Claiming compensation after an accident on a pavement
Cuts in public budgets and an inability for planned work to be carried out during the pandemic, has meant that pavements and footpaths are often in a sad state of repair. Accidents can happen, with injuries arising from an embarrassing but painful slip, trip or fall. There is also the risk of being hit by a vehicle which mounts the pavement or being knocked down by an errant e-scooter or cyclist.
Sometimes such accidents are nobody’s fault, but often injuries are caused by someone else’s negligence - in which case you are entitled to bring a personal injury claim for compensation. Jalal Mirza-Baig, an Associate Solicitor in our personal injury / civil litigation team explains how.
Common pavement accidents
Apart from the risk of being hit by an out-of-control vehicle or being tripped by a fellow pedestrian, pavement accidents which could give rise to a compensation claim are most commonly caused by slips, trips or falls. This includes injuries sustained due to:
- pavements damaged by overgrown tree roots or a vehicle;
- holes in the pavements;
- incorrectly replaced drain covers;
- warning signs which are wrongly located or unreadable;
- damaged paving stones or kerbs;
- spillages not cleaned up;
- incorrectly laid paving; or
- obstacles, such as an accumulation of rubbish, on the footpath.
However your pavement accident was caused, it could lead to an assortment of different injuries ranging from fairly minor problems like cuts, bruises, strains or sprains to more serious harm such as a fractured bone, or an injury to the head, brain or spine.
Who should you claim against and what do you need to prove?
Who you should bring your compensation claim against will depend how the accident happened and who was responsible for the pavement or the vehicle which caused your injuries.
If you were injured by a hazard on a walkway owned by a private company, such as on a retail park, you would bring your claim against either the owner or those charged with maintaining the area where your injuries were sustained. Private property owners have a duty under the Occupiers’ Liability Act 1957 to make sure their pathways are safe to use.
If you have been hit by a vehicle – such as a car or an e-scooter – while you were walking on a pavement, you would bring a claim against those driving the vehicle.
To be eligible for compensation, it is necessary to prove that those responsible for your injuries were negligent. You need to show they owed you a duty of care (all road users and those who maintain a pavement owe pedestrians such a duty), that this duty was breached, and that you were hurt as a result.
Negligence will be found if the actions of those responsible for your injuries failed to meet the standard of what the ‘reasonable man’ or the ‘man on the Clapham omnibus’ would do in similar circumstances.
Most pavements are the responsibility of local authorities who have a legal duty under the Highways Act 1980 to have an adequate inspection regime in place to ensure that public pavements are safe for pedestrians (although this is sometimes outsourced to private companies).
This involves regularly inspecting the pavements (usually every six months), dealing with any hazard found promptly, and erecting clear warning signs until any danger is dealt with. If they fail in that duty and you are hurt as a result you could bring a compensation claim against the local authority.
Councils will often fall back on a ‘Section 58 defence’. This means they can deny liability if they can prove they had a reasonable maintenance system in place, that there has been no prior mishaps or complaints in that spot, and that repairs were made in a timely fashion. But do not let this put you off making a claim.
Case law has established that if the hazard that injured you has a height or depth of more than 25mm and has been there for six months or more, or if it can be shown that the council’s maintenance regime was inadequate (for example, that they did not inspect busy routes often enough, or inspected by car rather than on foot) a claim may still succeed.
Claiming injuries sustained on a public pavement because of bad weather (such as ice or snow) may also be problematic because, although councils have a duty to keep major roads clear, they are not expected to clear ice or snow off every pavement they are responsible for. However, you may still have a valid claim if you fell in icy conditions and some other factor (such as a protruding tree root) was also responsible.
What evidence do you need?
To ensure your claim for compensation is as strong as possible you should collect as much evidence as you can at the scene and afterwards. This includes:
- photos of the accident scene and your injuries;
- names and contact details of any possible witnesses;
- information about how long this has been a problem and if other people have reported it in the past;
- details of any medical treatment you needed after the accident;
- any available CCTV footage of the pavement accident;
- a written account of your accident and the effect your injuries have had on you, physically, mentally, and financially;
- records of any expenses you have incurred because of your injury; and
- details of any possible future money you will have to pay out (such as travel expenses to the hospital) or will lose (for example, if you need to take time off work to recover).
What are time limits for bringing a claim?
The Limitation Act 1980 dictates that you have three years to bring a compensation claim from the time of your accident or from when you realise the seriousness of your injuries (whichever comes later).
If you are claiming on behalf of a child or someone who has lost mental capacity, this ‘limitation period’ runs, respectively, from the date they turn 18 or when their mental capacity is restored.
How can a solicitor help?
It is a good idea to seek expert legal help to bring your compensation claim. Our solicitors will deal with all the required paperwork and help you gather all the evidence you need to prove your case.
They will arrange for you to be examined by a medical expert who will assess the cause of your injury and how it has affected your life, and will also strive to negotiate a fair out-of-court settlement for you. In the unlikely event that you have to go to court, they will be there with you to offer advice and speak on your behalf.
How much compensation will you receive?
The compensation you receive will depend on the seriousness of your injuries and your prognosis, but could include damages for:
- physical and mental pain and suffering;
- medical or rehabilitation treatment;
- loss of earnings;
- out-of-pocket expenses; and
- adaptations required to your home or vehicle.
For further information, please contact Jalal Mirza-Baig in the personal injury team on 01732 353305 or email jalal.mirza-baig@bailey-cogger.com. Bailey & Cogger has offices throughout Kent, in Gravesend, Maidstone, Chatham and Tenterden.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.