If you have an accident with a pothole or other danger on a road or footpath, it raises the legal question on whether or not a local or roads authority has to pay compensation for damage done.
These involves discussion on the legal areas of negligence and nuisance.
Road Works & The Law.
A local authority is generally entitled to carry out public works without being open to claims for compensation for damage done .
As long as they do the work in a way that is not negligent, a person cannot look for compensation for any damage done.
For example, if a local authority repairs the road in front of a retail premises, the retailer cannot sue for loss of business.
If, however , the local authority in carrying out the repairs keeps any obstruction on the road or path for longer than necessary , they may be open to a claim.
What happens if I fall in a pothole?
Injuries on the roads or footpaths had been the subject of much debate over the years.
There is an old rule, called the Misfeasance rule , that can mean that you cannot successfully sue a local authority.
Although the rule was abolished by legislation , the Act has not yet been activated, making the rule still the law.
Under this rule, the Local Road Authority is not responsible for leaving public roads or footpaths in disrepair.
However, the rule does not apply where the Local Authority does carry out work and does so badly.
This can arise if the original construction of the road or footpath is not up to the required standard.
A successful claim can also be made if improper repairs are carried out and cause injury or damage.
What about it being a Nuisance!
You can also make a claim in Public Nuisance.
This is where there is an obstruction on the public road or footpath which caused the accident.
It can also arise where a feature of the road or footpath makes it unsafe or dangerous.
To succeed you have to establish that the problem was something on the road or path that was a danger to the public.
A few interesting examples.
A Council was found liable when they put up a safety barrier while restoring a bridge which was found to be dangerous in darkness; where they carried out road repairs but left the surface uneven; where a 70 year old laneway had a dangerous slope caused by poor work when constructed; where they failed to follow NRA guidelines on construction works and left an uneven surface.
A recent example of this was where the Court found that the construction of a cattle grid was a danger to the public. A cyclist fell because of a dangerous lip on the grid and successfully sued for his injuries.
A Council was not found liable for an injury to a horse who put its foot through a hole in a bridge which was a wear and tear problem not fixed by the Council; a trip hazard caused by wear and tear was found to be exempt from liability where the road was constructed in accordance with proper guidelines; where the Council carried out a repair to a pothole in accordance with the standards of the time and it re-emerged, the council was not liable.
SO, what do you need to prove your CASE?
You need an expert (usually an Engineer) to prove that there was a hazard and that this caused you to have the accident. The usual recommendations apply: you should have pictures of the scene and the injuries and witnesses of the accident, if possible.
In these case you will need to prove either that the hazard was cause by improper repairs work or that the original design, specification or construction was not d the required standard of the time.
You should also be conscious of the fact that you may be seen to have contributed to the accident by ignoring the surface or weather conditions, by not taking into account your own safety ,by not wearing appropriate footwear or not adapting to weather conditions or lighting conditions.
The fact of the matter is that you need to prove the facts of the matter and apply the law to those facts.
The material in this Blog is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice on any legal decision or course of action.