Highway tripping and inspections
The claimant tripped over an allegedly raised and rocking paving slab on the High Street, Birmingham City Centre in September 2003 and fell suffering a fractured ankle.
The council’s inspection reports showed that the defect had been noted four days prior to the accident as a rocking slab and an order for repair raised: this repair was carried out two days after the accident. The council operates a two-tier repair system whereby the inspector can order an emergency repair, to be done within an hour if the defect is considered dangerous or an ordinary repair to be completed within 28 days. Inspections took place monthly.
There was no criticism of the system of inspection, the argument was whether the inspector, when noting the defect, should have ordered an emergency repair. The claimant stressed that the slab was in a pedestrian area close to the new Bull Ring shopping centre, which had opened just over a week before the accident. The inspector should therefore have taken into account the increased pedestrian traffic in the area.
Birmingham City Council argued that they had a statutory defence under s.58 of the Highways Act. The inspector gave evidence to the effect that she was very careful and would order emergency repair if a slab rocked more than 20mm. Therefore the slab must have rocked less than this at the time of the inspection and either deteriorated drastically within four days or the claimant was mistaken as to the state of the slab on the day of the accident.
She also stated that the ordinary repairs were normally carried out well within the 28 days. The claimant’s mother gave evidence stating that the slab was raised by about 50mm at the time of the accident.
The Judge found as a matter of fact that the claimant had tripped over the paving slab, that the slab was raised and rocked by about 50mm and that it therefore was in a dangerous state. The claimant had therefore made out a prima facie case and the defendants then had to prove that they had a defence under s.58.
The Judge found that, due to the state of the slab at the time of the accident, he could infer that the inspector must have misjudged the state of the slab and that she should have ordered an emergency repair. The inspector should have taken into account the likelihood of deterioration and, as the only choice open to them was emergency repair or 28 day repair, ordered emergency repair for anything which was likely to become unsafe within 28 days.
The defendants were refused permission to appeal on the findings of fact but allowed to appeal on the finding of negligence on the part of the inspector and the inference drawn on the state of the slab four days before the accident.
Toy -v- Birmingham City Council, Birmingham CC, 8 November 2005.
Workplace trip/inadequate lighting
The claimant was injured in June 2004 when walking home from work, while still on his work premises. The accident occurred after midnight following a night shift. There was a set of steps leading up to a landing area and another set of steps leading down to a path way. There was poor lighting around the area and the steps and landing were obscured by overgrown bushes, adding further to the lack of light. The claimant walked up the first set of steps and along the landing. He then had to effectively feel for the first step down as it was so dark. As he did so, he fell forwards down the steps.
The claim was brought on the basis that the defendant had breached the Workplace Regulations, in particular Regulations 8 re lighting and Regulation 12 re likelihood of trips.
The defendant denied that the area was overgrown and poorly lit. Unfortunately, on the day, the claimant was unable to properly describe how he came to fall in detail when pressed. One of his witnesses was, however, very helpful and described the steps at night as looking like one continuous slope.
The Judge decided that it was very difficult to work out how exactly the claimant came to fall and the claimant was not a satisfactory witness. He found that the lighting was better than implied by the claimant and that the photos taken by the claimant did not show where he fell but further along, where the shrubbery was worse.
The Judge preferred the evidence of the claimant’s witness. He found that the path and steps were in a ‘ broadly adequate’ state but that it was foreseeable that the shrubbery would throw shadows over the path and steps. The claim succeeded on the basis that the defendant could have simply painted the edge of the step to make it easier to see where one step ended and another began. There was a 50 percent deduction for contributory negligence on the basis that the claimant could have taken more care and could not say accurately what had caused him to fall.