There is no automatic right to compensation for personal injuries and other losses sustained as a result of a tripping accident. Where the accident occurs on a publicly maintained pavement or road, the local authority responsible for maintaining the pavement or road has an obligation under the 1980 Highways Act to maintain and repair the pavement/road. The Well Maintained Highways Code of Practice for highway maintenance management was updated in May 2013 and provides guidance as to how often local authorities should inspect pavements and roads and when they should carry out repairs. The Code defines defects in two categories which correspond to those which have been adopted in England by the Highways Agency in respect of highways and trunk roads. Category 1 requires prompt repairs to be carried out because of an immediate or imminent hazard whereas category 2 relates to all other defects. Category 1 defects are defined as those that should be corrected or made safe at the time of inspection or as soon as possible thereafter. If it isn’t possible to rectify the defect immediately, a temporary repair should be carried out within 24 hours and a permanent repair within 28 days. Where a category 2 defect is identified, where the hazard has a safety implication, the defect should be repaired but the repair is not urgent. Category 2 defects are defined as high, medium or low risk. In defining the level of risk, consideration should be given to further deterioration before the next scheduled inspection. A risk impact should be carried out when assessing the risk as follows; Category (1) Little or negligible; Category (2) minor or low impact; Category (3) notable impact; Category (4) major high or serious impact. The risk probability should also be assessed on the scale of (1) to (4) as follows: (1) Very low probability (2) low probability (3) medium probability (4) high probability. The risk assessment will therefore determine how quickly the defect is repaired.
The Highways Act 1980 imposes a duty on local authorities to carry out inspections as well as repairs and the Well Maintained Highways Code of Practice gives guidance as to how frequently roads, pavements and paths should be inspected. The Code recommends that strategic routes, main distributory routes and secondary distributory routes should be inspected once a month. Link roads should be inspected every three months and local access roads should be inspected once a year. Footways/pavements in prestige areas ie pedestranised, shopping areas should be inspected once a month, primary walking routes ie adjacent to main roads or in busy shopping areas once a month, secondary walking routes/pavements once every three months, link footways/pavements every six months and local access footways/pavements ie pavements adjacent to relatively minor residential roads once a year. Cycle routes that form part of a road carriageway ie a cycle lane at the edge of a road should be inspected with the same frequency as roads. A cycle route that is remote from the carriageway should be inspected every six months and cycle trails should be inspected once a year. The Code further states that where there is an increased risk to highway users, more frequent inspections should take place, for example, access to schools, hospitals, medical centres, or routes used by vulnerable users or people with special needs ie care homes and ceremonial routes or routes to special events. A local authority does not have to repair all defects as guidance given by the courts is that pavements do not have to be maintained to the standard of a bowling green, indeed larger defects are permissible on road surfaces. The Code of Practice at Table B(1) gives examples of defects requiring repair. In relation to roads, potholes or spalling that is 2cm in depth, crowning of 5cm, a depression (pothole) of 5cm in depth, a 2cm deep gap/crack that is 2cm in width and sunken ironwork with a 2cm level difference. At a pedestrian crossing, a trip/pothole should be repaired where the depth is 1.4cm. The guidelines relating to pavements recommend that a trip or pothole with a depth of 1.5cm should be repaired, a rocking slab with a 1.5cm vertical movement, an open joint that is 2cm in width by 20cm in length, tree root damage that creates a 1.5cm trip, sunken ironwork where there is a 1.5cm difference in level and defective coal plates/basement lights etc where there is a 1.5cm trip height. Kerbing should be repaired where it is dislodged by 5cm horizontally or where it is loose and rocking by 1.5cm vertically or where it is missing. Although the guidelines recommend repairing potholes in pavement surfaces that are only 1.5cm in depth, many local authorities adopt a higher intervention level based on guidance given by the courts.
In the case of Megs v Liverpool Corporation  1 WLR 689 CA Lord Denning, then Master of the Roles, sitting in the Court of Appeal upheld the Judge’s decision and noted as follows, “It seems to me using ordinary knowledge of pavements that everyone must take account of the fact that there may be unevenness here and there. There may be a ridge of half an inch or three quarters of an inch occasionally but that is not the sort of thing which makes it dangerous or not reasonably safe.” In Littler v Liverpool Corporation  2 ALL ER 343 the following was stated, “The test in relation to a length of pavement is reasonable foreseeability of danger. A length of pavement is only dangerous if, in the ordinary cause of human affairs, danger may reasonably be anticipated from its continued use by the public who usually pass over it. It is a mistake to isolate and emphasise a particular difference in levels between flagstones unless that difference is such that a reasonable person who noticed and considered it, would regard it as presenting a real source of danger. Uneven surfaces and differences in level between flagstones of about an inch (2.5cm) may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green.” In the case of Mills v Barnsley Metropolitan Borough Council  PI QR 291 the court noted that if a defect of less than an inch gave rise to a successful claim and was accepted as a standard generally used in thousands of tripping cases which came before the courts each year, it would impose an unreasonable burden on local authorities in respect of minor depressions and holes in streets. The Court of Appeal noted as follows, “It is important that our tort law should not impose unreasonably high standards otherwise scarce resources should be diverted from situations where maintenance and repair of the highway is more urgently needed. The branch of law of tort ought to respect a sensible balance of compromise between private and public interests. The Judges ruling in this case (lower court), if allowed to stand, would tilt the balance too far in favour of the claimant. The risk was of low order and the cost of remedying such minor defects all over the country would be enormous.” In this case the claimant initially succeeded in a compensation claim where the pavement irregularity was less than an inch but the Appeal Court followed the guidance given in the case of Littler v Liverpool Corporation which indicated that the height of the irregularity had to be an inch (2.5cm) or more for the claimant to succeed in a compensation claim.
