Once a judge had found as a primary fact that a motorcyclist was so close to the point of impact with a vehicle executing a U-turn that he could not have avoided the resulting collision, there was simply no basis for any finding of contributory negligence on the part of the motorcyclist.
Eric Davis -v- Maxim Schrogin (2006). CA (Civ Div), (Auld LJ, Hooper LJ, Hughes LJ), 27 June 2006
Highway tripping case
The claimant had visited a grass verge opposite his place of work (an area regularly visited by the claimant, his colleagues from work and also other employees from surrounding businesses). The grass park was situated in an industrial area. As the claimant was walking back to work, he stepped from the grass onto the kerb stone before stepping into the road and in so doing, stepped into the “hole” formed by the broken kerb stone (the corner of the kerb stone was missing).He fell and fractured his ankle.
The accident happened in June 2004. We produced witness evidence to show the kerb stone had been broken since at least December 2003. The defendants argued that the defect was not actionable and also, that they had carried out regular six-monthly inspections in January 2004 and again July 2004.
The claimant argued that the defect was actionable – not just in light of its dimensions (which measured 10cm at its deepest) but also in light of the known pedestrian traffic in the area. He also argued that the defendants should have noticed it during their inspections and ordered it to be repaired and the fact that they did not, meant their inspections were not adequate.
The defendants called their highways inspector who said, even if he saw that defect today, he would NOT classify it as actionable because of its location in an industrial estate and the fact that there was no footpath so heavy pedestrian use was not to be expected in that area. He accepted that had that defect been situated elsewhere, e.g. near a busy shopping area, then he would have classified it as an actionable defect.
The Judge found that: The claimant’s own evidence failed him as the claimant admitted to looking at the traffic just before he was going to cross the road and he was therefore not looking down where he was going. The Judge thereby held he “was the author of his own misfortune”.
Even if we succeeded on point 1 above, he then held that the defect was NOT actionable.
Craig Phair -v- Derbyshire County Council Council. 23 June 2006 Derby CC.