Posted By Pete Stewart Following on from an interesting discussion I would welcome your views on the following. Whilst walking along the public highway, on an approved pedestrian path, a person (X) trips on a poorly maintained flagstone and suffers a serious break to their wrist. As a result of this, they are off work for 6 weeks. Obviously, the individual has cause to claim damages from the local authority. However, this person is a key employee of a company who, as a result of this incident, have suffered considerable loss in that the employee is on full pay for the duration of their absence as well as the cost of employing a temp. What recourse, if any, does the employer of X have against the local authority for their losses? As far as I can see neither EL not PL applies in this situation and TPL is only relevant between the injured party and the local authority. Therefore, I see no route to pursue, however does anyone know of a secret passage?

Posted By Pat Hannaway Pete, although you may think that the injured party would have an automatic right of claim against the local authority, it is not so simple. Most LA's carry out routine inspections of roads / pavements. Frequency can vary, depending on the amount of traffic, previous history of defects etc. The injured party (and you) would have to show that the LA was aware of the defect from a previous inspection, but had taken no action to repair it. (Having been dragged into a number of these cases, I am aware that the LA's are often successful on this point.) Your legal advisers / insurers will no doubt seek copies of previous inspection / maintenance reports from the LA via a "Freedom of Information" query. Good Luck.

Posted By D Shez Hi all Would this not be a simple case of negligence? i.e. a duty of care is owed (by the LA), the duty of care was breached (an injury occurred)and a direct loss was suffered as a result of the breach of duty (by the individual not the employer). the biggest problem I can see with the employer going to the LA for some form of compensation is that the court costs would far outweigh any potential award, should the case be succesful. Just an opinion... Regards Shez

Posted By Stuart Nagle In a nutshell - NO EL and PL insurance are not going to accept any liability for a person tripping on the public highway over a paving slab, unless it was directly attributed to works on site and a claim is made directly against the party responsible (e.g. a contractor working on site who had the footway up). Cases involving trips on the footway are well documented and there are several slipping, tripping and falling publications in existence and available for reading. case law has determined what is acceptable and what is not i.e. a 25mm trip (or more might be acceptable on a footway in an urban road, but for example, may not be acceptable in a busy shopping centre etc... If the defect was marked with spray paint by the highway authority (usually white spray paint as highway authorities, utilities ect use a colour coded system for their markings) it may be that a successful claim could be made - i.e. they knew of the danger but had not actioned a repair or made the defect safe (e.g. barriers and signs etc), but the likelihood of a successfull claim other wise is mostly going to be pinned on the amount of the claim - the larger the claim the less likely it will be 'let through' and will be fought in the courts if thats where it ends up. Most authorities are between a rock and a hard place with highway inspections. particularly local authorities acting as agents to a larger county council. Money is tight and often highway inspections and highway inspection frequencies are not meeting the national standards agreed by the relevant bodies (Associated of county and district councils for example). However, the highway authorities do have a defence under the highways act 1980 if it can be shown for example that the defect was due to another person, such as a utilties contractor who had worked there...or someone had pushed all the barriers and cones in the hole on their way home from the pub - so you did not see the hole you fell into on your way home !! Highways authorities maintain (by law) computerised records of all roadworks carried out by utilities (under the requirements of the new roads and streetworks act) that can provide invaluable evidence to them of such problems when claims are made... So, three things to remember: 1) keep claims small - say less than £500.00 2) don't trip over utilities works - they will fight tooth and nail for every penny 3) don't trip over 'new' defects - only old ones (but don't say you knew it was there because you narrowly avoided it for the last 3 months or your claim could also go south.... i.e. you knew it was there so should have been able to avoid it - sorry no cash!! Lastly... See if you can find out how many 'highways inspectors' the authority has and the number of roads on the 'definitive plan'. Each road is required to be inspected at 3 monthly intervals, and higher category roads (trunk roads and shopping centres for example at more frequent intervals). The actual intervals are defined in documents such as that referred to above between district and county councils and other bodies... a little maths should on the number of inspectors to roads to be inspected should be able to provide enough insight into if the roads are being inspected as frequenty as they ought to be !! IF they are not, there may well be gaps in inspection records that would serve any claimant well in court perhaps... and finally.... Many authorities pushed for cash have amalgamated highways inspections with 'other duties' for example 'city wardens' (hey...whats in name) and the job is simply not being done correctly and carried out by unqualified or inqualified personnel. so it is always worth it, if your going to end up in court, seeking to find out what the qualifications and 'other duties' are of those carrying out the highways inspections... There... that's blown the lid off the can of worms and not earned me any brownie points with either highways authorities or their insurance companies... Stuart