Jogger's Claim Fails to Make Winning Line

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27 June, 2019

Sarah Wilkinson

Derbyshire v TMBC

The Claimant alleged he was jogging along the road when he twisted his foot on a defect and suffered a personal injury. He brought a claim against the local authority.

The Claimant had been jogging on a hatched area at the side of a carriageway, which was unpaved and around 200m long. He described that he had entered the hatched area, as there was no footway. There was some loose gravel and so in order to avoid it he ran along the white line. The road surface at the edge of the white line had eroded and according to the Claimant, a "step" had been created. As he ran along the road, his foot twisted on the edge of the "step" and he stumbled.

During the trial, the Claimant was unable to say exactly where he had fallen and could only indicate a general area. The Defendant had put Part 18 questions to the Claimant; in his response, he had failed to pinpoint the precise location of his accident and instead had highlighted a 2-3m area of carriageway. The Claimant had taken a number of different measurements at different points along the white line. When asked why he had measured a particular spot he could only say that it was in the general area where he had fallen. The Judge's view was that the tape measure was situated away from the "step" and that this served to create a distorted measure. Upon notification of the claim, the Defendant's Senior Engineer had attended the accident location and the Judge accepted that the deepest measure he could find was one of 37mm.

The Judge proceeded to dismiss the claim, the measure taken by the Claimant was unreliable and he had failed to identify the precise location of his accident. Furthermore, the Judge considered the case of Mills v Barnsley MBC [1992], the defect measured 37mm in depth and was located on the carriageway in an area of the highway, which could not be construed as being part of the footpath. The area was far away from any built up area and a casual jogger could stop if he felt the gravel was a problem. He concluded that it was not foreseeable that a jogger would stray to the edge of the carriageway and that the location was not dangerous for pedestrians.

Forbes comment

A successful claimant in a tripping case has to prove that his injury resulted from the dangerous condition of the highway created by the highway authority's failure to maintain or repair the highway. For that purpose, the Claimant must be able to identify the defect in the highway that gave rise to the injury; it is not enough to show that the general area of the highway was in some way defective.

For more information contact Sarah Wilkinson 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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