06 October, 2016
Terry v Rochdale MBC
Oldham County Court
The claimant alleged that she tripped and fell on the raised edge of a paving stone.
At trial, the case focused on the nature of the defect and whether it was dangerous. Whilst it was accepted that the claimant had fallen, a dispute remained on which part of the defective flag stone she had tripped over and whether it constituted an actionable defect. There was much discussion over the unmeasured defect shown in the photographs and the angle of the camera.
During cross examination, the claimant and her partner confirmed that they had removed the surrounding grass and moss from the trip edge before taking a photograph of the defect. They conceded that by removing the grass and moss they may also have removed some of the surrounding tarmac and gravel and consequently the defect shown in the photograph was not representative of its state at the time of the accident.
It also became apparent, through the cross-examination of a witness for the claimant's case, that the neighbour had not noted the defect until she received "photos and a letter" through her door. It was assumed this was from the claimant's solicitors scouting for potential witnesses. The claimant and her witness had walked the same road daily for over eight years and had never noticed the defect.
The judge concluded that the defect was not a specific danger, and dismissed the claim.
The claimant's revelation during the trial that she had interfered with the defect prior to taking photographs and that her solicitor had leafletted the area for witnesses was an alarming development in this case.
Ultimately, the defendant was able to rely on the section 58 defence. The judge accepted that in terms of practicality, funds and resources the Council cannot possibly raise all defects as actionable.
This case demonstrates a determination by claimants' solicitors to run cases where there is a glimmer of possibility that costs might be awarded under the old cost regime, but that if the cases are defendable, that a robust defence should be run.