15 July, 2011
Forbes successfully defended a claim for a Highway Authority in respect of an incident whereby the Claimant sustained serious injury following a trip in April 2007 caused by a missing water hydrant cover.
The Claimant produced evidence that the water hydrant covers had a history of interference which the highway authority and the water company should have been aware of and should therefore have increased their frequency of inspection.
When considering the inspection records dating back to 2002 onwards, a number of inspectors had noted during the course of inspections missing hydrant covers at various locations which would then be referred to the water company to repair given their responsibility for their own apparatus.
In October 2006 the Highway Authority themselves had reported to the water company two missing hydrant covers. The Judge found that repairs had been undertaken and it would have been inconceivable that the repairs would not have included the replacement of the covers.
The area was inspected two weeks post accident and the highway inspector noted two missing hydrant covers. The Judge found that the interference with the covers was most probably due to theft for the metal and unlikely to be undertaken by youths.
Whilst the Judge accepted that the hydrant covers and stop tap covers were missing on a frequent basis, there was no evidence to compare the area to other locations within the country. The Claimant was suggesting that the highway authority should have increased their frequency of inspection to a monthly basis. The Judge found that the section 58 special defence afforded to the Highway Authority had been made out as they could not have been aware of or known of a specific problem of metal theft of the hydrant covers, and therefore the Authority's frequency of inspection at the accident was entirely reasonable.
The claim was dismissed with an order that the costs of the Defendant be paid by the Claimant.
It is our experience that metal theft of gully covers and hydrant covers are on the increase. Highway Authorities need to ensure that they respond appropriately on notification of complaints to inform the relevant utility company responsible for the apparatus but may have to temporarily make the area safe in the interim period. Unprecedented theft of metal work from the highway is unpredictable and it is encouraging the Courts agree that existing inspection procedures may be deemed appropriate to satisfy a section 58 defence.
For further information on this matter then please contact Andrew Ellis, Partner on 0161 918 0000 or email Andrew Ellis or for general highway matters please contact Ridwaan Omar on 01254 662831 or email Ridwaan Omar