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Claiming For An Accident Caused By Poorly Maintained Roads

Dear Brian

I was driving along when I hit a pothole in the road. This jarred my neck and I afterwards developed fibromyalgia. My friend hurt himself when he was driving along in wintery conditions and, because the road surface was dangerous, he went into a bollard and hurt himself. We both went to the same Solicitor who said that I might well have a case but my friend did not. I cannot understand the difference and could you please explain it to me?



Dear Desmond

Section 41 of the Highways Act 1980 makes it clear that highway authorities have to maintain highways so that they are reasonably safe. There has to be a reasonable forseeability of danger. Whilst it may be reasonably foreseeable that any defect in the highway, however slight, may cause an injury, that is not the test. There must be a danger in the road against which an authority may reasonably be expected to guard.

If your pothole has been there for quite some time and the council have simply not done anything about it you might well have a claim. They might argue that budgetary constraints in these difficult times mean that they cannot adhere to standards that they would otherwise have hoped to meet. The council have to show that they have taken such care as in all the circumstances was reasonably required to ensure that the highway where the accident happened was not dangerous for traffic. If it is dangerous, you should have a good case and there is no place for arguments about financial difficulties in recessionary times. That has been established by the Court of Appeal.

Your claim relates to the fabric of the road. Your friend, however, blames the Council for not salting, gritting or removing ice and snow appropriately. There is a provision in the Highways Act that the authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along highways is not endangered by snow or ice. However “reasonably practicable” is not defined and if there is a sudden snowfall or water freezes into ice, your friend is likely to be in difficulties. If, however, his accident was on a main road and the snow and ice could and should have been cleared before your friend skidded, he might have a claim.

These are tricky situations and if he has been badly hurt I would like to see him to discuss his case in more detail.

Brian Barr

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