Russel’s life changed when he hit a pothole. Now, he’s part of a growing wave of litigation

Boxing Day 2022 was turning into a great day for Russel Heggen. Cruising along Arthurs Seat Road on his Harley-Davidson, the bay spread out before him as he snaked his way back towards his Dromana home.

The then 62-year-old didn’t even see the pothole before he hit it . The patch of road had recently been repaired, but Heggen claims that the tar had become misshapen with cars driving over it, making a mound at one end and effectively turning it into a ramp.

The impact caused Heggen to involuntarily tighten his grip on the throttle, and he and his Harley went off the road, flying between two trees and off a cliff.

Emergency services estimate he travelled around 15 metres, but his memory of the crash is fuzzy.

Luck aside, Heggen was seriously injured, suffering a broken femur and tibia, a fractured pelvis and spine, a collapsed lung and a brain injury.

The ordeal is now detailed in a writ before the Supreme Court, with the 66-year-old joining a growing number of Victorians making public liability claims against road authorities for the serious injuries sustained after accidents allegedly caused by the poor road surfaces.

In the vast majority of cases, the Transport Accident Commission (TAC) covers medical expenses related to road accidents. However, under Victorian law, in rare circumstances, road authorities – state and local governments – can be held liable for injuries.

The condition of Victoria’s roads, particularly in regional and rural areas , has been a hot-button issue in the lead-up to the November 28 state election. However, concerns boiled over earlier this month when Ballarat motorcyclist Peter “Tiki” Mason , 71, died on the Western Highway after his bike hit a pothole.

Several personal injury law firms spoken to by The Age said they were seeing an increase in inquiries from people wanting compensation for pothole-related road accidents.

“It’s a wave that’s coming,” Henry Carus, head of Henry Carus & Associates, said.

“I think people will get injured while taking evasive action just because of the size of the holes,” he said, noting his firm is currently overseeing a claim against South Gippsland Shire Council involving a motorcyclist who lost control after hitting a pothole.

Law firm Arnold Thomas and Becker has also begun action against Northern Grampians Shire Council on behalf of a woman who suffered several fractures and a torn artery when she lost control of her car near Stawell.

In each case, the lawsuits accuse the respective councils of a litany of failings, including “failing to adequately inspect, maintain, repair or warn road users” about the dangers of the roads in question – the same wording as Heggen’s claim against the Department of Transport.

Any recompense the plaintiffs receive as a result of these lawsuits will be in addition to TAC compensation, which all victims of road crashes are entitled to regardless of who is at fault.