Pothole claims – who’s to blame?

Although potholes are a well-known hazard for road users all year round, the winter months bring even more risks for motorists, cyclists and pedestrians alike.

New potholes regularly appear in roads across the country during cold conditions - caused by water seeping into cracks in the road surface, before freezing and then expanding, creating holes in the road – and existing ones can become even worse.

New research from Slater and Gordon has revealed that 65 per cent of UK motorists say poor road conditions make them feel unsafe when they are driving, and 50 per cent say they have adapted their driving specifically because of potholes in their local roads – a situation set to be exacerbated in the weeks ahead.

But what happens if you’re injured by a pothole? And who is to blame?

“While potholes is a topic we all regularly grumble about, and without doubt they are annoying for road users, the impact of potholes in the road can actually lead to very significant consequences. If a cyclist rides into a pothole, or a car driver loses control as a result of going into a deep hole in the road, this can cause serious injuries and have a huge impact on a person’s life,” says Samantha Griffiths, Senior Associate and a public liability specialist at Slater and Gordon.

“People are absolutely entitled to make a claim for the injury they suffer as a result of potholes – holes in the road aren’t just unfortunate and ‘one of those things’ that happen during the winter. Each year, these kinds of claims rise during the winter months, and we expect to see that again this year.”

While there is no hard and fast definition of how deep a pothole has to be for someone to make a claim, it is widely accepted that holes of around 40mm can cause damage or injury – councils tend to resist claims for holes below that depth, Samantha advises.

The liability for potholes lies with whoever is responsible for maintaining the road surface. Generally this will be the local authority, under the Highways Act 1980, but in the event of work taking place by utilities companies, who have dug up the surface as part of their repair or maintenance work, they may also be implicated. In the event the land is owned privately, such as on a private road or in a car park, the owner has an obligation to take all reasonable steps to maintain the area.

In the event of a person being injured by a pothole, collecting evidence is important – so any photos that can be taken of the road surface, size and depth of the pothole, and any damage to property, in addition to keeping a record of the exact location of the pothole, will be useful. Contact details of any witnesses are also important.

“Potholes can cause such damage all year round, but during the winter months they become a significant risk to road users – and whoever has responsibility for maintaining the area may well have a case to answer for any resultant injury,” says Samantha.

“The onus is on the local authority or land owner to maintain the road for the safety of everyone using it, and if they have behaved negligently in not doing this, then they will have to face the consequences.

“While we’d of course urge motorists, cyclists and pedestrians to take extra care in winter months and poor weather conditions, if they have been injured due to a pothole which has meant they face additional and unnecessary danger in making their journey, then they can absolutely look at making a claim to compensate for the injury and loss they suffer.”