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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 claimants 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 claimants accident he had witnessed a similar accident on Chatham Road - two years after the claimants accident. Listed for trial at the same time as Jeanette Cenets 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!

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