The claimant tripped in a pothole that was 53cm x 20cm x 4.4cm at its deepest points. All parties agreed that the hazard was “actionable” and needed repair by reference to photos taken nine days after the accident.
The issue was whether their system of inspection and maintenance before the accident was reasonable to make out a defence under section 58 of the Highways Act.
The highway inspectors said they had been out and inspected the area two and a half months and nine months before the accident and seen nothing other than a small reduction in the surface of the road at the side of the carriageway. The inspectors suggested that rain or lorries could have caused the carriageway to drop within the short two and a half month period since their last inspection. Another witness from the highways department conceded it was possible for such a defect to arise in a two and a half month period of time but it was unlikely.
We had two independent witnesses who said they had fallen in the same hole at least a year before the accident but they had made no reports about the hole. They could not say how deep the defect was but confirmed it was a “hole in the road”.
Our counsel suggested highway inspectors would have been concentrating on the pavement rather than the road when they did their inspections. There had been a note of cracked flagstones on the pavement.
The Judge said he was satisfied the hole had been in the carriageway for a significant time before the last inspection. There was no evidence from the inspectors that they had actually walked into the carriageway to see how deep the hole was and they were probably concentrating on the pavement during their foot inspection.
It would have been very difficult to appreciate the full depth of the hole from the pavement if they had spotted it.
The Judge thought a road surface made of tarmac and limestone chippings, and which was therefore very tough, would be unlikely to have subsided to that level in that time.
He found the inspectors had been truthful in their evidence but the inspection had just not been carried out properly.
There was no deduction for contributory negligence. The road was a busy one and the claimant would have been concentrating on getting over the road safely rather than looking at the road.
Middlesbrough County Court, 23 February 2010.