20 November, 2017
Chapman v TMBC
An elderly Claimant alleged that she tripped and fell on a defective kerb and sustained a personal injury.
The Claimant provided photographs of measurements showing the difference in levels between the kerb and the pavement to be 30mm. It was argued that the Defendant's code of practice defined defects on the pavement measuring more than 25mm to be actionable and alleged that the location of the defect next to the kerb created an added element of danger. The Defendant maintained that the alleged defect was a depression with no abrupt level of change and as such did not represent a danger to pedestrians and traffic.
During cross examination it emerged that the Claimant in fact had no idea what had caused her to fall. She suggested that as a result of the fall she ended up in the middle of the road but given the Claimant's small stature this was deemed unlikely. It also transpired that the Claimant did not return to the scene following the accident. The Judge noted that the Claimant's solicitor attended the scene and had presumably taken photographs of "the worst area".
The Judge dismissed the claim; he agreed that it was not disputed that had the defect been in the main part of the footway it would have been noted and actioned for repair by the Local Authority. However, the Judge pointed to the Defendants' Code of Practice which confirmed that sinking kerbs would not be considered dangerous. Referring to the case in Devon County Council v TR , the Judge recognised that the Government's Highway's Code of Practice does not set mandatory standard which must be adhered to but exists to provide evidence of good practice. The Judge was mindful of the financial constraints faced by local authorities and concluded that the photographs of the defect did not show a real source of danger.
Furthermore, the Judge considered that the Claimant had failed to prove her claim. The Judge described the Claimant's account of the accident as both "inaccurate" and "unreliable".
This is an encouraging decision; the Judge recognised that due to massively reduced budgets local authorities have little choice but to deviate from the National Guidelines and to prioritise repairs. The kerb policy was clearly documented in the Defendant's code of practice.
Under the new guidelines coming into force next year, local authorities must implement a risk based approach to highways management in accordance with local needs, priorities and affordability. There will no longer be minimum or default standards and the less rigid system should allow authorities to defend more claims as long as they can provide evidence of risk assessments and fully considered highway policies to support decisions.