I have been undertaking personal injury work for a considerable period of time now and some of my recent work has taken my into the county courts of South Wales on behalf of slippers and trippers on the highways and byways of the area and on council owned property. There are some cases in which I have been successful and some in which I have not. You may believe that my complaints about my failures are sour grapes. Judge for yourself from the following two examples from this year alone;
1. A claimant slipped in large, covered retail premises (council owned). She slipped near the doorway and, although it had been pouring with rain outside for many hours before she had entered, no one had put out any signs, laid any mats or employed any form of cleaning system to ensure that the water that was being brought into the building prevented the floor from becoming wet and slippery. Fairly standard stuff you may think. The Defendant’s witnesses did not turn up, but their statements contained no sufficient evidence of any inspection or cleaning system and the District Judge duly found for the Claimant.
The Defendant appealed, somewhat surprisingly. On appeal, the Circuit Judge wanted to find that the appeal should be allowed on the basis that the Claimant had called no evidence as to the slipperiness of the floor; there was no co-efficient of friction (PTV) reading. It took some time to persuade him that, since that was never an issue before the District Judge nor was it a ground of appeal (!), he should ignore the point. Persuaded but not deflected, he nevertheless allowed the appeal on basis that he was not satisfied that, despite the Defendant’s failure to have a system for preventing a hazardous situation from existing at its doorway, there was no evidence that the accident would not have occurred even if such a system had been in place. A little creative, you may think.
2. A claimant tripped in a 4 inch deep pothole in early May. No defect whatsoever had apparently been seen in mid January by the inspector at a regular inspection. The National Code of Good Practice for roads of that type recommended a 3 monthly inspection regime, yet the council inspected every 6 months. The road had no pavement and pedestrians were bound to use the carriageway, yet the intervention level for the carriageway was a good deal higher than for pavements. Further, the road had been marked as a priority for complete resurfacing, “because it was coming to end of its natural life” 2 years earlier. It was resurfaced less than a year after the accident. The Claimant’s evidence included evidence from a local resident who had been familiar with the road’s general poor condition and, in particular, the hole for 18 months or more.
The District Judge found that the hole had appeared in the 3 ½ months since the previous inspection…from nothing to a depth of 4 inches and a length of 20 inches. Just like that. Magic. He further found that the Council’s budget was tight, given the mileage that it covered. That finding was made on the basis of just three pieces of evidence; the budgetary sum, the mileage and the Surveyor saying it was tight. No evidence was given as to how it was spent, what the competing demands were, what repairs actually cost etc.. Needless to say, the fact that road was known to have been in need of complete resurfacing for 2 years did not serve to increase the frequency of visits and section 58 defence was found to have been proved.
I was sharing my woes with a member of the Bar who has greater experience of litigation in Wales than me. He offered the cynical reason for my failure; magic asphalt. Not helpful I told him! But it belied a serious point; you may believe that my examples were entirely legitimate and fair decisions based upon a proper and well balanced view of the evidence as a whole. You may, alternatively, take the view that trippers and slippers are becoming increasingly difficult claims to win in South Wales.
John Livesey
Albion Chambers
29th April 2010
