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One personal hygiene mishap, two tripping accidents
witnessed and three tripping accidents suffered
4 July 2008
That was the record of the witness to the highway trip of the
claimant in Cenet v Wirral Metropolitan Borough
Council. What do you have to do to convince a court that a
highway tripping claim is fraudulent and can a pedestrian expect
the same standard of maintenance on a carriageway as on a footway?
These were the questions that exercised the court.
The flexi-time employment records showed that
the witness was working at the time he claimed to have seen the
claimant’s accident. His explanation was that he had suffered a
personal hygiene accident at work and been allowed to return home
to Chatham Road to change his clothes without “clocking off”.
In addition to the claimant’s accident he had
witnessed a similar accident on Chatham Road - two years after the
claimant’s accident. Listed for trial at the same time as Jeanette
Cenet’s accident, that claimant had discontinued on the day before
trial.
The witness had submitted claims in respect of
three highway tripping accidents – each three years apart.
However, the Judge at trial had still found
the claimant to be credible, accepted her evidence and found in her
favour. The appeal Judge did not overturn the finding on
credibility but did reverse the finding that the defect was
dangerous.
This was a trip that occurred on the
carriageway not the footway and the appeal Judge (contrary to the
trial Judge) found that a depression that was greater than the
footway intervention level – of 25 mm – but less than the
carriageway intervention level – of 40 mm – was not, in the
circumstances, dangerous.
So can you always be confident that if a
pedestrian trips on a carriageway defect less than 40 mm it will be
held by the court not to be dangerous? Unfortunately no. There may
be special features such as high pedestrian traffic as a result of
adjacent shops, schools or other public amenities that create an
exception to the general rule. However, if the defect is long
standing, has attracted no complaints or other accidents and looks
on the photographs like a minor defect, indistinguishable from the
type of defect normally seen on a carriageway, then it is unlikely
to be found to be dangerous.
The case is helpful in that – like the old case of Ford
v Liverpool Corporation – it establishes that different
rules apply for a pedestrian tripper on the carriageway than on the
footway. The risk management lesson is to make sure that highway
inspectors do not apply the carriageway intervention criteria too
rigidly and are alive to a softening of the standard in areas of
high pedestrian traffic on the carriageway. And, if nothing else,
you can rejoice in the fact that the accident prone pedestrians of
Chatham Road do not fall within the boundary of your highway
authority, unless you are responsible for a street with more
accident prone residents than the Chatham Road crew, in which case
we would like to hear from you!
For more information, please contact David Maggs,
Adrian
Shardlow or Bridget Tatham.
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