The effects of this winter's cold snap will continue to be seen and will be felt when driving on Scotland's roads for some time to come. Existing potholes have been made worse and new ones have opened up. Potholes can cause damage to vehicles, for example, to tyres or suspension, and can occasionally result in a driver losing control of the vehicle and suffering injury as a result. Potholes can be particularly dangerous for cyclists and motorbike riders.

The Cause

Potholes are caused by rain and snow penetrating cracks in the asphalt surface caused by traffic passing over it. As the temperature drops below freezing, the water turns into ice, expands and forces the cracks to widen. When the ice melts, it leaves a gap where the ice was and that gap collapses under the force of traffic moving over it. Over a surprisingly short period of time this process creates potholes.

Roads Maintenance

Who, then, is responsible for ensuring that the damage caused by the cold snap is repaired and what is the extent of that responsibility?

Under the Roads (Scotland) Act 1984, local authorities, as roads authorities, are responsible for managing and maintaining the public roads in their area. Trunk roads are the responsibility of The Scottish Ministers: Transport Scotland, however, have contracted out maintenance of the trunk road network. It should be noted that not all roads are the responsibility of the Council or the Scottish Ministers. For example, neither bears responsibility for management and maintenance of private roads. Both the Scottish Ministers and the local roads authorities must keep up-to-date lists of the roads for which each is responsible and these lists must be made available for public inspection free of charge.


Roads authorities have a duty to take reasonable care to maintain roads in a safe condition, free from any defect that might cause a reasonably foreseeable risk of damage or injury. On that basis, the roads authority will not automatically be liable simply if a vehicle is damaged or an individual is injured because of the presence of a pothole.

In order to be successful, a claimant has to establish that it was reasonable and practicable for the roads authority to have become aware of the defect and to have repaired it before damage or injury occurred. This is not an easy task. Roads authorities have guidelines for the inspection of roads and the repair of defects. The guidelines set out the frequency and type of inspection depending on the type of road, as well as a timescale for repairing defects, based on the level of hazard caused by the defect. Provided the authority can demonstrate that there is a reasonable system of inspection and repair in place and that the system was adhered to, the authority will not normally be found liable. The question of whether the authority's system is reasonable is generally judged by the practices adopted by other authorities or peer organisations.

The 2005 "Well Maintained Highways – Code of Practice for Highway Maintenance Management", which applies throughout the UK, sets out a framework for the frequency and type of inspection depending on the type of road and a timescale for repairing defects depending on the level of severity. The Code of Practice is not mandatory, but it forms the basis of guidelines for the inspection of roads and the repair of defects drawn up by roads authorities.

Limits on the duties of a Roads Authority

The courts have confirmed that roads authorities are not expected to maintain their roads in a pristine condition at all times and that road users should not expect roads to be perfect.
The courts have also noted by that roads authorities have numerous and competing interests to deal with and they have to balance various factors such as availability of money, staff and other resources when determining how to manage and maintain any given road. This may prove critical in light of the financial pressures being faced by the public sector. In other words, roads authorities are allowed to prioritise when exercising their management and maintenance duty and it will not necessarily always be the case that major roads will or should be given top priority.

When an action is raised against a road authority, it is up to the claimant to prove that the authority has negligently failed in its management and maintenance duty. This will involve:

  • Asserting the frequency with which the road in question can reasonably be expected to be inspected;
  • Proving that the road was in an unsafe condition; and
  • Proving that the danger was known to the roads authority (or at least ought to have been known to the roads authority or that a reasonable system of inspection would have revealed its existence).

Where the roads authority has carried out inspections, it is for the claimant to demonstrate that those inspections were not carried out on a sufficiently regular basis or that the inspections were inadequate. If the defect in question had been identified, either as a result of an inspection or because it was reported to the authority, the claimant would have to prove that the roads authority failed in its duty to repair the defect within a reasonable period of time. If the authority's practice is in line with that of other authorities and reflects the 2005 Code of Practice, the roads authority is unlikely to be found liable.

Contributory Negligence

Road users are also under an obligation to take reasonable care for their own safety. If an accident occurs and a claim is made as a result, even if the roads authority is found responsible for the pothole that caused the accident, the claimant may also be held partly responsible if it is established that he contributed to the accident, for example by failing to take reasonable steps to avoid the pothole or by failing to see a pothole. A finding of contributory negligence would lead to a reduction in any compensation awarded to the claimant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.