Pot Holes! Aargh!

[road warrior]

" and that the process could take 3 months whilst decide if there is a claim or not."
i think they mean.. see if we can get away with it...

[ProfCJJ]

" and that the process could take 3 months whilst decide if there is a claim or not."
i think they mean.. see if we can get away with it...

Oh I’m sure of it! They mentioned contacting all the services companies and whatnot - I’m sure they are going to wiggle!

[ihadablackdog]

Hi,

Have you had any movement with this?

I hit a crater on Monday causing a fecked tyre and am starting a claim. The online form asks for everything, proof of tax, mot, insurance etc etc. Took pictures of the hole and reported it. Then checked dashcam and found I'd hit a different hole ! Duh! So going back tomorrow in daylight to see if it is still there, or been filled in.

Can send them dashcam footage showing the hole, the colision and then minutes later you hear the "bong" of the tyre pressure warning come on. Trouble is, all the way through is a soundtrack of me swearing like buggery....I was on my own in the car, but it sounds like I'm having a full blown conversation with someone, and not nice language either!

[mmm-five]

The online form asks for everything, proof of tax, mot, insurance etc etc.

I'd have been tempted to fill those fields in with comments/pictures saying "none of your feckin' business"

[ProfCJJ]

So a few days ago I noticed said pot hole had been filled in - none of the other smaller holes around it, just that one. Too much of a coincidence I thought.

Sure enough yesterday I received a letter from the council basically telling me that at they are not liable! What a surprise! Their argument is this:

They say that they do monthly inspections and that this pothole had been picked up in their inspection (indeed when I went online to report the pothole location I had seen a note about this location from about a month earlier). They say the pothole is “actionable” as at 64mm it’s greater than the minimum of 40mm but it’s a “grade 2” meaning that they have given themselves 6 months to fix it since when they reported it. My incident happened about 6 weeks after it was noted and hence it’s within the 6 months window. They then quoted the law to say that in court the council would be expected to mount a legitimate “defence” and their 6 months argument is a legitimate defence - I.e. they have a system in place that they are abiding by and therefore are not liable.

They then invited me to get legal council if I wanted but they are not paying me a penny.

So in essence they are saying “we knew the hole was there, we knew it was deep but not deep “enough”, we gave ourselves 6 months to fix it and it’s unfortunate you drove through it in that 6 months window - that’s your problem”!

What’s curious is how they then quickly filled in just that hole as though it was never there (even though they have another 4 months “grace period” to fill it in properly!)

Getting any legal advice will cost more than the tyre is worth so it looks like they “win”

Ho hum!

[Mr Tidy]

It's just a thought, but it might be worth posting the details here:- https://www.pistonheads.com/gassing/forum.asp?h=0&f=10

You might get a bit of free advice, as some of the contributors on there work in the legal profession.

[ProfCJJ]

It's just a thought, but it might be worth posting the details here:- https://www.pistonheads.com/gassing/forum.asp?h=0&f=10

You might get a bit of free advice, as some of the contributors on there work in the legal profession.

Thanks - I am taking a look to see if that could yield anything.

Cheers

[ProfCJJ]

So after reading the info "out there" and going through my letter I sent the following to the council:

I write in response to the letter I received from you dated 15th November 2019 regarding the above mentioned claim and your outcome that “… the Council cannot accept liability, …” based on the claim that the council “… has a valid Section 58 defence”. It is unfortunate that you have reached this decision, sadly it is a decision that I do not agree with and will be contesting.

It is true that Section 58 of the Highways Act sets out the criteria that you quote in your letter, but you should know that this does not automatically guarantee a blanket defence for all such claims as mine – and in fact there have been legal precedents set where such Councils’ Defences have been overturned based on the specifics of each case/claim.

There are some clear deficiencies in your argument that I would like you to please make clear, I outline my points below.

