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Orchard v Weymouth & Portland BC (1) Dorset County Council (2), Central London County Court, 7 June 2012

7 June 2012
The issues

Striking out – highways – design

The facts

The claimant brought a claim for damages for personal injuries following a tripping accident at Weymouth and Dorset on 2 January 2008. She brought a claim against Dorset County Council who were the highway authority and also the borough council which undertook inspection and maintenance under contract to the highway authority. The trip complained of amounted to a raised kerb between the footway and the carriageway. The claimant’s case was that the raised kerb was not clear because the carriageway and footway were paved in an identical fashion. The claimant alleged that this amounted to a defect. The defendant maintained that there was no defect in the highway and therefore s.41 was not engaged; that nuisance could not be used to circumvent a claim under s.41; and that the claimant’s highest case was one in negligence which could not be made out in these circumstances. The defendant applied to strike out.

The decision

The claimant had no reasonable grounds for bringing or pursing a claim against the second defendant given the first defendants admission that they were, in effect, the highway suthority. The claimant’s complaint was essentially about a design defect. That claim had no real prospect of success. S.41 was not engaged. S.130 did not carry civil liability. A claim in nuisance could not used to circumvent the statutory regime – see Ali v Bradford. There could be no stand alone claim for nonfeasance in negligence. Moreover, the claimant had failed to comply with the CPR in relation to the provision of medical evidence. On that basis both defendants were entitled to have summary judgment entered in their favour and for the claimant’s claim to be struck out in its entirety.

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