Potholes may be a somewhat regular occurrence on public roads and pavements throughout the country, but they can be hazardous and cause accidents as well as significant injuries and damage to vehicles. For this reason, highway agencies are obliged to ensure that roads are maintained adequately and potholes are quickly repaired.
But with an increasing population and the number of vehicles on the roads at an all-time high, local councils are often taking too long to make these repairs, leaving roads, pavements and footpaths in dangerous conditions.
If you or your child have suffered an injury due to a pothole on council owned property, you may have a valid claim for personal injury compensation. An injury solicitor will have vast experience in helping people make accident claims against local authorities throughout the UK, and would be happy to discuss your accident during a free case assessment. This service is provided without any obligation to proceed further, and in most cases can be completed with a brief telephone conversation.
If you would like to find out more, simply enter your details into our online claim form, and an experienced legal adviser will be in contact as soon as possible. Alternatively, you can call free on 0800 678 1410 to speak to an adviser now.
Compensation claims for accidents caused by potholes
The following guide explains how a claim can be made following an accident that caused injury or damage because of a pothole on a road, pavement or other area owned by the council. The guide considers how the law defines liability, the processes involved in making a claim and how much compensation is likely to be awarded following a successful pothole accident claim.
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What is a pothole?
A pothole is a generic name for any depression or hollow in the road surface, usually caused by wear and tear. Potholes usually start as tiny cracks that will grow if they are not fixed straight away. They can be anywhere from a few inches to several feet wide and several inches deep.
They develop naturally due to the expansion and contraction of water that has entered the ground under the road or pavement. They may also form when a vehicle passes over a weak spot on the road surface, and its weight causes it to break down further and create a larger hole.
When potholes form on roads, car parks and motorways, they can be very dangerous to all road users. Besides damaging your car, bicycle or other vehicle, hitting a pothole may also lead to road traffic accidents. Pedestrians may also suffer minor to severe injuries due to trips and falls caused by potholes.
If you or a loved one suffered an injury due to poor road maintenance, you might be able to make a pothole claim. For free legal advice and to discuss your options with a trained legal adviser, call 0800 678 1410 or request a call back.
What is the law regarding potholes
The law relating to potholes and liability for road maintenance is predominantly set out in Section 58 of the Highways Act 1980. The Act outlines the legal responsibilities and duty of care of road owners, which is normally highway agencies and local councils, for ensuring that roads are safe and passable, so as to avoid causing injury to those that use these areas.
If an accident occurs and an injury or damage is sustained because of inadequate road maintenance or breaches in safety responsibilities, a claim can be brought against the highway agency as they will be considered liable for any suffering. The act details that the road owner should repair damages swiftly and that if the fault cannot be immediately addressed, adequate warning signs should be put in place to ensure that drivers are aware of risks.
If the council or highway agency are able to demonstrate that they took adequate care and that they had not breached their duty, a claim may not be valid. It is therefore important that claimants obtain as much evidence as possible relating to their accident, including photographic evidence of the state of the road and contact details of anybody that witnessed the trip or fall.
As the saying goes, a picture paints a thousand words, which is why good photographic evidence can be so important to these type of accident claims. Having photos of the pothole that caused you to trip and fall over will help to highlight the poor state of the surface, and will provide a permanent record should the pothole be repaired by the council.
Placing a ruler, tape measure or identifiable object, such as a coin, into the pothole when taking the photos will help to demonstrate the depth of the hole. This will be an important factor when assessing your ability to proceed with a claim for compensation.
Can I make a pothole accident claim?
If you suffered an injury due to a pothole, the easiest way to find out if you are eligible for compensation is to seek the advice of a no win no fee solicitor. They will offer you a free consultation to discuss the details of your accident and decide whether you can make a pothole injury claim.
As a general rule, you should be able to claim pothole compensation if:
- Another party, which will usually be the local council or a private owner, owed you a duty of care
- They failed to take all reasonable measures to keep a road or footpath safe
- Their negligence caused you to have an accident because of a pothole
- You suffered an injury or injuries as a result
Your solicitor will prove a duty of care by referring to the relevant legislation. To help support your pothole accident claim and make the claims process as simple as possible, you should:
- Seek medical care for your injuries as soon as possible. Your medical records will be essential to prove the type and extent of your injuries.
