The roads and streets can be a dangerous place – having worked in this industry for as long as I have, you tend to pick things up most people would miss. Next time you are out and about shopping, walking your dog, or visiting your friends and family, take notice of what’s on the ground you are walking on. It goes without saying that I ask you not to concentrate too hard to ensure you don’t walk in to anything or walk in to the road; but, if you can, just have a look at what’s around you on the streets and roads.
You will probably notice raised paving slabs, cracked concrete, gaps in the kerb, or the dreaded pothole in the road. Normally, these aren’t things you would look out for or particularly spot when you are out and about; but, if it’s in the back of your mind, you will probably begin to notice a lot of dangerous defects out there.
That, ladies and gentleman, is the reason why people end up making a claim against the council. Claims for compensation in general, but particularly council tripper claims, have a bad reputation for some unknown reason (although it probably has something to do with the way our lovely media paint a council claim). If you work in this industry, consciously try and look out for, or have tripped over a defect in the past, you will likely notice the extent to which they litter our pavements and traffic routes.
That’s why injuries from council defects are so common.
If you do end up tripping or falling due to a defect on the highways, are you eligible to make a claim? Of course you are! However, the likelihood of success is, unfortunately, very slim in the majority of circumstances. The reason for this is also tied in to why there are so many defects still out there. Here’s why:
Under domestic laws here in most parts of the UK, the duty of care the council, local authority, or highways authority has, is to reasonably and practicably inspect and maintain their jurisdiction of land. This doesn’t mean that they have to scour the streets on a daily basis to hunt for defects and repair them within minutes. What this means is that for many busy roads an inspection must take place every 3 months or so. For less busy areas, an inspection is probably done every 12 months or so.
That’s not a great deal of inspection time in all honesty.
If a defect is reported, the duty of those responsible is to make safe or repair the area within a reasonable and practicable time frame; perhaps, between two to four weeks at the most.
So, what does all this mean?
Well, if you should trip and fall due to a defect on the pathway on 20th September 2011, on a stretch of pathway that is inspected every 12 months, with the last inspection being 1st October 2010, you will likely be unable to make a successful claim against the council. The defect that caused your injury was inspected within the last 12 months, in accordance with the relevant authority’s regime for that particular area. Sadly, even if you fractured your neck and were unable to work ever again, the council could still defend the claim.
Under Section 58 of the Highways Act, the above practice is known as the special defence the relevant authority is afforded in the event they can prove they have kept up with their inspection and maintenance system. When they are able to successfully employ their special defence, you will likely be unable to make a claim.
The reasons for this special defence is because the local authorities, as a publicly funded body, do not have the resources to constantly inspect all areas of jurisdiction on a consistent basis. They are expected to do what is reasonable and practicable, which is largely decided by the authorities themselves. Roads and streets are allocated differing levels of frequency for inspections based (normally) on how busy or used the road or highway is.
Unfortunately, not many people are aware of this, and many still believe that the council will always pay out for a defect injury. As I have outlined above, this is not always the case.
What Should You Do?
If you end up injured due to a defect on the highways, it’s still always best to seek advice and representation from a specialist firm of personal injury lawyers. Only by commencing a claim will you be able to find out if the council have done all that they are expected to do by law. The relevant authority will need to conduct an investigation and confirm their stance within a period of approximately four months.
In the majority of cases the council are likely to attempt to defend the claim. That’s why you need an expert injury lawyer to make sure that any defence they may have is good enough to prevent a payout. Your injury lawyer should be fighting tooth and nail to try and secure you something for your injuries.
Whatever you do, make sure you do it on a Genuine No Win No Fee basis. The paperwork should clearly state that you never pay a penny if the case loses (not a single contribution or anything) and that you will receive 100% compensation – no deductions, no hidden charges – if you win. There should be no catches, and you should only ever agree to the paperwork if it makes complete sense.
You can always ask your injury lawyers straight and get them to confirm it to you over the phone as well. Make sure you know of all eventualities where you could face charges, because with these types of claims, you could be facing an uphill battle.
I apologise if you were looking for more encouraging news for your potential council claim; don’t get me wrong, it is worth you pursuing your case. But, here at The Injury Lawyers, we like to give people the honest advice. We will fight our hardest to win your claim, but we won’t mess you around or sting you along!
So, feel free to get in touch if you need some friendly advice or help.