You state that the last inspection prior to my incident was on 26/9/2019 and “no actionable defects were flagged at the time of this inspection”. Yet you then say that your inspector had “already attended the location on 30/9/2019 and raised a job for the defect”. It is not clear how on the one hand you say your inspection on 26/9/2019 found no defect yet 4 days later your inspector was there raising a job for the defect. How did that happen? What happened for your inspector to be there on that date? You further state that the “defect in question measured 62mm”.
You state that as a level 2 defect (62 mm) this “allows for a 6 month repair” – you should have more accurately stated that this is actually “Up to 6 months, where possible within 28 days” – which is Southampton City Council’s published policy. You further state that “at the time of the inspector putting his report together the repair was awaiting” with no indication of time-lines – can you expand on this please?
The incident date was 16/10/2019 and I reported it (both online/and over the telephone) on 18/10/2019 (after I went back to photograph the hole and had assessed the damage to my vehicle). At the time of reporting online I had noted that it appeared that the pothole had already been reported “about 1 month prior” and its location noted online and that the pothole had evidence of white paint marks showing that it had been “highlighted” by someone whom I presume are the council/their appointed workers. This seems to be at odds with your point that on the 26/9/2019 inspection nothing was found (yet 4 days later an inspector was their raising a job for the defect). Can this be clarified please?
Finally, today 27/11/2019 I went online the Southampton City Council pothole reporting site and there is a clear marker in the same place that I indicated showing that on 23/10/2019 a pothole was reported that is marked as “7.5cms deep”. So 7 days after my incident/ 5 days after I reported it there is a 75mm deep pothole noted on the website. So this pothole went from not being there on 26/9/2019, to *somehow* being noted @ 62mm and a repair action noted on 30/9/2019, to my reporting on 18/10/2019 (depth unknown as it was unsafe to measure it but photos supplied); to a 75mm deep pothole reported on 23/10/2019. Yet none of this is mentioned by you in your response to me.
Now, I don’t need to tell you that Southampton City Council policy states that “7.5cm or more (Deeper than a tennis ball) “ merits a repair priority of “24 hours or less” – I don’t know the current state of the pothole as I am now avoiding that road to avoid a repeat performance, but it is not illogical to assume that on the date of my incident – just 5 days before - the pothole was deep enough to enter the 75mm category – the damage to my vehicle, the total destruction of a nearly brand new tyre, certainly supports that point.

In short, there are quite a few discrepancies in your argument – from a pothole that was not there to one that warranted an inspector on site 4 days after a routine inspection said there were no issues, quickly escalating to a 75mm one … of course potholes do evolve over time, but this goes precisely to my starting point – that quoting Section 58 of the Highways Act is not sufficient to absolve the council from their duty of safety towards its citizens. These cases are tested on a case by case basis and I intend to show that in this instance the council was negligent in its duties despite its “Section 58” defence.

I contend that there is sufficient evidence to show that this is not as straightforward as you have portrayed it – there are missing steps in your description of events as well as a clear evidence of a pothole that is not “minor” in nature.

I would urge you/ the council to reconsider their decision based on my response and recompense me for the damages incurred (£150.39). Failing that, ahead of my initiating a Small Claims Proceedings against the council, I would kindly request to see the details of the council's road inspection reports relevant to this case (also going further back in time as the paint marks on the ground seem to imply this problem has been around for a while).

Many thanks for your consideration and I look forward to your reply. I would be greatful if you could please acknowledge safe receipt of this communication.

[Smartbear]

Good luck with pursuing this claim, you might need someone to hold this guy down while you nail him to the ground!
Rob

[ProfCJJ]

Good luck with pursuing this claim, you might need someone to hold this guy down while you nail him to the ground!
Rob

Indeed! I imagine they are paying this contractor more per hour to tell me "no" than to just own up and pay out! Certainly if I had to charge for my time in writing all this crap the totals would change. I guess its now beyond just recompense and its about Councils trying to wriggle out of their responsibilities!

I still don't have high hopes ...

[Phoenixboy]

Good luck with pursuing this claim, you might need someone to hold this guy down while you nail him to the ground!
Rob

Indeed! I imagine they are paying this contractor more per hour to tell me "no" than to just own up and pay out! Certainly if I had to charge for my time in writing all this crap the totals would change. I guess its now beyond just recompense and its about Councils trying to wriggle out of their responsibilities!

I still don't have high hopes ...

if nothing else, its fun watching them squirm.
i think they may back down, just to sweep it under the carpet, or in to the hole.