Potholes - How do we enforce repair under S41 Highways Act

[ebikeerwidnes]

Further to my post above - a defence the council usually put forward is pursuant to Section 58 of the Highways Act

https://www.legislation.gov.uk/ukpga/1980/66/section/58

The bit we need to take notice of is this bit
Quote
whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;
Unquote

If someone - anyone - has reported it then they HAVE known and it will have been recorded
This forces them to consider repairing it - or at least checking it out

Which is why everyone needs to report potholes whenever they can - it gets rid of this defence and forces responsible counsels to fix them

 

[Fastpedaller]

I agree with ebikeerwidnes who says
"Which is why everyone needs to report potholes whenever they can - it gets rid of this defence and forces responsible counsels to fix them"

However, I question whether it gets rid of the defence - Is the law loaded in favour of the Councils?
ETA. Or of course do they just ignore, knowing they have the (our money!) finances to use against us.

 

[ebikeerwidnes]

I agree with ebikeerwidnes who says
"Which is why everyone needs to report potholes whenever they can - it gets rid of this defence and forces responsible counsels to fix them"

However, I question whether it gets rid of the defence - Is the law loaded in favour of the Councils?
ETA. Or of course do they just ignore, knowing they have the (our money!) finances to use against us.

The problem, of course, ifs that in order to counter this defence then you need to be able to find out that someone has reported it

I presume the counsel would be honest if you asked them for all reports of potholes on that road

but.......

 

[classic33]

The problem, of course, ifs that in order to counter this defence then you need to be able to find out that someone has reported it

I presume the counsel would be honest if you asked them for all reports of potholes on that road

but.......

Report on fixmystreet.

 

[ebikeerwidnes]

Report on fixmystreet.

Should have said that
I presume fixmystreet would allow a claimant to have a list of all reports through their website

(anyone tried this??? - would it require a solicitor to request it???)

 

[classic33]

Should have said that
I presume fixmystreet would allow a claimant to have a list of all reports through their website

(anyone tried this??? - would it require a solicitor to request it???)

All reports were listed down the left-hand side. It would be a case of pointing/linking to the page. Or doing a copy and paste of the page.

 

[Gillstay]

I agree with ebikeerwidnes who says
"Which is why everyone needs to report potholes whenever they can - it gets rid of this defence and forces responsible counsels to fix them"

However, I question whether it gets rid of the defence - Is the law loaded in favour of the Councils?
ETA. Or of course do they just ignore, knowing they have the (our money!) finances to use against us.

Why do you keep on with this belief that councils have all this money to waste when there is evidence all around of councils struggling ?

 

[ebikeerwidnes]

SOme years ago it was public knowledge - i.e. publicly admitted - that Liverpool council had a policy of ignoring potholes until they actually stopped the road being useable
They had worked out that the fines and compensation they had to pay from pothole problems were less than the money they would have to spend to fix the potholes as they cropped up.

Sounds like I am saying "look how bad Liverpool counsel are/where" - in fact in my opinion it shows how bad finances are for counsels that they have to look at things like this and fall on the side of financial saving rather than doing what they know is the right thing.

Maybe I am a woke lefty "simp" but anyway!

Anyway - I got a Cycling Uk magazine today. There is an article in it promoting reporting - especially via a website of theirs

The website is https://www.fillthathole.org.uk/


Which is apparently a website for reporting potholes and NOT - as @Drago probably thinks - a subsiduary of Screw Fix the well known dating agency
(https://www.bbc.co.uk/news/uk-england-merseyside-68640193 )

 

[Fastpedaller]

Why do you keep on with this belief that councils have all this money to waste when there is evidence all around of councils struggling ?

They seem to waste plenty of money fixing the same holes several times!

 

[The Cycling Lawyer]

For layman like myself some of the 'plain english' seems difficult to understand. If a Council was told a year ago that there were dreadful potholes on a road, is it likely they can rely on a section 58 defence and succeed?
e.g.
Reported:21/03/2023 Description:Half the road is a pothole. The hole had previously been filled but it has all come out and got worse. Plus further holes up and down the whole road between the farm and Brabraham Road
and a similar report a year later at the same location:-
Reported:24/02/2024 Closed:26/02/2024 Closure Reason:No further action required Description:HUGE I thought I was going to die. It's dark and suddenly there are massive craters impossible to avoid. Thought my car was a gonner, it will have to be investigated at garage. DANGEROUS, DANGEROUS, DANGEROUS. Could cause loss of life.

I would think all road users with damage during the intervening year could have a valid claim.

I think with what you describe, there’d be a good chance that if any anyone was injured or damaged property, then they will probably have a hard time defending themselves 👍

In response to the immediate question, however, which is how to enforce the council to repair the holes - I don’t think there is a legal mechanism to force the council to do anything. It’s more relevant if something happens and it can be shown that the council ought to have done something beforehand.

There’s also “policy” considerations that the court will consider - for example, the law understands that council (tax payer) funds can’t be spent repairing absolutely everything, and sometimes the court will make a decision on how quickly a particular defect should be repaired.

If it’s a serious defect then the council may be expected to repair immediately (ie the next day) but would perhaps be forgiven if injury/damage was caused during the weekend when it would be difficult to get workers to repair.

If it’s not very serious, then perhaps a 1 week to repair would be reasonable.

It’s not a complicated area of law, but there can be a lot of mud slinging involved in order to stack up enough evidence so that a judge prefers your evidence over theirs.

