Local authorities are duty-bound to have their own repair policies in place in relation to the maintenance of roads and pavements. The question for the court in this matter was whether their failure to adhere to such policies meant they had breached a duty of care toward someone who tripped on a paving slab.
On 9th February 2012, while walking along Baron Taylor Street in the town centre of Inverness Iain Pocock claimed to have caught his left foot on the vertical edge of a paving slab which was at a greater height to that of the adjacent paving slab, and he tripped suffering injury to his left knee.
The Highlands Council had inspected the street on 20th December 2011 and a roads inspector for the defender had noted a difference in the level of the slabs and marked the area for repair within 21 days. The 21 day repair time was the Council’s own policy for repair to defects of a height less than 20 mm. The inspector then inspected again on 23rd January 2012 and her findings were identical to that of the previous inspection. No repair had been carried out despite a period of 34 days having passed.
Mr Pocock led evidence from an expert consulting engineer who had looked at photographs of the defect taken by Mr Pocock shortly after the accident. He estimated the height of the defect at 28 mm based upon the size of a box of Swan Vesta matches that had been placed next to the defect. According to the Council’s policy any defect of a height greater than 20 mm should be repaired within 7 days.
Accordingly it was Mr Pocock’s case that the Council had breached their duty of care to him by failing to rectify a defect of greater than 20 mm within the 7 days identified by their own policy. The secondary case presented by him was that even if the defect was less than 20 mm, it had not been repaired within the 21 day period identified by the policy.
Mr Pocock failed in his claim.
The Court of Session reiterated the test that is to be applied to local authority duties as set out in McDonald v Aberdeenshire Council from 2014 that: “the pursuer must establish that a roads authority of ordinary competence using reasonable care would have identified the hazard and have taken steps to correct it. ......”
In applying this test Lord Brodie found that it is not determinative of liability that a roads authority had failed to meet the terms of its own policy. The question must be whether or not the repair should have been carried out if the council was exercising reasonable care. The terms of their own policy is just one factor that is to be weighed in consideration of that test. Lord Brodie also did not find much assistance in the well used “Well Maintained Highways – Code of Practice for Highway Maintenance” (2005) which he said does not stipulate a height difference that is the threshold at which repair is required, or a period of time within which a defect should be remedied. The code only provides examples of the policy of two other councils. The court held that the defect at the date of the Council’s inspections was likely to have been less than 20 mm based on the evidence of the roads inspector.
There was then an absence of evidence provided by Mr Pocock to say that it was unreasonable for the roads authority not to have remedied the defect prior to the pursuer’s accident, which was 51 days after the defect had been identified by inspection. That was despite the terms of the council’s own policy requiring such a repair within 21 days.
What can we learn?
- The decision is an important reminder that where a roads authority has failed to meet the standard set by their own policies for carrying out roads repairs, liability will not necessarily follow.
- The important questions are (i) when should the roads authority have found the defect?; (ii) What was the extent of the defect at that date (height, size)?; and (iii) given the extent of the defect, could and should a repair have been carried out prior to the pursuer’s accident, that would have prevented the accident?