15 July 2011
Tristan Hallam: slipping and tripping claims - still very relevant and now even more so
I have a claim for a client who tripped over as she was walking out of her house.
The actual accident occurred on the pavement as she was stepping from the pavement onto the road. My client was wearing normal shoes. There is no suggestion that she was in any way at fault. What she tripped on was a raised paving stone. She fell forward sustaining a significant injury to her leg from which I anticipate that she will not make a full recovery. My client is therefore at risk of having pain for the rest of her life and given the nature of her job, this continued discomfort is likely to have a detrimental effect upon her employment.
The Local Authority has denied liability. They have said that at the last inspection which took place some 11 months prior to my client’s accident; the raised paving stone was not found. The Local Authority therefore say that the step which had occurred causing my client to fall must have occurred at some stage between the last inspection and the date of the next inspection which occurred some 4 weeks after my client’s accident.
I have some photographs of the paving stone that was raised causing my client to fall. It is significantly raised. It is without question a foreseeable hazard for which the Local Authority are responsible.The Local Authority has raised a statutory Defence. They can say that they acted reasonably. They had a reasonable system of inspection and what Local Authorities do is generally walk over an area, or sometimes drive, looking for hazards.It is not unusual for hazards to be missed. On this occasion the hazard was an edging stone, namely one of these large granite stones that lead from the pavement area onto the road.
I have little doubt that the person who carried out the inspection some 11 months prior to my client’s accident missed the hazard. I would be extremely surprised indeed given the nature of the hazard, if it had suddenly formed or appeared over 11 months. I have little doubt that the hazard had been there for some years and had been caused to form by the tree roots pushing up the granite edging stone as there is a tree no more than one to two feet away. The question however is what my client does from here.
The Defendants have produced documents to show that they carried out an inspection 11 months before the accident. They rely upon their statutory Defence and this causes me difficulty.The only way I can realistically convince a Court that the Defendants had failed in their inspection and were therefore in breach of their statutory duty would be to obtain witness evidence to establish that the inspection was wrong, had not been carried out correctly and that the hazard was present at the time of the last inspection and indeed was in a very similar state and therefore had not become visibly worse since the time of the last inspection and the point of my client’s accident.Such witness evidence needs if possible, to refer to specific dates.
The witness therefore must be asked not only whether the hazard was present but what state it was in before the last inspection took place and how the witness can recall the stone being in such a state. It should comment whether they were walking perhaps to a friend’s party that occurred a few weeks before the last inspection, they were carrying a cake and tripped over the same hazard causing the cake to fall to the ground, they went back to see what they had tripped on and had seen the hazard in exactly the same state etc.
They therefore need to be able to refer to a date which would cause them to jog their memory as to what the hazard was like at the time when they noticed it and when this was.Witness evidence can then pin down the hazard as being in a very similar state before the last inspection and such evidence, assuming that this is accepted by the Court, will carry a considerable amount of weight.It must not therefore be forgotten that the burden of establishing a claim is generally upon the Claimant.
There are occasions when the evidential burden shifts onto the Defendant, however these are few and far between and my next blog will comment on such an occasion in relation to slipping accidents.
Tristan Hallam is a Principal Lawyer in Personal Injury in the London office of Slater and Gordon.
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