It’s a common belief that winning a tripping claim against the council is hard. But laws are in place to protect you from being injured by negligence. And as long as the council have been negligent, it shouldn’t be difficult. However, there are occasions where a disagreement between the different side’s interpretation of the law, or circumstances, means a claim has to be decided by a court.
Are Tripping Claims Against the Council Hard to Win?
The thing that can fool people into thinking these claims are ‘hard’ is thinking that all pavements and roads must be kept in a perfect condition. In fact, the law is not quite as strict as you might expect. Knowing this from the start can help you to have a more realistic expectation at the start of your claim. The council may have a valid defence for the condition of the road or pavement you slipped or tripped on.
Another important factor is that council inspections are pivotal pieces of evidence for or against a compensation claim. Since inspection records are not publicly available, we have to request them before a detailed investigation can be done. This differs to most other personal injury claims, where a detailed investigation can be done at the start.
What Does the Law say the Council Have to do to Maintain Paths and Roads?
There are two pieces of law that relate to the Council’s responsibility to maintain our streets:
- The Highways Act 1980
- The Occupiers Liability Act 1957
The Highways Act 1980
If you have a tripping claim against the council, the chances are that the Highways Act 1980 will be relevant.
Section 41 of the Highways Act 1980 requires local authorities to maintain highways. They must also make sure they are not obstructed by snow or ice.
On the face of it, this sounds pretty damning for the council. We can all probably think of times where they have failed to do both of these. But it’s a gargantuan task, and the courts have recognised this over the years in their interpretation of the law.
One judge put this nicely, by saying that roads and paths do not have to be “bowling green flat”. Likewise, with snow and ice, it’s not practical for the Council to clear every path and road they are responsible for. They are expected to focus on main routes; and even then, it’s generally understood that they can’t keep an area clear all day – so whilst they may clear a road in the morning, by midday, it could be obstructed again. In spite of their best efforts.
What is acceptable an acceptable standard for a path or road?
Generally speaking, the Council are expected to regularly inspect the condition of paths and roads, and order repairs where necessary. How regularly will depend on the road; a little cul-de-sac will need inspecting much less than a busy high street. They will usually have a local policy which they should adhere to.
In addition to inspections, they should respond to reports from the public about hazards and repair them in a reasonable time frame.
Generally, an area of unevenness less than one inch is acceptable, on a path for pedestrians. This means the Council can get away with not repairing defects in the path smaller than this. On the road, the acceptable size jumps to two inches.
The court will consider the specifics of every defect though. Was the defect on a pedestrian crossing? Or was it on the edge of a motorway? Was it outside a school? Or at the end of a cul-de-sac? Are all things which will need to be considered when deciding if a defect is dangerous.
If you’re not sure, get some good photos (read our guide on how to take good photos, if you’re not sure how) and contact our team. Our personal injury lawyers have years of experience helping people claim compensation after slips, trip and falls. We will assess your claim for free and advise if we can help on a no win no fee basis.
The Occupiers Liability Act 1957
Less frequently, the Council will be responsible for a path or road under the Occupiers Liability Act. This applies to roads that have not been ‘adopted’ by the local council.
This law does not impose as high standards on the council. In fact, they can’t be blamed for injuries caused by deterioration of the paths and roads under this law. They can only be sued where they have directly caused the damage; this might happen when repair work is done poorly and represents a hazard in itself.
There is no responsibility for the Council to repair areas under the Occupiers Liability Act, that the public use as a right of way.
A well-known example of this loophole is Belmont Drive, in Tuebrook, Liverpool. The state of the road even made the local headlines. Google Street View shows the state of the road.
Belmont Drive, Liverpool: April 2015
Fortunately, it also shows that the road was eventually resurfaced.
Belmont Drive, Liverpool: May 2017
A 2018 Freedom of Information Request revealed that there were a total of 440 ‘unadopted’ roads in Liverpool, at the time. The response also confirms that the Council have no plans to maintain roads which they have no duty to.
How to Win a Tripping Claim Against the Council?
The success of your claim will very much depend on the council’s inspection and maintenance schedule. There are however, a few things you can do to put yourself in good stead:
Get Photographs of the Pothole
Good quality photographs from the time of your accident are key to success. Ideally, these should be taken as soon as possible after your accident, to show how it was at the time.
You’ve probably never had to take photos of the floor before. So, if you want to know how to take the best photos, read our guide to taking photographs of a pothole. There are some useful tips that can help to show the true scale, which might not be obvious, if you have never had to do it before.
Witnesses to Condition of the Path or Road
Witnesses are often important in personal injury claims. Typically witnesses help shed light on what happened in an accident. But in a tripping claim against the council they can give evidence about how long a pothole has been present.
How long a defect has been there is a pivotal issue in tripping claims. If the Council can show that it wasn’t there at the time of their last inspection – using their inspection records – without evidence to show otherwise, the court are likely to accept that it came into being since their inspection. When this is the case, the court generally accept that there isn’t much they could have done – unless a public report has been made.
Sometimes witnesses, who either live locally, or use the area regularly, can help. Their evidence could show that the defect was there at the time of the Council’s inspection and the inspector must have missed it. Although witness evidence alone isn’t always enough to challenge the evidence of a qualified highway inspector, it can be a very helpful.
If you can get witnesses to the state of the path or road, you should provide their details to your solicitor, so they can get witness statements, if needed.
Maps and Diagrams of the Accident Location
It’s your job, as the person making the claim, to prove your accident happened. This includes proving the precise location. Maps and diagrams that show the location are helpful to your solicitor, the other side and the court.
You can even use technology, such as Google Maps and Street View to help with this. Google Street View can even help to show how long a pothole has been there – although it isn’t good for showing how big it was; so by itself might not prove the Council should have repaired it.
Be careful when supplying any maps and diagrams to be precise. Marking the location your accident incorrectly, by accident, is evidence that could be used against you at a later date.
Report your Accident
As long as you have good photos, there is no harm in reporting the hazard which caused your accident. If anything, this will act as contemporaneous evidence of your accident. It might also stop someone else from having an accident!
Just be mindful of what you say, as the Council will make a log of your report. Also bear in mind that they will (hopefully) repair it – so make sure you have enough evidence to show what caused your accident.
Seek Medical Treatment
It goes without saying that you should seek appropriate medical treatment. You should pretend that the claim does not exist, in one sense; in other words: don’t let it change the treatment you have. You have a duty to do what you can to recover as quickly as possible.
Another way your treatment might be relevant to your claim is because your medical records act as evidence. Not only about the extent of your injury though. They can also shed light on the what caused them. For this reason, it’s important to be accurate in what you say to medical professionals. Simple things like calling a “slip” a “trip” can cause big problems in a claim.
Another obvious point, but one which goes a long way is being honest. Making a personal injury claim is a proper legal process which can end up in going to trial. Although a very small percentage of claims end in a trial, some do.
Not telling the truth not only makes it harder for your lawyer to help you – as the truth gradually unwinds – but could even end up with you spending time in prison, under contempt of court laws. Fundamental dishonesty also means that dishonesty which relates to a substantial part of a personal injury claim can result in you losing not only the claim, but the protection you had about paying legal costs.
Simply put: above all else, be honest.
Get Started Today
If you’re ready to get started with your claim, you can speak to our team. We have personal injury experts that specialise in slip, trip and fall claims. We will assess your claim for free and advise you if and how we can help you claim compensation on a no win no fee basis. Call us on 1904556600, or email us to make a start.