Claims against the Council for a fall on the public highway

This is known as public liability and can arise as a result of someone tripping or falling due to a defect or hazard in the path or on a road.

If you have suffered a fall due to either of the above, it does not necessarily mean you are automatically entitled to compensation for any loss and injury you may have sustained. Sadly, many of Britain’s paths and roads are in a state of disrepair and whilst the Courts do not expect Councils to have roads and footpaths without fault, the Council will be expected to have in place a reasonable system of maintenance, inspection and repair.

I often see, when I am out and about, defects and hazards in paths and roads, but maybe I am just more observant of these things as I deal with claims of this nature on a daily basis! We are not expected to walk with our eyes "glued to the ground", but we should have some awareness of our surroundings. It is inevitable that you may have your attention elsewhere when you fall foul of defect.

The elderly can be more vulnerable as they may be less likely to see a defect or hazard.

For the many years I have been representing Clients in these types of claims, it is never a straightforward matter. The onus is upon the Client, as the Claimant, to prove that the Council has been negligent. There are three key questions that need to be addressed:-

1. Does the Council owe me a duty of care?

2. If so, have they breached that duty of care?

3. Can I show that my injuries were caused as a result of that breach?

Duty of Care

The Council do of course owe a duty of care to anyone who is making use of their roads and footpaths. They have a duty to ensure that that roads and paths are safe and free from hazards.

What is defined as a hazard? Well, for a tripping claim there is a rule of thumb in that the tripping height should be in excess of one inch, but there is some case law to say otherwise. The Court will look at many factors, ie where the hazard is situated, how obvious it is, the weather conditions, lighting, the type of Claimant (eg age and gender) and, more particularly, whether the "reasonable person on the street" would look at it and believe it to be dangerous. A defect in a path or road does not mean it is a hazard.

Breach of Duty of Care

This is the difficult bit. On the basis that a hazard is identified, the Claimant has to show that the Council failed in its duty to maintain, inspect and repair the highway/footpath. All Councils have their own guidelines as to how and when they carry out inspections. The busier the area, the more regular the inspections, eg a busy high street in a town is most likely to be inspected on a 2 week or monthly basis. The Council will assess the regularity of these inspections depending on the footfall and traffic. It may be that they have failed to inspect the area in question or not inspected it properly. However, if the Council can show that they have done what was required of them and complied with their maintenance, inspection and repair regime then it will be difficult to prove that they have been negligent.

If you have evidence that the hazard has been there for a long period of time then this will be supportive in proving a breach if it was identified/observed outside of the times when the Council would have picked it up. This is called Section 58 evidence and will normally be obtained from someone who is familiar with path or road and has been aware of its existence.

It may also be the case that the maintenance, inspection and repair regime for a particular path or road is insufficient having regard for the amount of footfall and traffic. Of course it is not possible to see what the Council have been doing, if anything, until a claim has been formally intimated and they have given disclosure of their documents (which they must do if they are going to deny any negligence). At this stage you will be able to see if they have their house in order.

Injuries received as a result of the breach

In the event that negligence is established, either by way of admission or at a Court hearing, you still need to show that your injuries were as a result of that negligence. This is called "causation" and it is usual for medical evidence to be obtained to substantiate your injuries. The expert will consider the circumstances of the incident together with medical treatment received after the event together with your medical records in order to give an informed decision about the injuries suffered and a prognosis for the future.

Remember, you as the Claimant must prove the negligence.

I find it very frustrating that some Councils have little if any documentation to produce and feel it is acceptable to say that they have complied with their duties! I have also come across Councils who have picked up a defect/hazard, but failed to action it within the time given by their own guidelines. These sort of things are evidence of the Council’s failure to inspect, maintain and repair.

If you do become a victim of a trip or fall on a public highway, it is important that you obtain the right legal advice and have a Solicitor working for you that knows the issues that are likely to arise.