25 February, 2021
The claimant sued the defendant council following what she said was a fall on the pavement as she was walking back from the school where she had collected her children. She alleged that there was a missing flagstone.
The claim was brought pursuant to the Highways Act 1980 for breach of S41, the duty on the council to maintain the highway.
In addition to disputing that the defect was actionable, the claimant was put to proof of the mechanics of the accident by Forbes. We had concerns that the alleged defect was at the back of the pavement, near to the wall, a place that it would be unusual and awkward to be walking in due to the presence of the wall and overhanging bushes. We were also alerted to potential causation problems for the claimant relating to the medical records reporting an incident whilst "looking after children" with no mention of the pavement.
Whilst the trial judge accepted that she had fallen somewhere, he did not accept that she had discharged the burden of proof on her that the fall was as a result of any fault on the part of the council.
Her evidence was confused about how the accident actually occurred and even changed from her statement several times during cross examination in a convoluted attempt to explain the way in which she may have encountered the defect despite it being so close to the wall. It was simply not convincing to the judge who shared our scepticism of the claim and who stated "The mechanics described today I found to be improbable."
She could not properly identify the location of the fall, and the contemporaneous medical records suggested an accident at home rather than on the highway.
As if that was not enough the judge went on to support our submissions that the photographs provided by the claimant failed to show an actionable defect, but that if it did there was an adequate system of insertion in place by the council in accordance with S58 of the Highways Act 1980.
Consideration had been given as to whether this was in fact a fraudulent claim. There has been previous claims in the alleged vicinity, by people linked to the claimant on social media. Whilst the evidence did not substantiate a pleading of fraud, the outcome vindicated the strong causation stance taken by Forbes and the council in this case. It is important to put claimants to proof where there are real causation concerns, even if there is also a strong S58 defence. Early consideration of "red flags" ensures that we can defend the claim in the right way, and achieve the successful result that was obtained here.