Summary: We will not investigate this complaint about the Council’s handling of claims about damage to vehicles by poorly maintained highways. It is reasonable for Mr X to submit a claim against the Council’s insurance and seek a remedy in the courts if liability is denied.

The complaint

1. Mr X complained about the Council’s failure to explain how he could submit a successful claim against it for vehicle damage caused by potholes and poor highway maintenance.

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The Ombudsman’s role and powers

2. The law 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)

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How I considered this complaint

3. I considered information provided by the complainant.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mr X says he has not been told by the Council how he could make a successful claim against it for highway negligence. He says that an information request indicated that 95% of claims are rejected by the Council.
6. The Council has explained to him about how to claim against its public liability insurance which is the correct procedure to follow if submitting any claim for damages or personal injury caused by the tort of negligence.
7. The Ombudsman cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts. It is normal procedure for persons suffering damages or personal injury caused by a council or its contractors to submit an insurance claim against the Council. This will then be treated as a claim, rather than a complaint and passed on to its insurers or legal team for a response on liability.
8. Negligence claims and interpreting the law around legal torts are generally best decided by a court. Only a court can decide whether the problem should have been dealt with by the council before it caused harm or if the council is liable to pay “damages” for the loss or injury someone has suffered.
9. Unlike general claims for negligence against public bodies, highways claims are subject to the provisions of the Highways act 1980 which includes a statutory defence under s.58. The burden of proof for negligence lies with the claimant, who must demonstrate, on the balance of probabilities that there was a dangerous defect that caused the damage. S.58 requires the Council to show they took all reasonable steps to ensure the relevant section of road was not hazardous for users.

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Final decision

10. We will not investigate this complaint about the Council’s handling of claims about damage to vehicles by poorly maintained highways. It is reasonable for Mr X to submit a claim against the Council’s insurance and seek a remedy in the courts if liability is denied.

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Investigator's decision on behalf of the Ombudsman