Robust inspection regime leads to successful Section 58 defence -Walvin v Sunderland City Council

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30 September, 2020

Mr Walvin, was using his motorised wheelchair on a footpath when he rode over a defective paving slab causing him to fall from the chair. At trial the court concluded that the accident happened as alleged and that the defect was a danger to users of the highway.

However, the Sunderland City Council's inspection regime stood up to robust scrutiny and the highways inspector gave his evidence in a clear and confident manner. As such the claim failed despite the court having sympathy for the claimant.

The area in question was subject to an annual inspection and the last pre accident inspection had been 5 months earlier. The Judge accepted that an annual inspection was appropriate for the location and remarked that the Highway Inspector was competent and diligent. The judge also found that as he had picked up a number of minor defects it was unlikely that the defect in question would have been missed had the highway been in the same condition at the time of the inspection as was shown on the photographs of the dangerous state of the highway.

The Court therefore decided that the Council "had taken such care as in all the circumstances was reasonably required to secure that part of the highway to which the action relates was not dangerous for traffic" in accordance with Section 58 of the Highways Act 1980 which gave it a full defence to the claim.

Forbes Comment

Highway Authorities owe a duty of care to all users of the highway and must take into account the needs of wheelchair users as well as all other users of the highway. In making out a defence under Section 58 the court considers the ordinary traffic that would reasonably be expected to use the highway in question, and clearly users of motorised wheelchairs are reasonably expected to use public paths.

However, that does not mean that such claims cannot be successfully defended as was shown in this case. A good inspection regime backed up by documents and an inspector who was able to confidently give evidence about his inspection led to the successful defence of this claim.

With the majority of Highway Authorities now using the new risk based approach to inspections, other factors which come into consideration include the location of the defect, the usage and footfall expected of the highway and whether a particular defect has developed between inspections.

For more information contact Siobhan Hardy in our Insurance department via email or phone on 0113 386 2686. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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