09 April, 2018
Bailey v Warrington Borough Council and United Utilities Water Limited
St Helens CC - District Judge Simister
The Claimant alleged that she was walking along the pavement when she tripped on a defect in the pavement where a United Utilities stop tap grid cover was located.
At trial, the Claimant presented well and the Judge had no doubt that she fell as pleaded.
The First Defendant sought to rely on the section 58 defence as the defect had not been picked up on either the pre-accident or post-accident annual inspection. The Judge was impressed by the evidence of the highway inspector who confirmed in evidence that he had not seen the defect, but if he had seen it he would have reported it for repair. The Judge noted that he had carried out a thorough inspection of the area as he had identified other defects in the vicinity. One explanation for the defect not being identified was the possibility that it may have been covered by a vehicle. A Google Maps image was produced showing that the exact area had been covered by a vehicle. When the defect was reported to the Council, the highway inspector immediately attended the area and ordered a repair.
The Judge found the section 58 defence was proved and dismissed the claim accordingly.
When bringing a highway tripping claim, claimant solicitors will often seek to argue that the pre-accident inspection of the highway must have been inadequate and that the only explanation for the presence of a defect must have been because it had been missed by the highways inspector. In this case, the Judge was clearly impressed by the evidence of the highly experienced highways inspector. The highway inspector was able to confirm that he had inspected this area for the past 10 years on an annual basis and in addition visited the area every 6 weeks to check various utilities. The consistent evidence was enough to convince the Judge that the inspector was more aware of the area than the Claimant and dismissed the claim accordingly.