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DWF Case Update: Highways

Fellows v Solihull Metropolitan Borough Council
17.3.15
Birmingham County Court
DWF acted for Solihull Metropolitan Borough Council on the instructions of Zurich.

It is regularly argued by claimants in highways cases where pre-accident inspections are carried out close to the accident date, that those inspections must have been inadequate and that there must have been a failure by the inspector. Sarah Adams extracts some useful pointers from the successful defence of such a claim.

Facts

The claimant, aged 37 at the time of the accident, was walking along a carriageway near to Solihull Hospital when she allegedly stepped into a pothole causing her to fall.

s.41 Highways Act 1980

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

  • The carriageway was the subject of three monthly inspections and had been inspected three weeks pre-accident.  Whilst the highway inspector noted there to be a pothole at the accident locus this was not raised for repair because the highways inspector did not consider that it breached the intervention level of 40mm or was a likely source of danger.  He merely recorded it on his inspection sheet for monitoring purposes in order to be checked again at the next inspection.

  • However, during an ad-hoc inspection six days post-accident, the highways inspector noted that the pothole had deteriorated and immediately raised it for a 24 hour repair.  At that time, the highway authority was not aware of the claimant’s accident and were not notified of the same until one month post-accident.

  • The highways inspector confirmed that the defect depicted in the claimant’s photographs did not represent how the defect was at the time of the pre-accident inspection, but did accept that the pothole had deteriorated to such a level by the time of the ad-hoc inspection 6 days post-accident hence the reason why it had been raised for an urgent repair.  It was therefore likely that the court would find that the highway authority were in breach of s.41. 

s.58 Highways Act 1980

The highway in question was subject to three monthly walked inspections. 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 between the date of the pre-accident inspection and the claimant’s accident and neither the claimant nor her two witnesses were able to say how long the defect had been present.

Trial

The claimant gave evidence to say that as she walked across the road her foot had become stuck in the pothole and as she tried to twist around to free her foot, she fell onto her back. 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 pre-accident inspection.  She contacted her solicitors the day after her accident after being given their card by staff at the hospital she attended and when asked why she did not report her accident to the highway authority for one month, she confirmed that she thought the solicitors would notify them. 

The claimant’s two witnesses (her mother and friend) who were with her at the time of the accident were also unable to say how long the defect had been present and when counsel for the defendant asked the claimant’s friend why she had taken a photograph of her friend whilst she was lying in agony in the road and waiting for the ambulance to arrive, she confirmed that she had been advised to do so by employees of a doctors surgery who had come out and told the claimant she should make a claim against the highway authority for her injuries.

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

The highway inspector confirmed that whilst there was a small defect at the time of his pre-accident inspection this was not dangerous or in breach of intervention level and had it been so, he would have raised it for repair.  However, whilst driving along that particular road during an ad-hoc inspection, he had noted that the defect had deteriorated to a dangerous state and raised it for an urgent repair.  This ad-hoc inspection had taken place six days post the claimant’s accident, at which time neither the highway inspector nor the highway authority were aware of the claimant’s claim.

Submissions made to the trial judge

Counsel for the claimant submitted that there could be no doubt that the defect would have breached intervention level at the time of the claimant’s accident given that the highways inspector had raised it for an urgent repair during his ad-hoc inspection six days thereafter and on that basis s.41 was met. 

With regard to any s.58 defence, it was submitted that the pre-accident inspection was inadequate and that the defect was actionable at that time and should have been raised for repair.  It was submitted that the defect was unlikely to have deteriorated to such a degree within a three week period and on that basis the highway authority had an unreasonable system of inspection. 

Counsel for the highway authority accepted that the claimant’s photographs did show a defect which breached s.41.  However, the photographs showing measurements were taken by her solicitors and no evidence had been provided as to when these photographs were taken.  Notwithstanding that, counsel accepted that they had to have been taken at some point between the date of the accident and when the repair was carried out eight days later.

However, it was submitted that if the court were against the highway authority with regard to s.41 then it was the highways inspector’s evidence that this was not how the defect was at the time of the pre-accident inspection and only the highways inspector could give evidence in that respect.  Counsel submitted that the highway authority had an admirable system of inspection and it was for the claimant to persuade the court that the highways inspector was wrong in his judgment about the defect at the time of the pre-accident inspection.  In this regard, the claimant had not provided any evidence as to how long the defect had been in the condition it had at the time of her accident and on that basis, 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 and as such the s.58 defence should succeed.

Findings

Deputy District Judge Burns-Beech dismissed the claim and 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 highways inspector was a competent individual and it was accepted that the pre-accident inspection was adequate and that the highway authority did have a reasonable system of inspection.  There was no evidence to counter the highways inspector’s judgment that the defect was not dangerous at the time of the pre-accident inspection and on that basis the claim was dismissed.

Comment

It is regularly argued by claimants in highways cases where pre-accident inspections are carried out close to the accident date that those inspections must have been inadequate and that there must have been a failure by the inspector.  In this case, the defect had deteriorated quickly, but the inspector had picked it up during an ad-hoc inspection proving that there was a good system of inspection in place.

Contact

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

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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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