On 2nd October 2007, ITV Thames Valley ran a piece in their local news bulletin on whether a compensation culture existed for people who had pavement accidents.
Like with most accidents, there is a perception (especially amongst the media) that a person only has to have an accident and they are automatically entitled to receive significant damages.
Seamus Edney, who was interviewed by ITV, tried to explain that this was not the case. There is no automatic right to compensation in this country.
In fact, the odds of a person succeeding with this type of claim are not very high. The insurers of a Highway Authority will almost inevitably fight these cases. They have been helped by the Court of Appeal who have, in a series of cases, taken a very lenient interpretation of their obligations under the Highways Act.
Put shortly, an action brought by a Claimant for a defect measuring under 1 inch will probably lose unless there has been a history of other accidents and complaints. Even if a protrusion is over an inch they can still lose.
The balancing exercise between risk of injury and the cost of repair/maintenance is set out in Sections 41 and 58 of the Highways Act 1980. There is an obligation on the part of the Highway Authority to maintain and repair roads. Liability for the injury may be avoided by them proving:
“that the authority had taken such care as in all the circumstances was reasonably required to secure that… the pavement… to which the action relates was not dangerous (for pedestrians)”.
The circumstances which the Court is required to take into account include:
- the character of the highway and the traffic reasonably expected to use it;
- the standard of maintenance appropriate to such a highway;
- the state of repair which a responsible person should expect;
- the knowledge of which the Highway Authority had or should reasonably have had, of the dangerous condition in question.
In our experience, the insurers of a Highway Authority will probably only accept liability in about 10% of cases before the issue of proceedings. Thereafter, the success rate is higher but these are still difficult cases to win at Court. As Seamus tried to explain to ITV, people who trip or fall over protruding paving stones and are compensated, need first to establish that the Highway Authority are in breach of their statutory duty as set out above.