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By Carol Dalton

Jan 7th, 2016

X Marks the Spot

Local authorities are often faced with claims arising from accidents on the highway where claimants cannot identify the defect that caused them to fall. The East Riding of Yorkshire Council recently faced such a claim and we worked with them to defend the case at trial. The outcome should provide some comfort. 

 Circumstances

Mrs R was walking along a footpath in Beverley when she fell on an area of block paving.  She was diagnosed with a fractured elbow and at trial she explained that it had left her with limited use of her arm.  She brought a claim under section 41 of the Highways Act 1980 alleging that the block paved area was dangerous because the blocks moved underfoot.

Mrs R explained that walking over the brick blocks was like walking over stepping stones in a stream which moved underfoot. She had the support of several witnesses in relation to the condition of the blocks and her son adduced video evidence showing that the blocks could be moved under pressure i.e. they were not cemented in place.  

The highways inspector explained that the method for securing the blocks in place was standard and that it was not dangerous. The Council were keen to support their inspector and a full defence was maintained to trial.

What do previous cases tell us?

At trial Mrs R relied on the case of Dalton v Nottinghamshire County Council (2011). In that case the claimant had fallen on an identifiable paving block, which was described as “very loose and raised relative to its neighbours”. The claimant succeeded in recovering compensation from Nottinghamshire County Council on the basis that “the danger lay in the combination of height differential and instability”. Crucially the Council’s inspector in Dalton had also concluded that the area was in need of urgent attention.

We submitted that Mrs R’s case was distinguishable as the claimant in Dalton had identified the paving block that had caused her accident. However Mrs R could not cross the first hurdle, as she was unable to identify exactly which block or blocks caused her to fall. The information she gave about the manner of the fall was also inconsistent and in our view it was unclear on her evidence, whether she tripped or was propelled forwards by the allegedly unstable blocks.

In support of our defence, we referred the court to Court of Appeal authority of James v Preseli Pembrokeshire District Council [1993] P.I.Q.R. P114. In James it was established that claimants must show more than areas of disrepair in the general area ie. they should identify a particular spot or defect which they say is dangerous and which caused the accident.

There were a number of other aspects to Mrs R’s case which we relied on in support of the defence, as follows;

  • The video footage demonstrated extra-ordinary force being applied to paving blocks to prove that they moved.  The true test was whether there was a danger to pedestrians in the ordinary course of human affairs;
  • The claimant’s witnesses alleged dangerousness but none had reported their concerns to the Council, and none could show a particular defect which caused them concern.
  • The pavement was an area with heavy footfall and no complaints had been received in the twelve months prior to the accident and an experienced highways inspector did not consider it was dangerous;

Outcome

Having carefully weighed up the legal arguments and the evidence presented, the District Judge dismissed the claimant’s claim, stating that;

The burden of proof lies with the claimant ….  I’ve no doubt the blocks were loose; one was broken.  I was shown video and photos.  However, none of witnesses saw fit to complain or thought it so dangerous they saw fit to do so.  I’ve seen the video.  That shows that, with some effort, there was movement of blocks.  It does not show people walking over the blocks in a normal manner.  It shows a trip height but this is not a tripping case; there’s no such allegation. 

Whilst the District Judge was not persuaded that Mrs R needed to identify a ‘particular block’, she could not demonstrate exactly what caused her to fall and therefore it followed that she could not satisfy the court that the defect was dangerous.

For completeness the District Judge commented that the Council had a suitable system for checking and repairing defects and therefore the section 58 defence would have succeeded, even if the claimant had proved there was a dangerous defect which had caused her fall.

Comment

Local authorities need to be aware of the effect of Dalton, which is to say that a requirement of a Judge to make a specific finding as to the extent to which a loose stone could wobble "seemed to require a scientific enquiry and a degree of precision going far beyond anything suggested as appropriate at the trial". In Mrs R’s case there were no measurements but the District Judge clearly did not consider himself precluded from being able to find that the paving stones were dangerous, although of course he did not do so.

The District Judge had also commented that whilst there was difficulty ascertaining which blocks caused Mrs Ry to fall, he was not satisfied that she needed to identify a particular block, as suggested in James. Therefore, a claimant who cannot indicate that ‘X marks the spot’ may not fail at the first hurdle.

Nevertheless the failure to identify a particular defect still makes it harder for a claimant to establish dangerousness and makes it easier for a defendant to distinguish Dalton. However, be aware that James may not be determinative.

*Section 41(1) of the Highways Act states “the Highway Authority is under a duty to maintain highway which is highway maintainable at the public expense.”

**Section 58 provides that the highway authority will not be liable if it can prove that “it took such care as in all the circumstances was reasonably required to secure the part of the highway to which the action relates was not dangerous for traffic”.

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