Judge Reminds Claimant that we do not live in a Perfect World

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15 February, 2019

Tim Smith

Allinson -v- East Riding of Yorkshire Council

An elderly claimant alleged that on 7th October 2014 she tripped over a sunken gully in the pavement and sustained an injury.

Following the accident, the claimant's husband took photographs of the highway but unfortunately took photographs of the wrong defect. At the trial, it emerged that the claimant could not recall exactly where she had fallen, although she remembered seeing a red door as she lay on the floor. Despite this, both the claimant and her husband were adamant that she had fallen over the gully.

The defendant sought to rely on the Section 58 defence. The accident location was subject to an annual walked inspection, no defects had been noted on the pre-accident inspection and the local authority had not received any complaints relating to this particular area.

Post-accident, one of the defendant's highway inspectors attended the accident location. In evidence, he explained that he had received two photographs from the claimant's representatives and one of those had a ruler measuring the size of a defect. The ruler led him to believe that this was the defect upon which the claimant had fallen. He did not measure the defect the claimant now maintains caused her to fall because, in his view, it was not actionable. Had it been so, then he would have measured it.

In the Judgment, the Judge reiterated that it is not sufficient to merely suggest that the entire state of the footpath was generally in a poor condition. The claimant must establish that the exact defect upon which she fell was dangerous. The Judge concluded that the claimant had been unable to prove the precise location where the accident occurred and furthermore, he did not consider the area to be defective or at the appropriate intervention level and therefore dismissed the claim.

Forbes comment

Whilst the Judge clearly had a considerable amount of sympathy for this elderly lady, he nonetheless stressed that there must be a balance between the maintenance of highways and keeping an area safe. He went on to say, "whilst it would be really helpful to have all roads in a perfect condition, in the real world this is not feasible". The Judge remarked that he was extremely impressed by the evidence given by the highway inspector who carried out the post-accident inspection, he found his evidence to be the most persuasive as he was the only person who had actually inspected the defect.

For more information contact Tim Smith in our Insurance department via email or phone on 0113 3862687. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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