Compelling evidence and a robust defence overcome allegations of a defective signpost on the highway

 

Claimant v Bridgend County Borough Council [2019]

 

The Defendant Authority (represented by Dolmans in this matter) was faced not only with a highly unusual set of circumstances, but also with an alleged defect that was also somewhat out of the ordinary.

 

The Claimant alleged that she sustained significant facial/dental injuries and scarring after falling onto a defective sign post in the footway. The Claimant also alleged that she had suffered psychological injuries. 

 

The matter was allocated to the Multi Track; the Claimant having served expert evidence by a Consultant Oral & Maxillofacial Surgeon, a Consultant in Restorative Dentistry and Chartered Clinical Psychologist. However, the Claimant’s medical evidence was not complete and the matter was, therefore, listed for a split/liability only Trial before HHJ Petts sitting in the Cardiff County Court.

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Unusual circumstances

 

The exact circumstances surrounding the Claimant’s alleged accident were somewhat unclear, even on the Claimant’s own evidence. She had initially stated (in her Claim Notification Form) that she had fallen as a result of protruding brickwork from an adjacent wall, which was not owned or controlled by the Defendant Authority. However, the Claimant’s medical records indicated that she had collapsed while standing on the footway speaking with an acquaintance, who had passed away since the accident.

 

An appropriate Part 18 Request for Further Information was served upon the Claimant and it became apparent that the Claimant had collapsed, although she could not say whether this was as a result of dizziness or the protruding brickwork. The Claimant also confirmed that she was not alleging that any breach of duty by the Defendant Authority had caused her to fall.

 

The Claimant was adamant, however, that her injuries had been caused by the defective sign post and the alleged circumstances needed to be considered in tandem with the alleged defect in order to paint a clearer picture.

 

Alleged defect and claimant’s submissions

 

The sign post onto which the Claimant allegedly fell was designed to incorporate electrical works that could have illuminated the sign; if ever this was required. However, the sign at the location was not illuminated and there were no electrical workings within the body of the sign post. As such, there was no door covering the opening where any such electrical works would have been accessed and it is this absence of a door that the Claimant alleged caused her to come into contact with the jagged/rusty edge surrounding the opening.

 

The Claimant argued that had there been a door on the sign post, then her face would not have come into contact with the jagged/rusty edge and her injuries would not have been so severe, although it was difficult to deny that she might have sustained other injuries by striking the footway or, indeed, the adjacent wall, for example.

 

The Claimant submitted that any Defence of reasonable inspection should fail if the Court concluded that the sign post posed a foreseeable risk of injury to those using the highway and/or constituted a public nuisance. Given that the street sign had never had the benefit of a cover and had never been repaired or maintained, as it was not considered to pose a danger, the Claimant argued that liability should follow in the event that the Court found that the sign post posed a foreseeable risk of injury to those using the highway or amounted to a public nuisance

 

Defendant authority’s stance

 

The Defendant Authority accepted that the footway was part of the adopted highway and that the sign post was within its ownership and control. However, the Claimant did not plead any breach of statutory duty and alleged instead that the Defendant Authority was negligent and guilty of nuisance.

 

The Defendant Authority had measured the width of the opening in the sign post at no more than 120mm and it was difficult to comprehend, therefore, how the Claimant’s face came into contact with the jagged/rusty edge as alleged.

 

The Defendant Authority maintained its denial of liability and put the Claimant to strict proof   accordingly, arguing that there was no foreseeable risk of injury and that the sign post was not dangerous, despite being rusty.

 

Evidence

 

The Claimant gave evidence, as did someone who allegedly saw the Claimant’s face come into contact with the sign post and her tooth fly from her mouth despite being some considerable distance away.

 

Both the Defendant Authority’s Highways Inspector (since retired) and its Highways Network Manager gave evidence, which included the following:

 

• It was not uncommon for posts such as this to be utilised (even when there are no electrics in situ) as electrics could be connected at a later date if needed.

• There is no need for a door on the post unless there are electrics to be protected.

• As far as both witnesses were aware, the relevant sign post had never been illuminated and certainly not during the 30 years when the Highways Inspector had been inspecting the relevant area.

• Likewise, no complaints about the sign post, or reports of similar accidents, had been received during this period.

• Although it was accepted that the signpost was rusted in places, it was not dangerous or defective in any way.

• Had the relevant Highways Inspector considered the sign post to be defective during his inspections of the highway, he would have requested repair or replacement of the same.

• The signpost was still without a door at the date of the Trial and had not been replaced or repaired as it was deemed not to be dangerous.

• The Highways Inspector of almost 30 years standing for the relevant area confirmed that the sign post had never been illuminated in that time and that he did not recall there ever being a door on the sign post during that period and that the signpost had no electrics.

 

Conclusion - claim dismissed with significant savings

 

The Judge dismissed the Claimant’s claim.

 

The Claimant’s evidence was not sufficient to overcome the obvious problems that she faced in proving factual causation and that her accident had occurred in the circumstances alleged, although she was not found to be ‘fundamentally dishonest’.

 

However, even if she had overcome that burden, it is pleasing that the Judge, in this particular matter, was prepared to go further and maintain that he would have found for the Defendant Authority based upon the compelling evidence given by the Defendant Authority’s witnesses that the sign post was not dangerous and that there had been no previous complaints/other accidents despite there having been no door on the sign post for many years.

 

Costs were awarded in favour of the Defendant Authority, but not to be assessed or enforced without the Court’s permission as this was a QOCS matter. Had this matter proceeded to a quantum hearing, the Claimant could have been seeking damages in the region of £40,000.00, and possibly more with supportive medical evidence. The Claimant’s Costs Budget (excluding VAT) had already been approved by the Court in excess of £60,000.00.

 

Hence, the saving to the Defendant Authority was significant and justified the robust Defence that was maintained throughout.