Judge rules in favour of Highway Authority in recent court success
12/08/2021
Zurich have, in collaboration with our legal panel and our insured, successfully defended a claim arising from an alleged highways defect.
Our insured were the Highway Authority for a road which ran adjacent to a shop forecourt. The claimant in the matter was walking across the forecourt when she unfortunately stumbled and fell, injuring herself.
Proceedings were issued against our insured as the relevant Highway Authority, as well as the owner of the forecourt itself. The matter was heard by Her Honour Judge Crane.
Zurich worked with the customer to undertake a full investigation, ensuring that the depression was properly measured from all possible aspects and meeting with the witnesses in conference to reinforce our strong defence.
Establishing Liability
The exact location of the fall was an area of dispute, as this would inform which of the two defendants may be liable. As it happens the claimant changed her evidence on this front on the day of Trial (the Judge accepted this as a genuine mistake in light of the length of time which has elapsed since the accident). The Judge found that the version of events set out in the claimant’s witness evidence was, on balance of probabilities, more likely to be correct. On this basis it was held that the claimant had fallen at the location of a general depression in the surface of the pavement and forecourt.
Various parties had measured the depression, and the Judge found that on balance of probabilities the depression was a maximum of 27mm in depth and a maximum diameter of 500mm. Of relevance was the difficulty generally in measuring a depression as opposed to a sharp-edged trip hazard, given the different results yielded by positioning of a ruler at different points.
The insured had in place a Code of Practice for Highway Safety Inspections which set out that a depression would be identified as an actionable defect where 40mm or more in depth. No complaints or incidents had been recorded involving the depression, despite it having been present since 2012.
The conclusion
The Judge concluded that the defect was not of particular size and the gradient was less than would be found in the average drop kerb. Despite being an area with moderately heavy foot traffic, no previous accidents or falls had been recorded. In all the circumstances the condition of the road and forecourt was held to be reasonably safe and as such the claim was dismissed.
Section 41 of the Highways Act 1980
This case serves as a helpful reminder of the limitations of the duty imposed by Section 41 of the Highways Act 1980. Section 41 does not provide for a standard of maintenance; it being agreed that the standard is whether the highway is dangerous.
Dangerousness can be assessed by Highways Authorities in the context of both their own intervention levels and a risk-based approach. Section 58 is not the only tool available to a defendant, with the defect first having to be considered a danger to the public not only in respect of its size but its nature, its location, and the usage of the highway.
