs to her vehicle which had been caused by a very large and deep pothole in the road damaging her tyre. The accident had occurred on a Saturday morning in February 2010.

 

The Local Authority produced evidence that the number of reports of potholes had trebled during this period and highlighted that potholes appeared daily. The Highways Manager set out details of the meetings of the Highways Managers to consider the implications of the weather upon the regime. The Highway Authority produced evidence of a safety inspection which had taken place at the accident location the day prior to the accident, on the Friday at 10am. There was no pothole identified at this location and no complaints had been made before or immediately after this inspection. It was accepted by the Court that given the size of the pothole the Claimant complained of, it was inconceivable that the inspector would not have noticed it.

 

Documentary evidence revealed that the first vehicle to have collided with this pothole was at 4.30pm on the Friday afternoon some 6 hours after the inspection. Over the next 24 hour period there were 10 reports to the Council of the same pothole. The Court accepted that the pothole appeared between 10.30am and 4.30pm on the Friday. Photographs of the pothole revealed stones and rubble at the side of the road which suggested it had occurred quickly and recently.

 

The Court accepted there was a reasonable system of inspection in place and commented the Court must take into account the Council’s resources. In addition the Local Authority had only received notification of the large pothole at 7pm on the Saturday evening and had repaired it quickly by 5am on the Sunday, in less than 24 hours.

 

The second success involved a Claimant who also sought damages for repairs to his vehicle as a result of colliding with a pothole in the road in March 2010. The Local Authority provided evidence of a monthly system of inspection and 8 further reactive inspections from January to March 2010. It was accepted that the defect was not present at the pre-accident monthly inspection, nor was it present at a further reactive inspection some 10 days prior to the accident. Once the defect had been reported the Local Authority had dealt with it quickly.

 

The Claimant sought to criticise the Local Authority for a lack of resources. The Court agreed there was a lack of resources but this had to be taken into account when assessing the section 58 defence. The Court commented that the Local Authority had dealt with thousands of potholes which showed this was an active Council taking their duties seriously. It was accepted that the Council had complied with its duty and the system of monthly inspections was found to be appropriate coupled with the reactive inspections. The defect had been reported and was being addressed before the Claimant’s complaint.

 

The most recent case that was successful at Court again involved a claim for vehicle damage and costs arising from an accident which was caused by a deep pothole in the highway. The Claimant had driven across the pothole which had been caused by the severe weather. The Council had identified the particular area where the Claimant's damage occurred for repair but the Council's Emergency Repair Crews had not had an opportunity to attend at the site and complete repairs before the Claimant's accident occurred. The Emergency Repair Crews had been called to attend a number of other sites and emergencies including flooding and call-outs by the Police before they were available to repair the area in question.

 

It was accepted that the Claimant's vehicle had been damaged by the pothole in the road but the Court held that the Local Authority would not be liable if they could establish the statutory defence available under section 58 of the Highways Act 1980 by showing a reasonable inspection regime and that reasonable methods of repair and maintenance had been implemented. When determining the "reasonableness" of the Local Authority's regime, the Court said this must include reference to the labour, time, money available and the size of the area covered.  Evidence was submitted on behalf of the Local Authority as to what other call-outs the Emergency Crews had to attend to before they could repair the area in question. The District Judge commented that it would be requiring a policy of perfection to expect the Local Authority to cover every eventuality. There was nothing that suggested the Local Authority's system of inspection and maintenance was defective or unreasonable and consequently the Claimant's claim was dismissed.

 

 

These successes reveal that the Courts are wiling to accept that roads will deteriorate quickly and potholes can arise within a matter of hours when the weather is severe. There is no doubt that Local Authorities are going to continue to face winter damage claims. To defend these claims the highway authority needs to collate documentary evidence about the weather conditions, the extent of forewarning of the weather conditions, their winter safety policy, the inspection records, details of the response times for repairs, emergency repairs being undertaken, reactive inspections and any other evidence to show that resources were stretched. Comprehensive statements from the highways managers should describe how a pothole can appear in a matter of hours in freezing temperatures and provided they have a reasonable system in place and that the defect in question would not have been missed on inspection, then a defence should be made out.

 

Caroline Elson
Solicitor, Public Sector Unit
 
You can speak to Caroline by calling 01904 683023 or send her an email.