Cycling UK Forum

Supposing I am a utility company, contractor or just a builder and I dig a hole in the road. I assume that I am liable to repair the road to a standard and that the local authority will check that this has been done. When however, a few months down the line, the repair that I did has sunk into a horrible pot hole and an unhappy cyclist reports this defect to the authority, who pays for the repair? Does the council look at their records and demands that the company who patched the road come back and do the job properly? I doubt it but I'd be interested to know.

While waiting for somebody who really knows, here's what I think.

Highway authorities used to inspect this type of thing when digging holes came under the Public Utilities and Streetworks Act. They employed people referred to as PUSWA inspectors who used to deal with it. That all ended under the New Roads and Streetworks Act and they don't have NRSWA inspectors. The big utilities - statutory undertakers - have the statutory right to dig up the road and reinstate them, and the certify that they have done it.

IME, many of the problems arise when the joins between old and new wear out.

Anyway, the highway authority has a duty to maintain the highway properly, but they have a special defence against claims for negligence if they can show they have a proper inspection regime.

thirdcrank wrote: .....the highway authority has a duty to maintain the highway properly, but they have a special defence against claims for negligence if they can show they have a proper inspection regime.

Yep. Section 15 (I think)

It was that section in the Highways Act that got them off the hook after I made a claim after my pot hole incident.

A couple of interesting highway inspection cases in this legal journal which seems to be published for the highwaymen etc.

http://www.gallagherbassett.co.uk/sites ... 202011.pdf

One is Wilkinson v City of of York Council, where the inspection noted a road defect but the council decided they hadn't the necessary £££ to fix it.

The other is Thomas v Warwickshire County Council, where a dollop on concrete had stuck to the road surface and the council seems to have decided it was nothing to do with them.

The injured cyclists each won their case for compo. In Wilkinson, it was held that once the authority had become aware of a defect, they had to fix it. As good a reason as any to report these things eg fillthathole. In Thomas, it was held that the dollop of concrete had become part of the highway and so it should have been fixed.

However, in both cases, compo was reduced through contributory negligence - not looking where they were going. In the second case, the rider apparently didn't see the concrete because they were in a tight-packed bunch. It's been discussed by the Cycling Silk.

http://thecyclingsilk.blogspot.co.uk/20 ... -case.html

If you were a utility company or contractor you would have to pay a non returnable fee for inspection of the works after reinstatement and you would also be liable for any repairs to the reinstatement for 2 years after the date of completion

These two clauses are from Merton Councils licence form

3. The Works will be subject to inspection by the London Borough of Merton at any time.
Should the site safety or method of excavation/reinstatement be found defective underthe Act, you shall be liable for defect
inspection costs as detailed in the Codes of Practice for NRSWA together with any further investigatory costs incurred by L.B.
Merton.
4.
Also note that the reinstatement carries the Licensee guarantee for two years. If the trench is found to be defective during this time you will fully liable for making remedial repairs and the costs involved.

Sirmy is right, and councils do act on this. (My work on a council website has previously led me into discussions with highways staff about how the official notices are communicated to the contractors.)

If TC is concerned about legalities, he should note that reporting a pothole on Fillthathole (or FixMyStreet, or whatever) does not 'prove' that the council is aware of it. All FTH does is fire an email off to vaguely the right address at the council, where it will have to be transcribed by staff into the council's problem management system. In most cases that's fine, but it's always possible for an email to go missing or get delayed. There is no guarantee that the FTH-generated email has been delivered successfully.
If you want to ensure a trail of evidence showing when the council became aware of a pothole, you're better off using any online pothole reporting facility provided by the council on its own website. As a bonus, in at least some authorities that will result in your report being dealt with more quickly and more cost-efficiently.

Only anecdotal, of course, but I hear plenty of tales about the automatic council response being to deny responsibility and/ or any knowledge and drawing attention to the special defence.

rather than compo, my preference would be for well-maintained roads, something that the present carry-on seems quite incapable of achieving. The inevitable response to that is better road mainenance costs more, but as earlier threads on this subject have shown, better maintenance might save money currently being squandered on defending legal actions and paying out compo. Not so long ago, the media were reporting that around here at least, the total compo payments exceeded the maintenance budget.

The only solution - and I'm reluctant to say this - seems to be total privatisation. The main benefit might be ring-fencing of the budget. Under the present financial set up, there are always likely to be more immediate demands on a council's £££ than road maintenance schemes which are often shoved back a year or three.