McKay Norwell

As published in "The Scotsman", 6th July 2010

We have had a few hard winters recently, and many motorists have been complaining to us about damage to their cars caused by an unprecedented number of potholes in the roads. In this article we look at the issue of claims arising out of bad road surfaces.

In the wake of the harshest winters for several decades and continuing local authority cutbacks, the level of complaints from motorists about the state of our roads is growing rapidly. If a vehicle sustains damage due to a poorly maintained road and the cost of repair is substantial, can its owner make a claim against the local authority?

Damage to cars and other light vehicles caused by being driven over potholes is always frustrating as well as expensive, but whether the council can be made responsible for the cost of repair of the vehicle depends on many considerations, including how substantial the pothole is.

If a pothole is no deeper than about an inch, the council is unlikely to be considered negligent, but then, a hole of this size probably wouldn't cause much damage anyway. If the hole is deeper than that, and the damage to a vehicle or personal injury to driver or passengers is reasonably serious, a claims are possible and may be worthwhile. However, the law states that a council is only liable to take reasonable care, and must have a reasonable system of inspection in place that ensures checks are made at acceptable intervals to see whether holes are developing. Councils cannot reasonably be expected to repair instantly every single hole that comes along, or even to be aware of it. Thus, an aggrieved motorist who can establish that it would have been reasonable for the council to inspect the road once a month, and also that the hole has been there for significantly longer than a month, may have a claim.

In deciding what a "reasonable system of inspection" is, the law looks at all the circumstances of the case. It might well be reasonable for the council to check the main shopping street in town once every few weeks. On the other hand a quiet country lane might only be inspected once a year.

Once a council is aware of the existence of any potholes substantial enough to cause damage or personal injury, then it does have a duty of reasonable care for the safety of road users, which might well involve erecting a “slow down” sign or fencing off the pothole pending repair.

If you have been affected by damage caused to a motor vehicle, or have been injured in a motor accident and need legal advice, please call Richard Godden, Ann Scott, or Douglas Peters on 0131 222 8000, or visit the Accident Claims Section of our website.
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