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DWF case update - Highways

Sarah Adams and Sophie Wilding extract some useful pointers from the successful defence of recent claims involving highway defects.

Recent highways cases

Stanton v Dudley MBC: Trip - adequate inspection

Stanton v Dudley MBC
5 December 2014 
Dudley County Court

DWF acted for Dudley Metropolitan Borough Council on the instructions of DMBC.

Facts

The claimant, aged 22 at the time of the accident, was walking along a carriageway near to her home when she allegedly stumbled and fell due to crumbling tarmac near to the kerb.

S.41 Highways Act 1980

Liability was firmly denied by the highway authority for the following reasons:

  • The carriageway was the subject of six monthly inspections and had been inspected just over one month pre-accident.  Whilst the highway inspector referred the carriageway for assessment, no specific repairs were raised and it was not considered that the carriageway presented any immediate hazard.

  • The maintenance manager then attended 5 days pre-accident to carry out the assessment requested.  He was of the view that the road would need resurfacing before the winter and raised the job accordingly.  At the time of his assessment, he noted a defect and raised this for an immediate repair which was carried out the same day.  This defect was very near to the accident locus. It was the highway authority’s case that if the alleged defect had been in the state it was at the time of the claimant’s accident then this would also have been raised for an immediate repair.

  • The highway authority inspected the alleged defect two days following the accident and raised the job for an immediate repair.  Both witnesses for the highway authority confirmed that the defect depicted in photographs taken by them two days after the accident did not represent how the defect was at the time of the pre-accident inspection or the subsequent assessment and had it done so, both witnesses would have raised it for immediate repair. 

S.58 Highways Act 1980

The highway in question was subject to a six monthly walked inspection. The highway authority also had a reactive system in place whereby they would respond to complaints and enquiries made by members of the public.  No defect was reported at the accident locus and the claimant was unable to say how long the defect had been present.

Trial

The claimant gave evidence to say that as she walked across the road she fell as a result of losing her footing on crumbling tarmac.  She was unable to say how long the defect had been present and could not say what the defect was like at the time of the assessment.  She reported her accident to the highway authority two days after the accident following which an immediate repair was carried out. 

The highway inspector and maintenance manager provided evidence to support the highway authority’s s.58 defence. 

The highway inspector confirmed that the defect was not present at the time of his pre-accident inspection. 

As for the maintenance manager, it was suggested by the claimant’s counsel that he had failed to carry out an adequate assessment of the carriageway five days pre-accident and that it was impossible for the defect to have deteriorated to such a state within such a short period of time.  This was not accepted by the maintenance manager who confirmed that roads could deteriorate very quickly.  He did not accept that at the time of his assessment the defect had been in the state it was at the time of the later photographs. Had it have been so, he would have raised it for an immediate repair at the same time as raising the other urgent repair on that day.

Submissions made to the trial judge

Counsel for the claimant submitted that there could be no doubt that the defect would have been present at the time of the assessment and at that time already dangerous.  He contended that it was wholly unlikely that the defect could have deteriorated to such a degree within a period of 5 days and in view of this he submitted that the s.58 defence should fail on the basis that the highway authority had failed to carry out adequate inspections of the road.

Counsel for the highway authority submitted that whilst it was accepted that the defect depicted in the photographs taken two days post-accident was dangerous, this was not how the defect was at the time of the pre-accident inspection or the assessment carried out by them five days pre-accident.  Counsel submitted that it was ludicrous to suggest that this defect had been missed by the highway authority given the close proximity of the other defect that had been raised for an urgent repair on the day of the assessment.  Only the inspectors were able to say how the defect looked at the time of the inspection/assessment and therefore the judge was invited to accept the defendant’s case that on the balance of probabilities the defect was not dangerous at the time of the pre-accident inspection, but more importantly on the date of the assessment.  

Findings

DDJ Wooderson found as follows:

  • The defect was dangerous at the time of the claimant’s accident and did breach s.41 Highways Act 1980.

  • However, the inspection prior to the accident was adequate and the claimant was unable to say whether the defect was present at the time of that inspection.

  • The assessment of the road five days pre-accident was also adequate.  The maintenance manager was the only person giving evidence who could say what the defect was like at that time and the judge agreed with the highway authority that it would make no sense whatsoever to arrange for one urgent and immediate repair to be carried out and leave another dangerous defect very nearby.

  • On the basis of the above, the claim was dismissed.

Comment

It is regularly argued by claimants in highways cases that where pre-accident inspections are carried out close to the accident date, that the defect must have been present at that inspection and therefore there must have been a failure by the inspectors to carry out their inspections adequately. 

