Pavement & Road Defect Claims: Proving Council Liability for Injuries
Learn what determines whether a council can be held liable for injury in an accident caused by a defective pavement or road, including how the statutory “reasonable inspection” defence works and the circumstances in which it can be successfully challenged
You can also access our guidance on calculating compensation payouts for injuries caused by highway defects.
- Pavement & Road Defect Claims: Proving Council Liability for Injuries
- Factors Determining Council Liability for A Pavement or Road Defect Accident Claim
- Does a Council Have a Legal Defence to a Highway Trip Accident Claim?
- Who May Be Affected by Pavement Defects
- Related Articles – Compensation for Pavement and Road Defect Injury
- Summary – Pavement and Road Defect Claims
- Free Consultation with Specialist Solicitors
Factors Determining Council Liability for A Pavement or Road Defect Accident Claim
Factors that will be taken into account to determine council liability for injury caused by a defect with the pavement or road, include:
Size of the Defect
The larger the defect the more likely you are to succeed with your claim. However, there is no exact size rule, but caselaw has determined some general principles as to when a defect is actionable.
Meaning Of An Actionable Defect
A defect is considered actionable when it is of a size that a council or other highway’s authority should legally consider it a danger to pedestrians and other road users (such as cyclists). The council is therefore under a duty to repair.
The depth (or vertical drop) of a defect in a road or pavement is a critical measurement.
If you have an accident on a walkway or road be sure to take photos of the defect. This should include a measuring device illustrated showing the depth.
See our article explaining what you should do following a highway trip and fall accident.
Generally – if a defect on a pavement is an inch in depth (or over) it can be classed as actionable. Whereas – a defect on a road would typically need to be 2 inches (or over) deep to be classed as actionable.
Tree Roots Raising Pavement Tarmac
Although – we have set out the 1inch rule for a height of a defect on a pavement. An exception can be tree roots that raise tarmac around the trunk.
To have trees on a street (which is arguably desirable) there will always be this risk. However, it is reasonable that pedestrians and other walkway users can anticipate the effect of tree roots. Also – other than chopping the tree down – there is precious little a council can do
Therefore, in some cases tree roots can have raised the tarmac to over an inch, but this type of hazard will often not be considered an actionable defect.
If however paving stones are used close to a tree and these are raised by the roots – this might be considered a defect that is actionable.
The law realises that council’s do not have infinite resources, so the legal principle is: the council cannot be expected to keep the surface of a pavement as smooth as a bowling green.
Pavement Trip Example
Imagine you tripped on a raised paving stone on a pavement walkway. If the paring stone was stuck by two inches it is easy to appreciate that a pedestrian could trip. However, a paving stone raised by only half an inch would not be seen as foreseeable that pedestrians could be injured.
Type of Pedestrians That Are Likely to Use the Pavement
Some types of pedestrians are known to be more vulnerable than others to defects on the pavement or road. Therefore – the location of the defect may be of relevance in both the frequency that areas should be inspected and the size of the defect.
For example, consider a raised paving stone in front of a care home or nursing home. The council will be aware of the enhanced danger to residents using the pavement to enter and exit. Therefore, a tripping hazard may be considered more dangerous than a normal domestic street. Older people or the physically impaired are less likely to see a raised paving stone, more likely to drag their feet and less able to protect against a fall.
It may be that a court would feel that council inspections should be more frequent. Alternatively, a smaller defect might be considered actionable if located in front of such a home.
Council Work Previously Completed on the Area
If a defect with the highway was actually caused by the council itself due to sub standard works. It is likely the council will be held responsible.
The courts understand that councils do not have unlimited funds to remedy all small defects with the pavement caused over time due to wear and tear. But the courts are not likely to have sympathy for a defect, however small, which is actively caused by the council’s poor workmanship.
Earlier Complaints Concerning the Same Defect
The council must keep a record of complaints made by members of the public concerning defects with the highway. If many complaints had previously been made about the defect that caused your accident it is likely your claim will be successful as the council will have been made aware of the danger, but failed to act to make it safe.
Does a Council Have a Legal Defence to a Highway Trip Accident Claim?
Unfortunately, the answer to this question is, “yes.”
If the council can prove that it had in place a satisfactory system of inspection of the roads and pavements under its control then it may have a legal defence, so long as:
- The council has a proper record of the inspections.
- Such records include the areas where your accident happened.
- No actionable defect was present as the last inspection.
- The inspections are at a suitable frequency given teh location of the defect.
As part of your claim – you have the right to see the council’s inspection records in a process known as pre-action disclosure.
Frequency Of Council Inspections
The courts appreciate that a council does not have unlimited money to inspect the highway every few weeks. Therefore, as a general rule a council will need to inspect the pavements and roads under its control every 6 months to a year (depending on the location).
Can the Council’s Legal Defence be Overcome?
“Yes” – highway pavement and road compensation claims are often defended by the council. Despite this compensation can be obtained by showing:
The Council’s Records are Inaccurate
The council may have records of a defect, but underestimated its size. A council will often complete its inspection in a “drive by”. Whereby, the council representatives looks at the pavement or road whilst being driven in a car. Clearly mistakes can be made.
Witness Evidence to Contradict Council Records
Local people are often very familiar with the roads and pavements close to their home.
When the council is first notified of your pavement or road defect accident claim – evidence may be produced to show inspections were made and no actionable defects existed.
However, by taking statements from local people it can be proved that an actionable defect that caused your accident was in existence prior to and following the council’s inspection.
Previous Reports by Local Residents
Local residents will often be the first to spot a defect and report it to the council if it seems dangerous. The council should keep records or this reports, which you can access as part of your claim.
Should there be reports made of the defect prior to your accident – even if relatively close to a council inspection – the counicl should have acted in a reasonable time to make the safe and later repair.
For example – the council could send an engineer to look at a large defect. When a local resident reports – dimensions will often be provided. If an engineer deems the size of teh defect to be a hazard – cones and barriers could be used to temporarily make the area safe. This will give the council more time to come and make a more permanent repair.
Who May Be Affected by Pavement Defects
The council owes a duty to all users of teh road pavements. This might include pedestrians, joggers, cyclists, scooter users, car drivers, etc.
For example – a pedestrian might trip on a raised pavement. Whereas – a cyclist might be thrown off a bicycle when encountering a pothole. Even car drivers can suffer injury is a sudden unexpected deep pothole is encountered on a high speed road.
Related Articles – Compensation for Pavement and Road Defect Injury
Unfortunately – a trip, slip or fall can cause significant personal injury.
See our slip trip personal injury payout calculator to find out how much compensation you can expect to receive for typical injuries in a pavement and road defect trip accident claim. Alternatively, take a look at our index of compensation amounts by body part.
Summary – Pavement and Road Defect Claims
You have found out how to succeed in a personal injury claim caused by a pavement or road defect trip accident, the legal defences the council may have to your claim with ways to overcome these defences.
Free Consultation with Specialist Solicitors
Most highway trip slip or fall compensation claims are defended by the council. Therefore, we recommend you discuss your accident wit ha specialist solicitor to assess your chances of success.
We offer free telephone / online help options. You can call direct to discuss your pavement or road defect accident with a solicitor. You can ask a question or haveyour claim assessed.
