THIE past week, social media has been rife with videos and complaints of the deplorable state of our road networks.
One video highlighted a massive water filled crater (too large to be called a pothole!) along the Valencia Main Road, where at least two cars got stuck on Saturday. Both required assistance to get out.
Even I have suffered significant car damage as a result of pothole filled roads and highways.
Given the prevalence of bad roads in this country, I’m sure all car owners have too, at some time or the other. So, let’s get to the point of this article: If your vehicle was damaged as a result of lawful use of a public road or highway, can you sue the State? (Note – I include all public authorities here when I refer to the State, including regional corporations.)
For those who’ve been reading my articles diligently, you may have already gotten a sixth sense that there are many laws we truly need in this country that we don’t have. Sadly, even though there are several laws which place a duty on the State to maintain the public roadways, they frequently invoke an exemption found under section 150 of the Highways Act, Chapter 48:01.
Brace yourself for this: section 150 of that Act allows the State to remain blameless for injury or damage that is a result of a failure to repair the road! (Legally, this is called a “nonfeasance”). You read that right! If your car gets damaged from a pothole that arose due to a failure to repair the road which was left alone and degraded over time, the State is not liable.
But wait, all is not lost! The State cannot claim this exemption if they carried out repair work negligently (this is called “misfeasance”). If the State did something to the road or omitted to take a precaution that would have made the road safe instead of dangerous, the State could be held liable to compensate you for your loss.
I have seen roads being freshly paved yet cut-outs were left at the side (because there was grass or rubbish piled up at that spot). The result – State created potholes. In poorly lit areas, these potholes may be difficult to see, and if your car went down into one and got damaged, you may have a good chance at obtaining compensation from the State. It would be prudent to talk to your lawyer who could analyse the facts of your particular case and advise whether you may have a good case for compensation or not.
At the end of the day, our current laws are not fair to taxpayers. Among other things, how are we know what created a particular pothole that damaged our vehicle? It’s almost absurd.
The exemptions came about as a result of this sovereign State seeing it fit to adopt old English laws, rather than create laws that actually work for us. England has long modernised its law by removing the ability of the State to claim this exemption. Why can’t we do the same?
Copyright © 2020 Neela Ramsundar, LL.B (HONS), L.E.C is a Civil Litigation Attorney at Law & Certified Mediator.
Disclaimer: The contents of this article are for general informative purposes only. It does not provide legal advice and does not create an attorney-client relationship with any reader. For legal advice on your specific situation, please contact an Attorney-at-Law of your choosing directly. Liability for any loss or damage of any kind whatsoever allegedly incurred a consequence of using content in this article is thus hereby excluded to the fullest extent permitted by law.