Pothole Vs My Stagea....

[Bronx]

[update]

ok boys and girls, the results are final, here it is, the email i have received from the RTA claims people:

Without Prejudice

Dear Sir

Date of incident: 6 April 2012

Location of incident: Intersection of Cleveland Street and Elizabeth Street Surry Hills

RMS claim no: TPC5220

We refer to previous correspondence in the above claim.

Roads and Maritime Services (RMS) has investigated this claim and has determined that it was not negligent in this instance. The reasons for RMS’s decision are as follows:

1. RMS inspects Cleveland Street and Elizabeth Street on a regular basis to identify, prioritise and repair observed defects, including potholes, on the carriageway. Further, RMS is required to respond to reports of defects on the roadway in a specified period of time.

2. An examination of RMS’s records confirms that the inspection prior to your incident on 5 April 2012 did not identify any defects on Cleveland Street and Elizabeth Street in the vicinity of the location you have identified.

3. RMS was also not notified of any defect on Cleveland Street and Elizabeth Street prior to your incident.

4. RMS is not liable for damage caused by defects on the roadway if RMS was not aware of the existence of the defect at the time the damage occurred.

RMS does not doubt that this incident occurred, however at the time of this incident it had no knowledge of the existence of any defects on Cleveland Street and Elizabeth Street.

RMS regrets that this incident occurred, however as it complied with its legal obligations and had no knowledge of any defects on the roadway at the time of your incident, it cannot accept liability and therefore denies that it was negligent in this claim. In support of this, RMS relies upon the relevant provisions of the Civil Liability Act 2002 (NSW).

Yours sincerely

Shirley Prasad

Claims Officer

Injury Management & Claims Services

[coparts41]

You know that with this anal government things aren`t getting any better. My son the other day hit three pot holes coming out of cockatoo in Melbourne , Smashed the rim stuffed the tire,blew out the top of the strut,ripped the strut tower from the fire wall and nearly killed him and my granddaughter, $6800 damage , lucky he works for Sheens panel works because they are doing all the legal work to recover the money from Vicroads and they tell me if you keep on pestering them they will pay(only say so at this point).If there is a hole and it is not sign posted they have a duty of care.

[S T A R 3 3]

My responses to each dot point:

1. When was it last inspected? Were there any signs of a pothole in the making?

2. When was it last inspected?

3. So what? I'm notifying you, and now my car is defected.

4. I would argue that you were researching how and who to notify in regards to the damage the pothole caused. Possibly even re-direct them to this thread as you posted it the next day.

[Daleo]

[update]

ok boys and girls, the results are final, here it is, the email i have received from the RTA claims people:

Without Prejudice

Dear Sir

Date of incident: 6 April 2012

Location of incident: Intersection of Cleveland Street and Elizabeth Street Surry Hills

RMS claim no: TPC5220

We refer to previous correspondence in the above claim.

Roads and Maritime Services (RMS) has investigated this claim and has determined that it was not negligent in this instance. The reasons for RMS’s decision are as follows:

1. RMS inspects Cleveland Street and Elizabeth Street on a regular basis to identify, prioritise and repair observed defects, including potholes, on the carriageway. Further, RMS is required to respond to reports of defects on the roadway in a specified period of time.

2. An examination of RMS’s records confirms that the inspection prior to your incident on 5 April 2012 did not identify any defects on Cleveland Street and Elizabeth Street in the vicinity of the location you have identified.

3.

RMS was also not notified of any defect on Cleveland Street and Elizabeth Street prior to your incident.

4. RMS is not liable for damage caused by defects on the roadway if RMS was not aware of the existence of the defect at the time the damage occurred.

RMS does not doubt that this incident occurred, however at the time of this incident it had no knowledge of the existence of any defects on Cleveland Street and Elizabeth Street.

RMS regrets that this incident occurred, however as it complied with its legal obligations and had no knowledge of any defects on the roadway at the time of your incident, it cannot accept liability and therefore denies that it was negligent in this claim. In support of this, RMS relies upon the relevant provisions of the Civil Liability Act 2002 (NSW).

Yours sincerely

Shirley Prasad

Claims Officer

Injury Management & Claims Services

How convenient; they investigate themselves and are miraculously blameless!