Where part of the pavement is unstable or paving slabs are rocking, then a smaller height difference between paving slabs can give rise to a successful claim. In the case of Dalton v Nottinghamshire County Council  EWCA Civ 776 the Court of Appeal upheld the Judge’s decision to award compensation where the claimant tripped on loose and unstable paving blocks (where the height difference was less than an inch) as the court found that it contributed to the claimant’s fall because the nature of the unstable block in itself gave rise to a foreseeable risk of injury, therefore the local authority was in breach of its obligation to maintain and repair the highway so far as was reasonably practicable as set out in Section 41 of the Highways Act 1980. In the case of Evans v Medway Council  the claimant was injured when tripping on a depression in the surface of a path that was twelve inches in length by an inch in depth. The claim was successful and the Judge commented that it would not be right to say that a depression of less than an inch would never be dangerous and one above an inch would always be dangerous.
Where a defect has already been reported to the local authority and the defect has been classed as a category 1 defect, a local authority is expected to carry out a prompt repair. In the case of Crawley v Barnsley MBC  Court of Appeal EWCA Civ 36, the claimant was injured when he stepped onto a pothole and made a claim against the local authority. The defect had been reported on a Friday and the local authority didn’t carry out a repair until the following Monday. The accident occurred on a Saturday. The claim failed at first instance but on appeal the Court of Appeal concluded that it was not reasonable for the local authority to wait until the following Monday before repairing the defect as it should have had in place a system of repairing defects that were identified over the weekend. The claimant therefore recovered compensation.
It can be seen earlier from the Well Maintained Highways Code of Practice that depressions of up to 5cm in depth are permissible on a road surface as larger defects are permissible on carriageways used by motor vehicles. This position is also reflected in decisions given by the courts. In the case of Ford v Liverpool Corporation  117 SJ 167 the court held that the local authority was not liable for an injury caused by a metal grid in the carriageway which created a raised edge of over an inch in height. In the case of McLoughlin v Strathclyde Regional Council  SLT 959 the local authority was not liable to a claimant who was injured whilst crossing the road. He tripped over a defect caused by the substance of paving stones around a drainage gulley. The kerbstones had subsided by 1.5 inches and the surrounding tarmac was 1 to 1.25 inches below the surrounding roadway. In the case of Cenet v Wirral MBC  EWHC 1407 QB the court noted that standards appropriate to a pavement should not be applied to a carriageway. The standard to apply to a road surface was those applicable to a carriageway.
Where the accident occurs as a result of a defect in the surface of a car park, forecourt parking area, footpath, or private road, the owner of the pathway/road is not under an obligation to carry out regular inspections and repairs of the path/road where it is not maintained at public expense. The owner would have no duty to repair and maintain under the 1980 Highways Act and a claimant injured when using a private road or path would have to pursue a claim for compensation in the tort of negligence. The claimant could also claim compensation because of the owner’s failure to see that a user/visitor was reasonably safe when using the path/road as liability could arise under the Occupiers Liability Act 1957 which imposes a duty to ensure that a visitor will be reasonably safe when using the premises for the purpose for which visitors are invited or permitted by the occupier to be there. The definition of premises is very wide. It covers all pavements, private roads, forecourts and car parks. I have dealt with a number of successful tripping accident claims where claimants have tripped on defects in the surface of car parks, pathways to blocks of flats, private roads and forecourt parking areas adjacent to pavements. The claims are however less straightforward than claims against local authorities as there is no statutory duty to carry out regular inspections and maintenance and there is no accepted code of practice in relation to inspections or maintenance. In the case of Rochester Cathedral v Debell  EWCA Civ 1094 the claimant succeeded at first instance when he tripped on a stump of a broken concrete bollard when walking through the precincts of Rochester Cathedral on his way to the high street. In this case the defect was the height of the diameter of a 10p coin which has a diameter of 24.5mm. The trip was therefore about an inch in height and was about two inches in width. The claimant was awarded compensation at the first hearing subject to a deduction of contributory negligence of 20% as he hadn’t seen the defect and could have walked around it. The Court of Appeal allowed the Cathedral’s appeal and dismissed the claim in that the Court held that the surface of the precinct did not have to be maintained in a pristine state. The Court concluded that there had been no breach of the Occupiers Liability Act as the occupier did not have to guarantee safety as a balance had to be struck between the nature of the risk on the one hand and the cost of eliminating it on the other.
