Richard Godden: So you think the local authority is to blame for that pothole?

AS THE Scotsman revealed yesterday, local authorities across Scotland are having to make substantial payouts on claims for damage to motor vehicles after the extremely severe winter of 2009-10 left many of our roads in an even worse state than normal.

According to official figures, councils have been on the receiving end of hundreds of claims, with just one council, East Lothian, paying out 10,000 on 85 submissions, while compensation claims against Glasgow City Council almost doubled. Many claims from motorists across the country are still in the pipeline and have still to be settled.

However, with a survey of non-trunk roads revealing that more than 2,000 miles of tarmac required immediate attention even before the big freeze, it is likely that claims by motorists will continue to increase.

As The Scotsman story indicated, some motorists are finding success with their claims, but as councils become increasingly cash-strapped, it seems inevitable that submissions will come under of greater scrutiny through financial necessity. Although last winter's severe weather has exacerbated the problem, the issue of damage to vehicles as a result of worn or damaged road surfaces is not a new one.

Compensation payments are not automatic, therefore, if a vehicle sustains damage while travelling along a poorly maintained road and the cost of repair is substantial, the owner needs to be aware of what circumstances he or she can successfully make a claim against the local authority.

Damage to cars caused by being driven over potholes is always frustrating (as well as expensive) for the owner, but whether the council can be made responsible for the cost of repair of the vehicle depends largely on how substantial the pothole is.

If a pothole is no deeper than about an inch, the council is unlikely to be considered negligent, but a hole of this size probably wouldn't cause much damage anyway. If the hole driven over is deeper than that, and damage to a vehicle or personal injury to driver or passengers is reasonably serious, a claim can certainly be made, but the problem is that a council is only liable to take reasonable care.

The law says it cannot reasonably be expected to repair instantly every single hole that comes along, or even to be aware of it.It also must have a reasonable system of inspection in place that ensures checks are made at acceptable intervals.

An aggrieved motorist who can establish that it would have been reasonable for the council to inspect the road once a month, and also that the hole has been there for significantly longer than a month, may have a claim.

As to what reasonable inspections are, it might well be reasonable for the council to check Princes Street, Argyle Street or Union Street once every few weeks. On the other hand, a quiet country lane might be inspected only once a year.

Much of the damage caused by potholes occurs because the driver is unable to slow down in time due to insufficient or warnings or the complete absence of warnings. But a council's responsibility to issue a warning depends on how quickly it should be expected to know a problem existed.However, once a council is aware of the existence of any potholes substantial enough to cause damage or personal industry, then it does have a duty of reasonable care for the safety of road users, which might involve erecting a "slow down" sign or fencing off the pothole.

If such warnings are adequate, then motorists also have a responsibility, which is to drive to the prevailing conditions.

•Richard Godden is a partner in McKay Norwell WS, based in Edinburgh.