So they weren't aware of the pothole prior to its existence; amazing!

"No one told us about a defect in a roadway we are supposed to inspect and maintain; so it's not our fault" Sorry, am I missing something?

So if you have plausible deniability in a situation that no-one else (except you) can investigate; you're off the hook!

I call bullshit. Go see a traffic lawyer and find out what you can do.

[numleg]

I second the Bullshit motion,

[wedge_r34gtr]

What a nice polite letter saying f*ck off....

Did your photo of the pot hole show the white mark around it? it may be used as proof saying that RMS had identified the hazard.

I would be replying asking for:

• proof of road inspection before time of incident
  
• proof of 'repair interval' i.e. time from indentification to repair
  
• prior indentified hazards at location
  
• proof identified hazards were repaired
  

Although a long shot, it would be worth checking if pot hole has been fixed.

[Bronx]

so do i, im pissed off beyond belief.

it just annoys me how arrogant they can be!

what is everyone elses opinion? who should i talk to etc etc?

as i dont want to jump to anger and ruin it all for myself and the car, I'd rather ask you guys for some advice.

best options, lawyer? pestering them? or anything else?

[Bronx]

btw, i drive past pot hole every day as i work in the city, and it is still there....

still with the exact same yellow square spray painted around it when i first hit it, plus another white square again.

the lump/pothole has gotten even worse, i now see some cars even swerving around it.

[Mr 20Valve]

I think what they're trying to get at is that they can't be held liable for damage caused by a pothole that appears within a matter of hours caused by heavy rain etc... Which is probably fair enough - they can't anticipate road damage as it occurs.

That said, it f**ken sucks that they'll deny responsibility for months & then still not fix it up. Take some more photos of the pothole as it is today (or tomorrow) & use that as an argument against their "inspect, notify, repair timeline" policy... If they were serious about fixing road defects within a short timeframe after becoming aware if them, they would have sorted it out by now...

[Bronx]

Its not quite a pothole, its hard to explain.

Its tar that has heen pushed to the middle of the lane because it is soft. So it dips down where your wheels run, like a pothole, but alll the excess tar builds up right in the middle of the lane. So that giant bump of tar took out the bottom centre of my car.

[Daleo]

The thing is, it's a road defect.

It doesn't matter if it's a hole, a hump or a Space Shuttle sticking out of the ground.

If a hump in the road is high enough to tear a piece off the undercarriage of your car ; it's big enough to to be unsafe.

[Cowboy1600]

That's the response I expected.

And I think everyone needs to take a step back and think about this. What if they did admit liability? What would happen? They would set a very dangerous and expensive precedent, that's what.

At the end of the day it's up to the road user to avoid obstacles, including potholes. We cannot realistically expect councils or VicRoads/RMS to maintain 100% of roads 100% of the time. It's simply not possible both technically nor financially.

It sucks the OPs car was damaged but the fact he hit it hard enough to do such damage suggests he were simply driving too fast for the prevailing conditions*. I do it all the time but I know if I go honking around a corner and smash through a pothole then it's tough luck.

Sorry Bronx, but I have to say that the RMS/Council are not to blame. It's simply a case of shit happened and unfortunately you have to wear the consequences.

*When I say too fast, I don't mean you were necessarily speeding, but if you were unable to avoid a road hazard, then you were traveling too fast. Either that you you were just shit outta luck.

[Bronx]

nah, i was actually in traffic, i could not see the "lump" in front of me because we were all lined up at the lights driving off.

i do not expect them to keep roads 100%, but serious damage on the road, that can defect your car, they need to be liable for.

i could not slam on the brakes and stop in front of the pothole otherwise the guy behind me would run up my ass, could not swerve otherwise i would have taken out the car next to me.

this is a main road in the city, there is always traffic.

but i reported the hole before i made the claim, and the hole is still there, 2 months after i reported it!

[Daleo]

Yeah, I understand what you're saying Cowboy; but it doesn't make their shitty arse covering attitude any easier to swallow.

Also I'm pretty sure the OP said that it had already been marked with paint; so they WERE aware that it posed a potential danger. It also contradicts their quoted policy, with regard to them not having previous knowledge of the defect. And given it still hasn't been touched except to slap some paint on, surely 2 months is ample time to arrange repairs (even temporary patching) to a road that has damaged a vehicle?

