Potholes are a familiar frustration for anyone travelling on Scotland’s roads. They can damage tyres and wheels, unsettle cyclists and motorcyclists, and create a trip hazard for pedestrians.
And we could be set to see more of them over the coming months.
The RAC has warned that this summer’s heatwaves and record temperatures may have left already fragile road surfaces more vulnerable to deterioration. Prolonged heat and intense UV exposure can make the bitumen that binds asphalt together harder and more brittle, increasing the likelihood of cracks developing. Once water penetrates those cracks and traffic continues to pass over them, the road surface can deteriorate further and potholes may begin to form.
However, the existence of a pothole does not automatically mean that the organisation responsible for maintaining the road is legally at fault.
Whether a pothole claim can be made successfully will depend on a number of factors, including who was responsible for the road, the nature and size of the defect, whether it had previously been identified or reported, and what action was taken in response.
Who Is Responsible for Potholes in Scotland?
The first question is who was responsible for maintaining the road or surface where the incident happened.
Under the Roads (Scotland) Act 1984, local roads authorities are responsible for managing and maintaining the public roads entered on their lists of public roads.
For most ordinary streets and local roads, the responsible body will therefore be the relevant local council.
Different arrangements apply to motorways and trunk roads, while a pothole or other defect on a private road, car park, retail park or other privately owned area may instead be the responsibility of the owner or occupier.
Identifying who was responsible for the particular road or surface is therefore an important first step.
Is the Council or Other Roads Authority Liable?
Not automatically.
The fact that a pothole existed and caused an accident, injury or property damage does not necessarily mean that the roads authority was negligent.
Roads authorities are responsible for extensive road networks and cannot necessarily identify and repair every defect immediately after it develops. Scottish law requires fault to be established rather than inferred simply because a road defect existed.
One of the important considerations is whether the pothole amounted to an actionable defect. In broad terms, this means considering whether the defect presented a sufficiently serious risk that the authority responsible for the road ought reasonably to have taken action.
Other relevant considerations can include whether the authority knew, or ought reasonably to have known, about the defect and whether appropriate action was taken within a reasonable timescale.
It is therefore not enough simply to establish:
“There was a pothole and an accident happened.”
The circumstances surrounding the defect and its management also matter.
How Deep Does a Pothole Have to Be to Make a Claim?
There is no single measurement that automatically determines whether a pothole claim will succeed.
The depth of the pothole can be important, but its width, length, location and the surrounding conditions may also be relevant.
The type and use of the road or surface can matter too. A defect on a busy pedestrian route, cycle lane or heavily used road may present a different level of risk from a similar defect elsewhere.
Roads authorities may use measurements and other risk factors when inspecting and categorising defects,but exceeding a particular depth does not automatically establish negligence.
The important question is whether the defect, considered in its particular location and circumstances, was sufficiently serious to require action.
Does a Pothole Have to Be Reported Before I Can Make a Claim?
Not necessarily.
A previous report from a member of the public can be important because it may establish that the roads authority was already aware of the defect.
However, public reports are not the only way in which a roads authority may become aware of a pothole.
Authorities operate systems for inspecting their road networks, with different roads inspected at different intervals depending on their type and importance. Whether a roads authority ought reasonably to have identified a defect through its inspection regime may therefore also be relevant.
When investigating a pothole claim in Scotland, some of the questions may therefore include:
- Had the pothole previously been reported?
- Had it already been identified during a road inspection?
- Should it reasonably have been identified during an inspection?
- Was it sufficiently serious to require action?
- How was the defect categorised or prioritised?
- What action was required?
- Was that action taken within a reasonable timescale?
Equally, an inspection may show that there was no actionable defect when the road was checked and that the pothole developed afterwards. If the authority had not subsequently been notified about it, that may also be important when considering whether reasonable care was taken.
This is why inspection, reporting and maintenance records can become particularly important when responsibility for a pothole accident is being investigated.
What Can I Claim for After a Pothole Accident?
Potholes can result in different types of loss depending on who encounters them and how the incident occurs.
Vehicle Damage
A pothole can cause damage to:
- Tyres
- Wheels and alloys
- Suspension
- Steering components
- Other parts of a vehicle
Damage can also be caused to motorcycles and bicycles.
It may be possible to submit a claim for the cost of repairing that damage where responsibility can be established. For example, Glasgow City Council’s claims procedure expressly covers vehicle damage caused by potholes, but claims are assessed according to whether the council was legally liable.
Repair estimates, invoices, photographs of the damage and evidence identifying the pothole and its location may all be useful.
Personal Injury
Potholes can also cause injuries.
Pedestrians may trip or fall because of significant defects, while cyclists and motorcyclists can be particularly vulnerable if a pothole causes them to lose control.
Where someone has been injured, it would still be necessary to establish that the condition of the road caused the accident and that there was a legal basis for holding the organisation responsible for the road liable.
Depending on the circumstances, a personal injury claim may take account of the injury itself together with associated financial losses arising from the accident.
What Evidence Do I Need for a Pothole Claim in Scotland?
Potholes can change quickly. A defect may deteriorate further, be temporarily filled or be repaired completely after an incident.
It is therefore useful to record its condition as soon as reasonably possible.
Evidence may include:
- Close-up photographs of the pothole
- Wider photographs showing its exact location
- The road name and nearest junction, building or landmark
- Measurements of the pothole
- Photographs of the surrounding road or pavement
- The date and approximate time of the incident
- Details of any witnesses
- Dashcam or CCTV footage, where available
- Photographs of vehicle or bicycle damage
- Repair estimates and invoices
- Photographs of any injuries
- Medical records relating to an injury
- Receipts or other evidence of resulting financial losses
- Details of any report made to the responsible authority
Glasgow City Council, for example, asks those submitting claims to provide details about the incident and defect, any injury or property damage, and supporting documents such as photographs.
Measuring the Pothole
If it is safe to do so, it can be particularly helpful to measure the pothole.
Try to record:
- Its depth
- Its width
- Its length
Photographs showing a ruler or tape measure against the defect provide a clearer record of its dimensions than photographs alone. Measurements and photographs are commonly identified as useful evidence when Scottish pothole incidents are being investigated.
Wider photographs are also important because they establish where the pothole was situated and the surrounding road conditions.
Safety must always come first. You should not enter a live carriageway or place yourself or anyone else at risk to obtain photographs or measurements.
What Makes a Pothole Claim Successful?
Every pothole claim will depend on its own circumstances.
The existence of a pothole is only the starting point. Establishing responsibility may require consideration of:
- Whether the defect was sufficiently serious to be actionable
- Whether the responsible authority knew, or ought reasonably to have known, about it
- Whether it had previously been identified during an inspection or reported by the public
- What action was taken after the defect was identified
- Whether any required action was taken within a reasonable timescale
- Whether the defect caused the accident
- Whether the accident resulted in the injury, damage or financial loss being claimed
Ultimately, a successful pothole claim in Scotland is not simply about proving that a pothole existed. The wider question is whether the organisation responsible for the road took reasonable care in inspecting, assessing and maintaining it.
