Incident claim

If you have suffered damage to your property, vehicle or sustained a personal injury because of a defect on one of Hampshire County Council's roads, footways or rights of way, you may want to sue the County Council.

It is essential you read and understand all of the information below before proceeding with an incident claim.

Solicitors, claims managers and other professional representatives for personal injury claimants should note that Hampshire County Council is registered on the Claims Portal and will receive personal injury claims submitted there.

The law

There is no automatic right to compensation. Legal liability has to be established against Hampshire County Council. Section 41 of the Highways Act 1980 sets out the duties on us, as Highway Authority. The legal burden of proving a breach of that duty rests with you, as the Claimant.

You must prove that the encountered defect was legally 'dangerous' for there to be a breach of section 41. This assessment is based on established legal caselaw and is not established just because it caused damage.

The law recognises that the highway network cannot remain in perfect condition at all times and that defects will arise. What is ‘reasonable’ will be specific to the location, facts, defect and knowledge of the County Council in each case.

We have a statutory duty imposed by the Highways Act 1980 to maintain the highways and footways we are responsible for. To do this, we conduct scheduled safety inspections, based on the road classification, to identify any road or pavement in need of repair.

The County Council does not have to pay compensation if we can prove that we have fulfilled our legal obligations by operating in accordance with our highway maintenance policies and procedures, carrying out inspections, acting on reports of defects and undertaking repairs in line with the category of defect identified. There is a specific defence under the Highways Act 1980 that we can rely upon if we 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.” This is a legal test and not what the public deem ‘reasonable’. We are able to do that in most cases.

The County Council does not have an obligation to keep the roads and paths free from all mud, debris and water. However, the County Council will endeavour to clear this when time and resources permit, or if it is considered a hazard which requires action.

The County Council is not responsible for private or unadopted roads and paths, motorways, works carried out by third party contractors and statutory undertakers (such as private utilities).

The County Council cannot make payments in respect of compensation as a result of its highway works. When Parliament passed the relevant legislation that requires the maintenance of public highways (Highways Act 1980) there was no requirement on highway authorities to pay compensation to residents or businesses that might be affected by such works, or for the extra fuel costs. Hampshire County Council always tries to ensure that works are scheduled in a way that minimises disruption and inconvenience, but even if that occurs, there is no legal basis on which we can make compensation payments.

What happens when you make legal claim for compensation

You need to complete a claim form which is stating that you wish to pursue a civil claim against Hampshire County Council, as Highway Authority. You are starting the process of ‘suing’ Hampshire County Council – which you could pursue through to the County Court, if you wished. Your completed claim form is your evidence of the circumstances of your claim as well as the specific details of what you are claiming for. It is a document that would be presented to the Court and you will be held to account if the information is untrue.

We will confirm receipt of your claim upon submission. Should we require any more information to enable us to investigate your claim we will contact you. Once we have confirmed that all the necessary information has been provided, we will issue a formal acknowledgement. Although we aim to formally acknowledge your claim as soon as we can, there is currently high demand on the service. Therefore, it may take us some time as we deal with claims in order of the date they are received.

After we have issued a formal acknowledgment, your claim will undergo a comprehensive investigation by Hampshire Highways. We will then pass your whole claim file to Hampshire Legal Services who will consider all the facts specific to your case and determine legal liability in accordance with the law. The County Council will accept or reject your claim, depending on whether or not it is considered that a court would award compensation based on the facts presented. If the County Council accept liability, or when the court upholds a claim, claims will be settled promptly. If the County Council deny liability, you will be provided with a detailed letter setting out the legal reasons (based on the statutory Defence afforded by Parliament) that support why there is no liability to you.

The County Council will inform you of the decision on liability and your claim for compensation in writing, usually within 3 months, in accordance with the Ministry of Justice’s pre-action protocols. However, we are currently dealing with an extremely high volume of claims which means that this timescale may be exceeded. We should advise that there is no penalty on Hampshire County Council exceeding the 3 months. The time frame in the pre-action protocols means that, in the absence of a response from us, you will not be criticised if you issue court proceedings after this period has expired.

You are entitled to seek independent legal advice at any stage of your claim.

Please refer to the Civil Procedure Rules and Pre-action Protocols for claims in the civil court.

Suing for damage

In order to process your claim, the below documentation is required:

  • Photographs of defect and surrounding area to show location
  • Photographs of damage
  • Any estimates, quotes and receipts
  • Vehicle MOT Certificate
  • Drivers Insurance Certificate
  • Driving Licence – Photo card and paper counterpart

Failure to provide this documentation may cause a delay in the processing of your claim.

Suing for personal injury

You will need to provide the following information:

  • claimant’s date of birth and National Insurance number
  • details of the claimant’s injuries
  • GP / hospital attended by the claimant following the accident along with dates of attendance.

Due to the nature of personal injury claims, no details of costs incurred by the claimant are required at this stage. This information will be obtained at a later date by Hampshire Legal Services, should the claim be successful.

Reasons claims are rejected

Over 85% of highway related claims lodged against the council are rejected for the following reasons:

  • No automatic right to compensation: Simply experiencing an accident resulting in injury or property damage does not automatically guarantee entitlement to compensation.
  • Defect not deemed legally 'dangerous': The encountered defect must meet the legal criteria of being considered 'dangerous' for the Highway Authority to be potentially liable. The legal burden of proof rests with you, as the Claimant, to establish this fact – known as establishing a breach of statutory duty. If the defect is not legally dangerous, the County Council does not have to go on to prove that, we can rely upon the Statutory Defence.
  • Statutory Defence under Section 58 of the Highways Act 1980: If it can be proven that the council took all reasonable steps to avoid the accident, section 58 provides a statutory defence against claims arising from highway defects.
  • Requirement of negligence or breach of statutory duty: Claims must evidence negligence, nuisance or a breach of statutory duty for legal liability to attach to Hampshire County Council. In the absence of such evidence, claims may not be met.
  • Responsibility for roads and footways: not all roads and footways are the responsibility of Hampshire County Council.
Claims relating to tyres

Please be aware that even if Hampshire County Council accepts that they have a legal liability for your claim, you are unlikely to recover the full cost of any replacement tyre. This is due to the principle of betterment, which dictates that claimants should be restored to the position they were in at the time of the accident, and not a better one. Therefore, if you damaged an old tyre and claim compensation for a new one, a deduction will be made to offset the improved value of the replacement.