06 October, 2016
Sheerin v Rochdale MBC
Oldham County Court - HHJ Fox
The claimant alleged that having visited a local takeaway in the early hours of the morning she was walking along the pavement when she tripped and fell over the edge of a cellar opening cover.
The Judge accepted that whilst the evidence of how the accident had happened was thin, it was clear that it occurred outside of the takeaway premises and could only have happened in the way which the claimant alleged.
Furthermore, the Judge was critical of the photographs taken by the claimant. He commented that they were not precise as the camera had not been placed at ground level, nonetheless he accepted it was an actionable defect.
The key question therefore was whether the area was the responsibility of the highway authority. The defendant maintained that although the pavement was adopted, the cellar opening had been retained by the owner of the takeaway, relying on s.180 Highways Act 1980. The defendant's case was that as this property still had a cellar cap and a coal chute it was not their responsibility because the highway did not include that part of the street.
The Judge agreed that primary liability rested with the occupier of the premises and the case was dismissed.
The Judge was in no doubt that liability should rest with the occupier. The Judge was impressed with the defendant's witnesses. He was not prepared to accept that because the local authority had adopted other parts of the street with the owner's agreement that they were therefore liable for the entire street. In an era where local authorities have limited resources this is an encouraging result.
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