The claimant, while crossing the road, tripped on a defect in the carriageway of the road, located close to the kerb within a parking bay.
Cars were very often parked within the bay and the defect would not have been visible when a vehicle was parked in the bay. The judge held that the defect was dangerous and that the highway authority’s system of inspection was sub-standard so that the statutory defence was not made out.
The judge considered that the highway authority could reasonably have been expected to know that the condition of the highway at the point where the claimant fell was dangerous, even though the defect may have been covered by a parked car at the time of inspection. He concluded that there was significant rutting in the area, some of which would have been visible outside the parking bay. The inspector should have seen the defects at the carriageway side of the parking bay and that should have triggered a more thorough investigation.
The highway authority appealed to the High Court on the basis that the judge’s approach would impose too high a standard on highway authorities. However, the High Court upheld the judge’s
decision and dismissed the appeal. The presence of some danger or defect at one part of the carriageway may be sufficient to trigger alarm bells that something may be wrong on other parts, so as to require investigation. The judge’s approach was saying no more than that the area of road had significant and serious dangers that were visible and even if cars were parked on the accident location, the presence of those other significant and visible defects should have triggered investigations. This would have led to the defect in the accident location being discovered and repaired. There was no need for there to be a visible continuation between the accident location and other defective parts of the highway. It will be a question of fact in each case whether there were circumstances which triggered a need for further investigations. If this required moving a parked car, that in itself was not unreasonable.
Jane Clifton / 1st Oct 2013
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