As the autumn nights draw in, and the weather turns chilly, the world becomes a more hazardous place. Dark nights when driving increase dangers on the road, however there is another danger which not many people take notice of when happily kicking their way through a pile of fallen leaves on the pavement, and that is .... the leaves themselves. We have numerous clients contacting us regularly during the autumn and winter months, because they have fallen due to skidding or slipping on wet leaves on the pavement, or they have tripped over a defect which has been masked by leaves accumulated on a pathway, which is bordered by overhanging trees. So, whose fault is this?
Leaves on the public highway, together with ice and snow, are considered to be a "transient" defect and whilst a Council has a duty to keep the pavement and roads reasonably free from hazards, their duty is not absolute. They are bound by budgetary constraints, and if they can demonstrate that they have a reasonable system of inspection and repair in place, ie, that the check the pavements and roads on a regular basis and when they are aware of a defect, repair this in a timely manner, then they are basically doing all they can. They are also under a duty to repair a defect, if complaints are received about, for example a pothole, in the road. The defect must also be considered "actionable", being 25 mm or thereabouts on a public highway, and 40 mm on a road.
The longstanding case of "Goodes -v- East Sussex County Council" from 2000 is inevitably the Defence which is put forward by a highway authority if someone falls on ice or even leaves on a public highway. The Judgment in that confirmed that the duty imposed on a highway authority is to keep the highway in good repair, but does not extend to keeping it free from ice, or other "transient" defects, ie those of a temporary nature and outside anyone's control. Common sense dictates that when there is an overnight frost and ice forms on the ground, it would be virtually impossible for a Council to grit every single pavement or road in their borough.
However, all hope is not lost. If you happen to fall on property which is occupied by someone, then there is a very good chance that you may have a reasonable claim. We have successfully pursued many cases where people have fallen going to the supermarket, for example, and where an icy car park hasn't been gritted properly. Similarly, if you park in the car park at work, and fall due to ice or snow, because your employer hasn't gritted this, then they should be held accountable, because they are under a duty to keep you safe whilst at work.
So, consider this a cautionary tale... and please watch your step.
By personal injury specialist, Pauline Smith
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