- Speak to any witnesses to the accident and take their names and contact details.
- Take several photos of the pothole hazard that caused your accident from different angles. Including a ruler or an object in the photograph can also help to highlight the size of the pothole.
- Take photographs of your injuries and any damage to your personal items.
- Check if any CCTV cameras from a nearby shop or business might have captured your accident, and ask for a copy of the footage.
- Report the accident to the local authorities or organisation responsible for the area where your accident happened. You can use a copy of the report to prove the date and location of the pothole accident.
- Document all the financial losses and expenses you incurred as a direct result of your injury. This could include lost wages if you had to take time off work or transportation costs to medical appointments.
Once you have all the necessary evidence, your solicitor will contact the party you hold responsible for paying you pothole compensation and inform them of your allegation of negligence. Depending on their reaction, you can begin to negotiate a settlement, or you might have to take the case to court.
How deep does a pothole have to be to claim?
To be able to make a pothole accident claim, the general rule is that the pothole responsible for your injury needs to be at least 25mm deep (1 inch). Sometimes, a minimum pothole width of around 300mm may also be required to be eligible for compensation.
A good way to demonstrate this is by taking a photo with a ruler or tape measure inside the hole. If that’s not possible, try to include any other everyday object in the picture to help show scale. If a pothole does not meet the minimum depth or width, it will likely not be considered significant enough for you to be able to claim.
However, areas where there is higher footfall or that are close to schools or care homes could have a higher standard of maintenance. You should never dismiss your right to claim pothole compensation before speaking to an experienced solicitor.
Your claim could be disregarded even if the pothole fits into the required measurements if the council can show that:
- They took reasonable care to ensure the road was not dangerous to traffic or pedestrians.
- They were unaware of the pothole, or it appeared recently after their last inspection and was not reported as a hazard.
- They have a reasonable system in place for road inspection and maintenance.
- They had already initiated actions to deal with the hazard.
On the other hand, if the council was aware of the pothole and did not repair it or did not follow road maintenance guidelines, you will likely have a strong pothole claim.
Who is liable for pothole accidents?
If you suffered an injury due to a pothole accident, you would likely want to claim compensation for your pain, suffering and all the financial expenses you incurred. To make a pothole claim, the first thing you need to do is identify the party responsible for road maintenance in the area where your accident occurred.
Typically, a pothole injury claim would be made against either:
The local council
According to Sections 41 and 58 of the Highways Act 1980, the local authorities or councils are typically responsible for the inspection and maintenance of public pavements, roads and highways.
Councils are expected to regularly monitor roads for damage and deal with hazards that arise in areas where they are in charge within a reasonable amount of time. Therefore, if an accident occurred due to an inadequately maintained public pavement or road, you could make a pothole claim against the council.
A utility company
Utility companies often need to dig up the road or pavement to carry out sewage, water, electricity, gas or communications works. However, they do not always return the road to the condition they found it in, which is a common and recurrent issue.
These companies have a statutory right to access, repair and replace their equipment. However, if they failed to restore the road surface to the correct standard, you might be able to make a pothole injury claim against the organisation responsible.
A private owner
If you have a pothole accident as a driver or pedestrian on private property such as a car park or apartment complex, the liable party would be the property owner and not the local council. The owner’s duties and responsibilities are stated in the Occupier’s Liability Act 1984.
If you have found yourself in this particular situation, an experienced personal injury solicitor will be happy to provide you with free legal advice to assess your eligibility to pursue a compensation claim against the landowner in question.
For a free consultation with a legal adviser, call 0800 678 1410. They can let you know if you may be eligible to make a pothole accident claim and help you identify the liable party for your injuries.
How do I make a pothole accident claim?
