4th June 21 | Latest News - Personal Injury Law

I had a fall due to a pothole on a walk, can I make a personal injury claim?

Due to the current pandemic and lockdown measures, there has been an increasing number of people going on daily walks, running, or even cycling. There has therefore been an increasing number of people who have tripped and fell due to a pothole in the road or on the pavement as they have been poorly maintained.

Your Council, Local Authority and the Highways Agency are responsible for maintaining the standards of the roads we use.

A pothole is considered unsafe when it has a depth of more than 22mm on a footpath, or 40mm on a road.

How do Pothole’s form?

Cracking and chipping can occur in a road when extreme weather hits. When water gets into these holes, especially in wintery weather, they begin to freeze and thaw. These holes then develop into potholes.

Who is responsible for the pothole?

Under section 41 of the Highways Act 1980, the Highway Authority has a legal duty to maintain public roads and pavements, and must be able to show that they monitor roads for damage, and repair any potholes quickly. If your injuries were caused by a pothole on a public road, your claim would usually be made against the Highway Authority or local council. But in some cases, the pothole might have been caused by a utility company failing to properly re-surface the road or pavement after carrying out work – if this applies to your accident, your claim would be brought against the utility company instead.

If your accident was caused by a pothole on privately owned property, such as a shop car park, you may be able to claim against the owner of the property if you can show that they’ve failed to maintain it or warn you of the hazard.

What do you need to make a claim?

In order to assist your Solicitor the following information is useful for the best chances of a successful outcome:

Photographs of where the accident took place and the pothole which caused it, if it is safe to do so (e.g. you’re not in the middle of a busy road) put a ruler or a standard size item like a £1 coin in the pothole to make it clear how deep it is.
Measurements of the pothole of defect in the road/on the pavement (width and depth/height of the hole)
Photos of your injuries and any damage to your property
CCTV footage if possible
Names and contact details of any witnesses and anyone else involved in the accident

There are two hurdles you must overcome in order to pursue a successful claim against a local authority:

Breach of duty under section 41 of the Highways Act 1980; and
Statutory defence afforded to the local authority under section 58 of the Highways Act 1980.

The court will have regard to a number of factors including the type of highway, the standard of repair expected and whether the Local Authority knew or should have known that it was likely to cause danger to users of the highway.

Are there any time limits to making a claim?

You usually need to make your claim within three years of when your accident happened. For pothole injuries where the defect can be repaired it helps to make your claim as soon as you can, to make it easier to gather evidence.