07 April, 2017
The Claimant alleged he tripped and fell on a pothole next to a drain whilst walking his dog. The Claimant suffered a personal injury and brought a claim against the local authority.
The Claimant's case was that the defect had been missed on the pre-accident driven inspection. The Claimant sought to rely on a number of witness statements from local residents who all alleged that the defect had been present for some time prior to the accident. It was noted that the Claimant was personally linked to all of the witnesses.
The Defendant argued that the road was subject to a monthly driven inspection system, and the defect had not been picked up on the pre-accident inspection. The Defendant put the Claimant to strict proof and relied on the section 58 defence.
Whilst the Judge accepted that the Claimant had fallen as alleged; she proceeded to dismiss the claim. She believed that because none of the Claimant's witnesses were present at the scene in December 2014 that they could not give a precise recollection of the state of the road at that time, nor comment on the deterioration shown in the Claimant's photographs. It was noted by the Judge that each of the witnesses had given a witness statement at least 2 years after the accident had taken place.
Ultimately, the Judge preferred the evidence given by the Defendant's witnesses. Although the highway inspector did not specifically remember the pre-accident inspection, the Judge felt that if the location had been defective then he would have seen it and ordered a repair.
Testimony from local residents as to the state of the highway can often provide compelling evidence. In this instance, we were able to discredit the evidence by establishing a close personal link between each of the witnesses and the Claimant thus bringing into question the independence of the evidence and secondly, highlighting the period of time that had elapsed between the accident occurring and the preparation of the witness statements.
In addition, the excellent and consistent evidence provided by the highways staff convinced the Judge that if the defect had been present it would have been recorded for repair.