motor scooter front fork damage pothole

[ste2562]

hi,

im after a bit of advice,

 

my motor scooter hit a pothole the 9/07/2021 which cracked my front fork which required specialist alloy welding,

 

i contacted the council to make a claim for the damage, i took photos of the pothole and location.

They forwarded my information to the relevant department which dealt with the claims.

 

i have just received a reply and i am left wondering what action to take next,

 

i would be much obliged for any advice given.

i have supplied the council with photos and the invoice for the repairs.

 

merge.pdf

Edited November 19, 2021 by dx100uk
pdf's merged to one file

[dx100uk]

eh?

so because their contractor who was instructed to repair the pothole following the councils alert to it needing reair in APRIL, went bust and didn't thus repair it, AND that no-one else since April has reported they suffered damage at the same pothole, they are refusing your claim....totally nuts reasoning...

[Ethel Street]

The contractor going bust does not relieve the council of their statutory duty to repair the pothole.

 

The text is helpful because it confirms that (a) the pothole was of sufficient size to need repairing (they use the word "defect") and that (b) the council had instructed their contractors to repair it.

 

They didn't. It's irrelavant that the reason they didn't was the contractor went bust. The council could have appointed someone else to do the work.  The council could easily have found out which repairs hadn't been done. They had details of what they contractor had to do so could have gone out and reinspected to find out what still hadn't been done.

 

Their excuse would not, IMO, stand up in court. I am not a lawyer though.

[ste2562]

i can't get my head around their response either...i highlighted the pothole to the council and they repaired it about a week later..baffled

[BankFodder]

The response is entirely understandable. They don't want to be held liable for your accident – but now their attention has been specifically drawn to the pothole, they've moved themselves in order to avoid being held liable for anybody else's accident.

 

I don't think you have told us anything about the value of the damage. Please can you tell us what it has cost to repair – and if you have suffered any ancillary losses such as hire vehicles et cetera.

Clearly the council are going to need a response which shows that they are talking a rubbish and you know it.

Tell us more about the damage

 

[ste2562]

hi, thank you,

the total cost of the repair was £460.95

 

On inspection found a large crack in the lower half of the RH fork stanchion and the silent blocks which support the engine were damaged and in need of replacement.

 

Front infill panel and inner foot plate removed for access to the front forks next the front wheel, calliper and top front panel were removed for access to steering headstock nuts to remove steering stem so RH fork could be dropped out.

 

Unfortunately, due to the age of the scooter Piaggio no longer produce the forks therefore, the RH fork was sent out for specialist aluminium welding to be carried to save the fork and ensure its structure.

 

Once back from welding both forks were cleaned and painted and re-fitted to the steering stem. The steering bearings were adjusted and re-greased and the front end of the scooter was re-fitted and all bolts/axle torqued up to manufacture’s recommendations.

 

To replace the silent blocks several panels were removed along with the foot boards, belly pan, leg shields, seat, rear rack and luggage box to gain access and the scooter was then supported from the frame and the silent block mounting plate could then be removed.

 

Supplied and fitted new replacement silent blocks and re-fitted to the scooter. Re-fitted all panels, seat, rack etc; and all bolts torqued up to manufacture’s recommendations.

 

Because of the damage the scooter was rendered unsafe to ride so had to be picked up from my home address and took to the repair shop by van.

 

i did not need to hire another form of transport as i am retired but suffer from arthritis in my right foot so this was my only mode of transport as i couldn't walk any distance more than 100 yards.

 

The incident happened on 16/06/21 and i was advised by the motorbike repaired to claim off the council.

 

My scooter was returned to me on 6/07/21 and i first contacted the council on 9/07/21

[BankFodder]

Thanks for this.

I'd like to ask you to space out your posts properly please. It's very difficult to read solid blocks of text – especially if people are accessing this thread on the telephone.

It sounds as if everything was handled correctly – except that I would have strongly recommended that you let the council know in advance about the damage and what it was going to cost.
Laying a paper trail is extremely important.

