Personal Injury Case 2
Accident circumstances
Mr D tripped on a raised paving slab in August 2002 which was situated outside a school. He sustained a fracture to his left little finger. He took photographs of the raised paving slab the following day and measured the height in excess of one inch. The defect was immediately adjacent to a substantial crack in a wall which was caused by a tree on the other side of the wall.
The Defendant, who was the local authority responsible for maintenance of the highway, denied liability saying that they had in place appropriate inspections and at the last inspection in July 2002 there was no defect.
The Law
Pursuant to s.41(1) of The Highways Act 1980 “the authority who are for the time being the highway authority for a highway maintainable at public expense are under a duty to maintain the highway”.
Under s.58(1) of the Highways Act 1980 a Statutory Defence will be made out if the highways authority “can prove that they had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic”
Consideration needed to be given to s.58(2) of the Highways Act 1980 “whether the highway authority knew or could reasonably have been expected to know that the condition of the highway was likely to cause danger to users of the highway”
The issues
1. The Claimant maintained that the height of the trip in July 2002 was over 1” as was evidenced by the photographs taken.
2. The Defendant maintained that they had adequate inspections of that stretch of the highway (every 3 months); they only actioned repairs when the height of any raised paving slabs exceeded 20 millimetres; that in August 2002 there was no actionable defect but that when they inspected in November 2002 a defect was found and a repair was actioned.
3. The Claimant submitted that because of the proximity of the tree to the defect and that the roots of the tree must have caused the raising of the paving slab, that it would have been impossible for the slab to have been raised between July 2002 when the pavement was last inspected and August 2002 when the accident occurred.
4. Consideration was given at Trial to previous inspections and works orders on the same stretch of highway.
Judgment
The Claimant gave clear and precise evidence which the District Judge accepted. The Highways Inspector was not available to attend Court.
The District Judge found that the pavement was used frequently and heavily; from the photographs it was “scruffy” with multiple breaks in paving slabs and that the paving slab in question was clearly raised to a point below the crack in the wall and it was clearly a hazard. The breach was foreseeable and the Council should have inspected on a more regular basis. The test was “reasonable foresight of harm to highway users”. There was a potential danger which was not heeded or recorded but which could have been removed by more vigorous reporting.
The Claimant was awarded £1,380.
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