How to claim for pothole damage

How to claim for pothole damage to your car is becoming increasingly difficult due to Councils moving to a risk-based approach on claims. The underlying reason is because of cutbacks and to save on repairs and claims. This makes it nigh on impossible for motorists to win claims. You now have a 1% chance with Fife Council of winning a pothole claim.

Potholes are becoming the fastest growing concern for motorists. 75% say that they were more concerned about it than they were in 2017. Potholes have affected 9 in 10 of motorists, with nearly a third saying they have changed their route to work. 54% have had to brake or swerve sharply to avoid potholes.

The Annual Local Authority Road Maintenance (ALARM) 2024 survey reports that roads in England and Wales are at “breaking point” with pothole repairs at an eight-year high.

Local authorities expect to fix 2m potholes in the current financial year. This is up 43% from 1.4m during the previous 12 months and the highest annual total since 2015 – 2016 when 2.2m potholes were repaired.

Key Statistics

Other key statistics include:

• 47% of the local road network in England and Wales is reported to be in good structural condition (15 or more years of life remaining)
  This has dropped from 51% in 2022/23 and 55% in 2021/22
  
  
• 17% of roads (34,440 miles) has less than 5 years remaining
  This is a slight improvement on 2022/23 where 18% or roads (36,918 miles) had less than 5 years of life remaining
  
  
• The average number of claims received by local authorities in England and Wales has increased by 80% to 421 per authority
  89% related specifically to potholes
  
  
• Compensation claims paid out by local authorities has risen by 31% from £11.6m to £15.2m
  This is up more than 70% from £8.9m to £11.6m in 2022/23 
  A further £13.6m was spent on staff costs to deal with pothole claims 
  The total spent on compensation claims is £28.8m
  
  
• The cost of clearing the pothole backlog was up nearly £1.5bn on 2022 to over £14bn
  This has increased by 16% to a new record high of of £16bn
  
  
• It would take 10 years for local authorities to fix every crumbling road in England and Wales – up from 9 years in 2022 
  This is a slight improvement on 11 years in 2022/23
  
  
• Roads are only resurfaced on average once every 80 years 
  This breaks down as once every 86 years for all roads in England, 39 years in London and 108 years in Wales
  
  
• 2m potholes were repaired last year – up more than 40% from 1.4m last year – one pothole is filled every 16 seconds
  
  
• Utility companies opening a road to create a trench can reduce its structural life by an average of 17%
  82% are completed in accordance with legislation
  Local authorities spend an average of 3.9% of their carriageway maintenance budget repairing trenches
  This totals £91.7m in England and Wales – more than £542,000 per authority

POTHOLES AFFECT EVERYONE AND ARE DETRIMENTAL TO THE ECONOMY 

Local Government Association Transport Spokesman Cllr Darren Rodwell said: 

“This report reveals in stark terms the huge challenge facing councils in maintaining the local roads network, which nearly everyone relies on. 

The backlog of repairs now stands at almost double the extra amount that government has promised over the next 11 years.

Inflation has eaten into councils’ maintenance budgets, meaning major resurfacing schemes designed to prevent more expensive repairs have had to be delayed or scaled back.

Only with a long-term plan with year-on-year funding certainty can we begin to reverse this decline, bring our roads up to scratch and save both lives and costs for all roads users.”

AA President, Edmund King said:

“Our breakdown data shows that 2023 was the worst year for potholes for five years. The latest ALARM report shows just how much is needed to simply get our roads up to standard.

Arguably the road network is a local council’s biggest asset, but not enough planned investment and repairs are being made to make streets safer and smoother for drivers and those on two wheels. Resurfacing occurs on average once every 80 years – making it a once in a lifetime event.”

WHO PAYS FOR DAMAGE CAUSED BY POTHOLES?

We all do via the Insurance Premium Tax which is levied on car insurance policies, Council Taxes, vehicle excise duty, tax paid on fuel (with 20% VAT on top), car parking permits and other levies.

Councils have a statutory duty to maintain and inspect the roads to a satisfactory standard. Councils collude with claims stoppers to prevent you from upholding a legitimate claim, so proving it is difficult but not impossible.

You will be encouraged to claim on your car insurance policy. My point here is why should you be left out of pocket due to their negligence?

WHAT PROBLEMS DO POTHOLES CAUSE?

Hitting a pothole can cause damage to your vehicles shock absorbers and suspension. Broken springs are the most common damage. Burst tyres and damaged alloys are another hazard which can cause a driver to lose control of their car.

Potholes are also a hazard to cyclists and motorcyclists who risk serious injuries or even death, especially at night.

HOW DO YOU KNOW IF A POTHOLE DAMAGED YOUR CAR?

Steering pulling to the left / right and uneven tyre wear is a sign that the tracking alignment is out and needs resetting by a tyre garage.

Dents on the wheels and bulges on tyre sidewalls are also a sign.

Listen to the suspension. Is it ‘clunky’? Does it thump when you are driving? That could be a sign of a broken spring.

BACKGROUND

An interesting case in May 2017 in the Isle of Man shone a spotlight on local authorities only being liable if a pothole is reported but not fixed.

This case was aired on Manx Radio where someone tried to claim for pothole damage that wrote off their car (it must have been some pothole!)

CLAIMS HANDLERS 

The default position that every Highway Authority and claims handlers will take is that they can only be held liable for potholes that have been reported and cannot be held responsible for every pothole on the roads. They won in this instance. This is known as the Section 58 defence in the Highways Act 1980 which local authorities try and hide behind.

