Who's liable if your car is damaged by a pothole?

Who is responsible if a car is damaged by a pothole?

You would imagine that damage caused to your car as a result of poor or negligent road maintenance would be paid for by the body charged with maintaining those roads, right? Certainly that was once the expectation.

But think again, because at a point in history where our roads haven’t been as neglected for many decades, the authorities are doing their level best to make it the car owner’s problem.

It should be a simple question: Who is liable for damage caused by potholes? It was once the case that the state authority or local council responsible for a particular stretch of road would pay up if a lack of repairs – usually a giant pothole – caused damage to a car – most usually its wheels and tyres, but often suspension as well.

That’s kind of still the case on paper, but the reality is the car owner is likely to be fixing the car at their own cost thanks to a range of loopholes drafted into recent legislation.

As such, you need to take each case of vehicle damage on its own merits because you could wind up dealing with a variety of state-based bodies or one of the hundreds of local councils who are technically responsible.

Either way, the recent spate of extreme weather events, combined with cash-strapped post-Covid governments has meant getting the responsible authorities to pay for your car’s damage when you hit an unrepaired crater in the middle of the road, is more difficult and less likely than ever before.

When it comes to getting out of paying a pothole damage claim QLD is a great example. For a start, you have to fill in an online form and provide details of the location, photos of the damage to your vehicle and receipts or quotes for repairs.

Then, to make your claim stick, you are responsible for proving that the Department of Transport and Main Roads failure to repair the damage was a contributor to the damage on your car. Exactly how you do this is not part of the explanation.

The Dept then references the state’s Civil Liability Act (2003) to determine whether the department should have known about the problem, what resources were available at the time and whether another problem took precedence over the pothole that smashed your front wheel and shredded the tyre.

Because of this, it’s impossible to suggest whether a particular claim will be accepted or not, because of the nebulous nature of these clauses.

Then there are the department’s other get-out-of-jail cards. These include denying claims for damage due to debris, and damage to tyres (or their rims) with an aspect ratio of 40 per cent or less. And this, despite the fact that many new cars are fitted legally, from the factory, with 40-series tyres or smaller. Oh, and if a weather event is deemed extreme, damage from that won’t be covered, either.

Should you be from down south and thinking about lodging a pothole damage claim Victoria right now also has the loopholes coming thick and fast. Cash-strapped as the state is, road maintenance has been one of the victims, yet the state is doing more and more to avoid taking responsibility for this.

Just for starters, the department responsible has changed the dollar-value threshold of the damage before it will step in. Indexed to the Consumer Price Index, the threshold for the 2024/25 financial year stands at $1640.

That is, unless you have a damage bill for greater than this amount, the department is not going to cough up. Interestingly, replacing a wheel and tyre (surely the most common claim) would generally be less than this threshold, getting the department conveniently off the hook.

Even when the damage surpasses the threshold, the payout would only be for the amount of the damage that is above and beyond that threshold.

So, if your car sustains $1650 worth of damage and you can get the department to admit responsibility, your damages payout will be $10. And since a pothole flat tyre reimbursement is all most people are looking for, that threshold is a distant target.

To lodge a pothole damage claim NSW style, you’ll also need to jump a few hurdles. You’ll need to download a PDF form from the Service NSW website, then add your personal details including a photocopy of the licence of the person driving at the time of the damage.

You also need to include a map or diagram of the incident and location, the details of the vehicle, the details of the damage (including photos) and copies of at least two quotes for repairs as well as the repair invoice. And then you can wait for up to six weeks for the authorities to okay or deny your claim.

The bottom line in all of this is that you’ll be expected to do the legwork in getting any claim for damages paid on this basis.

Claiming pothole-created damage from the state government versus claiming pothole damage from council coffers will be a different process across the country as the rules dreamed up by each body will vary.

At last count, there were 537 local councils across Australia, all of them potentially responsible for fixing potholes and the vast majority of them employing pothole repairers either as staff or contractors.

This comes down to who makes the rules, and who you need to deal with will relate to who is responsible for fixing potholes on that section of road. And since the GFC and Covid, when all departments are feeling the pinch, the clauses are getting ever more pernickety.

But there must be more to it than that? Probably, and as well as a general tightening of budgets around the country, many councils who once employed road crews would have calculated that the average pothole repair cost was less than paying out a car owner’s claim.

But these days, when so much roadwork is conducted by contactors maybe that’s not the case any more. And if you can wriggle out of the claim and wait until the pothole can no longer be ignored, perhaps that’s the financially sound – if not them morally correct – approach at work.

If you do wind up on the wrong end of a pothole with a damaged car, the first thing to do is make sure everybody is safely off the road (assuming the car is no longer driveable). You can then elect to either change the tyre yourself (if no other damage has been done) or call the road patrol cavalry.

From there, you need to document all the damage and keep notes, quotes and receipts for any rectification work. Finally, it’s then up to you to contact the relevant department (once you’ve worked out who that is) and put your case forward. Good luck.

You may find an independent inspection of the car by your local workshop or state motoring club is a good idea, too, but make sure you get a written report of the damage to present as part of your case. Don’t forget to take photos of the pothole at the scene.

The other thing you need to do before embarking on this damage claim journey is make sure the damage is indeed, pothole inflicted.

There are plenty of ways to damage a car’s suspension or wheels, but if the damage coincided with hitting a giant crater in the fast lane, that’s the big clue in how to tell if pothole damaged car parts are what you’re looking at versus general wear and tear. Perhaps the impact was recorded on your dashcam? Even better.

Meantime, it’s important not to confuse pothole damage with debris damage. And who is responsible for road debris damage? Another debatable question.

If the debris is the actual bitumen parts of a pothole being flung everywhere by a leading or oncoming car, you probably have a case. But if the debris is just general rocks and stuff thrown up by other cars, or junk falling from a tradie’s ute and then struck by your car, you’re more likely to be on your own.

Potholes are most likely to develop after rain. The water gets under the bitumen, loosening the road base and allowing the top layer of bitumen to break up.

By the time a few hundred cars and a dozen heavy trucks have further pummelled that same section of road, potholes are being born. And until pothole repairs have been carried out, it’s only going to get bigger. Any driver who clobbers it at that point is very likely to suffer car damage.