Pothole crash: who is at fault

A crash caused by a pothole or a badly maintained road can lead to a claim against whoever was responsible for maintaining that road, rather than against another driver. This might be a local council, the Public Works Department (Jabatan Kerja Raya, JKR) for a federal or state road, or the concessionaire for a tolled expressway, depending on where it happened. The general rules for who is at fault in a crash still apply.

The typical facts in this crash

A vehicle, often a motorcycle, hits an unmarked pothole, a collapsed edge or a sudden surface defect and loses control. No other vehicle may be involved. The defect has often existed for some time before the crash.

How fault is usually assessed

The road authority or concessionaire is expected to maintain the road to a reasonable standard and to fix or warn of a known hazard within a reasonable time. A claim generally needs to show the defect existed for long enough that it should have been found and dealt with, not that it appeared moments before your crash.

The evidence that decides this dispute

• Photographs of the pothole itself, including its size and depth, taken as soon as possible.
• Any prior complaints made to the authority about that stretch of road.
• The police report’s description of the road condition at the scene.
• Witnesses or other road users who had trouble at the same spot.
• Dashcam footage showing the surface just before impact.

Report the accident and the road defect within 24 hours, and keep a copy of the report for your records.^[2] The police report after an accident explains what else to include.

Why the deadline matters more here

If your claim is against a local council or another public authority, a shorter 36-month deadline applies, rather than the usual six years in Peninsular Malaysia for an ordinary injury claim.^[1] Claim deadlines you need to know sets out how this compares with other situations.

What to do at the scene and after

Find out early who maintains that stretch of road, since this decides who the claim is against and which deadline applies. Motorcyclist support after a crash and do you need a lawyer are worth reading next.

Claims against a public authority are harder to prove and the deadline is shorter. An independent lawyer can take the claim on for you.

For the first contact, share general dates, location, case status and a short summary only. Keep documents private. Only after an identified lawyer or law firm contacts you and specifically asks for them should you provide that identified lawyer or firm with the accident date, the exact road, photos of the pothole, whether anyone was injured (yes/no) and the police report status.