The Ombudsman's final decision
Summary: We will not investigate this complaint about vehicle damage. This is because it is reasonable for Mrs B to pursue her compensation claim by taking the Council to court.
The complaint
Mrs B complains her car was badly damaged by a very large pothole which also damaged other vehicles and resulted in a road closure. Mrs B says this incident caused considerable stress and inconvenience in addition to the repair costs she had to pay. Mrs B complains the Council’s insurers have wrongly refused her compensation claim. Mrs B would like the Council to compensate her for all the costs she has incurred and the distress she has suffered dealing with this matter.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The Act says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
I considered information provided by Mrs B.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs B complains her car was damaged because the Council failed to maintain a road it is responsible for. So, in effect, Mrs B’s complaint is that the Council has been negligent.
The Council’s insurers have considered Mrs B’s claim for compensation but did not accept the Council is liable for the damage to her car. Mrs B may pursue her claim by taking the Council to court.
Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings.
The presence of a pothole or road defect is not enough on its own to prove negligence. This is because a local highway authority has a statutory defence if it can show it could not reasonably have been expected to put right any defects before the incident happened.
The Council’s insurers have relied on this statutory defence in response to Mrs B’s claim. Only a court can decide if the Council has been negligent and whether the Council is entitled to rely on this statutory defence.
In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mrs B’s position to seek a remedy in the courts, directly or through her insurers.
I do not consider there is any exceptional reason why it would be unreasonable to expect Mrs B to pursue her claim at court.
So, we will not investigate this complaint.
Final decision
We will not investigate Mrs B’s complaint because it is reasonable for her to pursue her compensation claim by taking the Council to court.
Investigator's decision on behalf of the Ombudsman