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Occupiers' liability: pothole trip - is the defect dangerous?

25 April 2018
DWF | Roadworks
For liability to attach to a defendant authority in tripping cases, the defect does need to be objectively considered to be dangerous. It is not sufficient for a claimant to point to the fact that they tripped to be proof of the dangerous nature of a defect. 

Gabriel Fay acted on behalf of the first defendant, Taunton Deane Borough Council in the successful defence of this claim for personal injury resulting from a trip in a pothole.

Facts

The claimant alleged to have tripped in a pothole when attending a birthday party at the clubhouse of a golf course operated by Taunton Leisure, the second defendant, which leased the premises from Taunton Deane Borough Council (TDBC). The pothole was situated on the pathway used to access the golf club but the pathway was owned and maintained by TDBC.  Under the lease, the routine maintenance of the lighting around the clubhouse was the responsibility of Taunton Leisure but substantive repairs remained the responsibility of TDBC on notification from Taunton Leisure. The lighting at the location of the pothole was not working but had not been notified to TDBC.

On notification of the accident, TDBC sent out its open spaces inspector who had, in the previous 18 months, implemented Somerset Council's highways policies for open spaces walkways with an intervention level of 20mm. The defect in question measured no more than 12mm. It had not been picked up on the previous three inspections. Between the post-accident inspection and trial, someone had repaired the defect but TDBC had no knowledge of who did this or on whose instruction.

It was argued that the TDBC had fulfilled its duty, in accordance with Debell v Dean and Chapter of Rochester Cathedral [CA 2016], as the policy regarding inspections and the intervention level were reasonable but more importantly, the defect did not pose a real source of danger.

In relation to the argument that the defect had been repaired post accident, it was argued on behalf of TDBC that this did not imply a breach of duty, relying on the case of Staples v West Dorset District Council [1995].

Findings

The Court agreed. DDJ Brown made the following findings:

  • On the question of whether the dip or depression which was the cause of the fall, posed such a danger or hazard that liability would arise under section 1 Occupiers' Liability Act 1957, the key case is Debell. In order to establish liability there needs to be more than a minor defect or blemish. The court is to take a practical and realistic approach to the assessment of dangerousness and to consider not just the costs of remedying this defect, but the costs to defendants of having to rectify all faults of this nature. Each case is fact specific.
  • As the depression was only 1.2 cm deep, and was circular with no sheer edges, the judge found that it did not meet the test of dangerousness. It was well within TDBC's intervention levels and she accepted the parks inspector's evidence that he had looked at the defect and did not consider it dangerous.
  • Given that the depression was not found to be dangerous in and of itself, the judge held that there was no separate duty in respect of lighting which would have imposed a separate obligation or liability on the part of either defendant.
  • This was an unfortunate accident for which no-one was to blame.

Comment

  • The case demonstrates that for liability to attach to a defendant authority in tripping cases, the defect does needs to be objectively considered to be dangerous. It is not sufficient for a claimant to point to the fact that they tripped to be proof of the dangerous nature of a defect.
  • Claimants will also often put forward the fact that a defect has been repaired after an accident as proof that the defendant must have been in breach of its duty by not repairing prior to the incident. Again, this argument was rejected by the court.

Contact

For further information please contact Gabriel Fay, Tel: +44 (0)20 7645 4540

Further Reading

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