Since the Government’s announcement of lockdown, it seems likely that many more individuals will be looking to get their daily fix of exercise by alternate means whether that be walking, running or cycling. It, therefore, feels an apt time to talk about defects on roads and footpaths, and what to do if you have had a trip, slip or fall as a result of a defect on the highway.
Pursuing a personal injury claim against a local authority can be difficult as there are several hurdles to overcome. But before I delve into the hurdles, let’s start at the beginning and look at the law.
The legal bit
Under section 41 of the Highways Act 1980, a local authority has a statutory duty to maintain the roads and footpaths inside its area of control. Part of your council tax bill will go towards the cost of carrying out essential maintenance and repair work. However, a local authority does not have the financial means to repair every defect - they generally intervene once a defect is actionable - and they prioritise all repair work. It’s therefore accepted that roads and footpaths will contain surface defects and not all of these defects will be deemed hazardous or dangerous by the court.
How does a local authority decide what is an actionable defect?
A local authority will have its own maintenance and strategy guide which will set out the criteria for determining the following:
- Frequency of inspections; and
- Classification of a defect.
Inspections are usually carried out annually but some areas with heavier footfall and moderate vehicular traffic will be inspected on a more frequent basis.
The classification of a defect is slightly complex. It’s assessed based on several factors including location, type (e.g. pothole, cracked or uneven paving), and size by reference to its length, width and depth.
A local authority will send out a highways inspector to carry out an inspection. Sometimes these inspections are done by car and sometimes on foot. If during an inspection an actionable defect is located, a repair will usually be requested, but depending on its risk factor it may not be repaired straight away.
I’ve had an accident, am I entitled to claim compensation?
There are two hurdles you must overcome in order to pursue a successful claim against a local authority:
- Breach of duty under section 41 of the Highways Act 1980; and
- Statutory defence afforded to the local authority under section 58 of the Highways Act 1980.
First, you must show that there has been a breach of duty under section 41 of the Act. In other words, you must show that the defect responsible for your accident is actionable.
You are not expected nor are you best placed to know if a defect is actionable. You should therefore consult a personal injury claims specialist to look at your case.
What happens next?
Using my knowledge and expertise in this area of personal injury law, I would be able to get a good idea of whether a defect is dangerous and potentially actionable simply by looking at photographs. You should therefore take as many as possible, as soon as you can. I would need to see photographs taken at varying distances and angles; and photographs which include measurements.
However, there’s no automatic right to compensation. Even if a defect exceeds a local authority’s intervention level they can still get out of paying a claim. This brings me to the next hurdle that you must overcome in order for your claim to succeed.
If a local authority can show that at the time of the most recent pre-accident inspection, the defect did not exceed their intervention level, a local authority can argue that it was not dangerous enough to warrant a repair.
In some instances, a defect may not be recorded at all. This could be for a number of reasons but most likely because they did not know about it until the occasion of the accident, so it must have arisen at some point between the date of the most recent inspection and the accident. In my view, and depending on the facts of a claim, this can be a bit of a flaky defence as some defects are simply too big to have matured within a short space of time. This is therefore one of those defences to look out for and investigate carefully.
In my experience of dealing with this type of personal injury claim, a section 58 defence can cause difficulty, but it does not necessarily bring an end to a claim. Careful investigative work would need to be carried out and this would involve looking at pre-accident inspection records, maintenance and repair orders, customer complaints records and so on.
It can be very complicated and frustrating for claimants which is why it is not advisable to “go it alone”. If you have tripped, slipped or fallen as a result of an accident on the highway, then please do not hesitate to contact me or a member of the team to discuss your claim.