To Inspect Or Not To Inspect?
It has recently been discussed online that a mother, Sharon Catlin, was scarred for life following an operation after a trip on a broken drain cover. Ms Catlin advised she couldn’t see how Havering Council couldn’t take responsibility, however the council confirmed they had fulfilled their legal duties, meaning they had not been negligent.
When considering Public Liability claims, you firstly need to consider whether a dangerous/actionable defect is present i.e. a defect deemed hazardous enough to require maintenance. If there is, then the council will likely have breached section 41 of the Highways Act 1980 which says they have a ‘duty to maintain highways maintainable at public expense’.
If there is such a defect, the claimant has to prove they cannot rely upon section 58 Highways Act 1980. This gives them a statutory defence, relieving them of the breach, if they have a reasonable system of inspection and maintenance in place to deal with such issues. A further point to note is that the frequency of these inspections and urgency of any repairs will often depend upon how busy the area is. Generally, the busier the area, the more frequent/faster these will be.
Taking this into account, Ms Catlin tried to argue that the council were carrying out works on the house next door to the drain, and had trucks parked on the path, hiding it from view when they carried out their inspection 3 weeks prior to her accident. As such, they should have checked under the parked vehicles for any defects present.
This is an argument that was actually successfully applied in the Court of Appeal case of Simson v Islington Borough Council 2013, where they held the council’s inspections were sub-standard for not checking under parked vehicles. The difference between these cases however, was that the road Ms Simson’s accident occurred on was in a general poor state of repair, meaning the other defects should have alerted the inspectors that further investigations were required. Ms Catlin’s case however just involved a broken drain cover, a solitary defect, the presence of which could not have been indicated by any surrounding defects if present at the time of the last inspection.
As demonstrated, unfortunately it is not always possible to be successful in Public Liability cases. However, each case is assessed on its own merits and many Claimants are able to obtain compensation, meaning it is worth enquiring to see of a claim can be attempted.