Court Success: A welcome result for highway authorities

  • Zurich Municipal welcomes the court success of Danielle McBride v St Helens Metropolitan Borough Council (St Helens County Court)
  • In the absence of any other evidence to bring the defect to the attention of the council, the section 58 defence was upheld
  • The claimant alleged a breach of section 41 of the Highways Act 1980 (the Act)

The Facts
The claimant alleged that she had been walking to her boyfriend’s car when she tripped on a dislodged kerb stone. She alleged the defect was dangerous and therefore a breach of section 41 of the Highways Act 1980 (the Act). The claimant relied on witness evidence from the boyfriend as to the nature of the defect and also from a neighbour who provided a statement to say that the defect was longstanding and pre-dated the council’s last inspection of the highway.

The council accepted that the defect was an obvious danger. However, the council’s case was that it undertook a walked inspection of the highway every three months. An inspection of the highway was carried out 19 days before the accident and the defect was not recorded. There had been no previous complaints. The highway was inspected again on receipt of the Claims Notification Form (the date of this preceding the date of the next routine inspection). The defect was noted and repaired on the same day. The council therefore relied on the defence afforded to highway authorities under section 58 of the Act.

Judgement
The claim was dismissed. The judge rejected the neighbour’s evidence that the defect was long standing since the witness had no material recollection of the dates she was attesting to. Further, in light of the credible evidence of the highway inspector, the judge held that it was “inconceivable that he would have missed what was a clear and obvious defect”. The judge was satisfied that the pre-accident inspection had been carried out diligently and that the defect was not present. In the absence of any other evidence to bring the defect to the attention of the council, the section 58 defence was upheld.

In many respects this was a straightforward section 58 case. However, it underlines the fact that witness evidence from friends, neighbours and acquaintances of the claimant can often fairly be treated with some caution and does not always survive the rigorous test provided for by a court trial. Arguably the lack of merit in the claimant’s case was such that it should not have reached a final hearing. However, the protection of qualified one way costs-shifting is a comfort to claimants and their representatives in these circumstances. It remains vital that, as here, a hard line is maintained by local authorities to ensure that such claims are robustly defended.

This claim was handled by Dawn Thwaites in our Leeds Casualty Team. Our panel solicitors Weightmans represented us at Court.