Written by Stella Kankaanpaa
Introduction to pothole injury claims
The majority of roads in Scotland are public and governed by the local authority or council for the area, with section 1 of the Roads (Scotland) Act 1984 imposing a statutory duty upon them to inspect and maintain these roads. This therefore means that it is the local councils that are responsible for carrying out regular inspections and arranging for necessary repairs to be made. A failure to fulfil this duty through neglecting a pothole can therefore lead to the local council being subject to a personal injury claim.
However, while any individual who has suffered an accident due to a pothole can make pothole injury claims against the local council, not everyone will be successful. As the majority of roads in Scotland are owned and operated by the local councils, the court acknowledges that the burden upon them is vast with them being unable to immediately become aware of each pothole and repair it. For example, figures obtained by the Scottish Conservatives under the Freedom of Information legislation showed that less than 20% of pothole claims were successful in 2021/2022.
It is, in other words, not enough to simply show that a pothole had developed on a public road and that an injury had occurred as a result of it.
Requirements for a successful claim
To successfully claim against a local council for a pothole injury, the following must be proven:
- Duty of Care
Firstly, for a local council to be held liable, it must be proven that the local authority owed a duty of care and that they had breached their duty.
As set out by Lord Drummond Young in MacDonald v Aberdeenshire Council [2014] SC 114 at para 64, the local council must be at fault for failing to deal with the defect by it being proven that had they exercised reasonable care, they would have identified the hazard and taken steps to correct it. It must therefore be proven that the local council had (1) either been aware of the pothole or that they should have been aware of it and (2) that they had had sufficient time to repair it, but failed to do so.
The first step to take is therefore to find out whether the local council had already been made aware of the pothole by someone having reported it.
If no one has, or you cannot find out if anyone has, the local council’s code of practices and cycle of inspections may instead be relied upon. These, amongst other, set out the timescales for the inspection and maintenance of different categories of roads and pavements. However, at the outset, it can be noted that while motorways and other main roads should be frequently inspected, minor or local roads are often only required to be inspected every 12 months. As such, it may be acceptable for a local council to be unaware of an unreported pothole for up to a year.
Furthermore, as clarified in Syme v Scottish Borders Council [2002] and Pocock v The Highland Council [2017] CSOH 40, a failure by a local council to follow their own policies or plans is not by itself sufficient as a policy cannot dictate the content of the duty of reasonable care. This, therefore, allows the local council to escape liability in some cases if it can only be shown that they had exercised reasonable care in the maintenance and repair of the road in question.
Obtaining evidence in the form of records of previous complaints, maintenance schedules, and eyewitness accounts is therefore of crucial importance.
- Causation – that the injury was caused by the local council’s negligence
Secondly, the chances of success are further dependent on the size of the defect in question.
Previous judgments have generally required potholes to be at least 40mm deep if an accident took place on the road and 20mm deep if it took place on a pavement. Measuring and recording the depth of the pothole as soon as possible after an accident has taken place is therefore recommended.
However, a pothole does not always have to meet the above measurements. In areas where there is a higher footfall or more vulnerable road users, such as in car parks, schools, hospitals, and care homes, a higher standard of maintenance can be expected.
How much compensation can you expect?
The amount of compensation that can be awarded if making a successful claim will naturally depend on the nature and duration of the injuries but can further be limited by the extent to which the local council is found liable.
For example, if the injured party had paid inadequate attention to the road in question, they may have been contributorily negligent and be deemed partially liable for their own injuries (Hutchison v North Lanarkshire Council [2007] CSOH 23, para 8 and 22).
Conclusion
To conclude, while successfully claiming against a local council for a pothole injury claims is not impossible, it can be a challenging task. This is because in order to succeed, it must be proven that the local council owed and breached their duty of care and that this breach directly caused the accident.
Many claims fail at the first stage as the court has acknowledged that the burden placed upon the local councils is vast, with it being impossible for them to inspect and repair each road as often as may be required.
However, steps can be taken at the outset by a client to increase their chances of succeeding by, amongst other:
- Measuring the depth of the pothole/defect as soon as possible after the accident and taking photos of this to prove that the pothole was sufficiently large. Ensure the photos show the wider area and nearby landmarks, as well as close up images.
- Checking the scene of the accident for possible CCTV cameras and speaking to any witnesses at the scene. It may be helpful to speak to any locals who may know how long the pothole has existed
- Reporting the pothole to the local council so that you can prove when the accident took place
- It may also help someone else later if you see a pothole or defect opening up and report it. Once the council has been notified that there is a defect, they’ll be expected to check it, monitor it or repair it. If they don’t and an accident happens later, that person will have a higher chance of succeeding because someone before them reported it.
Gildeas Solicitors have offices in Glasgow and Edinburgh and specialise in personal injury cases, including road traffic accidents.We go the extra mile for our clients by providing services such as roadside assistance, vehicle repairs, and hire vehicles.Customer satisfaction is our top priority. According to customer reviews , among civil law firms with over 200 reviews, we proudly hold the second highest rating in Glasgow. We currently have a stellar rating of 4.9 on Reviews Io and 4.7 on Google [February 2024]. If you require any assistance, please don’t hesitate to reach out to our dedicated New Claims team at 0141 331 6070.