Have you ever had a personal injury claim against your local authority and not done anything about it as you did not know if you could? Hopefully this blog will try and dispel some of the common myths surrounding these sorts of claims.
To start with the basics for any personal injury claim, the following must be proved to be successful: a duty of care, a breach of that duty of care and that the breach is a negligent one. For a claim against your local council, you must also show that they have breached their duties under the Highways Act 1980.
It has been established by the Courts that the highway is a defined route over which ‘the public at large can pass and repass as frequently as they wish, without hindrance and without charge’. Therefore, as you can see from this definition, most pavements and roads will be classed as a highway. If you can establish that the road is indeed a highway, section 41 of the Highways Act 1980 then imposes a duty on the Local Authority to maintain a highway at the public expense, unless they can prove that someone else is responsible. It is possible for a highway to be no-one’s responsibility.
It is important to remember that the duty to maintain is restricted to a duty to repair and keep in repair. The Local Authority are not under a duty to improve the highway. However the duty under section 41 is an absolute duty to maintain, and is not guided by what is reasonable.
However, it is based upon what a reasonable man would think and the duty also depends upon the level of use the road has. Therefore, the duty will be higher for a main road, as opposed to a rarely used footpath.
If you are able to establish that there has been a breach of section 41 (i.e. a failure to repair a defect on the pavement), your local council will then be responsible for any reasonably foreseeable injuries caused, subject to a defence contained in section 58 of the Highways Act 1980. This defence states that your local council will be able to successfully defend a personal injury claim where ‘the authority had taken care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic’.
Therefore, as long as your local council can show that they did everything reasonable to ensure your safety, it is highly likely that they will be able to defend your claim.
What does all of this mean in practice? Each local council will have their own policy in place in relation to defects. A road will be classified and each classification will determine how often a road is inspected. For example, a main road with lots of people travelling on it may be inspected monthly. However, a footpath may only be inspected every 6 months.
Previous cases have usually ruled in the council’s favour by deciding that anything more than monthly would be onerous and expensive.
As well as the inspection system in place, local councils also need to react to reports of other accidents or near misses. If someone else reports an accident on the same defect, it means that the council had notice of it before your own accident and this will strengthen your case if they failed to respond to an earlier report.
The council’s guidance will also stipulate what they deem to be an ‘actionable defect’. For example, a pothole would need to be 3 inches deep before they consider it serious enough for repair. For a defect which is less than 3 inches deep, it would be extremely difficult to win a claim on the basis that it was not an actionable defect.
It must be stressed that your local council’s duty is only a reasonable one and they cannot be expected to repair every single defect. One of the reasons Courts give for this is because it is public money involved.
If you do have an accident as a result of a defect, a number of things will strengthen your claim:
1. Photographs of the defect at the time of your accident, including measurements using a tape measurer;
2. Details of any witnesses on the street who are able to confirm how long the defect has been present for;
3. Monitoring of the defect to see if the local council repair it in line with their own policy; and
4. Google Maps can be helpful as it may show a defect in situ at a much earlier point than your accident.
All personal injury claims are subject to a 3 year limitation deadline. If a claim is not settled or issued at Court by the third year deadline, you would then be barred by statute from bringing that claim. Therefore, you should act swiftly if you think that you have a personal injury claim.
JNP Legal are local legal experts who specialise in personal injury claims. Where we view the chance of success to be sufficient, we may then offer a No Win No Fee Agreement.
However, we would ordinarily need to see photographs before we can assess your chance of winning.
We have offices based at Merthyr, Nelson and Llanishen and our offices are open Monday to Friday 9 AM – 5 PM and our Merthyr Tydfil office is open 9 AM – 12 noon every Saturday morning.
If you require our assistance with any legal matters please call us on 01685 350421 (Merthyr Tydfil), 01443 450561 (Nelson) or 02920 763211 (Cardiff) or contact us via e-mail on Law@jnplegal.org.