Vehicle damage by Pothole

irish bloke wrote: »

But what if as GM228 called out "Unless they did something which caused the damage they are not liable" i.e repaired a hole poorly that got worse due to rain. Is this not the council doing something which caused my damage?

No, they have to do something which causes a danger to be liable, the repair may not cause any danger, the subsequent falling back into disrepair may cause a future danger and as already shown they are not liable for leaving in "improper repair".

GM228 wrote: »

They are not lawfully liable for failure to repair a road, that is not to say they won't pay out, but if you went to court to try and force them to then you will loose as the courts have already long held they are not liable.

Part in bold is important: a council may have a policy of reimbursing amounts for invoices (possibly because it's cheaper than defending a case in court, regardless of the likely outcome), but if you're planning to take advantage of such a policy, you are bound by their requirements. If you don't want to go by that policy, then your other option is the courts, but as shown, you're going to have a difficult time of it

GM228 wrote: »

They are not lawfully liable for failure to repair a road, that is not to say they won't pay out, but if you went to court to try and force them to then you will loose as the courts have already long held they are not liable.

From the Gallagher vs Leitrim County Council [1955] 89 ILTR 151 High Court case:-

Does that apply to pedestrian pavements also?

irish bloke wrote: »

The repair may not cause immediate danger but the repair may also cause subsequent danger.

If it was repaired previously then in my mind they caused danger by not repairing it correctly

unfortunately for you the courts do not share your mind.

irish bloke wrote: »

Maybe so - but reading everything in the thread I believe there maybe a case for misfeasance based on the council doing something that caused a danger - I also appreciate there are other strong opinions here.

Eh, it's not just strong opinions, it's binding decisions of our superior courts, the principles involved are long settled.

bladespin wrote: »

But that's what it's for???

You claim from your insurance and they in turn will claim from the council (if they can), the whole reason to have insurance is so you don't carry the hassle yourself.

It's a non-fault claim, so loading would be minimal in general, worth discussing with your insurance anyway, get their advise first.

Sure it's clear what insurance is for, but in Ireland, where Motor Insurance is concerned....let sleeping dog's lie. Regardless of the circumstance's and the right's and wrong's of the case.For something like this, I would not involve my insurance..once you log a claim, you are flagged, and believe me, even if 100% innocent, that will be on your file. And it's not as if the insurance company's here need any justification for jacking up your premium...

bladespin wrote: »

You are entitled to know what's on your 'file' btw, BUT either way many policies also include legal cover, which can be used for advice, this should not jeopardize your NCB.

Yes I bought the extra "legal cover" when I was renewing a few week's ( I have always bought it and breakdown recovery too, just in case,,,,,,,) None the less, I would only"disturb" the insurance when I would absolutely need to.....and preferably never. That's about how much I would trust them here in Ireland. But each to his own...I feel sorry for the OP...he is caught between a rock and a hard place, and damaged wheel's and tyres etc are a very common occurrence here in Ireland. And as this post has shown, legally, there are pretty stringent circumstances to be fulfilled before the Council can be held liable. It's not completely cut and dried by any mean's. I wish the OP good luck with finding a solution.

Yeah true with the invoices as had to do the same, funny within 2 days the pothole was filled in as well once i rang them. Wouldn't of been surprised if a few other cars had hit it. To be honest wouldn't of thought you could claim like that from the council only that a neighbour mentioned they did as well the year before over a pothole, i would of thought it was just tough luck that you hit it and had to pay outta your own pocket and that was it.

hullaballoo wrote: »

While the law is long settled on misfeasance/nonfeasance, there is a view that doctrine is outdated and should be challenged as has happened in England in recent years. It doesn't exist any more there and neither the State nor its emanations can evade liability for nonfeasance.

I would not like to guess when it might be abolished here but you would think the day will have to come.

The distinction between misfeasance and nonfeasance was abolished by statute in England though in relation to Council liability (not a court challenge) which resulted in the abolishment of the defence of nonfeasance (it happened in 1961, not in recent years), however, despite the abolishment of the defence there is still a test (known as the Miller test) to be satisfied before a Council is liable.

Unless S60 of the Civil Liability Act 1961 is commenced I can't see the position changing any time soon here, in 2014 Hogan J indicated in the McCabe vs South Dublin County Council [2014] IEHC 529 High Court case that the principles would remain good in Irish law unless challenged on a constitutional basis (or obviously if legislation dictates) and the Courts here continue to affirm the doctrine including I believe a few very recent cases.

Happened my wife about 6 months ago, blew out the side of front left tyre. She sent council letter with evidence, details of where and when and the receipt for the €260 it cost for the tyre. She has been passed from pillar to post with long delays every time and still no joy.