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Tripped whilst jogging in Barnsley
Lee was jogging on Hill Top Avenue, in a residential suburb of Barnsley, on the evening Saturday 28th January 2012 when his foot hit a pothole and he fell to the ground, causing ligament damage to his ankle. The pothole was described by Lee as 6 to 8 inches deep and around 24 inches long.
Following his accident, Lee contacted Barnsley Metropolitan Council (BMBC), but it denied responsibility for the accident and so Lee approached Graysons to pursue the council for compensation.
BMBC claimed it had fulfilled obligations
Denying liability, BMBC claimed that it had fulfilled its obligations in relation to maintenance of the road, but, convinced of the council’s responsibility, Graysons issued court proceedings.
BMBC is responsible for the upkeep of the road and has a duty to inspect it. The council follows a ‘code’ that has been prepared by a number of bodies, including the Department of Transport, that gives guidance on how to comply with the Highways Act 1980, the relevant legislation in this case. The guidance includes details on how often a road should be routinely inspected. Due to the character and volume of traffic, Hill Top Avenue is classifield as 4 (b), which means it is subject to inspection annually. The last inspection – and repair of several potholes – prior to Lee’s accident had been in October 2011.
Council took 4 days to repair pothole
On Friday 27th January 2012, the day before Lee’s accident, a member of the public had telephoned the council to report that the pothole had opened up. In it’s defence, the council maintained that it had followed protocol in logging the report on its system and forwarding the enquiry to highway inspectors. As the weekend ensued, the message was not picked up by the highway inspector until the morning of Monday 30th January (at which time he was not aware of Lee’s accident), and, after a visit to the road, the pothole was repaired the following day, Tuesday 31st January.
Judge rules council liable
The case was heard in Barnsley County Court in August 2014 where District Judge Babbington ruled that BMBC was not liable for Lee’s accident and dismissed his claim. Graysons then appealed against the decision and, at Sheffield County court, His Honour Judge Robinson allowed the appeal, saying that it seemed that the council had a 2 tier system of evaluating road defects and that
“only if the information comes from a member of the emergency services and the location of the reported defect is on the main road, outside a school or hospital or the like, is the complaint referred to the emergency standby team”.
He did not accept that the call made on Friday should have been left until Monday to be dealt with, saying:
“shortage of resources is irrelevant when considering the adequacy of measures taken to secure the safety of the highway”.
He concluded that council staff should have been trained to properly evaluate all calls about road defects or should have passed them to an on call inspector.
BMBC appeals ruling
Aggrieved by Judge Robinson’s conclusion, BMBC appealed his decision and the case went to the Court of Appeal, where it was heard by Lord Justice Jackson, Lord Justice Briggs and Lord Justice Irwin.
The judges heard that the code followed by the council compares two categories of defect:
- Category 1 – those that require prompt attention because they represent an immediate or imminent hazard or because there is a risk of short-term structural deterioration.
- Category 2 – all other defects.
The code’s guidance includes that category 1 defects are “corrected or made safe at the time of the inspection, if reasonably practicable.” This could include warning notices or fencing off.
There was some discussion amongst the judges at the Court of Appeal, about whether the pothole should have been classed as category 1, and, therefore, warrant immediate repair, and about the need for out of hours and weekend provision for such defects.
Council’s appeal dismissed
Two of the three appeal judges agreed with Judge Robinson’s conclusion. The council’s appeal was dismissed and Lee, who was awarded compensation said he was delighted with Graysons’ work, and that of the barristers who had represented him, commenting:
“Thanks to everyone involved in my case. Your communication and professionalism throughout has been outstanding. I wouldn’t hesitate using your services again.”
Peter Clark
Graysons’ managing partner and head of its personal injury department, Peter Clark, said “It is the local authority’s duty to respond properly to complaints about hazards and have adequate response measures in place to deal with them. This judgement highlights the fact that it is not good enough for a local authority to downgrade the seriousness of a hazard or to use lack of resources as an excuse for not dealing with immediate repairs, bringing into question the sorts of defences that councils often use – and get away with – in these types of claims.
You can find out more about making a claim for a slip or trip on our web pages.