The claimant and their solicitor must prove that the defendant was liable for the accident and that they breached their duty of care to ensure that the road was safe and usable. In order to build a strong claim, the claimant will be required to provide as much evidence as possible, which could include the following:
- Photographic evidence of the road, the pothole and surrounding area. The photograph should clearly demonstrate the size, location and depth of the pothole. To do this, it is a good idea to place a ruler or a recognisable item (such as a coin) into the pothole when taking the photo. This will help to clearly show the depth and size of the pothole that caused your accident.
- Witness statements from any person who saw the accident take place or the immediate aftermath.
- Police reports if they were notified about the accident.
- Medical reports relating to the injuries sustained, including treatment records and receipts for any medication or treatment purchased
- Estimates relating to the costs for any vehicle repairs that are required.
- Where possible, CCTV footage from any properties surrounding the area can be highly valuable in supporting a claim. Be aware that the majority of CCTV records will be deleted after 28 days and so it is essential to secure footage promptly after your accident. You have a legal right to obtain this footage, so if your accident has been captured on CCTV, your solicitor will be able to request a copy from the owner.
Don’t worry if you are unsure if you have enough evidence to support your claim. Solicitors have a vast amount of experience in helping people claim for personal injuries caused by potholes and other road and pavement accidents, so will be able to assess your case during a completely free consultation. To speak to a trained legal adviser, call free on 0800 678 1410 or request a call back.
How much compensation can I claim for a pothole injury?
The amount of compensation you could receive if you make a successful pothole claim will depend on several factors, such as:
- The type and extent of the injury or injuries you suffered
- Whether you were partially responsible for your accident
- The short and long-term effects of your injury on your life
- The related financial losses and expenses you incurred, such as the cost to repair damage caused to a vehicle
At the beginning of your claim, your solicitor will consider all the ways in which the pothole accident affected your life to calculate a fair compensation award. Your settlement could include damages to cover:
- The physical pain and suffering caused by the injury
- Any emotional or psychological trauma caused by the event
- Loss of amenity, meaning the effect of the accident on your hobbies, family and social life
- Loss of consortium and companionship
- Costs of care and assistance if someone looked after you during your recovery
- Lost wages and loss of earning capacity if you cannot return to work
- Medical expenses such as medication, private care and physical therapy
- Cost of fuel, parking fees and other travel expenses
- The cost of repairing or replacing damaged personal property
- Adaptations to your home or vehicle to help you cope with a permanent disability
Your compensation for financial expenses (special damages) is calculated by adding up all your quantifiable economic losses. Calculating compensation for subjective losses such as pain and suffering (general damages) is not as easy. Your solicitor will refer to similar cases and the compensation guidelines published by the Judicial College. According to their guidelines, you could receive:
- £1,760 to £11,200 for a modest head injury that involves no brain damage
- £1,880 to £10,890 for a minor brain injury with no long-term effects
- £205,580 to £264,650 for severe brain damage that causes a physical or mental disability
- £85,4700 to £151,070 for damage to the spinal cord causing extreme pain and impairment
- £20,900 to £51,070 for very severe wrist injuries leading to complete loss of function
- £24,740 to £171,920 for severe hand injuries leading to amputations or permanent disability
- £13,360 to £27,320 for a moderately severe elbow injury resulting in restricted movement
- £11,820 to £24,950 for a hip injury that requires surgery but doesn’t lead to severe disability
- £22,340 to £37,070 for moderate knee injuries resulting in ongoing discomfort and chronic pain
- £43,710 to £67,410 for severe leg injuries leading to chronic pain and permanent mobility issues
After a brief consultation in which you will discuss your circumstances, your solicitor will be able to give you a fair estimate of your compensation prospects. You can also use our compensation calculator to get a rough idea of how much your pothole claim could be worth.
Can pothole claims be made using no win no fee?
If you suffered an injury due to a pothole, you might be worried about investing a lot of time and money into making a pothole accident claim. However, if your case has merit, your solicitor will offer you a no win no fee agreement, so you can take legal action without taking any financial risks.
