First Steps in Highway Claims

By Adam Manning

A recent report in the Daily Echo indicated that over the last five years Southampton City Council has paid out nearly £3 million in compensation to people who have fallen over due to defects in the road or pavement. This, according to the figures in the report which are based on a request made under the Freedom of Information Act, was paid out to 268 people during that time, or on average, just over fifty per year out of a population of nearly a quarter of a million.

When people fall in this way, whether it be a badly aligned paving slab, a cracked kerb stone or something similar, the majority of the time the injuries are thankfully superficial or a minor. Some of the time though they can be a lot more serious and complex. Whilst a fall on the pavement might sound trivial, the reality is that anybody, whatever their age or health, can suffer a serious injury due to a trip from a pothole or protruding tree root.

Broken ankles, knees or shin bones can occur in a fall. Another commonly found serious injury from a fall is often referred to in hospital notes as FOOH for Fell On Outstretched Hand and this can involve a fracture of the scaphoid bone in the wrist which can take a long time to heal. These injuries are certainly far from trivial or superficial to those who suffer them. In addition, aside from the pain of the actual injury they can lead to time off work and consequent loss of earnings and financial difficulties or the inability to take care of children, elderly or unwell relatives.

The duty to inspect, maintain and repair the roads and pavements (or the highway as they referred to in the legislation) is set out in principally in the Highways Act 1980. The duty is not to keep all of the roads and pavements in all of the authority’s jurisdiction completely defect free at all times of the day and night. The law recognises that this is simply not realistic. Instead the duty is much less precise. It is, in simple terms, to have a system or regime of inspecting the highways and spotting any problems (potholes, defective kerbstones, missing drain covers and so forth). The highway authority is then expected to put this right within a reasonable period of time.

As a duty it takes into account a number of factors including for example the nature and use of the highway involved. For example busy roads in town or city centres have to be inspected more frequently than rural or country roads that are not used as frequently. If someone falls due to a defect in the road or pavement and it can be shown that the defect is due to the breach of this duty then there is the possibility that the victim might be entitled to compensation.

As might be realized from this description of the duty it is in practise much harder to successfully claim compensation for a trip or fall on the highway then news stories about how much local authorities have paid out might suggest. It can take a lot of research and detective work to win a case.

Clear photographic evidence of the defect that caused the evidence is needed – a case can be won or lost on quality visual proof about what caused the accident in the first place. Ideally evidence needs to be accumulated about how long the defect has existed for example by obtaining witness statements. The highway authorities records need to be reviewed in detail – not always an easy task as the information in them can be confusing and not clearly set out. Professional assistance from lawyers expert in personal injury claims and in highway tripping cases in particular is the best way to ensure a claim of this nature is dealt with effectively.

The defect itself has to be dangerous, that is of such a nature that it could cause an accident. In practise this is often gauged by looking at the photographs of the defect. There is a “rule of thumb” that the pothole or protuberance from the road surface has to be more than inch different in height from the surrounding area. This is though only a very rough guide which has to be set against all the other factors. It shows that many people who trip on defects that are less than an inch, which is perfectly possible, will be denied compensation simply because of the restrictions of the law rather than any fault of their own.

As well as being challenging to pursue successfully, highway authorities are not, despite the impression some of these reports might provide, always keen to hand out money to anyone who makes a claim following a fall. Quite properly they normally take legal advice as well and if they form the view that they have not breached their duty, they may then defend a claim vigorously. Again this strongly recommends that potential claimants seek legal advice from solicitors experienced in this area. There is of course a three year time limit under the Limitation Act for bringing a claim and due to the complexities of these sorts of cases this can mean a lot of work being required before that time period expires.

If statute imposes a duty on a highway authority and they feel it imposes too onerous a duty on them or that they are not provided with the resources to meet that duty, that is a matter for them to resolve with central government. It is not the fault of those who pay their taxes and expect the roads and pavements this helps to pay for to be in a reasonable condition.

Neither is it the fault of personal injury solicitors. They are often criticised for acting in these claims under what is called a “no win no fee” agreement. The reality for lawyers dealing with these sorts of cases is that they are difficult and challenging to win due to the nature of the duty imposed on the highway authority. This means that in practise they have to be selective about the cases they take on so that the injured person is not wasting time and effort instructing solicitors without a good reason. Of the cases they take on, a proportion are likely to be unsuccessful due to the difficult nature of winning such a case.

Those injured in falls in this way should not be belittled or decried for exercising their legal rights. Its all to easy for those who have not gone through something similar to suggest there is something immoral in doing so or categorize those who make such claims, and their legal representatives, as opportunists seeking to take advantage of the law. Personal injury lawyers will continue to proudly and vigorously prosecute their client’s claims for such accidents in the hope that they can obtain some recompense for people who have been injured through no fault of their own.