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Claim fails after failing to provide adequate photographic evidence of defect

Anon v Tameside MBC

The facts

The Claimant alleged in April 2018 she was crossing the road to catch a bus when she tripped and fell in a defective drainage grid at the edge of the carriageway.

The Claimant alleged that the accident was caused by the negligence of the Defendant and brought a claim pursuant to Section 41 of the Highways Act 1980. The Defendant sought to rely on a Section 58 defence and put the Claimant to proof.

The trial

At the trial, the Claimant explained that following her fall she picked herself up and went straight home. She did not take any photographs of the scene and sought to rely on Google Earth stills from July 2016 (2 years prior to the accident) in support of her claim. Two photographs were said to be attached to the Claimant's statement, but they were never served so did not form part of her evidence at trial.

The Claimant maintained that she was 100% sure that she fell as a result of the state of the gully. She alleged that she measured the defect using a 50p piece, but no photographic proof of the measurement was ever provided.

The question for the Court was whether there was a dangerous defect? The Claimant's evidence about the nature of the defect was based solely on her oral evidence. At trial, she alleged the defect was two 50p pieces deep. However, she had to concede that she only had one 50p piece with her at the time so her measurement could not be accurate.

The Claimant sought to raise the issue of the categorisation of the road at trial, although the Claimant had not specifically pleaded this point. The Defendant relied on the annual highway inspection which took place prior to the accident, during the inspection eleven defects were identified but the defect in question was not one of them.

The Judge concluded that he could only make a decision based on the evidence before him and "not on speculation" by the Claimant. The Claimant failed to prove her case and the claim was dismissed. Even if the Claimant had proven there was an actionable defect, the Judge confirmed that he would have concluded that the Defendant had a Section 58 Defence.

Forbes comment

The burden of proof is on the Claimant to prove that an alleged defect was dangerous and/or actionable. In a recent High Court case, Miranda Walsh v Kirklees BC (2019)[2019] EWHC 492 (QB), Mr Justice Dingeman dismissed an appeal as there was "simply not enough reliable evidence of the dimensions or condition of the pothole" . Similarly, in this case the Court concluded that producing Google Images stills from two years prior to the accident was simply not adequate. To succeed, Claimant's must be able to prove the location, size and depth of a pothole at the time of the alleged accident.

For more information contact Elizabeth Bower in our Insurance department via email or phone on 01254 222411. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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