A raised paving slab or a broken off bollard can seem so trivial when you manage to avoid it, but when you are caught by the hazard it can cause life-changing injuries. If you are a regular reader of our blogs you will have read about some of my colleagues’ cases. You will know that to succeed a claimant must show that the hazard was raised an inch or more and that a council had failed to operate an adequate inspection and maintenance system which should have picked up on the hazard and fixed it before the accident occurred. If the hazard arose in between inspections then a council can rely upon their inspection system as a defence and in those cases a claimant will not succeed in obtaining compensation. This is a “section 58 defence” (referring to section 58 of the Highways Act 1980).

The above is well established caselaw. However, a claimant recently attempted to challenge this in Keith Barker -v- Lancashire County Council [2013]. Mr Barker tripped over a cobblestone in the street. It was raised more than an inch. When he brought a claim against the council they relied upon evidence that they had inspected the area 11 weeks prior to the accident and the cobblestone at that point was not raised. It had come to be raised by moving tree roots in the intervening period. The matter proceeded to trial and Mr Barker lost his case. The judge accepted that the council had an adequate inspection system and that at the time of the last pre-accident inspection the cobblestone was not dangerous. However, he said that if he was entitled to look at the area as a whole he would have found in favour of Mr Barker. The cobblestone was part of an area surrounding a tree where obvious damage had been caused by tree roots and the area as a whole required relaying.

Mr Barker appealed. He argued that the words ‘the part of the highway to which the action relates’ in section 58 should be interpreted more widely and should apply not only to the individual cobblestone over which he tripped but also the surrounding area which required relaying.

The Court of Appeal did not agree with Mr Barker. The court held that to succeed in defeating a section 58 defence a claimant has to identify a hazard which is raised an inch or above at the time of the accident and which existed at the time of the last inspection. It is not enough to point to the surrounding area and say it is in a general state of disrepair.

This is an important point to remember, that there are always potholes/broken bollards/raised paving slabs etc. Although this might be evidence that a council’s inspection is not as robust as it could be, a claimant must be able to point to an actual hazard and say that is what caused them to trip and this hazard must have been in existence at the time of the last inspection or for an equivalent period if an adequate inspection system is not in place. A general sweeping of the arm across an area in a poor state of repair is not evidence enough to succeed.