Does the Council have liability for falls on public pavements?
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It has happened to most of us. We are walking when suddenly we trip against a raised paving slab or we catch our foot in a hole and we take a stumble.
Some however are less fortunate and come a cropper, falling to the ground and more often than not, suffer a nasty injury; the elderly, poorly sighted or infirm the most common victims.
The recent decision of Justice Eady given on 15 June this year, on Appeal, in the case of Kent County Council v Lawrence has caused personal injury lawyers, on both sides of the fence, to look carefully at their assessment of whether someone who is injured in a typical highway tripping case can successfully bring a claim in negligence against their council.
Lawrence may allow our councils to successfully argue against the supposition of liability that would before now have compelled them to effect repairs to our pavements and roads, no matter how dangerous, should defects appear. Unfortunately, liability will only be imposed against councils in highway tripping cases where there is a clear and dangerous defect.
Mrs. Lawrence brought proceedings against Kent County Council for injuries caused from her tripping over the protruding edge of a manhole cover, in her case, by more than 15 mm above its surrounding pavement. There was some dispute as to its height but no dispute that she had tripped and suffered injury. What was disputed was whether the alleged defect that caused her to fall was dangerous and whether the council ought to have effected a repair. She won her case in the County Court and was awarded £5000.00. Kent County Council lodged this Appeal.
Justice Eady considered the Appeal Court decisions in the 1992 case of Mills v Barnsley Metropolitan Borough Council and the 1993 case of James v Preseli Pembrokeshire District Council. He reminded us of the fundamental question of whether a defect could be categorized as sufficiently "dangerous" to amount to a breach of the Highways Act 1980. Sadly the cost of repair was the main theme.
"not only must a claimant establish that it was reasonably foreseeable that harm would occur, but that the court also needs to carry out a balance between private and public interests, since the expenditure of public funds on highways has to be prioritized, and the threshold should not be set unrealistically high . . What seems to be required, however, in addition is an assessment by the court, in the light of the particular facts, of whether it would be reasonable to leave the risk without carrying out such work as would be necessary to eliminate it."
Mrs. Lawrence lost at Appeal despite the council having repaired the defect afterwards. Justice Eady said that the judge at trial had failed to note the balancing exercise between the private and public interest; i.e. the purse strings. In his judgment he commented that:
"..In order to make a judgment as to whether some particular imperfection in the highway should reasonably be corrected or, alternatively, should reasonably be left untouched (notwithstanding some risk of harm), one would ideally need to know something about the available budget and the competing priorities. In doing so, of course, one might seem to be encroaching upon the functions of those with direct responsibility for prioritisation. Nevertheless, it is clear that a judgment on reasonableness has to be made by the court having regard, at least in general terms, to financial and other practical constraints."
He recognised that whilst work had been carried it did not mean that there was a duty to do so. That the council had done so did not mean that the risk constituted a danger.
Its not great reading but the truth of the matter is that Justice Eady concluded that whether a trip was dangerous was a matter of personal judgment in the light of what can all so often occur each and every day and whether a council should be made to pay to fix every problem.
What you hope to look for in cases of this nature is evidence of any other tripping accidents having occurred in the same spot. To find that evidence is not easy. You find yourself dealing with is a hole or raised edge, akin to the sort of tripping hazard we come across all of the time. In Lawrence, Justice Eady concluded that a reasonable person would not regard the defect that befell her as a real source of danger:
"Conducting a balance between public and private interests, I must recognise that highways authorities simply cannot achieve perfection and provide over the thousands of miles of pavement for which they are responsible a surface "which is entirely free from all irregularities or changes in level at all".
It has always been notoriously difficult to win highway tripping claims. Of those that I have dealt with over the years, unless there is a blindingly obvious hole or raised edge in a road or pavement that has either not been inspected periodically, or, has been missed completely, despite inspections, you are immediately on the back foot. Lawrence shall, in my, and in learned Counsels view, cause the courts to now focus upon the country's well-publicised stringent financial constraints to which our local councils are now subject.
This decision means that we as pedestrians must simply put up with the risk arising from some imperfections in pavements and roads because councils cannot afford to repair them all.
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