Motorist shares advice after taking on Waka Kotahi for compensation over pothole damage on State Highway 1 and winning

Scott Hearn fought Waka Kotahi for compensation over a damaged wheel he was forced to replace after driving over a pothole. Photo / Andrew Warner

A man who fought Waka Kotahi NZ Transport Agency for compensation over a damaged wheel he was forced to replace after driving over a pothole is urging other motorists to “stick to their guns”.

Scott Hearn, an automotive engineer from Rotorua, was awarded nearly $2300 to cover the costs for a new rim, new tyre pressure sensor, two new tyres, cost of fitting and wheel alignment.

He believed the “winning formula” was quoting the New Zealand Consumer Guarantees Act.

This week it was revealed more than 211,000 potholes had been reported on New Zealand state highways over the past five years.

Waka Kotahi has also revealed it received nearly 800 compensation claims in 2022 - a jump of nearly 90 per cent on the year prior.

In August 2022, Hearn drove his car over a pothole on State Highway 1 near the intersection of Hickey Rd at Karapiro, causing the front left tyre and wheel to be replaced.

Hearn told the Rotorua Daily Post Weekend he sought compensation for just the front tyre and wheel but, from his perspective, he struggled to get any straight answers for nine months and believed he was “sent on a wild goose chase”.

He then took Waka Kotahi to the Disputes Tribunal seeking compensation for all four tyres on the basis that all should have similar wear for the system on his car to work properly.

He told the the process was, in his view, an “absolute mess” but urged others seeking compensation to stick to it.

“Stick to your guns and stand up for your rights — it’s as easy as that.

“In New Zealand, we have consumer law, and it’s very strong and there for the public ...”

Scott Hearn fought Waka Kotahi for compensation over a damaged wheel he was forced to replace after driving over a pothole. Photo / Andrew Warner

In the tribunal decision, G R Meyer found Waka Kotahi breached its duty of care and was liable to compensate Hearn but for only the two front tyres and associated fitting costs, including a new pressure sensor for the front left wheel.

The decision outlined Hearn alleged Waka Kotahi breached its duty of care to ensure the road surface was maintained in a way that it was safe to drive over.

Waka Kotahi responded it was not in breach because the pothole in question was repaired by contractors in a timely manner.

The decision noted prior to filing the claim, confusion arose over where the pothole was located and Waka Kotahi provided evidence relating to the repair of a pothole along the same stretch of road but in a different location.

By the time Hearn provided further evidence of where the pothole he hit was, supported by statements by other car occupants at the time, it had been repaired.

The site showed a substantial repair where they stated the pothole was located, and Waka Kotahi conceded it was likely that there had been a pothole at the location that had been repaired.

Waka Kotahi, in its submissions, argued it “owes a duty of care to road users to take reasonable care when maintaining the state highway network to prevent foreseeable incidents on the state highway network”.

It said it takes both preventative and remedial work on highways, prioritising preventative maintenance and undertakes remedial work once it or its contractors learn of any problems.

The timeframe for undertaking the remedial work varied depending on the size and nature of the road itself.

Waka Kotahi considered that if a repair was undertaken within the contractual timeframe it can be said to have been undertaken in a reasonable time and discharged of its duty of care.

Meyer, however, said the submissions did not set out the extent to which it should reasonably go to prevent foreseeable incidents and made no reference to preventing them.

Meyer wrote in the decision: “Waka Kotahi’s reliance on reacting to repair a pothole within a reasonable time rather than providing a warning to road users of an approaching danger then are simply reactive rather than proactive, and this policy is well short of a discharge of its duty.

“It is reasonable for a road user to expect Waka Kotahi to at least warn road users of the danger and enable them to reduce speed or take other preventative measures.”

Meyer found Hearn entitled to be paid for the replacement of two front tyres and the associated fitting costs including a new pressure sensor.

Waka Kotahi was ordered to compensate Hearn $2284.10.

Waka Kotahi Waikato system manager Cara Lauder told the Rotorua Daily Post Weekend it actively monitored the network and its contractors repaired potholes “as quickly as possible” but “by their very nature potholes form very quickly” and was difficult to predict where.

“Our contractors’ priority is identifying and repairing potholes as soon as possible,” Lauder said.

“Given the number of potholes at any given time across the 11,000km state highway network, it would be impractical, ineffective and prohibitively expensive to erect signage at the site of individual potholes, and it would divert already limited resources away from the job of repairing them.”

Complaints that road conditions caused damage to vehicles were assessed on a case-by-case basis.

An air bubble showing where the leak is on the damaged tyre.

Speaking to the Rotorua Daily Post Weekend, Hearn said he tried to get compensation outside of court but Waka Kotahi, in his opinion, was “not interested”.

In his view: “I think this whole roading issue, the genie is out of the bottle now. The roads have not been maintained to a reasonable standard for a very long time.”

Hearn believed quoting the Consumer Guarantees Act in his argument that motorists, as taxpayers, paid for roads to be of a certain standard and shouldn’t be worried about driving their car from A to B and doing potholes was key to his success.

Hearn also said the Government “needs to step up and be held accountable” for the state of the roads.

“It’s clearly an issue, from my perspective anyway, that’s come about as a result of fund cutting.

“The old saying is an inch of prevention is worth a pound of cure and that is still correct today.”

A spokesperson for Transport Minister David Parker said in a statement investment in state highway maintenance had “increased significantly”.

“There has been a 65 per cent increase in state highway maintenance funding for the current National Land Transport Programme (NLTP) period (21/24) compared to the 2015/18 period [$1.7b].

“The $2.8 billion road maintenance funding through 2021-24 is the most significant funding ever.”