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Highways - pothole trip - s.41 Highways Act 1980

Godfrey v Coventry City Council
23 July 2014
Coventry County Court

DWF acted for Coventry City Council on the instructions of Gallagher Bassett.

Facts

The claimant, aged 84 at the time of the accident, was getting off a ring and ride bus parked outside her home. Whilst walking along the pavement towards the end of the bus to collect her shopping, she alleged that she tripped due to a pothole measuring 3 inches deep.

s.41 Highways Act 1980

Liability was firmly denied for the following reasons:

  • The claimant provided photographs of the defect using a ‘Heinz Tin’. Such photographs were misleading given that some of them had been enlarged showing a larger defect and some photographs did not show a defect at all. The claimant had instructed solicitors and there was sufficient time to take adequate measurements and photographs of the defect to support that the defect was dangerous.

  • The highway authority inspected the alleged location following the accident without knowledge of the accident and did not pick the defect up. After being notified of the accident, the street inspector inspected the area two and half months post-accident date and raised the area for repair on a 20 working day. The street inspector did not consider it to be an immediate danger and if he had done so he would have raised it on a 24 hour repair. 

Causation

The claimant visited Accident and Emergency on the same day of the accident. It was recorded that the claimant fell between the kerb and road. There was no mention of a pothole. Further, the medical records prior to the accident date suggested that the claimant had ongoing knee problems.

s.58 Highways Act 1980

The highway in question was subject to a 12 monthly walked inspection given that the highway authority had categorised it as a local access road. This was an adequate system of inspection which had been carried out. The highway authority also had a reactive repair policy where members of the public could report a defect but no defect was reported at the claimant’s accident location.

Trial

The matter proceeded to trial where the claimant provided evidence to suggest that the pothole had been outside the claimant’s home for a number of years. The trial judge was not impressed that despite the claimant’s witnesses stating that the pothole had been there for a number of years, no one thought to report it.

The claimant admitted that she usually uses a crutch but on the day of the accident as she was going shopping, she decided to lean on her shopping trolley. However, the trolley would have been within the boot of the bus and therefore she would have been walking unaided at the time of the accident.

Two street inspectors provided evidence to support the highway authority’s s.58 defence. The first inspector provided evidence to support the inspection pre-accident. The second provided evidence to support the routine inspection following the accident when it was unknown to him that an accident had occurred and provided evidence regarding his inspection of the area once he was made aware of the accident.

The second inspector was heavily cross-examined by the claimant’s counsel as it was put to him that he did not carry out an adequate inspection as the pothole was there and he must have missed it. The street inspector reported that if the pothole was there and was considered dangerous he would have raised it for repair. 

Submissions made to the trial judge

Counsel for the Claimant submitted that if the trial judge found that at the time of the accident, the defect was bad enough to put the highway authority in breach of s.41, there could not be a s.58 defence as the second street inspector failed to pick up the defect following the accident. The trial judge found this argument to be “fundamentally flawed”. The judge interpreted s.58 as meaning the situation is judged at the time of the accident and that it would be absurd to deprive a highway authority of a defence if it had taken reasonable care up to the point of an accident, and only not done so afterwards.

Counsel for the highway authority submitted that the photographs did not support that the defect was dangerous. The claimant had not on the balance of probabilities proven that the pothole was the cause of her fall given the medical evidence and if the trial judge found that there was a breach of s.41, the street inspector’s evidence supported the statutory defence.

Findings

The trial judge found as follows:

  • The hole was 3” deep at its deepest point. It was in line with the path and did not give rise to a trip in the way that a displaced flagstone would. The close-up photos were misleading. There was no doubt the tarmac was by no means in perfect condition but the trial judge found that a claim would not succeed for a blemish and was not convinced that there was a breach.

  • On the balance of probabilities the claimant had not proved that she fell due to a pothole. The A&E record stated that the claimant fell in between the kerb and the road and he took that to mean as it stated: between the kerb and road and not a pothole.

  • The inspection prior to the accident was adequate. The inspection was well documented which supported the adequacy of the inspection. 

Comment

  • This was a great success for this highway authority as the judge did not find there to be a breach of s.41 and even if there had been a breach, the highway authority had a s.58 defence.

  • Further, the trial judge found that the claimant could not prove that the accident was a direct cause of a pothole. 

  • It is important to focus the evidence on the various factors which have to be taken into account before the court is in a position to consider whether there has been a s.41 breach and the factors that then have to be considered assuming a breach is established. This directs the judge’s mind as to how he/she should be approaching the assessment of liability in a highways claim which can often be lost in the detail of a case. 

  • Asking the inspector to consider and give an opinion on the claimant’s photographs (which can often be misleading) and comparing these with photographs taken following his own post-accident inspection, can often be a valuable exercise because the judge will take this opinion into account.

  • Careful consideration of the medical records and looking for alternative causes and the building up of a good relationship with the street inspector led to a robust defence throughout.

Contact

For further information please contact Kiran Gakhal, Legal Executive on +44 (0)121 200 0428.

By Kiran Gakhal

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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