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Pothole damage: Who is responsible for the cost of repairs?

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Monday, March 24, 2014, 9:28 AM

If you drive on roads that experience winter weather, then you are familiar with the dreaded pothole.

Potholes occur when water gets under the pavement, freezes and expands. When the ice melts a void is left under the surface and the pounding of tires over the area creates a hole in the pavement in a round shape. These are often very deep, hence the name - pot hole.

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When you drive into a pothole, your tire slams into the forward edge after dropping down into the hole and can cause serious damage to your vehicle. This can include bent rims, flat tires, broken steering components and even body damage. There is also the heart stopping shock through your vehicle, spilled coffee and your children hearing a few new words they cannot repeat.

In many areas this past winter, we had the perfect series of wet conditions followed by extreme cold snaps that create a bumper crop of potholes sprouting on our highways.

Let’s say you are driving along, slam into a pot hole and it causes $1,000 worth of damage to your vehicle ($1,000 is easily just a new tire and rim on many cars).

Who is responsible for that damage?

  • You, the driver who owns the vehicle and should be watching for road hazards?
  • The company that maintains the highway?
  • The governing body that ‘owns’ the road – city or regional?
Disclaimer! The following information is an overview – specific details may differ in your jurisdiction. This information is not presented as legal advice nor is it to be acted upon as such.

In Ontario, the Highway Traffic Act governs road conditions at all levels. This includes road maintenance and it specifically mentions potholes;

6. (1) If a pothole exceeds both the surface area and depth set out in Table 1, 2 or 3 to this section, as the case may be, the minimum standard is to repair the pothole within the time set out in Table 1, 2 or 3, as appropriate, after becoming aware of the fact. O. Reg. 239/02, s. 6 (1).
(2) A pothole is deemed to be in a state of repair if its surface area or depth is less than or equal to that set out in Table 1, 2 or 3, as appropriate. O. Reg. 239/02, s. 6 (2); O. Reg. 47/13, s. 6.

On the surface it seems very clear – identified potholes must be filled or repaired within a matter of days.

The problem if you are trying to make a claim, is that you must prove the pothole has been there for more than the number of days as outlined in the chart above. You also have to prove the city or regional government was aware of the pothole for that length of time; and then prove that specific pothole caused the damage. You will also likely require legal advice and assistance in making the claim. You already see that this presents a number of challenges.

In the few cases where a motorist has taken a claim to court it is usually determined that the highway was maintained to be ‘as safe as reasonably possible’. This determination ‘as safe as reasonably possible’ means the city or region that owns the highway is no longer responsible for any damage. Keep in mind you are going to pay legal fees and court costs before you even get to this point. By now you can easily see that the time and cost involved are going to be far more than the cost of repairs.

The reality is that you as a driver need to be alert for road hazards of all kinds at all times. Driving a vehicle is serious business and should be treated as such.

The various departments that maintain our roadways take their responsibility very seriously too and do their best to maintain our roads. Perfect, runway smooth roads would require a huge increase in cost – and taxpayers around the world have shown that they are not willing to pay that cost, hence we have roads that are ‘as safe as reasonably possible.'

Interesting reference to an earlier article on toll roads – have you driven on a privately managed toll road recently? Driving on a toll road might cost more, but usually doesn’t have nearly as many potholes.

You can read the full details of the Highway Traffic Act.

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