You can claim against a council if its failure to maintain a road or pavement injured you. Highway authorities have a duty to maintain the highway under section 41 of the Highways Act 1980. But the council has a defence under section 58 if it can show it had a reasonable system of inspection and repair. So a pothole or paving claim turns on proving the defect was dangerous, caused your injury, and that the council's maintenance fell short. The usual three-year limit applies.
Trips on broken pavements and cycling or driving over potholes are common causes of injury, and the body responsible for maintaining most roads and footways is the local council acting as the highway authority. Claiming against a council is possible but is harder than claiming against a careless driver, because of a specific statutory defence. This guide explains the law, the hurdles and how to give yourself the best chance.
One thing to be clear about from the outset: we are an independent information service, not a law firm and not a firm of solicitors. Nothing here is legal advice about your own situation. For that, speak to an SRA-regulated solicitor or use the official sources we signpost below.
The council's duty to maintain the highway
Under section 41 of the Highways Act 1980, the highway authority — usually the local council — has a duty to maintain the highway, which includes carriageways and pavements (footways). If a road or pavement is allowed to fall into a dangerous state of disrepair and that defect injures someone, the authority can be liable. This is the foundation of most pothole and broken-paving claims, and it sits alongside the ordinary law of negligence and occupiers' liability covered in our public liability guide.
The section 58 defence councils rely on
⚠️ Why council claims are harder to win
Councils have a powerful statutory defence under section 58 of the Highways Act 1980. If the authority can show it took reasonable care — in practice, that it had a proper system of inspection and repair and acted on defects within its policy timescales — it can defeat the claim even though you were genuinely hurt. That is why these claims often turn on the council's inspection records, the size and depth of the defect, and how long it had been there.
What makes a defect 'dangerous'
Not every imperfection in a road or pavement is actionable — surfaces are rarely perfect. The defect generally has to be dangerous: significant enough to present a real, foreseeable risk to ordinary users. There is no fixed legal depth, but councils often use intervention thresholds in their own policies as a guide. Photographs that show the defect's depth and width against something for scale (a ruler, a coin) and its exact location are therefore vital. A trivial unevenness usually won't found a claim.
Building your evidence quickly
Because the defect may be repaired soon after your accident, act fast: photograph the hazard from several angles with a scale, note the precise location, and record the date and time. Get witness details, report it to the council (and keep the reference), and seek medical attention so your injuries are documented. You can later request the council's inspection and maintenance records, which often decide the case. Our evidence guide and slip and trip guide explain what to capture.
The three-year time limit
A claim against a council for personal injury is subject to the usual three-year limit under the Limitation Act 1980 in England & Wales, running from the date of the accident (with the standard extensions for children and those lacking capacity). Because evidence such as the state of the defect disappears quickly once it's repaired, it is wise to start gathering proof and seeking advice straight away rather than waiting. See our time limits guide.
Frequently asked questions
Can I claim against the council for a pothole injury?
Potentially yes. Highway authorities have a duty under section 41 of the Highways Act 1980 to maintain the road. If a dangerous pothole caused your injury you may have a claim, but the council can defeat it under section 58 if it shows it had a reasonable system of inspection and repair, so these claims can be hard-fought.
What is the section 58 defence?
It is a statutory defence under the Highways Act 1980 that allows a highway authority to avoid liability if it can prove it took reasonable care — typically by showing it had a proper system of inspecting and repairing the highway and acted within its policy timescales. The council's inspection records are often decisive.
How big does a pothole or paving defect have to be?
There is no fixed legal depth, but the defect generally has to be dangerous — significant enough to pose a real, foreseeable risk to ordinary users. Councils often refer to intervention thresholds in their own maintenance policies. Trivial unevenness usually won't support a claim, so clear photos with a scale are important.
What evidence do I need to claim against a council?
Photographs of the defect from several angles with something for scale, its precise location, the date and time, witness details, a report to the council with its reference number, and medical evidence of your injury. The council's own inspection and maintenance records, which you can request, are often central to the outcome.
How long do I have to claim against a council?
Normally three years from the date of the accident under the Limitation Act 1980 in England and Wales, with the usual extensions for children and those lacking mental capacity. Because the defect is often repaired quickly, gather evidence and seek advice as soon as possible.
Get help from official, free sources
- GOV.UK — official guidance on injury claims, the courts and your rights
- Citizens Advice — free, impartial advice on making a claim
- Solicitors Regulation Authority (SRA) & The Law Society — check and find a regulated solicitor
- Official Injury Claim (OIC) — the free portal for lower-value road-traffic injury claims
- Civil Procedure Rules (justice.gov.uk) — the rules and pre-action protocols that govern claims