Court Success: Paved with good intentions? Highland Council successfully defend tripping claim

  • Highland Council defend claim after pursuer tripped on an uneven paving slab and injured his knee
  • Roads Inspector categorises defect of less than 20mm as a tripping hazard but Court of Session holds that the Highland Council was not obliged to repair it.
  • The defect on which the pursuer tripped was not one that a Roads Authority exercising reasonable care would have repaired

A Scottish Roads Authority Inspector decides a pavement defect is a trip hazard. Under the Authority’s Repair Policy, it should be repaired within 21 days. Is the Roads Authority negligent if it fails to repair the defect? Who decides whether the defect is a legally actionable hazard?

These were some of the issues for the Lord Ordinary to consider in Pocock v The Highland Council. He held that the answer to the first question was no. As to the second, this was a matter for the court, which must undertake an objective assessment of the facts. The Lord Ordinary found that the defect on which the pursuer, Mr Pocock, tripped was not one that a Roads Authority exercising reasonable care would have repaired. The pursuer then reclaimed (appealed) to the Inner House of the Court of Session but his reclaiming motion was unsuccessful.

BACKGROUND
The alleged hazard at the heart of this case was caused by uneven paving slabs on Baron Taylor Street, in Inverness. The uneven slabs created a tripping edge. The site was inspected every month. The defect was discovered by a Highland Council Roads Inspector on 20 December 2011. Having measured the tripping edge, she marked the site down for repairs within 21 days.

Many Roads Authorities in Scotland treat 20mm as the repair threshold for defects in walkways. The Highland Council operated a policy of repairing tripping hazards greater than 20mm within 7 days. Similarly, tripping hazards less than 20 mm were to be repaired within 21 days. Given the 21 day repair deadline allocated to the defect, it followed that the defect was less than 20mm and the Roads Inspector gave evidence to this effect. She inspected the site again on 23 January 2012. Her assessment of the defect was virtually identical and she again recommended repairs be completed within 21 days.

The pursuer tripped over the uneven slabs on 09 February 2012 and injured his knee. The repairs were still outstanding at that time. The pursuer took photographs of the defect soon after the accident. The pursuer later engaged an engineer to review the photographs. Importantly, the engineer never saw the defect in person. In his evidence, the engineer estimated the defect’s height differential was 28mm.

LEGAL ARGUMENTS
The pursuer raised an action in the Outer House of the Court of Session. The pursuer’s primary case was that the defect was greater than 20mm and the defenders’ duty of reasonable care required them to repair it within 7 days of discovery. Their failure to do so was therefore a breach of that duty. The pursuer’s arguments on this point were informed by examples of Local Authority practice within Well-maintained Highways – Code of Practice for Highway Maintenance (2005). In the alternative, their duty of reasonable care required them to repair the defect before the pursuer’s accident on 09 February 2012. Separately, they had failed to take reasonable care to follow their own repair policy.

The defenders’ position was that the defect was less than 20mm on the date of each inspection. In any event, the question was whether the defenders had failed to do something they ought reasonably to have done. The foreseeability of risk of injury was not enough to establish negligence. Further, the Roads Inspector’s repair recommendations went above and beyond what was required of a Roads Authority.

OUTER HOUSE
The Lord Ordinary concluded that the pursuer was credible and reliable. Nonetheless, he held that the pursuer had failed to establish that the defect was greater than 20mm. Nor had he established that the defect ought to have been repaired. The defender’s failure to follow their repair policy did not amount to a failure to exercise reasonable care (Syme v Scottish Borders Council). Applying the test set down in MacDonald v Aberdeenshire Council, the Lord Ordinary concluded that the pursuer had not established “…that a roads authority of ordinary competence using reasonable care would have identified the hazard and would have taken steps to correct it…” In other words, this was an objective test. The Lord Ordinary’s decision to reject the pursuer’s claim took account of the full range of evidence. The Roads Inspector was the only eye-witness physically present at the dates of the inspections. There was considerable variation in Scottish Roads Authorities’ practice towards road defects. As it was, Well-maintained Highways was not prescriptive and the Lord Ordinary felt that it offered little assistance.

INNER HOUSE
In reclaiming, the pursuer submitted that the Lord Ordinary ought to have concluded that the defect was, on the balance of probabilities, 28mm. Further, that the weight of evidence gave rise to an inference that the standard of care required of the defenders was to repair the defect before the pursuer’s accident. The defenders argued that the Lord Ordinary was entitled to conclude that the defect was less than 20mm. Further, it was for the court to decide whether the defect was a hazard, not the witness.

The Inner House rejected all the pursuer’s grounds of appeal. In doing so, they discussed the main body of authorities in this area. The law required courts to strike ‘a fair and reasonable balance between the interests of road users and roads authorities’ (MacDonald). Moreover, a judge ‘required to form his own independent view of the dangerousness of a defect’ (Esdale v Dover District Council). The Inner House felt that the Lord Ordinary had appropriately weighed the evidence in applying the MacDonald test and declined to interfere with his decision.

COMMENT
This is a positive result for Scottish Roads Authorities. In finding for the defenders, the Lord Ordinary reiterated the principle that, while a Roads Authority’s failure to follow its Repair Policy is relevant to an objective assessment of reasonable care, it is not, in itself, determinative of negligence. Simply put, a Roads Authority’s duty of care is not defined by its Repair Policy. Here, the Repair Policy Document’s stated purpose was simply “…as a tool to determine where resources should be prioritised.” Treating a Repair Policy as creating enforceable repair obligations would be to impose too high a standard of care on Roads Authorities.

Ultimately, the pursuer failed to provide any evidence that the defect was objectively an actionable hazard at the date of the last inspection. The only person who could speak to this was the Council’s Roads Inspector. It is therefore perhaps not surprising that his case failed. Nonetheless, had the pursuer succeeded in establishing a common law duty to repair certain defects within 7 days, it would have had significant implications for Roads Authorities throughout Scotland. Fortunately for them, the law in this area is unchanged.

CAUSATION AND MITIGATION
This case is also noteworthy because the pursuer was filmed for a BBC documentary carrying out physically demanding work over a 12 month period, at which time he maintained he was only able to carry out light duties. The Lord Ordinary’s judgment is therefore well worth reading for those interested in how a court deals with a pursuer’s credibility in the face of conflicting evidence. Similarly, his finding that, by declining surgery, the claimant failed to mitigate his losses will also be useful to anyone handling personal injury claims generally.

This claim was handled by Eamonn Maguire and Alan Bremner in our Mid Value Claims Team.  Victoria Leslie, Partner at Ledingham Chalmers, represented us throughout the litigation.

Summary prepared by Felix Boon, 28th December 2017