This was a tripping case where a client was walking down Ladies Lane pavement when she tripped in a defective pot hole, and sustained a nasty injury to her teeth. Photos showed a clear and dangerous defect.
The defendants were arguing that they had a statutory s.58 defence through a regular system of inspection.
Six weeks before the accident, the area had been inspected by a highways inspector. The defendants argued that their system in place was reasonable and adequate and if the defect had been as bad when the inspection was carried out as the photographs showed, they would have immediately repaired it.
The inspector was not at trial as he no longer worked for the council. However, the council knew where he worked but no attempt had been made to call him to trial. The Trial Judge was critical of this. Without his evidence a Judge could not put any weight on the manner of his inspection as he was not there to give evidence.
Because the inspections were every three months and by foot, we had to concede that the system of inspections was adequate and our only hope was to criticise the quality of inspection and say that the hole had been missed.
We succeeded, in the Judge’s opinion, in arguing that the hazardous holes did not form over a six-week period. He said that pot holes can regularly occur in roadways however he does not accept that this pot hole would have formed to this extent over a six week period on a pathway which only had pedestrian traffic upon it.
The defendants did present evidence from another highways inspector who attempted to give some evidence in relation to erosion of roads. However the Judge would not hear this as he was not an expert.
Northampton CC, 28 July 2010, HH Harris QC.