POTHOLE - who to claim from

[zippee]

Evening,
Quick question for any legal peeps on here, On Tuesaday I hit a large pothole (1metre sq and 7" deep where I hit it) which has caused a lot of damage to my car (manifold, electrics, tracking etc.) which is still being fully determined at Offords.
I spoke with the council who stated that as Anglian Water had authorised the works on the area 2 days previously (obviously not to a good standard) that they were responsible and the council didn't want to know. AW state that its their contractors who are responsible and not themselves.
My question is who exactly is liable for the state of the road at the time I hit the hole and therefore is liable to pay for the damage to my car?
I realise I may have to end up taking one of these companies to the small claims court but which one?
More details & photos can be found here - [url]www.pistonheads.com/gassing/topic.asp?h=0&f=13&t=163109[/url]

[parrot of doom]

If the council own the road, its their responsibility.

If its a trunk road, AFAIK its the responsibility of the highways department.

[streaky]

The responsible authority (Council from the apparent nature of the road) can't pass the buck, they are liable. You claim off them and they (should, but might not as the rate-payers/insurers will provide anyway) claim off Anglian Water, who should then claim off the contractor.

The response you got is typical, they try to bump you down the chain. This delays settlement and costs you time and money ... so they hope you will give up.

Stick with your claim against the Council.

And let us know how you get on.

Streaky

[ledaig]

Zippee, after ttting one of the 'traffic calming' measures at the other end of town (no bollard + at night), the only way I could get any response was by writing to the local councillors. Not sure which part of town you live in, but go to this link and try to pick one who covers the area of the road and one who covers the area you live (if different).

http://applications.huntsdc.gov.uk/moderngov/mgMemberIndex.asp

Unfortunately I can't advise on how my claim went as I sorted the wheel with a mallet and there appeared to be no other damage so I didn’t pursue it any further. What I can say is that the councillors decided who would take up the issue and were willing to follow it through.

[Dwight VanDriver]

Heed the wise words of P of D.

Highways have the responsibility not the Gas Board etc who dug it up but they maye be taken to task by Highways.

Of interest to you have a read at

http://tinyurl.com/6dfhk

as to what happens if yoy reside in Cambs.

bear in mind also that photo's of the said hole with measurements and approach views are good evidence as is any others who have suffered.

DVD

[zippee]

Thanks for all your replies chaps, received the final damage report from Offords today, £1350 - shock of hitting this hole killed the immobilser unit, bent 2 wishbones and shunted the exhaust so badly it cracked part of the manifold - only good thing is it means I can now justify a pair of stainless steel decatted ones in replacement.
I took a photo of the hole again on Saturday and their repair is way below standard with tarmac already falling out and creating yet another hole - will use this as back up as well. I've just written a letter which will be sent off with photos etc tonight along with a letter to my local MP and also to the opposition candidates that cover this area (it is election time after all) so I'll see how I get on, though I can still see this ending up in the small claims court.

[Raify]

£1350

Sounds more than a small claim! Remember to invoice the council for all of your time / letter writing. Screw them for every last cent!

[B 7 VP]

Good Subject Timing.A report out today, says that the English Council Highways Dept only get 40% of their required Road repairs-surfacing costs.Wales only 28%.Claims paid out by English councils were £109 Million.So Resurfacing is now every 51 years, instead of 10/15.

[BigGee]

Not as straight forward as you think.

Based on what you say, the Council will be deemed neglgigent under Sect 41 of the Highways Act. They may get out of the claim under Sect 58 of the Highways Act which dictates that they have a reasonable inspection system in place.

If location inspected prior to accident and no defects they will turn you claim down.

It seems that they are advising you to claim against the water authority since under the New Roads and Sreet Act, the water authority are responsible for the location at the time of your accident.

Good luck, but I would right to both the Council and the Water Authority with copies of your bill for repairs and see what happens next.

Gee

[streaky]

BigGee said:

Based on what you say, the Council will be deemed neglgigent under Sect 41 of the Highways Act. They may get out of the claim under Sect 58 of the Highways Act which dictates that they have a reasonable inspection system in place.

If it can be proved that the highway in question has not been maintained appropriately with regard to its importance and use and was therefore dangerous and that this was the direct cause of the accident; then it is for the highway authority to demonstrate that it took all reasonable steps to ensure the highway was safe. In practice, this means that inspections and repairs carried out form the basis of the authority’s statutory defence.

I would suggest that the fact that the latest repair is already failing (within a very few days) indicates that the authority did NOT take "all reasonable steps to ensure the highway was safe" and that the highway has NOT "been maintained appropriately with regard to its importance and use" ... thus defeating the statutory defence.

Streaky

[BliarOut]

Ergo, it would be wise to ask for their post repair inspection paperwork... Which they'll most likely not have

To wit your claim is "They knew the road was dug up, but if they didn't inspect it, how can they possibly say it's safe?"

[zippee]

This is the hole on the Sunday - 5 days after having been 'repaired';


I think the council are digging themselves into a hole this time...

[streaky]

BigGee referred to the New Roads and Street Works Act 1991. This permits the granting of a "street works licence". Before pursuing a claim against Anglian Water, you should check that the relevant authority (likely the County or Borough Council) has in fact issued such a licence to AW in respect of the street in question. If so, it may be worth inspecting the same to ensure it does cover the works that led to the pothole. If it does, then, contary to my previous advice, your claim is against AW.

A solicitor friend of mine has given up his practice, because he has to spend too much time these days keeping up with the tsunami of legislation and regulation pouting out of this government.

"If you have 10,000 regulations, you destroy all respect for the law." -- Sir Winston Churchill

Streaky

[Don]

Right.

PHOTOGRAPHS.

You've got some. Well done. You also need photographs of the damage to your car. They will attempt to wriggle out of almost everything - including saying your items were "old" and they'll only pay a proportion of the costs! So you need EVIDENCE.

CONTEMPORAENEOUS NOTES.

Make careful notes about the incident. KEEP THEM. The evil ers will "lose" your letters, notes and photographs - possibly twice. Keep photocopies of EVERYTHING you send to anyone. Send all copies "registered" - and make the time to collect the signatures so you know who recieved it.

WITNESSES!

Make sure you know every business and person involved in recovering your car - get names and addresses.

WHAT TO DO!

Build an "evidence pack" which shows what happened when and why, with photographs, and witnesses' details. Include this with your claim for damages.

KEEP COPIES of this pack - you may well need to provide it two to three times. KEEP COPIES of all letters and correspondence - you may well need to prove all communications. DO NOTHING BY PHONE YOU DO NOT BACK UP WITH A LETTER AFTER!

I successfully made a complaint against Bear Scotland/Scottish Executive who settled with me for a sum not far off what you will need. Although their lawyers tried it on with me - because I had the paper trail they simply couldn't wriggle out of it. And they did pay up in the end - pretty honourable I suppose.

It took a full Calendar year from my pothole incident to getting any money. If I'd claimed on my insurance they wouldn't have paid...btw...so if you go down that route not only will you lose your NCB but you'll likely have to give the insurance co your evidence pack - and they will NOT bother to get compensation and will NEVER give you back your NCB so if you want to keep your premiums the same (as I did) you will need to pay to fix the car up yourself and prepare for the long haul to get your money.

GOOD LUCK!

Take it all the way. It is your civic duty to dish out a spanking to councils/Highways Agency if they don't do their job properly.

You CAN get compensation. But be prepared to really fight for it.