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Hassall v Plymouth City Council

8 March 2013
The issues

Highways – Section 41 of the Highways Act 1980 – failure to identify a defect – Section 58 of the Highways Act 1980

The facts

Mrs Hassall, 84 at the time of the accident, was walking along Edgcumbe Park Road in Plymouth on 3 October 2011 at approximately 4 pm. Mrs Hassall was on her way to an appointment with Dr Spooner, a podiatrist on Edgcumbe Park Road, somebody she visited on a six weekly basis.

The judge was satisfied that the defendant did not know of the defect previously and therefore the section 58 defence was made out.

Mrs Hassall tripped on what she alleges were raised flagstones next to a tree. It was claimed that the raised flagstones measured between 30 and 40mm in height. Mrs Hassall sustained cuts and bruises.

Shortly after the accident Dr Spooner took photographs of the paving defect caused by some uneven flagstones.

Mrs Hassall’s evidence concluded that initially she did not know what she had fallen on; it was only on returning some days later that she concluded she must have fallen on the raised flagstones. The defect was reported to Plymouth City Council on 13 October 2011, when it was repaired on the same day.

Edgcumbe Park Road is inspected on a six monthly basis and the last inspection prior to the accident was on 5 May 2011 when defects were picked up, but not the raised flagstones upon which the claimant alleges to have tripped over.

It was alleged that the raised flagstones were missed on the two inspections prior to Mrs Hassall’s accident. The claimant was however unable to produce any evidence that it had been there before August 2011. Dr Spooner gave evidence that he had known of the raised flagstones since the end of August, but had never reported it to Plymouth City Council.

Plymouth City Council defended the claim on the basis that Edgcumbe Park Road was inspected by a competent and experienced highway inspector, who had picked up other defects next to trees during his inspection on 5 May 2011. If the alleged defect had been present on 5 May 2011, then it would have been picked up. Further, the council had not received any complaints from members of the public.

The decision

The judge concluded that on the balance of probabilities there was a defect present at the location on 3 October 2011, and that the height of the uneven flagstones measured 35mm, which was held to be dangerous and therefore there was a breach of Section 41 of the Highways Act 1980. The judge went onto find that Mrs Hassall did trip on the defect.

With regard to the Section 58 defence, the onus was on the defendant to show that they had (a) a reasonable system; (b) engaged a competent person to do the inspections; and (c) that he carried out the said inspections properly.

There was no dispute with regard to the reasonable system, and no challenge was made as to the highway inspector’s competence.

It was held that there was no evidence before the court as to how long the defect had been in place. All the claimant could say was that she fell on it and Dr Spooner had known it had been there since August 2011, but he did not report it. Counsel for the claimant argued that the defect had been caused by a tree root, and therefore it must have grown over time. The judge could not hold that this was the case; it was not for him to speculate. The judge therefore held that the defendant did have a reasonable system, and the highway inspector was competent. The judge was satisfied that the defendant did not know of the defect previously and therefore the section 58 defence was made out.

Claim dismissed.

Comments

With thanks to Thomas Crockett of 1 Chancery Lane who represented the defendant.

For further information please email Lorna Herring on lorna.herring@brownejacobson.com or Thomas Crockett on TCrockett@1chancerylane.com

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