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B.C. couple's pothole claim dismissed by tribunal

The Civil Resolution Tribunal ruled the City of Victoria met its duty of care in filling the pothole the day after it was reported.
A Victoria couple won't be getting $1,400 to repair car damage allegedly caused by a pothole.

B.C.’s Civil Resolution Tribunal has dismissed a case brought by a Victoria couple against the city, alleging that their vehicle had been damaged as a result of driving over a pothole. 

David Drinkwater and Suzanne Malo sought $1,400 for vehicle repairs after the Dec. 26, 2022 incident near Fort and Yates streets. 

The ruling on Tuesday from tribunal member Megan Stewart noted that “evidence clearly shows” Drinkwater did not report the pothole that allegedly damaged Malo’s vehicle until he submitted a claim on Jan. 10, 2023, on Malo’s behalf. 

The city said there were no reports of the pothole in question until Dec. 27, 2022, when another member of the public complained about it. 

The city provided a request-for-service document showing a crew was dispatched to fill the pothole on Dec. 28, 2022. It was then milled and paved on Jan. 4, 2023. 

The city said its “road failure and pothole repair procedure” shields it from negligence liability and asked that the claim be dismissed. 

The city said Drinkwater did not have standing to bring the claim as the car is registered to Malo, so Stewart dismissed his claims. 

Malo, however, said the city owns the road and is responsible for damages it causes to road users. 

“She also says the city cannot argue it did not have notice of the pothole until after the Dec. 26, 2022 incident because the city has known for a long time that its streets are below an acceptable level, and has not taken sufficient action to remedy the situation,” said the ruling. 

“While Ms. Malo does not specifically use this term, I find she alleges the city was negligent,” Stewart said, noting Malo needed to prove the city owed her a duty of care. 

The city relied on what is known as a policy defence, which “says that governments, including local governments like the city, do not owe public users of its property a duty of care if the government’s actions were based on a policy decision,” Stewart explained. 

The city submitted a statement from its supervisor of roads and bridges to the tribunal explaining that road damage is identified either by the six to eight city crews doing such work or through notification from the public. 

Malo claimed the city was or should have been aware of the generally poor state of its roads due to media coverage and should have taken additional steps to address the issue. 

“I disagree,” Stewart said. “I find that being generally aware of the roads’ state did not meet the policy requirement for maintaining or repairing any particular city roads.” 

Stewart said the city followed its own policy in responding to the pothole once it was reported. “I find the city did not owe Ms. Malo a duty of care, and so was not liable in negligence for the pothole. I dismiss Ms. Malo’s claims.”