I see that it has been reported that the recent cold weather has caused an estimated 1.6 million new potholes in our roads and pavements. What happens if you are injured as a result of tripping in one of these?
Assuming the pothole is on a publicly maintained highway (such as a pavement), your local council has a responsibility to keep the highway repaired and if they do not comply with this responsibility, you may be able to pursue an accident claim for compensation for any injuries you suffer as a result of tripping. However, the responsibility is not absolute; the council's duty only stretches as far as making sure that they have taken reasonable steps to ensure the highway is maintained.
Your local council will have an inspection regime, meaning that they will check the condition of the roads and pavements periodically. How often they do this depends on where the road or pavement is - for example, a pavement in a busy town centre will be inspected more often than a country road. A rough rule of thumb is that a busy thoroughfare will be checked monthly, and a quiet road annually. Most residential areas will only need to be inspected every six months or even annually, depending on the area. Whenever the road or pavement is inspected, this will be logged by the council inspector.
This means that the mere presence of a pothole does not mean that you can successfully claim. The success of the claim will depend on showing that the council have not done sufficient inspections to identify any potholes (or indeed other defects, such as a raised paving slab) and that as a result, they have failed to maintain the highway. This can often be achieved with witness evidence - for example, local residents can sometimes be helpful if they can recall a defect being present for a certain time period.
It will also need to be shown that the pothole was large enough to pose a danger. The standard for what is deemed dangerous on a pavement is generally a defect that is over an inch in height (about the height of a 50 pence piece). If the defect is on a road, then if it is over 40mm it will generally be deemed hazardous. Any defect below these limits will generally not be deemed dangerous and as such it will need to be shown that the defect exceeds these limits. However, it is also important to remember that the particular circumstances of an area and a defect should be taken into account, meaning that in some (albeit very limited) circumstances, a defect below these limits can be deemed dangerous.
For this reason, it is very important that photographs are taken of any defect, as soon after an accident as possible. Any photographs should include something to show dimensions - preferably a ruler but if this is not possible, a 50 pence piece will suffice. It is also important to make a note of when the photographs were taken. It is also useful to take some photographs showing the general area where the defect lies.
Submitted by Arti Shah
