Nugent v GCC [2009] CSOH88
Although a great many claims are pursued against local
authorities across Scotland because of tripping accidents, it is
rare for any to lead to a decision from the court.
This judgment is not earth-shattering, but anyone who ever has
to deal with a 'tripper' will find reading Lord Brodie's decision a
useful exercise.
In Nugent the court considered an issue which the
courts have had to grapple with for decades, namely, when does a
pavement defect become a foreseeable danger so as to require a
repair. Both north and south of the border the courts have adopted
a cautious approach, shying away from any declaration of a specific
measurement of a defect which will be regarded as a danger - see,
for instance, McClafferty v British Telecommunications Plc 1987
SLT 327.
Mrs Nugent's counsel sought to establish fault by relying upon
the 2005 Code of Practice relating to the upkeep of roads. The
council was criticised for failing to instruct its roads'
inspectors to carry out repairs where the defects were in excess of
20mm in depth. However, this approach did not succeed in
establishing a specific bench mark for the measurement of a pothole
which ought to be regarded as a danger.
Lord Brodie found that the hole in the pavement which caused Mrs
Nugent's fall was, at the accident date and at the date of the last
routine inspection a month before the accident, not much less than
30mm at its deepest point. It was argued that the full depth of the
hole represented an 'abrupt change' of level, echoing language in
the Code of Practice. Lord Brodie, however, considered that an
abrupt level difference was in effect a vertical edge or what is
often called a 'tripping point'. This supports an argument often
advanced by defenders, namely that you cannot simply take the
measurement of the deepest part of the hole as determinative; its
overall characteristics, and in particular whether it presents a
sharp tripping point, may be of greater significance.
Lord Brodie also noted that there are a number of factors which
will be relevant in assessing the safety or otherwise of a defect,
including the nature of the traffic, its location relative to
highway features such as junctions and bends, and its location
relative to users of the area.
What can we take from the Nugent case? As has always
been the case, the question of whether a particular defect is a
danger is, in borderline cases, not likely to be determined solely
by the depth of the defect. The actual tripping point will be
significant, but other factors will be relevant as well.
One such significant factor is whether the council had an
inspection regime at all. The council could have argued that the
defect was not actionable even if they had no inspection regime.
However, in practice a court is very much more likely to hold that
a defect is not a danger if the court is satisfied that the roads
department did in fact operate a reasonable system.
Also, in Nugent the judge appeared to have been
impressed by the quality of the council's witnesses, particularly
the inspector. The inspections were carried out monthly, on foot.
The inspector did identify the defect as requiring repair during an
inspection five months after the accident, and this could have been
a weakness in the council's case. However, the fact that he had
eventually identified the defect as requiring a repair supported
the finding that there had simply not been an actionable defect at
the earlier dates.
Perhaps the court was stating the obvious: taking reasonable
care in the maintenance of your pavements is likely to help in
defending claims by trippers.
Contributed by David Pollok