Claim Kicked to the Kerb

Article

23 August, 2018

Ratcliffe v Oldham Metropolitan Borough Council

District Judge Swindley - Manchester CC

The local authority has successfully defended a claim following a fall on a defective kerb.

The claimant was out walking one evening; she fell when she put her right foot forward onto the kerb which had a wedge of stone chipped away. The claimant's heel dropped backwards into the missing section of the kerb causing her to fall forwards and sustain an injury.

The locus was subject to an annual inspection regime; the defect had not previously been noted for repair as it fell below the 75mm intervention level adhered to by the defendant as set out in the local authority's code of practice. No complaints regarding the defect had been received.

The judge considered whether a reasonable person would have considered the defect a real source of danger. The judge described the defect as being of a 'modest size'. He deemed that the claimant was unfortunate to have found her feet in a defect not much wider than the width of a heel. He noted that there was a low footfall in the area and that the defect was not positioned at an obvious crossing point. Having considered the guidance set out in well-established case law, he did not consider that a reasonable person would consider the defect to be dangerous and dismissed the claim.

Forbes comment

This is an excellent result for the local authority which validates their longstanding approach to kerb defects. There are no national guidelines relating to kerb defects therefore each highway authority must apply their own standard. The claimant attempted to compare the defendant's approach to kerb defects with neighbouring authorities. This proved to be a fruitless exercise; neither of the neighbouring authorities would have identified this particular kerb for repair and in any event, the test applied in the case of Galloway v London Borough of Richmond Upon Thames (2003) was not one of measurements but whether the kerb defect gave rise to a 'real source of danger'.

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