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Forbes at trial - Court endorses driven inspection

G v Bolton Council

The Claimant brought a claim for personal injury arising out of an accident on 4th January 2016. The Claimant alleged that he was crossing the road, when he fell due to a large pothole in the road and suffered an injury to his eyebrow.

The Claimant was put to proof that his accident happened as alleged or at all; and the Defendant sought to rely on the section 58 Defence.

During the trial, the Claimant was far from convincing as a witness. His evidence was contradictory, inconsistent and evasive. He could not provide an adequate timeline of events on the day of his accident. Nor was he able to explain why he had chosen to visit a shop some distance from his home when there was an off-licence at the end of the road where he lived; or why the hospital records mentioned him tripping on a pavement rather than in the road. However, despite his poor performance in the witness box, the Judge found on the balance of probabilities, the Claimant's accident happened as he alleged.

The Court then proceeded to consider the Defendant's section 58 defence

• A driven inspection of the accident locus was undertaken on 21st December 2015 and the defect was noted by a highway inspector and given a Category C/20 working day repair.
• On 4th January 2016 the Claimant's accident occurred.
• On 11th January 2016, following a complaint made by a member of the public, a different highway inspector attended to carry out an inspection and due to the condition of the pothole, it was marked up for a Category A/24-hour repair.
• Repairs were completed on 12th January 2016.

Counsel for the Claimant cross examined the highway inspector who had carried out the pre-accident driven inspection. It was put to him that as he did not get out of the vehicle to measure the depth of the defect, he could not assess the true severity. It was also put to him that he should have anticipated that it would deteriorate and so on 21st December 2015 it should have been marked up as a Category A repair. The highway inspector responded that he relied on his experience which meant that he did not need to get out of his vehicle and in any event, the locus was inspected on a monthly basis so he knew that that another inspection would be taking place a month later in any event.

The evidence of the inspector who attended post-accident on 11th January 2016 confirmed that he knew immediately, without having to measure the dimensions, that the defect presented as a Category A repair. He confirmed that any reasonable and competent inspector would also have recognised it as a Category A defect. If it had been in that state on 21st December 2015, he was confident that the inspector would have undoubtedly categorised it as 24-hour repair.

The Judge found that the highway inspector who had carried out the pre-accident highway inspection had exercised his considerable experience. He reached a conclusion that was justifiable and appropriate in the circumstances and deemed that the defect was not a significant risk. The Defendant had taken all reasonable steps to ensure that it did all that could be done, and the claim was dismissed.

As for contributory negligence, even though the Claimant's claim was unsuccessful the Judge indicated that he would have deducted one third from those damages as the Claimant should have seen the defect due to its size and due to it being daylight hours.

Forbes comment

We are delighted with the outcome of this claim. When the area was inspected post-accident, the highway inspector concluded that it was a significant risk to the public and ordered a 24-hour repair. He referred to an area of repair measuring two metres, which was eight times the area that noted during the driven inspection. Potholes can deteriorate rapidly in winter; it is not possible to predict the rate of deterioration as it is dependent on a number of factors, such as the weather. The Judge was satisfied that the council had taken reasonable steps and the highway inspector was able to adequately justify the decision taken during the December driven inspection which was made in accordance with the matrix set out in the Code of Practice (which was not challenged at Court).

For more information contact Chris Threlkeld in our Insurance department via email or phone on 0161 918 0010. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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