The Camera Doesn't Lie

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Article

27 April, 2020

Anon v Wigan Council

The facts

The Claimant was walking along a road when she tripped and fell over a defect on the pavement in August 2015. It was alleged that she fell due to the presence of a lip/edge on the highway which had formed where an area of concrete abutted the adjacent paving slabs.

The Defendant denied liability and contended that the defect was not dangerous and did not meet the Highways Authority's criteria for intervention of 25mm.

The trial

The matter was listed for a trial on liability only. The Claimant gave evidence alongside her daughter who had taken various photographs of the accident location.

On behalf of the Defendant, a highway inspector confirmed that the area was designated as a local access footway and was inspected on an annual basis in accordance with the Council's Code of Practice. When carrying out his inspection, the inspector noted that he would be looking for defects with a height or depth of 25mm in the footway or any other hazards which might prove dangerous to highway users. The highway inspector had conducted a walked inspection of the accident location in June of 2015. He had made a number of observations at the location of the surrounding paving stones including listing damage to paving stones said to be between 20mm to 24mm in depth, but he indicated this was not at the lip/edge.

The same highway inspector conducted a walked inspection a year later in June 2016 and inspected the paving stones again. He did not order any repair to the lip/ edge at the accident location.

A representative of the Defendant attended the accident location upon notification of the claim and took photographs of the lip/edge using a spirit level and ruler which gave a difference of 20mm (which is below the Council's intervention level). The Defendant argued that the Claimant's photographs were misleading and did not show the true depth of the lip/edge because of the angle of the camera.

The judgment

Having considered the evidence, the Court concluded that the Claimant did trip on the alleged defect. However, the Judge found the edge measured less than 20mm as shown in the Defendant's photographs which showed the most reliable measure of the area. The Judge noted that there was no criticism of the photographs taken by the Claimant's daughter, but the Defendant's witness gave the best evidence on this point. He proceeded to comment that the Defendant's highway inspector had conducted his 2015 and 2016 inspections with diligence. He was impressed by the quality of the inspections and noted that the inspection documents revealed that the highway inspector carried out his inspections using his initiative. On the balance of probabilities, the Court found that the defect did not create a danger to pedestrians and dismissed the claim.

Forbes comment

Ultimately, the Judge concluded that the defect was not a dangerous defect. When delivering his judgment, he considered the various leading highway authorities. He noted Lord Justice Steyn commented in the case of Mills v Barnsley MBC [1992] 2 WLUK 76, that for the Claimant to succeed the Claimant must prove that the footway was in such a condition that it was dangerous to highway users, that the danger caused the fall to happen, and that the injury arose from that fall. The Judge was mindful that the Court should not impose too high a burden on the Local Authority and should also have in mind the need to balance the 'use of scarce resources'.

For more information contact Olivia Hart 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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