Recently, we submitted a mass freedom of information request to all local authorities responsible for repairing roads in England and Wales. The results were stark – over the past five years, councils have paid out £32m in compensation across 5,596 pothole-related personal injury claims, an average of £5,524 per case.

And with the cost of maintaining roads increasing by 22%, ever-rising inflation, already stretched budgets, widespread funding shortfalls, and more cold weather snaps creating the perfect recipe for potholes, it is expected that local authorities could be hit with more claims in the coming years.

Prevention is better than cure

Councils have a legal responsibility to keep highways in a reasonable state of repair. If yours neglects to do so, it may be liable for any injury or damaged caused, as well as a claimant’s loss of income, repairs and future care requirements.

The chances of a member of the public being successful in securing a settlement will largely depend on whether the offending pothole had already been reported. Put simply, local authorities are unlikely to be held liable for a defect they were unaware of, providing there is an adequate inspection process in place.

Does your council have a system in place for maintaining roads, such as carrying out visual inspections of surfaces? How regularly does that process take place? Ideally, at least one a year on average is our recommendation. Does your local authority react to adverse situations? For example, if there is excess flooding in a particular area, do you conduct another inspection, even though one isn’t due for another six months? Is there a procedure in place where members of the public can call in or submit a form online to report surface defects? And, if so, how often are those reports actioned?

In our experience, the courts are sympathetic towards local authorities due to budget restraints, which is backed up by our stats also revealing that only one in four of the personal injury claims arising from potholes were settled by councils nationally.

Defending or settling claims

In the event your local authority faces a personal injury claim, it is vital you meet the claim head-on – engage with the claimant and their solicitor, and start your investigation into how and why the injury may have occurred.

As soon as receipt of a potential claim has been received, the most important first step is to investigate quickly. It is important to inspect the offending pothole within days rather than months, to establish whether it falls within the levels of acceptable or not.

If a claimant alleges a surface defect caused them to fall off their bike, for example, the local authority is at a disadvantage when inspecting it several months down the line because, inevitably, more vehicles will have passed over the pothole – causing it to deteriorate further, which will not help your defence. This is even more relevant during the winter months when heavy rain batters our roads as surfaces can turn into a mess extremely quickly.

Other information that should be gathered includes witness statements – both from those who were nearby during the time of the incident and from people who pass the road defect often to see how long it has been present for – and CCTV footage, if available.

After analysing all the available evidence, speak to your insurance provider, if you have one, and seek legal advice from a specialist who can talk through the risks and what your prospects of success are should a formal claim be brought or proceedings issued. A lawyer can also conduct a risk assessment and advise how much the claim is likely to cost you and whether it is more beneficial to settle at an early stage.

If you plan to deny liability, it is important to start building a robust defence – begin collating your documentation, including maintenance and inspection records, alongside the other pieces of evidence you have already gathered.

Whichever route you decide to go down, a quick turnaround should be priority – the longer negotiations go on for, the more money the claim is likely to cost your council.

Ravinder Johal is a litigation partner at law firm Shakespeare Martineau.