Our team extracts useful practice points from some recent successful defences of highway claims:
S.41, s.130 and s.150 Highways Act 1980 - negligence and nuisance – failure to maintain – erection of street furniture
Fry v Coventry City Council (2012) - Coventry County Court
Facts - a bollard/post which had been concreted into the footpath was smaller, thinner in diameter and of a different colour to neighbouring bollards. The bollard had been put in place as an afterthought following regeneration works, to prevent road sweepers from mounting the pavement and disturbing the paving slabs. The Claimant ran into and fell over the bollard whilst running to catch a bus.
Findings - judgment for the Defendant:
- Sections 130 and 150 Highways Act 1980 do not create a private law right to damages and therefore the Claimant had no cause of action under these sections.
- Section 41 Highways Act 1980 was not engaged. The Claimant's complaint related to whether or not the bollard was an appropriate item of street furniture for that location and was nothing to do with any complaint as to the state of the highway. In any event, section 41 would not have been breached as there was no failure to maintain the bollard.
- The Defendant was not negligent. The judge stated that even if the bollard was of a similar size, diameter and colour to the neighbouring bollards, if the Claimant was not watching where he was going then the accident would probably have happened anyway.
- The claim in nuisance was rejected on the basis that the bollard was put in place for a reason and it served that purpose. Installing a spare bollard rather than ordering one identical to the others used in the area was a reasonable decision to make and the bollard did not pose any foreseeable risk of injury.
Comment - this case re-affirms the law relating to sections 41, 130 and 150 Highways Act 1980. The complaint was about the decision making process undertaken in installing an item of street furniture, rather than any complaint about maintenance of the highway; section 41 therefore did not apply. Further, it is well established law that sections 130 and 150 do not create a cause of action at private law which is capable of resulting in an award of damages.
The only causes of action remaining were negligence and public nuisance. However, this is a useful case to show that sometimes an accident is a pure accident – it was not foreseeable that a pedestrian would run into the bollard and the Defendant was not negligent.
Footway defect – inconsistent evidence – Google Street View
Chowdhery v London Borough of Havering (2012) - Romford County Court
Facts - the Claimant alleged that he sustained injury when he tripped over a substantial defect in the footway which exceeded the Council's investigatory level. The defect was close to a wall which adjoined the footway. There was some doubt surrounding the circumstances of the accident; vegetation which had grown over the wall arguably made walking in the area where the defect was positioned unlikely. Moreover, the GP records were inconsistent with the claim. They suggested the accident occurred when the Claimant had tripped over whilst playing with his son. The Claimant attempted to explain this by suggesting that he had been playing with his son on the highway when he had tripped. The case was defended on the basis of a section 58 defence.
Rather cheekily, the Claimant turned up at trial and attempted to produce into evidence Google Street View images which it was suggested assisted his case.
Findings - judgment for the Defendant:
- Permission to use the Street View images was refused.
- The defect was a danger within the meaning of section 41 Highways Act 1980.
- The Claimant was a poor witness who gave muddled evidence; the GP note was more reliable as to the circumstances of the accident than the Claimant.
- Had the Claimant been able to establish that he fell as alleged, the Defendant's section 58 defence was made out and the defect had developed after the last pre-accident inspection.
Comment - the inconsistent medical record was the Claimant's undoing. This was a single entry and not particularly strong evidence. In the case of Bell v Havering London Borough Council (2010) CA there were four inconsistent medical records which the court was happy to disregard and accept that the Claimant was telling the truth. Another judge may have completely disregarded this, as the trial judge may well have done, had the Claimant proved to be a more reliable witness.
The Google Street View evidence was interesting and may have assisted the Claimant had it been produced earlier and proper evidence adduced as to when the images were taken.
Street View is a useful tool when dealing with highway cases and the images produced can sometimes be of assistance. Has the time now come that a Street View search should be completed on all highway cases to establish what the images reveal? In our view the answer is yes.
Pothole – depth - photographic evidence
Friel v Royal Borough of Windsor and Maidenhead (2012) - Slough County Court
Facts - the Claimant claimed damages for personal injury arising out of a trip on a pothole in the carriageway. The Claimant produced somewhat unclear photographs of the defect which appeared to suggest that it was at least 2 inches deep. The Claimant also called a witness, a friend, who alleged that the size of the defect was 14 inches wide and about 1 foot deep.
Whilst dealing with the claim the Council had received information from a former friend of the Claimant that called into question the happening of the accident. This witness eventually gave evidence in court but the trial judge rejected her alternative account of how the Claimant's accident occurred, unusually making a finding that the witness had lied in court. Interestingly the judge did say that he felt that the Council were acting entirely appropriately in calling this witness to give evidence and he did not make any criticism of the Council for putting this evidence before him.
Findings - although the Claimant's account of the accident was therefore accepted, her evidence regarding the size of the defect, and that of her witness, was not. The judge found that the photographs were not helpful in assessing the size of the defect. It was held that the depth of the defect was less than the Council's intervention levels and that the defect was not dangerous. The judge also took into account that the defect was on the very edge of the carriageway and as such he felt that it was unlikely that the Claimant would have stepped into it in the manner she alleged. Even if he was wrong as to the dangerousness of the defect the judge held that the Council's section 58 defence was made out. Accordingly the Claimant's claim was dismissed with costs.
Comment - this decision again illustrates the difficulties that claimants face if they fail to get persuasive contemporaneous evidence of the size of the defect that caused their injury.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.