Anyway, it's not a lot of money and I doubt whether the council really want to go to court over this.

I've looked at the statute and I think that they are taking a very egocentric view

 

Quote

58Special defence in action against a highway authority for damages for non-repair of highway.

(1)In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.

(2)For the purposes of a defence under subsection (1) above, the court shall in particular have regard to the following matters:—

(a)the character of the highway, and the traffic which was reasonably to be expected to use it;

(b)the standard of maintenance appropriate for a highway of that character and used by such traffic;

(c)the state of repair in which a reasonable person would have expected to find the highway;

(d)whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;

(e)where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed;

but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.

 

Highways Act 1980

WWW.LEGISLATION.GOV.UK

---

An Act to consolidate the Highways Acts 1959 to 1971 and related enactments, with amendments to give effect to recommendations of the...

 

It's awkward to understand the wording of this section of the Highways Act – but I take it that the council must prove that they took all care which was necessary in the circumstances, that they could not have known or have been expected to know of the pothole, and in the event that they had commissioned a contractor to repair the danger, that that contractor had actually carried out the instructions.

If this is correct, then the fact that they went on and repaired the pothole seven days after you brought their attention to it suggest very strongly that they appreciated that it was likely to cause danger.

They have already admitted that they had identified the danger before your accident. They have pinned the blame on the fact that the contractors went into liquidation.
It seems to me that having commissioned the work they had a duty to ascertain that it had been properly carried out.

It would be interesting to find out the date of the liquidation and also when this came to the notice of the council.

I think we need to work out a Freedom of information act request to get this information.

 

[ste2562]

hi , thank you,  my apologies for the last post... copy and paste.

i did provide the council with photo evidence of the potholes including the lane it was on, took from different view points, 

I also sent them the invoice for the repair to the scooter.

They were meant to reply within 3 months which they didn't.

Thank you for helping me on this, it is very much appreciated and i am intrigued to see what the outcome will be.

[BankFodder]

You say that they were "meant" to reply within three months…. What do you mean by this?

You provided them with an invoice for the repair – but you didn't send them any advance notice of the damage for the projected cost of the repair.

I expect that the outcome will be that you will be reimbursed.

Please can you draft up an FOIA request. Post it here

You want to know the name of the company or contractors who the council had given the work of repairing the pothole.
The date that that company went into liquidation.
The date that the council came to know of that liquidation and by what means did the council come to know of it.

Who was it who eventually carried out the repair work on the pothole.
 

You might also want to find out how many motorists have claimed that there vehicles of any type claims that their vehicles were damaged as a result of poor road surfaces during the month of [choose three months before and three months after the date that your own vehicle suffered damage].

If you think of anything else which might be useful to know then include it in your draft.

 

[brassnecked]

In essence a council is liable jointly and severally for the action, inaction or failure of a contractor, so they should have ensured the contractor's work up to the date it went bust was carried out properly.  In essence the council are digging themselves a big hole oops.  Keep all that correspondence and costs safe.  The FOI will help also.

[ste2562]

hi, i will sort out the FOIA request over the weekend.

9/7/21 i first emailed the council through their website/ highways dept

i outlined the incident and told them i had taken photos and wished to claim for damages.

 

At this point i did not supply the photos in the email as i was unsure of the procedure.

They supplied me with a reference number and phone contacts.

 

I had no correspondence for 4 weeks so i emailed them again on 9/8/21 and this time attached photos of the pothole and location as well as the invoice for the repairs that had been completed.

I got an automated response saying if it was related to an insurance claim the matter would be passed onto the authorities claim handlers

who would be in contact in due course and told they have 3 months to investigate and determine liability.

 

The council replied on the 10/8/21 and told me my claim was set up and has been sent to the claim handlers.

 

On 12/8/21 i was contacted by the claim handlers whose name was given along with a reference number and phone contacts.

At this point they mentioned i should claim off my own insurance as i would not have to establish legal liability.

