You’re walking down the street and suddenly you’re tripping. We’ve all done it!
Usually some mild embarrassment ensues and the hope that not many onlookers witnessed the ignominy, are the immediate concerns.
However, some ‘trips’ can be more serious and may lead to more than just a minor injury. Broken bones, soft tissue injuries, ruptured tendons/ligaments may mean time off work, not being able to drive or do all the daily chores we do without even thinking.
This is when you may contemplate making a claim.
To bring a successful claim there are some key requirements to be satisfied.
The relevant law is generally governed by The Highways Act 1980 and subsequent amendments to some provisions. Section 41 of the Act states that the Highways Authority must ‘maintain’ the ‘fabric’ of the highway and consideration will need to be given to whether the road, path, track etc. meets the definition of a ‘highway’ or whether it is in fact a right of way. The ‘highway’ must be one which is maintainable at public expense to bring a successful claim against a local authority.
One of the most common defences raised by local authorities is what is known as a Section 58 defence i.e. where it can establish that it operates a regular system of inspection to ensure that the road remained safe for vehicle/pedestrian traffic.
To overcome such a defence, evidence is key!
Photographic evidence, preferably with measurements showing the depth of the defect is essential from as close to the date of accident as possible and at regular intervals thereafter.
Witness evidence from local residents and business owners to illustrate how long the defect had been in existence can undermine a council inspector’s evidence that because the defect had not been noted on previous inspections, it must only have arisen recently or deteriorated rapidly.
Remember, the defect which caused the trip must be identifiable so if there is a cluster of defective flagstones in one area, make sure the one which caused the ‘trip’ is identified, measured and photographed as soon as possible.
The local authority may also raise issues of contributory negligence depending on the circumstances especially if the accident was during daylight hours and the defect ought to have been seen.
By securing good strong evidence from the start you will have a much better chance of succeeding with a claim and defeating a local authority’s Section 58 defence.