Claim Following an Accident in a Pothole Marked for Repair Fails


13 March, 2018

Gilpin v Blackburn with Darwen Borough Council

DJ Hinchcliffe - Preston CC

The claimant alleged that as she was crossing the road after alighting from a taxi, she tripped and stumbled in a pothole and fell onto her outstretched hand.

The residential cul de sac was subject to an annual system of inspection. The area was last inspected 6 months prior to the accident when the defect was not noted.

On 9th May 2016 a member of the public contacted the defendant's highways department and reported a number of potholes in the vicinity. The location was inspected by the defendant on 17th May 2016, a repair was ordered and the area was highlighted with spray paint. Unfortunately, the claimant fell in the intervening period.

At trial, the claimant maintained that the frequency of the inspection was inadequate and that the defect ought to have been repaired sooner.

The defendant argued that a repair within 20 days had been ordered in accordance with the defendant's code of practice. The inspector had a discretion to order a repair with 4 hours but only if the defect was of such a nature likely to cause a threat to life and limb.

The Judge agreed that the pothole did not call for immediate repair within four hours and that an annual inspection was entirely appropriate. On the balance of probabilities, the defendant had taken care to ensure that the highway was reasonably safe. The judge remarked "the public do not and cannot expect such a high burden of responsibility by the authority".

Forbes comment

This was an excellent result. The Council has a tried and trusted method for the reporting of defects and for highway maintenance and inspection. The judge was entirely satisfied that the defendant had made out the section 58 defence and dismissed the claim accordingly.

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