An "Almighty Noise"

Article

07 April, 2015

Isherwood v Wigan MBC

District Judge Johnson - Wigan Council

Forbes has successfully defended a claim on behalf of Wigan Council.

The claimant alleged that she was driving at 20mph when she struck a pothole in the carriageway causing personal injury and damage to her vehicle.

The claimant's witness statement which she relied on as her Evidence in Chief at the trial, only referred to hearing "an almighty noise". She gave no evidence of her car striking a pothole. She conceded in cross examination that it was daylight, that nothing had impeded her sight, that she did not notice the car in front taking evasive action and that she could not even recall the road markings which were later used as a marker as to where the pothole was situated.

The photographs of the alleged defect were taken by the claimant's son on the evening of the accident. The black and white photographs merely showed an area of defective surface. The photograph did not refer to any measurements or dimensions. Nor did the photograph show the exact vicinity of the defect. The claimant's son did not attend the trial.

The local authority's highway inspectors gave evidence that claimant's photograph showed only cosmetic damage. The local authority inspected the defect days prior to the accident and did not note an actionable defect at the alleged scene.

The Judge was also concerned by the lack of evidence to support the claimant's allegation of damage to the Claimant's car.

The Judge concluded that the claimant had not discharged the burden of proof, she had not been "able to properly establish a casual link between the car, the pothole and the subsequent damage to the car or, to a lesser extent herself". The claim was therefore dismissed and the defendant awarded its costs.

Forbes comment

The burden of proof initially rests with the claimant to prove to the satisfaction of the Court that the accident happened in the way alleged and that that the highway was dangerous in traffic. In this instance, the claimant was not able to overcome the burden of proof. Although the Particulars of Claim referred to the claimant's vehicle striking a pothole, her statement was silent on this issue and failed to contain the most crucial element of the claim, i.e. that her vehicle had struck a pothole. The claim therefore was destined to fail.

for more information please contact Elizabeth Bower by email or call 01254 222411.

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