This case shows that defects can deteriorate very quickly but if there is a good system of inspection in place, then it is possible to successfully defend the claim.  Whilst the defect here deteriorated within a matter of days, only the maintenance manager could say what it was like at the time of the pre-accident assessment and therefore his evidence as to whether it was dangerous at that time had to be accepted by the court.

For further information please contact Sarah Adams on sarah.adams@dwf.co.uk or 0121 200 0452

Forcer v Hartlepool Borough Council: Trip - evidence

Forcer v Hartlepool Borough Council
May 2014
Middlesbrough County Court

Facts

This claim related to an accident which occurred on 25 April 2011. The Claimant (an elderly lady aged 74) was walking along the footpath on Hart Lane in Hartlepool when she lost her balance on an uneven surface and fell to the ground sustaining injuries.  The defect was not noted by the highway inspectors prior to the accident and was repaired following notification of the accident.

As repairs were carried out so soon the Claimant did not have an opportunity to take photographs of the defect on which she fell. The Claimant photographed a nearby defect and said that the defect she fell on was similar in size.

The Council argued that the defect was not actionable and there was no evidence other than the Claimant’s as to the condition of the defect at the time of her fall.

The Claimant sought to rely on the expert engineering evidence of Mr Raymond Poyser, although permission was refused.

Findings

The defence was successful at trial.

Comment

This was a good result on the basis that the court can have sympathy with elderly claimants who bring tripping claims. However, in this case, she just did not have adequate evidence to prove a breach of Section 41 Highways Act1980.

For further information please contact Sophie Wilding on +44 191 233 9711 or at sophie.wilding@dwf.co.uk

Foster v Durham County Council: Highways defect – not dangerous

Foster v Durham County Council
August 2014
Newcastle County Court 

Facts

This claim related to a rather odd highway defect. The defect was a mound of tarmac that had come about due to a patch repair. The mound was set over a square patch measuring 300mm by 300mm and had sloping edges on each side. The maximum height of the mound was 30mm, although there were no sharp tripping edges. This defect did not fall into the Council’s description of defects and it was argued that it most resembled a depression, although inverted.

Findings

DDJ Hill found that the defect was not dangerous, and even if it had been dangerous the highway inspector had done the right thing by adding the footpath to a future scheme of work.

Comment

This case is interesting given the nature of the defect and it is also interesting to note that the court was not concerned that the defect had essentially been created by the Council when carrying out a repair.

For further information please contact Sophie Wilding on +44 191 233 9711 or at sophie.wilding@dwf.co.uk

Suggett v Durham County Council: Pothole - evidence

Suggett v Durham County Council
January 2015      
Middlesbrough County Court

Facts

The Claimant brought a claim for damages arising out of an incident which occurred on 11 August 2011.  The Claimant alleged that he fell due to the uneven surface of a carriageway on Waldridge Lane, Chester-Le-Street.  The Claimant suggested that the carriageway was in a dangerous condition. 

The Claimant relied upon the expert engineering report of Mr Raymond Poyser.  The Claimant’s evidence confirmed that on the day in question he was running on the footpath when he came off and began running along the road in question in the direction of oncoming traffic.  It was raining hard at the time and the Claimant said he could not use the footpath due to mud and overhanging branches.  He said that he came across a large pool of water extending over the footpath.  He described where it extended to and from and confirmed that he could not see the surface beneath the puddle and chose to run through it. The puddle at its deepest point must have been at kerb height as the Claimant said it was running over the kerb line.  When he was running partway through the puddle he felt his foot go in a hole, his ankle turned, and he fell. 

The Claimant had two sets of photographs taken after the accident, one set only a week or so after. The Claimant could not say when the others were taken, although the trees and foliage suggested autumn time.   

Findings

DDJ Willis found that due to a number of inconstancies in the Claimant’s evidence he was unable to prove his claim. He did not see the pothole in question as it was obscured by water and there were other potholes near where he said he fell which were also covered in water and it could have been that or something else that caused him to fall. 

Comment

The Claimant’s expert engineer did not perform well in the witness box, although the Judge did not make any comments as to the expert evidence in the judgment as the claim fell at the first hurdle. This is useful as a number of claimant firms continue to attempt to rely on these types of report which do not seem to assist the Court come to a conclusion in any case.

For further information please contact Sophie Wilding on +44 191 233 9711 or at sophie.wilding@dwf.co.uk

By Sophie Wilding and Sarah Adams

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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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