If they have a policy, and they are in contravention of that policy; then they are liable. It cannot possibly hurt to get some advice on the matter; if the advice suggests that it isn't worthwhile to proceed, or will cost more than it's worth, at least he knows.

What's the worst that could happen? They've already said no; it's not there's much to lose.

A while back, I had a serious road defect outside my house after the local council dug up the gutter; this allowed rain to erode the substrate beneath the road surface until a hole almost a foot and a half wide, and nearly 2 feet deep appeared. The thin crust of asphalt was the only thing covering it. I reported it numerous times, and got the run around every time; until I reported it (In email form) with supporting photographs.

They finally sent an inspector who promptly near shit himself when he saw the scale of the damage. The inspector intimated that the RMS would definitely have been liable for any damage due to the scale of the degradation.

But I don't imagine that they would happily admit that without a convoluted process of misdirection and delaying tactics; much like the one presented to me when I tried to find the best person to deal with my initial reporting of the defect.

This is how government departments work. Just because admitting fault would set a dangerous precedent; doesn't mean they are not actually at fault.

If nothing else; it's certainly a cautionary tale, but why not fight a little to see if the squeaky wheel gets some grease?

Edited June 6, 2012 by Daleo

[scotty nm35]

I agree, at least give those slack govt employees something to do. lol.

Back in the day it would have been repaired by the council, before they laid off all their staff and contracted out the work. Now, unless it can be fixed by an email, no-one gives a toss.

[TWOAR81]

Like all insurance liability claims, just keep on it and make sure you have every piece of information possible when you call.

Again ask what their inspection and resolution timeframe is of a reported fault in the road. Then keep pushing the fact that this may have been missed by human error.... They are insured it might just take some time.

Keep on it or just fix if it becomes too stressful. Life's to short .

Good luck mate!

[TTT]

Here's what you do.

You and a few of your mates get some hi Viz vests.

a camera

couple of spirit levels

a ruler

Get down to the spot.

stop traffic

line up the spirit levels on the mound of distruction.

ruler in the deepest part of the ditch surrounding the mound of distruction.

Take photos of measurement.

Take a shit in the ditch surrounding the mound of distruction

Take photos of poo in ditch surrounding the mound of distruction

Send photos of measurements off for your claim.

if it still doesn't get approved, send the poo photos.

[slippylotion]

You missed the part where it sh*t is done after a night on the grog!

[Cowboy1600]

I agree, at least give those slack govt employees something to do. lol.

Back in the day it would have been repaired by the council, before they laid off all their staff and contracted out the work. Now, unless it can be fixed by an email, no-one gives a toss.

It depends on the type of road as to who is responsible. It's essentially council if it's a local road, RMS if it spans multiple councils (say a main road like Parramatta Road or the Western Ring Road) and then Federal if it's a Federal highway such as the Hume.

Just to touch on the whole liability thing again, if Council/RMS was quick to accept responsibility then they would be inundated with claims, both genuine and bogus. I used to work on a tree lopping crew. We had one bloke pull up once and try and go us for damage to his body kit and wheel (VL Commonwhore). He gave us a big lump of branch and said he hit it a bit further back (where we had been working) and it had wrecked his front spoiler and left wheel. It was very possible, so we could have been up for the damage, until one of the guys pointed out that it was a branch off a yellow box and there were no yellow boxes along that road. We promptly told him to f-off to which he essentially replied that yeah, he was trying to rort us and it was worth a shot.

There were plenty of others that I heard of. Most of which were BS, occasionally legit.

At the end of the day unless a council/RMS/VicRoad is clearly negligent, then you've got buckleys of getting anything out of them. That they may or may not have adhered to every single guideline is not the determining factor in any claim of negligence. After all, those guidelines are guidelines set out by the organisation, not legislation.

[andy65b]

It sounds like you have been given all the information to beat them.

They have outlined their procedure for marking and repairing damaged road and provided they are inside those guideines they are not liable.

So with that information you just need to demonstrate that they have not met their guidelines and they are liable.

It is interesting that in the consumer world if a product is sold that is not "fit for the purpose", the manufacture is held responsible.

Sounds like the road builders have not built a road "fit for the purpose" if it is degrading in such a way.

Good luck.