Pothole crisis: Legal expert says Waka Kotahi is liable for compensation

Potholes taking over New Zealand's roads are causing a trail of destruction with popped tyres, dents and damaged wheel bearings.

But what are people's rights if a pothole causes expensive damage to someone's car?

A lawyer says the NZ Transport Agency Waka Kotahi is liable for compensation. However, lengthy wait times could be putting off drivers impacted by pesky potholes.

Managing director of Shine Lawyers Angela Parlane told AM she believes Waka Kotahi has an obligation to pay.

"Waka Kotahi is charged under the Land Transportation Management Act with the responsibility for maintaining roads," Parlane said. "I would argue that they do have [a] duty of care to keep that maintenance going and ensure users of the road do not sustain damage while doing so.

"In my understanding of the law, they would be liable.

"We all pay our rates, our road user charges, taxes for the upkeep of roads - so something needs to be done," Parlane said.

However, if people do make a claim to Waka Kotahi it could be months before people see any money.

Angela Parlane believes Waka Kotahi has an obligation to pay.
Angela Parlane believes Waka Kotahi has an obligation to pay. Photo credit: Shine Lawyers

Waka Kotahi refused to appear on AM on Tuesday, despite initially indicating someone from the agency would front. 

National Manager Maintenance and Operations Neil Walker said in response to Newhsub's questions that complaints that claim road conditions have caused damage to a vehicle are assessed on a case-by-case basis.

"Waka Kotahi has a duty to take reasonable care to prevent foreseeable incidents on the state highway network," Walker said. 

"We can't prevent all issues from occurring and need to prioritise our maintenance work on the state highway network. We undertake remedial work once we or our contractors learn of a defect on the road.

"Waka Kotahi and our contractors investigate to see if there are any exceptional circumstances we should be aware of, which may trigger further actions by Waka Kotahi or our contractor."

Waka Kotahi said they take all claims "very seriously" and tries to respond to people's concerns and feedback in a "timely manner".

"However, it does take some time to ensure we have thoroughly investigated the circumstances in each instance and identified any exceptional circumstances that may require further action on the part of Waka Kotahi or our contractors."

However, motorist Zane Greig said his claim has been ongoing for two months after his car was damaged by a pothole.

Greig has been regularly driving from Auckland to New Plymouth for the past 10 years but said he has never seen the roads this bad.

He said he was dodging numerous potholes on the road - but one he didn't see.

Now he has had to pay thousands of dollars to fix his car. Greig said Waka Kotahi initially told him they were so busy it would take them 20 weeks just to respond.

"I really feel for the people who can't afford this," Greig said.

Line of cars pulled over after pothole causes carnage on on State Highway 29 over the Kaimai Range.
Line of cars pulled over after pothole causes carnage on on State Highway 29 over the Kaimai Range. Photo credit: Newshub.

Last month, the Automobile Association (AA) told Newshub compensation for pothole damage is only paid out in "rare circumstances" and the chances of a successful claim are low.

"One of the key aspects will be whether the authorities knew about the pothole or problem and what they had done after becoming aware of it," AA road safety spokesperson Dylan Thomsen said. 

While reporting a pothole may feel like yelling into the void, drivers should report them to help potential future claims.

The public can contact Waka Kotahi via 0800 4 HIGHWAYS (0800 44 44 49) to advise them of any potholes they see. 

Aucklanders can report potholes in the region here.

What you can do

Parlane said the "squeaky wheel is going to get the most oil" and the public need to keep pushing their case forward by calling, writing and emailing the agency.

She also said drivers can take Waka Kotahi to the Disputes Tribunal to settle their claims.

"The more people that put pressure on these organisations, the more likelihood there is of some redress."