20 June 2017
In Pocock v Highland Council [2017] CSOH 40 the Pursuer sought damages for injuries sustained after he tripped and fell over a raised paving slab which he alleged was over 20mm in depth.
His proposition was that liability ought to attach to the Defenders at common law. He argued the ‘defect’ in the paving slab ought to have been rectified within seven days, failing which twenty one days as the Defenders had identified it in an inspection prior to the accident. His claim was that the defect posed a tripping hazard for pedestrians and the failure to repair it caused him to sustain injury.
The Defenders’ roads and pavements maintenance policy required that monthly safety inspections be carried out in the area in which the Pursuer’s accident occurred. The policy provided that defects found during inspections had to be categorised depending on the level of risk attributed to the defect. The response time for repairs to be carried out was dictated by the level of risk posed by the defect. However, the Defenders’ policy did not specify the depth a defect had to be to identify which repair category it would fall within.
There was a dispute between the parties’ experts over the depth of the defect, particularly on whether it was more or less than 20mm in depth. The experts also disagreed on whether it ought to have been repaired within seven or twenty one days. Notwithstanding this, by the time of the accident, some fifty one days had passed since it had been identified as a defect without being repaired.
The key issue for the court was whether the Pursuer had established that the Defenders as a roads authority of ordinary competence exercising reasonable care, should have taken steps to correct the defect prior to the accident. Whilst the Court held that the Defenders had not followed their own policy, that fact in itself was not sufficient to establish a failure to exercise reasonable care. The purpose of the policy was to ‘provide the basis for a maintenance strategy and enable the prioritisation of works activities’ and was ‘a tool to determine where resources should be prioritised.’ There was no evidence presented to the Court that it was unreasonable for the Defenders not to have remedied the defect prior to the accident. The Court quoted the Inner House authority of McDonald v Aberdeenshire Council [2013] CSIH 83 in stating ‘the Pursuer must establish that a roads authority of ordinary competence using reasonable care would have identified the hazard and have taken steps to correct it…’
In Pocock, the Pursuer had not established that the defect involved a height difference of greater than 20mm, or that it presented a material risk of injury to pedestrians. As a result, the Defenders’ failure to have it repaired did not amount to a breach of its duty of reasonable care. The Pursuer’s claim therefore failed.
In the context of this case, it seems that size really did matter after all. Pocock serves as another demonstration of the difficulties faced by Pursuers in establishing liability in public liability claims, particularly those against a Local Authority. It also highlights that, even where a Local Authority has failed to adhere to its own policies and procedures, liability will not always necessarily follow, given the onus incumbent upon the Pursuer to establish negligence at common law.
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Rhona McKerracher |