Cracked flag defence proves to be cracking saving for Council

Together we are Forbes


18 June, 2018

Miles v Wigan Council

This claim arises following an alleged accident in March 2014 when the Claimant stated that she tripped as a result of a rocking flagstone. The Claimant sustained a displaced fracture to her left elbow which required surgical fixation and presented a schedule of special damages totalling over £300,000.00.

At trial several accident locations were mooted by the Claimant and her witnesses. The Judge concluded that she fell on one particular part of the road where there was a cracked flagstone which, on the Claimant's evidence, rocked. Her witness stated in court that this defect "was broken in three places and rocked if you stood on it", this witness also stated that she herself nearly fell as a result of this flagstone.

The Defendant relied upon a s.58 defence - that they had a reasonable system in place for inspecting and maintaining the highway. Two months post-accident, following the CNF, the Defendant inspected the accident locus and measured the flagstone. It was found to be 14mm at its highest point and, contrary to the evidence of the Claimant's witness, it was found to be firm and did not rock. This supported strong evidence from the Highways Inspector who gave evidence that a cracked flag would always be checked on inspection and the fact it had not been recorded for repair meant it was firm.

The Judge concluded that he preferred the evidence of the Defendant's witnesses, and in particular the Highways Inspector, and that it would be difficult to find they were lying. He found the cause of the Claimant's accident was not a trip and in his judgment the flag was not dangerous. He concluded "'the flag is the kind of hazard pedestrians face on ordinary pavement and was not dangerous" and as a result dismissed the claim.

Forbes Comment

There is a duty on the local authority to repair and maintain the highway but we must not forget the famous quote "a highway is not to be criticised by the standards of a bowling green" (Littler v Liverpool Corporation 1968). Sometimes there are defects on highways that put simply are just not dangerous and pedestrians must expect to come across them.

Claims of this nature which are forcefully defended by Councils can represent huge savings at a time when budgets are constantly tight. Together Forbes and Wigan Council were able to put together a strong defence saving the Council in excess of £400,000.00 when costs are included.

For more information contact Nick Holgate in our Insurance department via email or phone on 01254 662831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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