Section 58 Defence Wins the Day

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17 May, 2018

Potts v Wigan Council
District Judge Mornington - Wigan County Court

The claimant alleged that he was running along the pavement outside his home in May 2013 when he tripped on a raised paving slab. The claimant fractured his ankle as a result of the fall.

At trial, the claimant established causation after the Judge determined that the injury was more likely to have been caused by a tripping accident rather than if he was simply running.

The burden then shifted to the defendant who was able to demonstrate to the Court that the local authority implemented an annual system of inspection at the accident location and that the defect had been repaired as soon as it had been reported following the accident. There was a routine inspection of the location in August 2012, just 9 months prior to the accident (a period which included the winter). The Court was satisfied that those inspections were properly carried out and the Judge concluded that the defect was one which had arisen due to the winter period and that there was no defect at the time the inspector was at the location.

The section 58 defence was made out and the claim was dismissed.

Forbes comment

The local authority has a duty to maintain and repair the highway, however in this case the defendant was able to rely on the statutory section 58 defence. Put simply, the local authority was able to provide adequate documentation to show a reasonable system of maintenance which had been adhered to, there had been no previous accidents or complaints and the defect was promptly repaired upon notification.

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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