 

19/11/21 i received an email off the claims handlers telling me they were unable to offer compensation.

 

 

 

[BankFodder]

Who are the claims handlers?

Basically you've been fobbed off by the council

 

Also in your data request you want all information relating to the incident which you reported on XXX date involving an accident and subsequent damage to your vehicle.
Also, to the claims handlers which I suppose are private business, you should send them an SAR.

Don't hang around. This should all be in the post or by email on Monday

[ste2562]

the claims handlers are "Gallagher Basset"

im in the process of sorting my FOIA request for the council and SAR for the claims handlers, ill post it up when completed later on

[ste2562]

foia request to the council to include correspondence reference:

 

Dear sir or madam,

Under the Freedom of Information Act 2000, please provide me with the following:

The name of the company or contractors who went into liquidation and what date they went into liquidation.

The date that the council became aware of the liquidation and by what means did the council become aware of the liquidation.

The name of the company or contractors who the council had given the work of repairing the pothole.

Provide all the information relating to the incident which was reported on 9/07/2021 in which my vehicle was involved including the damage to my vehicle.

Provide information of how many motorists have claimed that their vehicles of any type claims were damaged as a result of poor road surfaces between 16/03/2021 and 16/09/2021

 I understand that under the act i am entitled to a response within 20 working days of your receipt of this request.

If my request is denied in whole or in part, i ask that you justify all deletions by reference to specific exceptions of the act.

I will also expect you to release all non-exempt material.

I reserve the right to appeal your decision to withhold any information or to charge excessive fees.

I would prefer to receive the information electronically.

If you require any clarification, i expect you to contact me under your section 16 duty to provide advice and assitance if you find any aspect of this FOI request problematic.

Please acknowledge receipt of this request, and i look forward to receiving the information in the near future.

Yours faithfully  xxxx

 

 

SAR to follow for the claim handlers

 

[BankFodder]

You are referring to "the contractors" and "the pothole" but you don't seem to have given them any indication as to the location of the pothole or any other help in identifying the pothole you are talking about.

Is there a reference number for the incident?

[ste2562]

hi, yes there is a reference number, but i can easily add the location of the pothole.

i was going to ask if i send the foia directly to the highway dept of the council who i originally contacted as the correspondence reference i was given is to be used in all correspondence as directed , so i assumed it would be delivered to the right department.

[ste2562]

Subject Access Request to the claim handlers Gallagher Basset

I have a correspondence reference for the handlers

 

Please supply the personal data you hold about me, which i am entitled to receive under data protection law held in:

Emails between xxxx and yourselves between 12/08/2021 and 19/11/2021.

If you need anymore information, please let me know as soon as possible.

It may be helpful to let you know that data protection law requires you to respond to a request  for personal data within one calendar month.

If you need advice on dealing with this request, the information commissioners office can assist you.

Its website is ico.org.uk, or it can be contacted on 0303 123 1113

yours faithfully

xxxx

 

 

[BankFodder]

Please look at our SAR template. You should not limit the enquiry. You should keep it as wide as possible.

[ste2562]

thank you for the SAR example, 

so its best to send that by post?

[ste2562]

i understand that the SAR is best sent by post,

Do i also send the FOIA request to the council by post as well,

As i am aware a paper trail can be the preferred option,

Or am i ok to email the council with my correspondence reference.

[BankFodder]

I expect email for both of them is fine.

Creating a paper trail simply means that you have verifiable evidence that you have given said notice or made certain communications

 

[ste2562]

HI, thank you once again for all your help and guidance on this issue so far.

i have emailed both the council and claims handlers this morning.

The council i sent the FOIA request.

The claims handlers the SAR.

Interesting to see what will happen over this.

Thank you.

Of course i will be making a donation soon.

[BankFodder]

Wait until you get a result before you start chucking your money around – but then, don't stint!

[ste2562]

thank you , nice one

[ste2562]

This is the response from the council on my FOI request Response (all information to be supplied)(3).pdf