Small Claims Or Not Do You Think??

10th June 2010

Hit a pothole in March and caused £175 of damage to my vehicle.

Have been arguing with the Council who obviously state Section 58 defence.

Have followed you guidelines to a tee - FOI etc etc and still they deny liability.

Here was is one my letters to the Council:

I write to inform you of the receipt of your recent response dated 16th April 2010.



After reading your letter, I cannot again, help feeling a little let down by the attention paid to the issues highlighted by myself.



I say this due to the lack of consideration you have given this case again, as displayed in your reply (also as in your previous reply), as well as the apparent omitted attention paid to the ‘Code of Practice for Highway Maintenance Management’.



Information obtained Under Freedom of Information laws, the Council has informed me that you the Authority fully adhere to this ‘Code’.



In addition, I also very much look forward to the Highway Management Team’s response to my concerns, although, correct me if I am mistaken, but should you not have contacted them prior to your decision of a Section 58 defence to discuss the matter? I find it somewhat puzzling you have made the decision before bringing to their attention my previous and current concerns and examining their response yourself first.



As stated in previous correspondences, I still hold the Authority liable for the damage to my vehicle, as they waived from the ‘Code’ without correctly conforming to the guidelines set, and wish to have my costs of £175 fully reimbursed.



Due to the Authorities’ inability to demonstrate its highways maintenance procedure is correctly adhered to, I do not accept that you have carried out the Statutory Duty in maintaining the highway as you claim.



So please, if I may, let me again reiterate to you what that code advises and where the Authority in my opinion hasn’t satisfied Section 58:



Section 9.4.9 advises a (4)a Link Road be inspected every 3 months.


It is not my ‘own belief’ that this is the case, but is defined by the ‘Code’ as advised. The inspection frequency of this particular road has not been appropriate for its hierarchical classification for several years. If it had have been, more inspections may have found more potential risks and deterioration, therefore reducing the chance of future hazards. Through a consistent lack of quarterly inspections (If not more due to other influencing factors), the area of road was in a very poor state of repair.



What I do find rather eye opening, if not slightly worrying, is that you as the Authority with Statutory Duty for the upkeep and maintenance of our local roads, according to Section 41 of the Highways Act, consider a (4)a Link Road should only be considered for inspection every 6 months, even though the National Code of Practice for Highway Maintenance, endorsed by the Department for Transport, advises it be inspected every 3 months. If you are consistent in this consideration for more (4)a Link Roads, this is most definitely going to have a negative, detrimental effect on many more roads within the network. Is one to assume this is why so many roads are so poorly maintained?





Section 9.4.7 advises frequencies of safety inspections should be based upon (amongst other things and including) incident and inspection history.


In no way has the Authority increased the frequency of inspections on this particular highway within the last five and a half years. Even though at least 12 pot holes have been repaired and 3 complaints (before my own) have been made in the last 2 years alone about the condition of the road. This is not even taking into consideration complaints about the road that haven’t been registered with the Authority from residents and/or other road users, nor complaints and repairs prior to July 2008.





Section 9.4.3 advises a necessity of additional inspections to the road in light of user or community concern, incidents or extreme weather.


Again, no additional inspections of the highway were commenced even though the temperatures after 19th January, through February and into March were regularly way below zero; heavy frost was present as well as there being a dozen or so days of heavy snow. Such extreme weather conditions should surely have triggered additional inspections as advised by the ‘Code’. It is clear to see these conditions had a significant negative effect on many roads, including W*** Road, therefore making this road dangerous for those using it. May I also add, I currently in the process of gathering witness statements from local residents regarding the general condition of the area of road in question, and shall feed back their viewpoints shortly.



Section 9.4.14 advises particular circumstances should be taken into consideration when in relation to frequencies of inspection of a highway due to increased risk to highway users.


As highlighted in my last letter, since *** Medical Centre opened on *** Road ***, the Authority has not increased its frequency of inspections at all. Due to the obvious increased traffic along this particular highway since the opening of the Centre, again one would have thought extra attention would have been paid to more frequent checks, especially considering its history.



In my opinion, increased inspections should have been advised for this particular highway due to the above considerations, and therefore the detection of the pot hole that I hit as well as the many others along the same stretch of road would have been identified and rectified sooner, thus avoiding the unnecessary damage caused to my vehicle. Reasonable care hasn’t been taken to make sure this road is safe to road users and all others that use it.



Without correct adherence to a given, nationally recognised procedure, how can any Authority possibly justify they are acting befittingly? The guidelines are clearly set out, and should be conformed to, where costs permit but without fail.



I now sincerely hope my re-admitted information, as well as any further input from Highways Management, will be adequately and thoroughly acknowledged in re-considering my claim as one would have expected originally.





Yours sincerely,



This was one the letters reiterating where the Council has not adhered to the national Code.



Just looking at this, and where the Council have waived from the code, do you think it is worth me perusing this legally?









Many thanks for your time, and massive thanks for the website... it has helped me loads, even if so far I have not been succesful!



Damien

Replies (1)

Potholes.co.uk Expert     posted : 11/06/10 at 9:29 am

The national code offers recommendations only and has no legal standing. As such, local highway authorities are not bound by its contents.

However, as it is seen to represent best practice, a highway authority should be able to demonstrate why they have not adhered to it. Before you issue any proceedings, I suggest you request formally details of risk assessments, policy notes and meeting minutes which demonstrate why they have chosen not to adhere to the Code.

If none exists and they do not adhere because they simply do not want to, your case will be stronger.