15 March 2018
The Inner House of the Court of Session (Appeal Court) recently issued its judgment in the case of Pocock v Highland Council [2017] CSIH 76, a case in which the Pursuer’s case against the Defenders’ had failed at first instance.
In Pocock, the Pursuer sought damages for injuries sustained after he tripped and fell over a raised paving slab in Inverness town centre which, he alleged, was over 28mm in height.
At first instance the Court held that the Pursuer had not only failed to establish that the alleged defect involved a height difference greater than 20mm, but that he also failed to prove that it presented a material risk of injury to pedestrians. As a result, the Defenders’ failure to have it repaired did not amount to a breach of its duty of reasonable care. The Pursuer’s claim therefore failed.
On appeal, the Pursuer argued that the Judge at first instance had failed to resolve a conflict in the evidence over the height differential and there was no proper basis to conclude that it was less than 20mm. His further submission was that, even if the height differential was to be accepted as less than 20mm, the Lord Ordinary erred in failing to consider that such a defect constituted a trip hazard.
The Pursuer argued that there were a number of factors which the Lord Ordinary ought to have taken into account to deem the defect as hazardous, including its city centre location, the fact that the defect had been identified on two occasions prior to the accident (the first occasion some 51 days before the accident), and the fact that the Defenders’ roads policy demanded repair within 21 days. All of this, he argued, gave rise to an inference that the Defenders had a duty of care to effect a repair before the Pursuer’s accident.
Firstly, the Inner House addressed the conflict over the height of the defect, concluding that the Judge at first instance was correct in accepting that the Pursuer failed to prove that it was over 28mm, as alleged. He had accepted evidence from the Defenders’ roads inspector who had been present at two separate inspections and who presented as a credible and reliable witness. The Pursuer’s expert, on the other hand, based his measurements and opinion on photographs taken by the Pursuer two weeks post-accident, in which the Pursuer had used a matchbox as a reference for scale.
Secondly, and on the issue of the standard of care, the Inner House also agreed with the Judge at first instance. He did not rule out the existence of a tripping hazard of some sort, however he correctly took into account the fact that the Defenders’ failure to follow its own policy was not, of itself, sufficient to establish a failure to exercise reasonable care. The Defenders had a duty to balance resources and whilst its policy was not irrelevant to the question of whether its duty of care to the Pursuer had been breached, it could not be determinative of the issue. In all the circumstances, the Inner House found that, the Judge at first instance had not erred in law.
In the context of this case, it seems that size really did matter after all. Pocock serves as another demonstration of the difficulties faced by Pursuers in public liability claims, particularly those against a Local Authority.
It also highlights that, even where a Local Authority has failed to adhere to its own policies and procedures, liability will not always necessarily follow, given the onus incumbent upon the Pursuer to establish negligence at common law.
However, the Inner House’s judgment may not be the last word, the Pursuer having told the press that “this case is not done”. Watch this space…
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Calum Sweeney |