In many tripping and slipping accident claims, a deduction will be made for contributory negligence on the basis that the claimant could have seen the hazard and avoided it. In a claim that I dealt with that went to trial in the Woolwich County Court, Jinks v the London Borough of Greenwich  the court applied a deduction of 25% for contributory negligence where the claimant crossed a busy road at a designated pedestrian crossing point close to a traffic island. The pothole in the tarmac surface of the road was right next to the kerb and was over 2 inches in depth. Yellow lines had been painted into the base of the pothole so it was very difficult to see but the Judge concluded that the claimant should have seen the pothole and walked around it. In the case of Diane Raybould v T&N Gilmartin Contractors Ltd, Scottish Appeal Court  SAC Civ 31, the claimant tripped on the edge of a trench in the pavement directly outside her home having left her home via the back door. The trench wasn’t covered with a board as it should have been but the claimant was aware of the trench. The claimant used a walking stick to mobilise. The claimant’s claim was dismissed at first instance, but on appeal she was awarded compensation but subject to a deduction for contributory negligence of 50%. In the case of Palfrey v WM Morrisons Supermarkets plc  EWCA Civ 1917 the claimant tripped on a low level trolley in the centre of the aisle. The trolley was unattended and shouldn’t have been left there, however the Court of Appeal applied a deduction for contributory negligence of 20%. In Wells v Much Meats Ltd  Court of Appeal EWCA Civ 963 the claimant was awarded compensation when he stepped on an empty tray which occupied the full width of an open doorway to secure the door in an abattoir in the open position. The accident occurred during the foot and mouth epidemic and the tray was intended to contain disinfectant so that people walking between the two rooms could disinfect their feet. When the accident occurred, the tray was empty. The claimant placed one foot in the tray when walking between the two rooms and lost his balance and sustained serious and disabling injuries. The claimant was awarded compensation subject to a deduction for contributory negligence of 40%. The claimant appealed the decision, but the Court of Appeal upheld the deduction. In Sheila Peskett v Portsmouth City Council  Court of Appeal the claimant was injured when using a pathway that was maintained by the local authority. The accident occurred where a slabbed path met a tarmac path creating a 90-degree angle where the path was unmade. The grass had eroded where people frequently took a shortcut from the slabbed path to the tarmacked path. A depression formed next to the path which created a tripping hazard which caused the claimant’s accident. The slabbed path and tarmac path were both in good condition and there had never been any accidents before. The claimant’s claim was successful at trial, but the court made a deduction for contributory negligence of 50% as the court concluded the claimant wasn’t being careful and appeared to be hurrying at the time of the accident. The Court of Appeal did not alter the judgment but noted that the finding of contributory negligence of 50% was on the lenient side and indicated that a higher deduction for contributory negligence could have been made.
I dealt with a claim that went to trial in the Dartford County Council where the claimant slipped on tree roots when using an unmade path. The claimant had used the path on a previous occasion without incident, but it had been raining the day before the accident, therefore the path was slippery. The claimant’s claim was successful at trial but the court made a deduction for contributory negligence of 50% as the claimant should have been aware of the hazards when using the path. In the case of AC v Devon CC  Court of Appeal EWCA the claimant was injured whilst driving a Land Rover car on a winding hilly country c-road. The claimant overtook a car and went onto the nearside of the road. The claimant contended that he lost control of his car when his wheel went into a pothole resulting in the car leaving the road and crashing into trees. The road surface where the accident occurred was rutted. The claimant’s claim was successful at trial but the highway authority appealed. The Court of Appeal found that the claimant was equally to blame for the accident and applied a deduction of 50% for contributory negligence. The driver had failed to keep a proper lookout and failed to control his car correctly. In the case of Evans v Medway Council  previously referred to, a claimant succeeded at trial with no deduction made for contributory negligence although that was a first instance decision made by a District Judge and therefore does not carry the weight of a Court of Appeal decision and in that case the Judge held that the defect in the surface of the pathway was difficult to see.
Where a deduction is made for contributory negligence, a successful claimant will still receive a substantial contribution towards their costs and expenses from the defendant’s insurers with no reduction made for contributory negligence in relation to the costs and expenses recovered as a deduction for contributory negligence only applies to the level of the compensation awarded.