Tripping Claims against Local Authority

Section 41 of the Highways Act 1980 places a duty on the local Highway Authority to maintain the highway in a condition that is safe for users. The "highway" for these purposes includes roads, cycle tracks, footpaths, public paths, bridleways and verges for which the highway authority is responsible. The duty to "maintain" includes repairs.

In order to succeed with a claim a person injured in a trip on the highway needs to show that the Highway Authority has not complied with its duty to maintain the highway in a safe condition. This has three elements :-

• the highway was in a dangerous condition to those using it;
• that the dangerous condition arose as a result of a failure by the Highway Authority to maintain the highway;
• if a failure to maintain the highway can be established then the Highway Authority are prima facie liable.

However, Section 58 of the Highways Act provides the Highway Authority with a defence against such a claim if it can show that it has taken all reasonable care to maintain the highway in a condition that is safe for users.

What is dangerous?

The relevant question is not whether the highway generally is in a poor condition but whether the particular site at which the injured person fell was dangerous. Not every defect in a highway is "dangerous". Courts have refused to give specific decisions, in relation to what "size" of defect will make a highway unsafe.

However, differences in level in excess of one inch between, for example, two paving stones are likely to be considered dangerous. Most Highway Authorities use measurements in order to decide what is "dangerous" and, therefore, in order to determine which defects should be repaired as a priority and which should be subject to routine maintenance.

A variety of defects in the highway can cause a trip but what is dangerous or not may depend upon the nature of the defect rather than the measurement of the "trip". For example, a sheer trip e.g. the edge of a raised paving stone may be more dangerous if an inch in height than a depression in the pavement which may be an inch and a half in depth.

Many defects in the highway exist which are not sheer trips but for which the Highway Authority may still be responsible. These include :-

• paving stones that rock;
• tree roots pushing through causing the pavement to be unlevel;
• missing grids, box covers, manhole covers
• slippery surfaces e.g. excessive moss
• missing and broken kerbstones
How does the Highway Authority use the Section 58 Defence?

The Highway Authority has to be able to prove that it has taken all reasonable care to maintain the highway in a condition safe for users. To do so it must operate a regular, consistent and documented inspection and maintenance regime.

Highway Authorities operate an inspection system of roads, pavements etc on a regular basis in order to detect and repair defects. Most Authorities will operate a priority inspection system for areas of high pedestrian usage such as main shopping areas and perhaps around busy schools and check these areas as often as on a monthly basis. Other highways will be the subject of standard inspection perhaps every three or four months or even less regularly. In addition, ad-hoc inspections will take place when members of the public, the emergency services and the like report specific defects that have come to their attention.

When such inspections reveal defects in the highway the Authority will prioritise necessary repairs based upon how dangerous the highway inspector considers them to be.

Provided therefore, that the Highway Authority records any such system of inspection and repair, and that the period between inspections is reasonable as is the time allowed for repairs to be undertaken once defects have been found the Highway Authority may be able to rely upon the Section 58 defence to defeat any claim by an injured person who has tripped even if at the time of the accident the trip was dangerous. If the Highway Authority can show from its documented records that at the time of its last inspection before the accident the trip was not present or not considered to be dangerous the Section 58 defence is likely to succeed. By contrast, if a Highway Authority was aware of the defect but had taken an unreasonable period of time to repair the Section 58 defence is unlikely to succeed.

What to do when you have been injured as a result of a trip on the highway?

It is very important to realise that the Highway Authority are likely to rely upon the Section 58 defence. Obtaining immediate evidence about the defect is a must. The following action should be taken :-

• the defect should be accurately measured and photographed. A ruler or some clearly visible object which can be accurately measured should appear in the photograph. A number of photographs should be taken including some showing the accident site from a slightly further distance away and from the direction in which the person who tripped was travelling before the accident.
• a sketch plan should be prepared showing the direction of travel and easily identifiable landmarks e.g. house numbers, lamp posts and the actual location of the trip.
• evidence should be obtained from householders in the area. Can they confirm, for example, how long the defect has been present? Accurate evidence of this type may greatly assist in defeating a Section 58 defence. Have there been previous tripping accidents at the scene?
• once photographs are developed the relevant defect which caused the trip should be clearly marked on the photograph.

Early gathering of suitable evidence of the type detailed above may be the key to a successful claim.

Please contact us for further information.