I have been injured due to the state of a pathway or a road – what should I do?
Firstly, I should hope you have had some medical attention; particularly if you are suffering quite badly. It’s easy to break a bone on a solid concrete pathway, but even if you are lucky enough to avoid a fracture, always go and see your GP or visit the nearest walk in centre / hospital for medical attention.
Secondly, take detailed photographs of the defect! It’s best to take several quality photos. Take some showing the defect clearly, take some with your camera flat with a ruler or tape measure to show the height / depth of a defect, and take some of the accident locus – it is particularly helpful if you could perhaps fit a landmark in there as well – A shop showing the name, a street sign or similar board to pinpoint the exact location of the defect.
Thirdly, consider if you know how long the defect has been there for. Have you seen it before? If so, when did you first notice it? If the defect is outside of a shop, it could be worth speaking to the shop owner – they may know of any similar incidents, or may know how long it has been there for. All this can be valuable for witness evidence – continue reading below to find out why…
Do I have a Claim?
The big question – unfortunately, it’s just too difficult to tell at the early stage. If the defect is big enough, you may have a claim – a solicitor could tell you that. But whether you definitely have a claim, we do not know.
The reason we do not know is because all local highway authorities have a special defence under Section 58 of the Highways Act. The law means that a local authority is only responsible to have a reasonable system of inspection and maintenance in place, which is largely dependent on the nature of the road. Usually a very busy and well used road is inspected more than a quiet, less busy road, for example.
If the council is able to prove that they have comprehensively inspected the area within good time prior to your accident, they may not be liable to pay you a penny! Its unfortunate, but in many ways it’s sensible given that it’s not exactly fair to expect the council to inspect every stretch of highway every second of the day for defects! If a defect is reported to them, it must be repaired as quickly as possible, or the public must be restricted from accessing the defect as quickly as possible.
You are often able to tell if a defect has been there for some time – if the whole road or pathway is in an absolute state of disrepair, then it’s possible it has been a developing problem for some time – and the council haven’t inspected and maintained the area well enough.
If we can prove that the council has clearly not inspected and maintained an area regularly enough, it is likely you have a successful claim for compensation. The council, in order to rely upon the defence mentioned above, must disclose evidence that the area has been comprehensively inspected and maintained. If they fail to repair or restrict access to a defect in good time, then you may also have a claim.
There is somewhat of a war of words going on between solicitors and councils. We solicitors are here to help the victims of negligent councils, and we can operate on a No Win No Fee agreement based on our clients’ instructions. The council are not so happy with the volume of claims against them – arguing that taxpayers’ money is being spent on paying legal bills for claimants. It’s a fair point – but, if all councils actually keep to their inspection and maintenance regimes, there wouldn’t be any claims to pursue against them!
It’s always best to have an expert independent solicitor on your side – unfortunately, there appear to be occasions when councils rely upon the defence as an ‘excuse’ to not pay out for a claim. It’s not unheard of for a council or their insurers to dispute responsibility based on inspection regimes. There are times when areas have been “inspected” and defects have either been ignored or missed. Witness evidence to prove the duration a defect has been there has been a lifeline for many cases – and now, Google Street View is a further piece of evidence we can use to get justice for our clients.
Just this week we at The Injury Lawyers have agreed to take on the case of a victim whom tripped over a raised section of highway in a public area. The council have denied that they are liable to our client, who was until now dealing with the case directly with them. They advised in writing that the area was inspected a mere 3 weeks prior to the victims’ accident, and no defect was spotted; based on a seemingly impressive monthly inspection regime. Unfortunately for the council and their insurers, the game has been given away – Google Street View shows the defect quite clearly there in 2009 when the Street View image was taken.
I am in no way suggesting that this, or any other local authority, would fabricate facts or try to “get out” of paying a victim damages. But the facts in this case are concerning – but it certainly goes to show you that with a good solicitor on your case, you should be on to a winner!
For free, no obligation advice from the experts, give us a call – we are always happy to assist.