Council says 1980 Highway act does not apply to a section of pavement

[helpmeunderstand]

We are taking the council to court and are acting as "Litigation friends" for a boy who at the time of the accident was aged 15 who used the edge of a back garden wall belonging to a council tenanted property to playfully jump down from a 18 inch high embankment wall to the pavement below which resulted in the wall collapsing on to his legs that were both broken during the accident.

The pavement in question that we feel is subject to the highway act and inspections runs from the pavement at the side of the public road that narrows to a footpath and swings around the side of the property and is made from concrete and extends some 40 meters along the boundary wall of the property and goes up steps before reaching the area of where the accident took place and the wall at the front of the property starts within two meters of the public road.

We requested highway inspection reports from the defendant and have been told that none are available because the land is not adopted but the council (Defendant) appear to own all the land in the area and had the side pavement and steps built over forty years ago to serve the general public’s right of way.

Without being an expert I would had assumed that the act of building a pavement on what might be common land in itself means that the land has been adopted by the council and they are responsible for inspections and repairs under section 167 of the highway act.

The wall itself at parts reaches about ten feet high and has been subject to over ten bob the builder repairs by the council over the years and sections of the wall falling down have been reported as vandalism so that a claim could be made for insurance by the council who now seemed to have put pressure on the elderly tenant of the property to shut up who previously had stated to ourselves “I don’t know why they don’t just knock the wall down and rebuild it”

Councils fight dirty we have found and will lead you up the garden path using litigation teams to delay any actions for years if you let them so hit them at an early stage with court papers because that’s the only way to stop them monkeying around.

[des8]

If the wall was unsafe (i it appears that way if it collapsed), and is owned by the council and was accessible by children to whom it would be regarded as an invitation to play on, why are you concerned about whether or not the pavement was adopted?
The council, like any other owner, has a responsibility to maintain its property in a safe condition.
The section of the act quoted only relates to the powers of the authority, not their liability

[MIKE770]

council responsible for the wall element, past cases proven it seems in court i.e. Taunton Deane council case in the early 80s

[helpmeunderstand]

If the wall was unsafe (i it appears that way if it collapsed), and is owned by the council and was accessible by children to whom it would be regarded as an invitation to play on, why are you concerned about whether or not the pavement was adopted?
The council, like any other owner, has a responsibility to maintain its property in a safe condition.
The section of the act quoted only relates to the powers of the authority, not their liability

The council owns both the property and the footpath at the side of the property and during highway inspections of the footpath they should had noticed big cracks in the wall and reported them to the land owner who in this case are themselves and we even have a sniff of this happening in the past since an internal memo was sent but when we asked in what capacity was Mr XXX reporting problems with the wall the defendant seemed to clamed up.

The defense team wants to argue that no inspection reports exist for the footpath and seem to think that you can build a brick structure used by the public and just ignore the condition of the wall and pathway and are trying to hide behind the land not being adopted or something

[des8]

I don't see how the lack of inspection reports helps the council's position.
On the contrary I would be arguing as they have not inspected the wall they have been negligent and thus liable for damages.

You have evidence of the previous poor state of the wall and previous collapses (?) and could possibly obtain a structural engineers report about its current condition if you feel it is still unsafe and shows signs of earlier bodged repairs.

[jaguarsuk]

Seems like you might be approaching this from the wrong angle and simply need to approach it as a negligent property owner failing to maintain their property resulting in personal injury.

The highways inspector wouldn't be liable to report disrepair of a wall next to the highway as that's not his/her job. They might as a concerned every day person if it looks potentially unsafe, but there's no other obligation on them really.

[helpmeunderstand]

I don't see how the lack of inspection reports helps the council's position.
On the contrary I would be arguing as they have not inspected the wall they have been negligent and thus liable for damages.

You have evidence of the previous poor state of the wall and previous collapses (?) and could possibly obtain a structural engineers report about its current condition if you feel it is still unsafe and shows signs of earlier bodged repairs.

I think that under the highway act during inspections that if they notice that your garden wall is in danger of falling over then they can issue you with a order to fix it and that this was an obligation placed on the person inspecting the area.

Yes we think a structural report is in order and we have already had a sample of the mortar analysed by a laboratory before we commence proceeding so is not a joint expert witness that they object to us using and the report states that the mortar mix is not within building regulations and this comes on top of numerous bob the builder repairs to the wall but if they still want to contest the safety of the wall then we might as well go the full hog.

Basically they are saying that day is night but because we served the court papers on the council so the solicitor acts as if the council instructed them but in fact are working for the insurance company so they are going to be surprised at the little insurance fraud that I have uncovered along the way but I don't know how to go about presenting this in court or if I need a private meeting with the judge.

The tenant of the property who appeared to be a lovely old man also seems to have been pressured to shut up and went from offering a cup of tea when first asked about ownership of the property to apparently now saying that he was scared to death, had been threatened when in fact he was a potential witness to the case who said at the time "I don't know why they don;t just knock the wall down and rebuild it" if you follow the logic.

Take on local government is like taking on the Mafia and they hold all the cards but someone's got to do it.

[helpmeunderstand]

I don't see how the lack of inspection reports helps the council's position.
On the contrary I would be arguing..............

Thanks for the link at the bottom, well worth a look and the part we had trouble with was the directions on the back page of the form which the defendants solicitor did not ask us to corporate in completing this part of the form as they should have done so we did our own draft directions and I think we did a good job myself.

[des8]

You need to be careful using the highways act in your case if the highway authority and local council are the same as sec 58 gives them a defence.
You should consider basing your case as per jaguarsuk