17 October, 2017
Hothersall v Bury Council
Manchester CC - HHJ Smith
The trial of this multi-track highway claim left the judge rather bewildered after hearing two days of evidence. The elderly Claimant alleged that she tripped and fell over a water cover in the footway. The Claimant fractured her hip as a result of the fall and brought a claim against the Local Authority.
In his judgment the Judge highlighted a number of "mysteries" arising out of the evidence given at trial. The first mystery related to the Claimant's medical notes. The Claimant's account of the accident was that she tripped over a grid, however, there was no mention of a grid or a water cover in any of the medical records following the incident. All of the subsequent medical entries referred to the Claimant tripping and falling off a kerb.
The second mystery is how she knew what she had fallen over. When asked the question by the Judge the Claimant replied that she had not seen what had caused her to fall. She said that she was in so much pain that she did not think about what had caused the accident.
The third mystery is what she told her husband after the accident. In cross examination she said they did not discuss taking photographs and she had no thought of making a claim. However, the Claimant's husband gave inconsistent evidence noting that he did tell his wife he would get photographs and would tell the Council. The photographs were said to have been taken by the husband when the Claimant was still hospitalised and could not have known where exactly the Claimant is said to have fallen.
The fourth mystery related to when the Claimant's husband took the photographs. At trial the Claimant's husband gave confused and contradictory evidence as to when the photographs were taken and who was present with him when the photographs were taken.
The fifth mystery was who reported the defect to the Defendant and when they did so. The Claimant's husband claimed that he attended the Council's offices with the Claimant's sister, although this was not mentioned in either his or the sister's witness statement.
After pondering the many mysteries, the Judge came to the conclusion that the defect was below the intervention level and was not dangerous. The Claimant had claimed it measured at around 27mm, the size of a 50p coin. The Judge assessed the defect to be no greater than between 15-17mm. Even though the defect had been repaired following the accident he deemed that this was not a determinative issue.
In addition, the Claimant had failed to satisfy the Judge that she fell as a result of a fall on the defect. He drew the conclusion that the Claimant had seen the photographs and had convinced herself that it must have been the cause of her accident and this had become entrenched in her mind as a memory.
Notwithstanding, the Claimant's failure to jump the evidential burden of establishing her claim, the Defendant had in place a reasonable system of inspection and repair and a section 58 Defence was available. The area had been inspected diligently by a highway inspector 3 days before the alleged accident and no defect was noted. He gave evidence that the alleged defect was not one he would have deemed to be actionable or dangerous.
The claim was therefore dismissed.
It is clear from the Judgment that the Judge was less than impressed with the Claimant's witness evidence.
The Claimant's sister failed to attend Court without explanation and therefore the Judge attached no weight to her statement and the husband's evidence was inconsistent and contradictory to the point that the Judge was reluctant to rely upon his statement or oral evidence at all. Whilst corroborative and contemporaneous evidence is often compelling and convincing, in this instance rigorous cross examination enabled the defence to undermine the Claimant's credibility and that of the witnesses.
It also repeated the established view that there had to be a balance between private and public interests and highway users had to be aware of minor defects which did not always give rise to a real source of danger to establish a section 41 breach.
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