Can you claim if a pothole causes a car accident?

If poor road conditions cause a car accident, you can claim – but you will have to prepare your case properly to ensure it succeeds.

Potholes and poor driving levels are major causes of accidents and even if it is sometimes only your car’s tyres that must be replaced, large potholes can cause much worse damage. Your insurance usually pays for the damages, but what happens if you are not insured?

South Africa’s road infrastructure is crumbling and, in some areas, conditions are so dire that insurance companies are stepping in to repair highways and roads in an effort to stem the increase in road accident claims.

According to one insurer, pothole-related accident claims increased by 15% in a year and 75% of the vehicles for which claims were filed had to be scrapped because the damage was so severe.

We have all seen the videos of gigantic potholes on provincial and municipal roads with people even having a swim in them because they are so big. The memes of potholes are sometimes funny, but it shows the scale of the problem.

It is also important to remember that it is not only vehicles that are damaged. Injuries and deaths caused by poor road conditions are on the rise, says DSC Attorneys from Cape Town.

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How bad are South African roads?

Inadequate maintenance takes a toll on road users and many roads are also very old. According to reports, there are approximately 25 million potholes on South African roads and heavy rains and flooding add more potholes to this number every day.

The department of transport acknowledges in the National Land Transport Framework that “… nearly 80% of the national road network has exceeded its 20-year service life structure design”.

Based on Treasury estimates, more than R255 billion will be needed over the next three years to build, upgrade and maintain the country’s road transport infrastructure.

Meanwhile, the economic cost and loss of life due to accidents on poorly maintained roads continue to increase. In 2022, the 10 000-plus fatal car accidents in South Africa cost the economy R186 billion, or 3.3% of gross domestic product (GDP).

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Who is liable?

Anyone injured in a road accident without doing anything wrong is entitled to claim damages, DSC Attorneys say. When the accident is due to a cracked, crumbling road surface full of potholes, one of these three parties can be held liable:

• the South African National Roads Agency (SANRAL), the authority responsible for the maintenance of the national road network;
• the provincial or local government responsible for the repairs and maintenance of provincial roads; or
• the local municipality or city council that must maintain and upgrade ide municipal roads.

When an agency fails to uphold the roads to a safe standard or fails to warn motorists of a potential road hazard, it is negligent in its duty and therefore liable for damages, DSC Attorneys say.

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How to ensure your claim succeeds

For a claim of this nature to succeed, you, as the injured party must prove that you were injured due to a defect in the road that the entity concerned must maintain and repair. Therefore, the agency was aware of the existence of the defect but could not repair it in time or warn motorists accordingly.

You will need witness statements, medical and police reports, photographic evidence of the car and the existing road conditions and invoices for medical expenses and vehicle repairs to support your claim.

However, DSC Attorneys says, it can be difficult to determine which entity may be liable for damages and prove the basic elements necessary for a claim to succeed. Factors such as wrongful conduct, error, cause and harm must be established so that a claim can be considered.

For this, you will have an experienced lawyer with an in-depth knowledge of the legal process and how to get the compensation you deserve to get.