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.
North West Surrey
