As you can imagine, the more defects that are present on the road, such as potholes, the higher the potential risk of vehicle damage and injuries.

You are able to make a claim if you fall victim to a pothole, but not every claim will be accepted. Figures obtained by the Scottish Conservatives under Freedom of Information legislation show that less than one in five claims see any light. Only 15.8% of pothole claims in Scotland were paid out in 2021/22, up slightly from the previous year when 14.3% of claims were paid, but down on the year prior to that with 16.3% paid. 

What causes frequent refusal of claims?

The majority of roads and pavements in Scotland are public, governed by the local authority or council for the area. The council is liable for the regular inspection and maintenance of walking and driving surfaces, so if someone is to fall, get injured or lose money (such as paying for vehicle repairs), the council may be liable for compensation. It’s important to note that a small number of roads and pavements are privately owned and therefore legal action must be taken against the owner, not the council as the correct institution. 

Local authorities must abide by a particular code of practice relating to the inspection and maintenance of roads and pavements. Motorways and other main roads will likely be inspected more regularly, but the majority of roads will have at least a 12-month period between inspections, with many having even longer. This causes concern when a pothole or other road defect has become present within the inspection period, as the council cannot be found liable if they were unaware that the defect existed.

In some cases, the council can be aware of a defect yet still not be liable for a claim. When a defect is found on a road or pavement, its nature, size, position and likelihood of causing injury will determine its priority for repairs. If there is a long list of defects awaiting repairs and this particular one has not yet reached the top of the list then the council may not be liable. Nevertheless, reporting potholes and other defects can help speed up the repair process and can act as supporting evidence for a future injured party’s claim.

The size of the pothole can also have an impact on whether or not the claim is accepted. Past Scottish Court judgements have generally required potholes to be at least 40mm deep on roads, 22mm deep on pavements and 300mm wide. A pothole doesn’t necessarily need to meet these measurements if there are other circumstances in play. For example, if the defect is present in a high footfall area, such as a car park, school or hospital, the claim may be more likely to be accepted.

How to report a road defect

For the majority of roads, defects can be reported to the local authority directly. You can write to them or call, but the easiest way to report is online. The process is slightly more complicated for privately owned roads and pavements, but you should be able to find a method for contacting the owner. For example, if the defect is present in a private car park, signage within the car park should provide you with a contact number for the company. These contact details can also be used to make a damage or injury claim.

How to claim for pothole damage

If you find yourself injured or at a loss of money due to a road or pavement defect, you are able to make a claim without the need for legal assistance. You may wish to consult a solicitor if the injury you received is particularly severe, or if the road is privately owned and the institution is proving difficult to contact, but the majority of claims can be easily submitted yourself.

At the point of the incident, take multiple photos of the defect if it is safe to do so. If the incident occurred on a busy road and you cannot safely take pictures at that time, return to the scene of the crime at a quieter time as soon as possible. Ideally, you will have a ruler or tape measure available to photograph the size of the hole, but as many of us do not carry these things around, using an everyday item that you have to hand for scale is also acceptable. Take photos from a variety of angles and distances to effectively document the severity of the defect.

Speak to any witnesses at the scene. If you are able to obtain video footage of the incident via a dashcam, doorbell or home CCTV then this can help your claim. If anybody at the scene is local to the area, ask them if they know how long that particular defect has been there and be sure to include this information in your claim.

Whether you have suffered injury or a loss of money, evidencing this is vital for your claim. Obtain GP records or a headered letter from your GP that confirms the injury you have received, or have images of the damage to your vehicle along with any receipts or insurance documents that can evidence what repairs were carried out.

Your claim must begin within three years of the incident to prevent being time-barred. If you are under 16 and a claim is not made on your behalf by a parent or guardian then the three years begin from the date you turn 16. Put your claim in directly to the relevant authority, this can most often be done online.

What to do if your claim is refused

If your claim is refused, it is likely to do with one of the aforementioned reasons, many of which you are unlikely to get around. However, you can submit a Freedom of Information request to the council for the inspection logs for the specific road in order to verify for yourself whether the authority was carrying out inspections and maintenance as it should. If this shows that the road was not properly inspected in terms of the council’s inspection manual, you can use the sheriff court’s procedure to sue for damages via Civil Online.

If you need assistance with a complicated claim, do not hesitate to contact a solicitor. Our team at Austin Lafferty have a wealth of experience dealing with claims of this nature and would be more than happy to assist you throughout the process.