No win no fee claims are based on a conditional fee agreement between you and your solicitor, which stipulates that:
- You do not have to pay any upfront fees for their service
- They will offer you free advice and support throughout the claiming process
- You do not have to pay them anything if your claim is unsuccessful
Before starting legal proceedings, your no win no fee solicitor will also take out an After the Event (ATE) insurance policy on your behalf. This type of legal expenses insurance covers all the costs and disbursements incurred by you and the defendant, so you do not have to pay anything if you lose the pothole claim.
Some of the things covered by the ATE insurance policy include:
- The other side’s solicitor fees
- Travel expenses
- The cost of police and medical reports
- Court and counsel fees
- Barrister fees if your case goes to court
- The cost of expert witnesses
If you win pothole compensation, the defendant will cover most of the legal costs. You would keep the whole compensation award, minus a few deductions:
- The cost of the ATE insurance premium, which you do not have to pay if your case fails
- A success fee that you will discuss with your solicitor at the beginning of your claim. The success fee cannot exceed 25% of your compensation award, no matter how much work and time your solicitor invested into winning the case.
Is there a time limit to claim pothole compensation?
The Limitation Act 1980 imposes a three-year time limit to start a pothole accident claim, starting from either:
- The date of your accident; or
- The date you became aware of an injury related to a pothole accident
The last date to start legal proceedings is known as the claim limitation date, after which your case becomes statute-barred, and you can no longer seek compensation for your injuries.
There are some exceptions to the three-year limitation date to claim pothole compensation:
- Claims on behalf of children can be made by a litigation friend at any time before they turn 18 years old. If nobody has claimed compensation on their behalf and the child reaches 18, they can take legal action by themselves at any stage up until their 21st birthday.
- There is no time limit to make a pothole injury claim on behalf of a victim who lacks the mental capacity to conduct legal proceedings. This could be due to a pre-existing condition such as Alzheimer’s disease or because of the injury suffered in the pothole accident. The three-year countdown only begins if the victim regains the ability to make a claim.
- If a loved one suffered a fatal injury due to a pothole accident, you have three years from the date they passed away to make a fatal accident claim.
- If you had an accident while on holiday or working abroad, you could still be entitled to claim pothole compensation. However, the time limit to take legal action can vary considerably between countries, so you should seek legal advice as soon as possible.
Regardless of your circumstances, it is always advisable to speak to a solicitor shortly after an accident. This will make it much easier to collect vital evidence and build a strong case to win compensation. Furthermore, most solicitors will not accept a claim with less than six months left before the limitation date.
Can I make a pothole accident claim on behalf of somebody else?
Yes, as mentioned above, you can be appointed as a litigation friend to make a pothole claim on behalf of either:
An adult who lacks the mental capacity to manage their case. Under the Mental Health Act 1983, an adult victim is considered a protected party and needs a litigation friend to represent them if they suffer from:
- PTSD or other stress-related disorders
- A mental health condition such as bipolar disorder
- An intellectual disability like Down syndrome
- Dementia or other neurodegenerative disorders
- A severe brain injury or stroke
A child, as the law does not allow children under the age of 18 to use solicitors to make a personal injury claim. Several people can be appointed to act as a litigation friend for a child, but most often, this will be either:
- A parent or legal guardian
- A family member
- A friend over 18
- A solicitor
- A Court of Protection deputy
Although you are allowed to claim pothole compensation for a child, you do not have access to their compensation award. Instead, the money will be kept in a court bank account or personal injury trust until the child turns 18 and can access the funds.
The court will check your suitability to act as a litigation friend by making sure that:
- You do not have a conflict of interest with the victim
- You can make decisions about the case in a fair and competent manner
Some of the duties of a litigation friend include:
- Make decisions that are in the victim’s best interest
- Try to establish the victim’s wishes and keep them informed about the case
- Regularly consult with the solicitor and take legal advice
- Provide instructions to the solicitor
- Pay any costs ordered by the court
- Carefully consider any settlement offers from the defendant
- Attend court hearings if necessary
Your role as litigation friend ends once the child reaches the age of 18 or when a protected party regains the capacity to conduct legal proceedings.