Warwickshire County Council (21 014 819)
Category : Transport and highways > Highway repair and maintenance
Decision : Closed after initial enquiries
Decision date : 14 Jan 2022
The Ombudsman's final decision:
Summary: We will not investigate Mrs B’s complaint that she suffered serious injuries whilst cycling due to the Council’s failure to repair a pothole. This is because it is reasonable for Mrs B to pursue her compensation claim by taking the Council to court, which is in the best position to decide the matter.
The complaint
- The complainant, who I will refer to as Mrs B, complains that she suffered serious injuries whilst cycling after hitting a pothole which the Council had failed to repair. Mrs B would like the Council to accept liability for the incident and pay her compensation.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- The Act says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
- I considered information provided by Mrs B.
- I considered the Ombudsman’s Assessment Code.
My assessment
- The Council’s insurers have considered Mrs B’s claim for compensation but did not accept the Council is liable for the injuries she suffered. Mrs B may pursue her claim by taking the Council to court.
- The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about personal injury. This is for the Council’s insurers and ultimately for the courts. The Council has a statutory defence if it can show it could not reasonably have been expected to put right any defects before the incident happened. Only the court can decide if the Council has been negligent. The court can decide what damages, if any, the Council should pay. Also, unlike the Ombudsman, the court can order a party to pay damages.
- I find it is reasonable for Mrs B to take the Council to court, particularly because of the seriousness of the injuries she suffered. The fees for making a claim are relatively modest and Mrs B may ask for the fee to be reimbursed if her claim is successful.
Final decision
- We will not investigate Mrs B’s complaint because it is reasonable for her to take the Council to court.
Investigator's decision on behalf of the Ombudsman