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Patmore v Devon County Council, Exeter County Court, 12 August 2004

24 August 2004
The issues

Highways – Section 41 Highways Act 1980 – Failure to Identify Defect.

The facts

The Claimant on the 5th April 2001 at around midnight was travelling along Gypsy Lane in Exmouth. She was riding a bicycle. She fell from her bicycle and sustained injuries as a consequence. She blamed the presence of a pothole in the carriageway for causing her to lose control. Following the accident she attended the scene with her husband where photographs and vague measurements were taken of the alleged defect. The road was generally considered to be in a poor condition and was resurfaced shortly after the accident.

At trial the Claimant was asked to draw on a photograph the route taken – the route failed to take her near to any defect in the carriageway. During the course of her evidence she changed the route to pass through a defect clearly visible in the photographs but on the opposite side of the road to that stated in her evidence. Her husband (who had been excluded from the courtroom during the Claimant’s evidence) highlighted a completely different location on the photograph. After lunch the Claimant sought permission to change her evidence again but was refused permission to do so by the judge.

The decision

The Claimant had failed to establish the precise point at which her accident had occurred. It is not enough simply to say that the road was in a bad condition, the Claimant had to be able to pinpoint the spot and prove a breach of S. 41 Highways Act 1980. The Court had sympathy for the Claimant’s inability to remember but her claim could not succeed. James v Preseli Pembrokeshire DC followed.

The Court went on to find that, on the evidence, the Defendant County Council had made out their S.58 defence under Highways Act 1980 had they needed it. The Court was mindful of the need to protect Highway Authorities from unreasonable standards as per te dicta of Steyn LJ in Mills v Barnsley Metropolitan Borough Council.

Comments

For further information can you please contact Daniel Turner at danielturner@veitchpenny.co.uk or Brent McDonald at bmcdonald@2templegardens.co.uk.

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