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Claimant's tears will have to dry on their own after successful defence of tripping claim

Forbes have recently successfully defended another highway tripping claim in Manchester County Court.

The claimant alleged that she fell on a pothole in the carriageway, as she tried to climb into a taxi, after leaving an Amy Winehouse tribute night at a local pub, suffering significant facial injuries. The claimant alleged that she could not have fallen for no reason and that she had tripped on a 32mm deep pothole she located when she returned to the scene about 2 weeks after her accident. The claimant also attempted to allege that the defendant's inspections were inadequate because the categorisation of the route was inappropriate. This was on the basis that roadworks on a nearby busy road had, at the time, increased the traffic flow at the accident locus and checks should have also been increased to account for the inflated risk. She further alleged that the intervention level for the carriageway should have equated to that of a pavement, rather than the 40mm for the location on the basis that there was no designated footway. The defect however was in the middle of the carriageway.

The defendant defended the claim on the basis that the categorisation of the road was appropriate, and it would be unreasonable to recategorize it purely because there were temporary roadworks in the area increasing the level of traffic on a temporary basis. It was further alleged that the intervention level was reasonable, and the defect did not present as a foreseeable danger, if indeed the claimant could satisfy the court on causation. Further the suggestion that the area where the alleged defect was located should be given a lower intervention level was denied. The council did give a lower intervention level to the edges of the carriageway given the lack of pedestrian footway, but not to the middle of it and it was unreasonable for them to do so.

There were a number of issues with the claimant's claim. Firstly the depth of the pothole on her own admission was lower than the local authorities' investigatory level for a carriageway. Secondly the claimant admitted that she could not definitively state that she fell on the pothole now complained of. Her accident occurred around midnight and she described the area as being dark given a nearby streetlight was out of order. The claimant was described by the hospital records as being intoxicated when she attended, and she admitted in evidence that she had consumed 1 bottle of prosecco, a gin and tonic and a larger, though denied being drunk. Her records also recorded her wearing very high heels.

The claimant relied on a supporting statement from her friend who was with her at the time, however the friend did not see her fall and so could not confirm the accident location. She also relied on a statement from the pub landlord. Whilst his statement suggested that he had complained about the state of the road to the council a number of times, under cross examination he conceded that he had not, and in fact an acquaintance had made the report, but only in respect of the road outside his house, not the pub. His memory was also shown to be inaccurate as he contradicted the claimant and her friend in respect of their time spent in the pub.

Given the same, the court found the landlord to be an unimpressive witness. Whilst the judge concluded that the claimant, and her friend, were honest he did concede that her intoxication and high heels were the likely cause of her accident. There was no evidence the defect was the cause of the accident. Further expecting the council to re-classify a road due to road works would be to place an unreasonable burden on the local authority. The pub car park was located next to the pub so it was not likely that there would be large numbers of pedestrians crossing the road outside, and there was nothing special about the site. As such the categorisation was reasonable.

Forbes Comment - Whilst the burden to prove a Section 58 defence falls upon the highway authority, the claimant must prove causation in respect of her alleged allegations. Here there were significant gaps and inconsistencies in the claimant's evidence relating to the accident causation, which the judge accepted. The rejection by the court of the suggestion that highway authorities should reconsider road classifications for transient changes such as road works is also a helpful refusal to impose unrealistic demands on local authorities.

For more information contact Elizabeth Bower in our Insurance department via email or phone on 01254 222411. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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