Pavement Tripping: Guidance from the Court of Appeal
What is the Legal Test?
The courts have made it clear that the central question to ask is whether the part of the highway under consideration was dangerous to traffic or pedestrians in the sense that, in the ordinary course of human affairs, the public may reasonably have anticipated danger from its continued use: Mills v Barnsley Metropolitan Council [1992]. The rule of thumb used by some lawyers that the trip has to be an inch or more is very misleading because each case will turn on its own facts with the court paying particular attention to the type and magnitude of the trip and its location. For example, a small tripping protrusion on a busy high street may present a more serious risk to pedestrians than a large protrusion in a rural area. This point was made forcefully by the Court of Appeal in a pavement tripping case, stating that these types of cases are "fact-sensitive" and it was quite impossible and very misleading to state that a gap or depression of a particular dimension formed a danger to pedestrians: Winterhalder v Leeds City Council [2000] (in this case the trip was over 2 inches).
Who Is Responsible?
Disputes sometimes arise over the ownership of the area where the individual tripped. This is important because there are strict duties imposed upon the highway authority, normally the local council. In one recent case, the Court of Appeal made an important ruling that a footpath on a council estate was part of the highway and therefore had to be maintained under the Highways Act: Gulliksen vPembrokeshire County Council [2002]. In this case, the claimant had tripped over the lip of a manhole cover caused by the indentation on one side of the cover. Even where the area in question does not form part of the highway this does not mean that there is no duty of care on the part of the local authority. Again, in another ruling from the Court of Appeal, it was made clear that a council had breached it's common law duty of care in circumstances where it had failed to rectify a tripping hazard that it had earlier been made aware of. Here, an accident occurred where a slabbed path met with a tarmac path, creating a 90-degree angle. Grass had eroded where people frequently took a short cut from the slabbed path to the tarmac path. However, the claimant's damages were reduced by 50% because the court accepted that the claimant had been in a hurry and should have been more careful! See Peskett v Portsmouth City Council [2002].
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