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Cenet v Wirral Metropolitan Borough Council, High Court, 26 June 2008

31 July 2008
The issues

Highways – trip – Section 58 Highways Act 1980 – tripping accident – whether standard to be applied should be standard applicable to footway rather than carriageway, where accident occurred in carriageway but in an area where pedestrians were likely to walk.

The facts

The Claimant brought a claim against the Defendant for a highway tripping accident. At the time of the accident she was 32. She said she was delivering leaflets in the Wirral in Chatham Road, the street where she lived. As she was beginning to cross the road, her foot caught in a depression and, as a consequence, she lost her balance and fell, injuring her wrist, hand and thumb and bruising her knees. The Judge found for the Claimant, subject to a finding of 30% contributory negligence. Mr Maguire witnessed the accident. Mr Maguire had had 3 highway tripping accidents in 1998, 2001 and 2004 and had been an eye witness to a similar accident suffered by Mrs Barry, who also lived on Chatham Road. Mrs Barry’s claim had been due for Trial at the same time as that of the Claimant at the directions of the designated Civil Judge, having regard to issues of credibility arising from Mr Maguire’s involvement as a witness in both claims. Mrs Barry discontinued her action the day before Trial.

The Claimant’s brother and son had submitted claims in respect of tripping accidents, which were said to have occurred during the same period of 6 months in 2002. Both the Claimant and Mr Maguire had provided supporting evidence for the claim by the Claimant’s brother. The Claimant had also provided supporting evidence for one of Mr Maguire’s claims and for the claim made by Mrs Barry. The Defendant’s case was that this history of involvement in similar claims was such as to give rise to doubts as to the reliability of the Claimant’s evidence and that of her witness. The Judge found the Claimant in evidence “straight forward” and that she was not dishonest or attempting to deceive the Court. He found her evidence “reliable on the whole” and accepted it. He was “less impressed” with Mr Maguire’s evidence but did not find him “entirely dishonest”. He found that he had over-egged the pudding in an attempt to assist. He found that Mr Maguire had been present at the time of the accident and had seen the Claimant fall. He was persuaded however on the basis of the Claimant’s own evidence that the accident had happened in the way described by her.

The Defendant also appealed on the basis that the Judge was wrong to find the defect dangerous as it was long standing and there was no evidence that it had been the cause of any other accidents. After the accident, the highway inspectors had not taken steps to have it repaired. They argued, the Judge had been wrong to find that in the absence of a kerb at this point, it was a place where pedestrians were likely to walk if they were to cross a road and that because of this it was more akin to the pavement than to the carriageway and the appropriate standard was 25mm for pavement and not the 40mm standard for a carriageway.

The decision

The Judge had seen the witnesses and whilst he could have addressed the issue in effect of Mr Maguire’s previous involvement in claims with greater clarity, his findings and reasonings were not fatally flawed.

The Judge had been entitled to find that the accident had occurred at a point where pedestrians were likely to cross as a crossing point. It was unclear why the Judge had said the area in question was more akin to footway. The same could be said of any part of a carriageway over which pedestrians were likely to walk. In making that finding the Judge had erred. It was on the basis of that error that he had applied the standards appropriate to a pavement rather than to a carriageway. If, as he should have done, he had applied the standard appropriate to the carriageway, he would have found that the relevant area was not dangerous.

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