Whilst this stance may hold water on the face of it, in reality, local authorities have a statutory duty of care to maintain the roads and inspect them regularly. When was that road last inspected?

Claims handlers work in cahoots with local authorities to reject legitimate pothole claims. That is their sole purpose – they are not independent arbitrators. They work from scripts and default answers to reject claims and hope that you give up on the first attempt. Most people unfortunately do, but once in a while someone like me comes along and tackles them head on.

DEFAULT RESPONSES USED TO DECLINE POTHOLE CLAIMS

Claims handlers use the following responses to decline pothole claims.

1. No reports received about the defect before the incident.

2. There was no defect outwith criteria at the location on the inspection before the incident.

3. A repair was carried out once the defect was reported but unfortunately this was after the incident.

This is the first obstacle you will be faced with. Claims handlers use these responses knowing that the majority of claimants will simply give up.

HOW TO CLAIM FOR POTHOLE DAMAGE

Knowing how to claim for pothole damage is becoming increasingly difficult due to Councils moving to a risk-based approach on claims.

Councils used to have policies which specified exactly that if a pothole was x mm deep it would be fixed. That made it an objective decision for staff.

Now staff have to consider a variety of “factors” (without any specific mention of depth dimensions). This results in subjective decisions being made meaning one Inspector may choose to instruct a repair when another would not. Councils have made what was a black and white decision into a grey area for their own benefit to deny claims.

REPORT IT

If you hit a pothole and you believe it has damaged your vehicle, you need to report it as soon as possible. You can do this via www.fixmystreet.com or www.fillthathole.org.uk or simply contact the local authority direct by phone or via Twitter.

TAKE PHOTOS

Take photos if possible to evidence your claim. If it is safe to do so, put your foot by the pothole or in it for scale. I would suggest measuring it as well but nobody carries a ruler for such events, hence suggesting this.

PROVIDE A SKETCH WITH YOUR CLAIM TO PINPOINT THE POTHOLE

You will be asked to help the local authority find the pothole as there are that many on the roads. A simple sketch will suffice.

GET AN ESTIMATE FOR COST OF REPAIRS / PROVIDE A COPY RECEIPT

You are seeking a full refund for the damage caused due to the negligence of the local authority. Include this in your claim from the outset.

SUBMIT AN EIR / FOI REQUEST

Ask for 12 months worth of inspection reports and how many times this pothole has been reported. When was the last repair made? Was it reported before you hit it?

You can also find out how many times it has been reported via www.fixmystreet.com and www.fillthathole.org.uk.

£1100 POTHOLE CLAIM

I took Fife Council to Court on a pothole claim which was reported in the Dunfermline Press. The claims handlers said that Fife Council has a reasonable inspection and maintenance system – I didn’t believe it. Let’s see the proof via a Freedom of Information request.

I know that this pothole was miscategorised as a Cat 2 and repaired as a Cat 1 (most serious). I know the criteria for a Cat 2 and a Cat 1 repair and it doesn’t meet any criteria at all.

A Cat 2 is significant and indicates that vehicle damage could occur.

The council is legally responsible for keeping the road network maintained and they are paid by local taxpayers to do so.

In this case (and most of the time) they have clearly failed in their duty. They admitted there was a pothole and they failed to repair it within the statutory timeframe.

I found it from space on Google Earth and on Google Street Maps, yet Fife Council needed my help to find it on a map despite repairing it days later.

Google Street Maps has a date stamp, so it’s clear to me that this pothole has been a problem hotspot for years. That in itself supports a Freedom of Information request and questions asked.

CRITERIA

Every local authority has a statutory responsibility to inspect the roads on a set timescale and ensure that the roads are fit for purpose.

If, after a pothole has been reported and it has been remedied within days, it can clearly be argued that the pothole was dangerous and the road was not fit for purpose at the time it was reported and the damage caused.

Local authorities have to adhere to a specific criteria for inspections and repairs.

LIABILITY

The authority has demonstrated liability because they have taken the time and trouble to repair it straight away to prevent any further claims or injuries. If they were not liable, why would they bother dealing with it?

RETROSPECTIVE POTHOLE CLAIMS

I am aware of individuals who have lodged claims for pothole damage to their cars based on failed MOT reports for broken springs that have cost over £200 to replace. They have simply picked out a pothole, reported it and retrospectively lodged a claim and it’s easy to do (although I could not condone it myself).

You can reopen a pothole claim and appeal it. You have up to 6 years in England and Wales and 5 years in Scotland via the Small Claim Court.

APPEAL IT

Lodge an appeal with the Council. Submit a Freedom of Information request asking the right questions to blow their case apart.

SMALL CLAIMS COURT

The Small Claims Court is always a last resort, but don’t be afraid to use it. I took Honda to Court for a rejected warranty claim and they settled it within 1 hour of receiving the Court papers.

Pothole claims are one of my specialities. You have a 29% chance of succeeding with a claim against Edinburgh City Council, yet I won mine within 4 weeks.

You had a 10% chance with Fife Council. I lodged a Freedom of Information request asking for the statistics.

This is now 1% with Fife Council, which is completely unacceptable.

FINALLY

We are in a state of managed decline. Throwing money at patching and potholes does not provide the best value for money. We need a national roads renewal programme.

Knowing how to claim for pothole damage is more difficult than ever.

Do you know how to claim for pothole damage to your car? Have you been able to successfully win a claim for pothole damage?