Highway Authorities have a statutory duty to maintain the
fabric of public highways (the road and the pavement) to ensure that it is not a
danger to traffic, both vehicle and pedestrian. The duty to maintain is not an
“absolute” duty to ensure that the highway is free of all defects but to take
such care as is reasonably required to ensure that the relevant highway is not
dangerous. They must have a documented inspection and repair system in place.
Contrary to some
claims by insurance companies,
Government Ministers and tabloid newspapers, the world is not full of people waiting to
make fraudulent claims for non-existent pavement trips! Obviously there are some such claims but the
hurdles in getting compensation are high and claimants who are found by the
court to have brought a fraudulent claim can expect now to go to prison.
A lot of Councils now have “shared use” pavements for
vehicles and pedestrians, whereby cars, vans and lorries can park on the
extended pavement to avoid blocking busy streets while making deliveries and
collections.
Marilyn, a woman in her 70’s, was walking over such an extended pavement
which was in poor condition. The brick
pavers had been disturbed by the weight of delivery vans to the Sainsbury’s
Local. Her foot became caught in a hole between the pavers, she
fell and suffered a fracture to her left kneecap. It required a plaster and she was off her
feet for two months and dependent upon being wheeled about by her adult
daughter who would visit her daily until she got back on her own feet.
She made a claim to the Council concerned but their
insurers found that the defect was not one that should have been picked up on
inspection. This was very surprising
and contradicted by the photographs her daughter took of the pavement the next
day.
 |
| Inspector wrongly ignored the defect |
When we took over conduct of the claim, the insurers changed tack and claimed that
Marilyn was partly at fault for failing to notice the defect (which they had
earlier said the Council’s Highways Inspector could not have been expected to
notice!). But they abandoned that
position also.
The medical report upon Marilyn identified the need for
physiotherapy and suggested that without it,
she might not recover full function in her leg. Physiotherapy provision on the NHS is
woefully inadequate. Appointments are
too far apart and often fixed too far in advance. As part of her claim we
included the cost of private physiotherapy and the value of the gratuitous help
her daughter had given her when she could not manage on her own.
Negotiations led to settlement of Marilyn’s claim for
£12,500.00 with the insurers agreeing to pick up her legal costs on top.
