The Ombudsman's final decision
Summary: We will not investigate Dr B’s complaint that her car was damaged after hitting a pothole. This is because it is reasonable for Dr B to pursue her compensation claim by taking the Council to court.
The complaint
Dr B complains her car was damaged after going over a pothole on a road which the Council is responsible for. Dr B says the Council has wrongly refused her compensation claim for her repair costs.
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 Dr B.
I considered the Ombudsman’s Assessment Code.
My assessment
Dr B complains her car was damaged because the Council failed to maintain a road it is responsible for. So, in effect, Dr B’s complaint is that the Council has been negligent.
The Council has considered Dr B’s claim for compensation but did not accept the Council is liable for the damage to her car. Dr 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 Council has relied on the statutory defence it could not reasonably have been expected to put right this defect before the incident happened.
Only the 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 Dr 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 Dr B cannot do this.
So, we will not investigate this complaint.
Final decision
We will not investigate Dr B’s complaint because it is reasonable for her to take the Council to court.
Investigator's decision on behalf of the Ombudsman