 

[Fastpedaller]

Thanks for your response. On 25th Feb we were driving along the road in the reports highlighted above. Our side of the road was terrible, but the other side was indeed a death trap. The report dated 24th Feb says it all. n.b. that report (not mine btw) was closed on 26th Feb. I telephoned and spoke to a Council Official who explained the closure of the report was because the holes were fixed a while before. I told him he ought to view that road immediately or someone could be killed. His department's arrogance is unreal. I was telephoned later by one of his colleagues who said (because of my call and description) he was going to the road and would email me later. No Email was received. Further reports were made by victims on the first week of March, so and I emailed the official to ask if the road was now fixed but received no reply. The Cambridge Police just refer me to Highways and will not take action I fear someone will be killed by Cambridge CC and then it will be too late. Their attitude (and that of the Police) is one of dismissal - Nobody seems to take responsibility! If the road is that bad it should be coned off (I'm not being dramatic - there were holes in both 'wheel tracks' that were about 2ft deep and 2ft across). We live in a broken Country.

 

[ebikeerwidnes]

I think with what you describe, there’d be a good chance that if any anyone was injured or damaged property, then they will probably have a hard time defending themselves 👍

In response to the immediate question, however, which is how to enforce the council to repair the holes - I don’t think there is a legal mechanism to force the council to do anything. It’s more relevant if something happens and it can be shown that the council ought to have done something beforehand.

There’s also “policy” considerations that the court will consider - for example, the law understands that council (tax payer) funds can’t be spent repairing absolutely everything, and sometimes the court will make a decision on how quickly a particular defect should be repaired.

If it’s a serious defect then the council may be expected to repair immediately (ie the next day) but would perhaps be forgiven if injury/damage was caused during the weekend when it would be difficult to get workers to repair.

If it’s not very serious, then perhaps a 1 week to repair would be reasonable.

It’s not a complicated area of law, but there can be a lot of mud slinging involved in order to stack up enough evidence so that a judge prefers your evidence over theirs.

I think I remember a time of 6 weeks being mentioned for any pothole over a certain size
and - yes - they do send someone out to measure it.
If it is possible that serious injury could result then the time scale is more like "next day" (weather permitting!) but a standard (!) pothole was much longer

If I remember correctly this was not laid down in regulations - but rather what the courts had previously determined in cases of claims for tyre and suspension damage etc

 

[The Cycling Lawyer]

Thanks for your response. On 25th Feb we were driving along the road in the reports highlighted above. Our side of the road was terrible, but the other side was indeed a death trap. The report dated 24th Feb says it all. n.b. that report (not mine btw) was closed on 26th Feb. I telephoned and spoke to a Council Official who explained the closure of the report was because the holes were fixed a while before. I told him he ought to view that road immediately or someone could be killed. His department's arrogance is unreal. I was telephoned later by one of his colleagues who said (because of my call and description) he was going to the road and would email me later. No Email was received. Further reports were made by victims on the first week of March, so and I emailed the official to ask if the road was now fixed but received no reply. The Cambridge Police just refer me to Highways and will not take action I fear someone will be killed by Cambridge CC and then it will be too late. Their attitude (and that of the Police) is one of dismissal - Nobody seems to take responsibility! If the road is that bad it should be coned off (I'm not being dramatic - there were holes in both 'wheel tracks' that were about 2ft deep and 2ft across). We live in a broken Country.

It would go something like this:

1) Was the particular defect reported before? > if the answer is no:

a) is the defect of a size (mainly the depth of the hole) that would fall within the scope of an "actionable" defect"*?

If it it is not big/deep enough to be considered an actionable defect, then then you may only have recourse if an accident has been reported due to that defect before.

*So how big does an defect have to be before it is actionable? - well, this depends on the type of road (Ie, a county road in a rural area may be subject to lower standards than a main road or a busy street. As a rule of thumb though a hole that is approximately 1 to 2 inches deep will be considered actionable. The council usually have a policy in place for for size and depth, and should be able to disclose this.

b) did the council employ a reasonable system of inspection? The council should employ this, and it will require that the road/highway is inspected on a regular basis in order to identify "actionable" defects. Again, the frequency of the inspection will correspond to the type of road (as above) and will from part of the council's policy. Again they will usually disclose their policy on this if a legal claim is made,.

It's always worth looking on Google street view and selecting different years to see the history. This is because the council very often try to say they carried out inspections, but found nothing, but Google street view can show defects were clearly visible for months/years prior (this can show their inspections were not done properly (or they are simply lying).

NB: it's always good to take measurements as soon as the accident occurs, because if the council do repair the defect then it can be very tricky to prove how deep the hole was.

Forget about the police, it's not a criminal matter.

Unfortunately, I don't think the council will take complaints from the public very seriously - even as lawyers we have a hard time trying to prise
an admission of blame from them, even when we lay out the evidence and legal facts.

 

[Fastpedaller]

Forget about the police, it's not a criminal matter.
I understand that, however, on Cambridge CC website it says if out of hours contact Police. Someone (and indeed surely we all) have a duty of care towards each other. If the road is so bad ( 2FT deep holes surely qualify) then someone needs to ensure people/cars/cycles can't fall done it - If that means shutting the road then surely the Police have authority. It's a sad society when nobody takes responsibility. Maybe Rod Stewart can help
View: https://www.youtube.com/watch?v=j5EKquHum0I

I reckon if I did that the Council would take me to court. Rod has the money to defend himself, I don't

 

[T4tomo]

I've had a minor win, not on potholes but on overgrown verges blocking sight lines at junctions.

reported one last week (via council website) as the verge had grown to the point it was getting hard to see / dangerous and within 4 days a 3 mile stretch of road leading from that junction to and from the councils home town had had its verges trimmed. Not sure if they just missed it off the rota but it done pretty sharpish.

they ain't as quick on filling potholes....