Many accidents occur on our Suffolk roads and footpaths each year as a result of uneven and dangerous surfaces. Many of our roads and footpaths are in a terrible state of repair.
However, you may be surprised to learn that claims relating to this type of accident are often very hard to prove. A highways authority will have a statutory defence under the Highways Act 1980 if it can show that it implemented a reasonable system of inspecting and maintaining the relevant highway. Usually, all that will be needed will be some records to show that the defective area was inspected on a reasonably frequent basis in the months prior to the accident and for those records to show that the inspector recorded that there was no defect present that was deep enough to warrant repair at that time.
You may not be surprised to learn that, in the vast majority of cases, highways authorities are able to produce printouts of a stream of pre-accident inspections of the area, all confirming that there was ‘no defect’. The highways authority will then say that it will rely on these inspections in raising a statutory defence.
In the absence of a straightforward admission of liability from the council, the heavy evidential burden of proving that the council’s system was not reasonable, adequate and/or accurate enough falls on the claimant. They will normally need:
- photographic evidence of the defect immediately after the accident, preferably showing the depth of the defect; and
- evidence that the defect was present for some time PRIOR to the accident, which will always be hard as no claimant will ever know weeks/months in advance that they are going to be injured by a particular pothole or defect.
The latter evidence is usually found in the form of witness evidence (often local residents who can confirm that the defect has been there for a long time) and/or Google Streetview images showing the defect in place many months prior to the accident. Alternatively, the council may disclose its complaints history showing that it was previously notified of an accident or complaints concerning this defect, but such evidence is not often forthcoming for obvious reasons.
Therefore, it is often very important to instruct a lawyer as early as possible so that the defect can be promptly photographed and measured and so that any evidence of the defect’s ‘age’ can be obtained as soon as possible. Often, local lawyers will also have knowledge of any history of accidents on a particular road from previous cases/enquiries taken.