How Do You Claim Against a Council for a Pothole or Paving Injury?

A pothole can damage a tyre, wheel or suspension, while a defective pavement can cause a fall and personal injury. But the existence of a pothole does not automatically mean the council is liable.

In Scotland, liability depends on the council’s responsibility for the road, the state of the defect, its inspection and maintenance system, and the evidence available. This guide explains what you need to know before you make a claim for damage or injury caused by a pothole or a defective public road.

Who is responsible for a pothole in Scotland?

Under section 1 of the Roads (Scotland) Act 1984, a local roads authority has a duty to manage and maintain roads on its list of public roads. The Scottish Ministers have corresponding responsibilities for roads falling within section 2, including trunk roads.

That means the correct council must first be identified. A county council may not be responsible for every road in the surrounding area, and some major routes have different arrangements. Establishing which authority is responsible can be the first step in a pothole claim.

Can you make a claim for pothole damage?

If you hit a pothole and suffer vehicle damage, you may be able to make a claim against the responsible authority. You will have to supply evidence of the defect, the damage caused and why the authority is responsible.

A pothole claim could include pictures, invoices for repairs, the cost of replacing tyres and information about previous pothole reports. A solicitor can also establish if the evidence backs up a compensation claim.

What evidence do you need for a council claim?

Photographs of the pothole are useful, particularly if they show its position, size and condition. Keep photographs of the vehicle damage, damaged tyre and any other affected parts.

Also relevant are records of when the pothole was reported. If the council knew about the pothole before you fell, then this can be relevant in assessing negligence and council liability.

Does the council have a duty to inspect and repair roads?

The Roads (Scotland) Act 1984 places duties on roads authorities concerning the management and maintenance of public roads. Maintenance includes repair under section 151.

The existence of a duty does not mean every pothole results in liability. The inspection history, the nature of the defect and the authority’s inspection and repair arrangements may all need consideration.

What if a pothole damaged your car?

If a pothole damaged your car, keep the damaged tyre and other parts where practical. Obtain an itemised repair estimate or invoice and record exactly where and when you hit the pothole.

A council may argue that its system of inspection was reasonable or that it did not have sufficient notice of the defect. The evidence surrounding the specific pothole can therefore become central to the claim.

Can you claim for an injury caused by a pothole?

A pothole can cause a cyclist, pedestrian or motorist to suffer personal injury. Serious injuries may also result where a person falls or is thrown from a bicycle.

An injury claim involves different considerations from a claim for vehicle or property damage. Medical evidence, the circumstances of the accident and the legal basis for liability all need to be considered before claiming compensation.

What is a section 58 defence?

The section 58 defence is associated with the Highways Act 1980, which applies to England and Wales. It should not be presented as the legal test for a Scottish pothole claim.

Scotland has its own statutory framework under the Roads (Scotland) Act 1984. Referring to the Highways Act 1980 or a section 58 defence in a Scottish claim can therefore give the wrong impression about the legal position.

How do you make a pothole damage claim?

First, report to the relevant authority and retain confirmation of the report. Take pictures of the scene and gather documents, receipts and witness information. If the road was unsafe or caused serious damage, conserve as much evidence as possible.

The council claim should set out the accident, the defect, the damage caused and the basis on which liability is alleged. A solicitor can advise what evidence is needed and if a claim for compensation is appropriate.

How much pothole compensation could you receive?

There’s no set amount for pothole damage. The amount is contingent on the losses shown. The value of a claim can be affected by the extent of vehicle damage, repair costs and, where relevant, personal injury.

Medical evidence and other evidence may be included in the assessment of compensation for serious injuries. To succeed on a claim, the elements of law and fact that are necessary to the claim must be shown, not simply that a pothole was present.

How long do you have to claim against a council?

The time limit depends on the type of claim. Personal injury actions in Scotland are generally subject to a three-year limitation period under the Prescription and Limitation (Scotland) Act 1973, subject to exceptions.

There are different rules for property damage claims. If you have had damage after hitting a pothole, getting legal advice early can help you understand the time limit that applies and what evidence you should keep.

SGT Law Firm can assess the circumstances and advise on your legal options. Visit SGT Law Firm or the Personal Injury Lawyers Glasgow page to get in touch.