Driver's bid for $3K pothole payback stalled by court

For drivers, potholes are like the highway version of the mosquito — they appear out of nowhere, dig deep into the artery and leave a victim nothing but a stinging desire for revenge.

But as one Lower Mainland driver discovered recently, payback is an even harder road to travel.

B.C.'s Civil Resolution Tribunal rejected the man's bid to reclaim $3,000 in expenses from the contracting company tasked by the province to repair potholes on Highway 99.

Not only did tribunal member Sarah Orr find that Tim Brumby failed to prove that Mainroad Lower Mainland Construction Ltd. was negligent — her ruling also details the conditions in which potholes practically appear out of nowhere.

"During the winter months at the tunnel entrances hydrostatic water pressure pushes through layers of concrete and asphalt," Orr explained.

"The freeze-thaw cycle combined with heavy traffic causes conditions in which potholes can form within minutes."

'He struck a deep pothole'

The presence of potholes on Highway 99, which includes both the Sea-to-Sky Highway and the George Massey Tunnel, is a source of constant frustration for drivers.

According to Ministry of Transportation statistics, tens of thousands of drivers use the road every day.

Brumby sued the company after his car fell victim to a pothole while he was travelling northbound on Highway 99 last February. He was exiting a tunnel.

"He struck a deep pothole damaging his car's tires and rims," Orr's ruling says. 

"He says he was travelling 35 km/h at the time, below the posted speed limit, and that traffic was heavy. He says that even if he had seen the pothole in advance, he could not have avoided it."

The decision does not specify exactly where on Highway 99 the pothole was located.

Mainroad Lower Mainland Construction has a contract with B.C.'s Ministry of Transportation to provide maintenance services on the highway.

As part of the contract, the company has a 24-hour window to repair a pothole once it gets word of one's existence.

According to the judgment, the pothole at the heart of the dispute was fixed on the same night that Brumby's incident was reported.

All signs point to pothole heartache

Brumby claimed the company was negligent in failing to prevent the pothole before he hit it.

"He says there are leaks at both ends of the tunnel causing excess water on the road, which contributed to potholes," Orr writes.

"He says [Mainroad's] VP of Operations told him there is a problem with the water table pressure and inadequate construction of the tunnel area to control the water on the road, but the (Ministry) does not want to pay for the necessary repairs."

But Brumby failed to provide evidence of that conversation.

The company argued that the type of repair required to "fix" the root cause of the potholes is beyond the scope of its contract, and that the 24-hour repair window had been met.

Brumby also argued that there should be a sign at the entrance to the tunnel warning motorists about the possibility of potholes. The company said the idea had been discussed.

"It was determined that adding further signage would confuse drivers as there are several other overhead signs in the area, and there is very limited space at the entrances to the tunnel," Orr wrote.

"[The company] does not own the relevant portion of the highway and therefore it does not have control over such decisions."

'Such evidence would be easily obtainable'

The decision also illustrates the difficulties inherent in preparing a case for the Civil Resolution Tribunal, a venue for small claims actions in which most participants represent themselves. 

Orr found that even if Brumby had proven the company negligent, he failed to account for the damages he was claiming.

He said his car required a tow and that he had to replace all four tires and repair the rims.

"He says he made an insurance claim and paid a $300 deductible," the decision says.

"However he provided no evidence of the extent of the damage to his car, the cost of repairing it, or his insurance claim, even though I expect such evidence would be easily obtainable."