The key area I am focusing on today is getting your dates right. You might wonder why this is so important, but the success or failure of a claim can largely depend on the evidence obtained at the outset of a claim.
Pursuing a personal injury claim against a local authority as a result of a trip, slip or fall due to a pothole can be difficult.
There is no automatic right to compensation, and there are several hurdles to overcome in order for a claim against a local authority to succeed.
Hurdle 1
Firstly, you must show that the highway was in a dangerous condition so as to give rise to a breach of Section 41 of the Highways Act 1980.
There is no ‘one size fits all’. A local authority has set its own guidelines on what they consider to be dangerous before they will take steps to remedy or repair a defect. This means that every local authority has a different intervention level, some greater than others.
Key point 1
You might not think a defect is dangerous but a court could disagree. If you have tripped, slipped or fallen due to a pothole, you should always seek independent legal advice.
Hurdle 2
Once you can establish breach of Section 41, a local authority will have a defence under Section 58 if it can show that it inspected the area on a regular basis, and no defects were found at the time of the last inspection.
The frequency of inspections is based on a number of factors. For example, a footpath in a city centre is likely to be inspected more frequently than, say, a footpath in a residential area.
If an inspection does not identify any actionable defects, but an accident occurs, say, several weeks or months down the line, it is quite possible that the defect was always there but had been missed by the inspector, or had simply not been considered dangerous enough to warrant a repair.
A measurement of the defect plays an important part in any claim of this nature. If a defect has measurements greater than a local authority’s standard intervention levels, then it could have been present for a while and you will be required to show that this is the case.
Key point 2
I have seen cases which have failed simply because of evidential difficulties in relation to knowledge of a defect. A case can turn on the evidence provided by the witnesses. If a defect is sizeable, then it is likely to have been present for a while.
To put that into context, the approximate date when you, or your witnesses, first became aware of the defect is very important.
I recommend you do your research as soon as practically possible. Think hard about when you first became aware of the defect. If you were unaware of it until the occasion of your accident, then speak to people who live in the area.
- Make relevant enquiries
- ask about previous complaints
- find out if anyone knew of the defect and when they first became aware of its existence.
If a witness can say with certainty that they knew of the defect before an accident, and indeed before the most recent pre-accident inspection, then ask if they would be willing to help by providing a statement in support.
All of the above could be crucial to the success or failure of your personal injury claim.
Cristina has been helping people pursue successful personal injury claims against local authorities as a result of trips, slips or falls due to potholes for a number of years and continues to have an excellent success rate.