• 13 January 2023

Judgment overturned in landmark success for Macks Solicitors

by Macks Solicitors

A local man who brought an action against Redcar & Cleveland Borough Council after falling in a pothole finally sees justice.

Peter Robinson found himself at the end of his tether after he and his vulnerable neighbours were terrorised by gangs of youths banging on their doors over the course of multiple nights. On the evening of 2nd April 2018, a gang of youths trespassed on Peter’s property and banged on his door, forcing him to chase them away. As he got to the middle of the road his foot got caught in a pothole causing him to fall, twisting his right ankle, hitting his right knee and banging his head in the process.

After contacting Macks the next day, Rebecca Montague, a member of our specialist Personal Injury department got to work in progressing the claim against Redcar & Cleveland Borough Council. Despite Peter making reasonable offers, the Council refused to settle the claim and insisted they were not liable.

Claims of this nature can be difficult to win. The Claimant must first overcome the hurdle of Section 41 of the Highways Act 1980 and prove that their injury resulted from a failure by the local authority to maintain the highway. Then, if the Court is satisfied of this, the local authority can defend the claim by proving that they “had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic”, a defence created by Section 58 of the Highways Act. This involves the council, Redcar & Cleveland Borough Council in this case, proving that there was a reasonable system of inspection and repair in place for the road/path and that this was being followed.

The facts of Peter’s case were unusual. The pothole in question was photographed by Macks on 3rd April, the day after the fall, showing that it had a depth of 70mm. The Defendant had accepted at trial that it was a dangerous defect and would have been subject to a 24-hour repair ticket if flagged in an inspection. Macks re-visited the pothole on 6th April to find that it had been repaired.

During the course of litigation, it transpired that the Defendant could not produce any evidence as to how or when they became aware of the defect or exactly when it was repaired. The Defendant suggested that a ‘street gang’ who go round carrying out repair works for the Council must have repaired the defect on an ad-hoc basis when travelling past, filling in no documentation as they did so. The only evidence the Defendant produced in relation to ‘street gangs’ being in the area of the defect was a list of work orders that placed them a mere 6 houses away around 2 weeks before the accident, filling in 16 potholes. It was Peter’s case that regardless of any finding relating to the pre-accident inspection, it was more likely than not that the street gang in the road 2 weeks prior would have noticed the dangerous defect and did not repair it in 24 hours.

At first instance, the District Judge was satisfied that Peter “fell and injured himself as a result of a failure of the council to maintain the road,” and so Section 41 applied. When turning to the Section 58 defence, the Judge properly directed herself that “The burden of proof switches at this point. It is for the defendant to prove that it had taken such care as in all the circumstances was reasonably required to secure that part of the highway to which the action relates was not dangerous to traffic”. The District Judge found that the defect was not present at the pre-accident inspection in January, which was accepted. However, despite the lack of evidence relating to the reporting and repair of the defect, the Judge found that “although there is no evidence of exactly when the repair was carried out, it was carried out in a swift period of time and it appears to be a priority repair in accordance with the system that the defendant had in place” The burden of proof had been reversed with the Judge seemingly expecting the Claimant satisfy the Court that the street gang had noticed the defect.

On the advice of counsel, Macks made the decision to appeal the District Judge’s decision.

In the appeal, His Honour Judge Mark Gargan was not convinced of the Defendant’s theory that there are vans patrolling the length and breadth of Redcar & Cleveland, screeching to a halt when they notice a defect before workers leap out to fix the pothole before moving on. The Defendants argued that they were being asked to prove a negative in the absence of evidence that they were on notice more than 24 hours before the accident. HHJ Gargan responded that due to the repair, it was not a question as to whether the Defendant knew of the defect before their post-accident inspection, and it was for them to show that it was repaired within 24 hours of becoming on notice in order to rely on their defence.

HHJ Gargan concluded that the finding was not open to the Trial Judge. He highlighted that she accepted there was no evidence of exactly when the repair was affected but then went on to make a positive finding that the defect came to the Defendant’s attention between 3rd and 6th April, a finding that, in his judgment, had no evidential basis.

The original judgment was set aside and Mr Robinson was awarded damages for his injuries.

Peter said, “I have never dealt with such a determined and hard-working firm. I’d like to thank Rebecca Montague, Matthew Taylor and my barrister Andrew Crouch for their professionalism and determination in pushing my case forward to the appeal. Justice and fair play came out on top in the end. What a fantastic result”.

A great success for Macks and another happy client!

Matthew Taylor

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