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"I've fallen in a pothole - what do I do?"

View profile for Kate Sweeney
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Given the sheer volume of tripping accident claims that we receive from people who have been injured whilst simply walking down the street, this question is often heard in our offices.  Firstly, if you have fallen over as a result of a pothole in the road, a raised paving stone on the pavement, there are three words to remember.  Photographs - Measurement - Evidence.

A tripping case will more often than not turn on whether we can prove that a Council either carry out insufficient or irregular inspections of the pavements and roads in their borough. However, to give the case a fighting chance from the start, we must be able to prove that a defect, be it pothole, raised paving stone, or lumpy tarmac, is actionable. This means that it must be either high or deep enough to require intervention from the Council in the form of a repair. The general rule of thumb is that a defect of 25 mm in height or depth is actionable on a pavement, and 40 mm on a road.

Therefore, photographs and measurements of the defect are vital. If your case goes to trial, the photographs that are taken of the area where you fell will be presented to a Judge at Court, and he or she must be able to see clearly what caused you to fall. Whilst mobile phones these days often have great in built cameras, it would also be as well to take photographs with either a disposable or a normal camera.  Ideally two measuring rules should be used - one to stand vertical either in or against the defect, and the other horizontal at right angles, to demonstrate the measurement.  Make a note of the date and time that you take the photographs.

You should also take a photograph a little away from the defect, showing the route as you approached it. Marking a copy photograph with arrows depicting your direction of travel is also very helpful.  Photographs showing the area in general, depicting any local landmarks, such as a post box on the corner, or a nearby shop will help to identify the general location.  If your accident happens in a residential street, make a note of the number of house outside which your accident has occurred - it may be that your solicitor will want to write to local residents to establish if the defect has been present for some time.

If your accident occurs at nighttime, make a note of the lighting in the area, ie are the nearby street lights working?  Is the defect in the shadow of a tree?  In tripping cases, some Insurers may try to allege that the person who tripped partially caused their own accident by failing to look where they were going - taking a note of your surroundings at the time may help your Solicitor to challenge any such arguments which may arise.

Report the incident to the Council as soon as you have taken photographs.  Make sure that you get the name of the person that you speak to, and ask for a complaint reference number, which can be referred to if you need to speak to them again.  Ask them to acknowledge your complaint in writing. 

Whilst gathering the above evidence does not necessarily guarantee a successful outcome, as this will depend on the Council's inspections, it will give you a great head start in proving your claim.  

By Pauline Smith

 

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