In the lead-up to the 2015 General Election, canvassers on the doorsteps of the UK found that voters were as keen to discuss potholes as any of the major issues contained in the manifestos of the political parties. The economic reality for most councils, however, is that there are no funds for any major capital expenditure programme and the condition of the nation's roads and pavements are mostly remedied with patching and temporary repairs.
Meanwhile, the public continue to bring thousands of compensation claims each year, blaming dangerous pavements and potholes. As most claims will now proceed via the Public Liability Claims Portal, or under the fixed costs regime for claims worth less than £25,000 (the majority of cases), significant savings can be made on paying legal costs if prompt decisions can be made on liability and cases can settle pre-proceedings.
With that in mind it is helpful to be reminded of the basic factors that a Claimant will need to prove in order to have a strong legal claim and to balance these against the Highway Authority's armoury contained within the s.58 Defence.
Condition. A Claimant must prove that the highway was in such a condition that it was a "real source of danger" to pedestrians and that this was foreseeable. A highway does not have to be a bowling green of perfection, and some hollows, bumps and minor defects will be within tolerable limits.
Location. Each case will be considered on its facts. Is the pothole in the road or on a busy footpath? If in the road, is in the town centre or a quiet cul de sac? Was there any need for the Claimant to cross at that point? Is it an obvious shortcut? Is it near vulnerable users (i.e. a school or a hospital)? Answers to these questions will either raise or lower the bar for what constitutes a foreseeable and real source of danger.
Beware Height "Rule of Thumb". In Robson v Gloucestershire County Council (2013) a defect less than 20mm was found to be below the local authority's intervention level, and below the well-known rule of thumb established in Meggs v Liverpool Corp  1 W.L.R. 689. However, height differential is only one means of assessing danger. In Denton v NottinghamCounty Council (2011) the court found inspection to be inadequate where it failed to flag the need for a repair order relating to a pavement block that constituted a real danger because it was loose, unstable, wobbling, proud of its neighbours, and moreover its height relative to its neighbours was capable of being altered. This was not a case in which the danger lay only in a difference in level between two adjacent surfaces - the block also had the potential to wobble underfoot and cause a pedestrian to overbalance.
System of Inspections. A Highway Authority has a statutory defence under s.58 of the Highways Act 1988 if it can show that it had a reasonable system of inspection in place and can prove the inspections were carried out according to its own adopted policies and guidelines. Many councils follow the National Code of Practice.
Quality of Inspections. In the case of Thompson v LeedsCity Council (2004) the Court found that a proper system of inspection existed and was carried out by conscientious employees and although a defect was not noticed on monthly inspections of a city centre pavement, this did not mean that the local authority failed to take reasonable care. In that case the defect was only on the threshold of being dangerous. The defect might well have got worse only gradually. The hours of daylight available for inspection at the relevant time of year was limited. Even the most conscientious inspector could not observe every defect that was not plain and obvious.
Type and timing of inspections. A walked inspection will be more thorough (and identify more foreseeable safety hazards) than a "drive-by" inspection (which may well not identify the same hazards) but it will not be as frequent. A Claimant's case can fail on statutory defence grounds if the defect was reasonably overlooked by a "drive by" inspection and the accident happened just before the walked inspection could take place, even where it was scheduled a few weeks later than the 12 monthly policy requirement - Begum v LeedsCity Council (2006)
Warnings. Claimants will have a stronger case if the pothole had already been the cause of an injury claim or if complaints had been made about it prior to the accident. Councils should be able to cross-refer
Questionable claims. Often Claimants appear to be professional litigants and have made prior tripping claims. They may fail to take helpful photos or accurately measure the defect, or exaggerate the extent of the defect, raising understandable doubt and suspicion in the minds of the council's liability claims dept. Judges often prefer to accept a Claimant's account as proof of the overall poor condition of the highway, unless there is clear contemporaneous evidence from the council's own inspection reports. Courts are reluctant to find fraud and the burden of proving it rests heavily on the Highway Authority.
And finally… In the new regime councils have 40 business days (8 weeks) to review the merits of a claim as stated in the Claim Notification Form ("CNF") received via the claims portal and admit or deny liability. Often the CNF will be lacking in detail and it is vital to properly identify the "defect" so that a rigorous review of all the facts can be undertaken. Admitting liability early in the right cases can save thousands of pounds in legal costs and release more funds for the pothole kitty!