personal injury claim

nickwilks7

Hi, just looking for a bit of advice.

I was out jogging a couple of months ago when my foot landed in a large pot hole, which resulted in my knee giving way and me being in agony.
i ended up being off work for 3 weeks (driver) due to this and im now due knee surgery on my knee next week, so another couple of weeks off!

I tried claiming compensation through a solicitor, but they have turned around and said that the council have applied a section 58?? so therefore i cant go through with the claim.

Is this correct, or can i still claim?
Really confused, and my solicitor hasn't helped at all

adamc260

All google says about a section 58 is

"A Section 58 is a legal notice which is served on all the 'statutory undertakers' who carry out work in the county. Statutory undertakers can include the following type of companies – United Utilities, British Telecom, National Grid, Virgin Media. The Section 58 prevents 'statutory undertakers' from digging up the road for a period of between 3-5 years after the road has been resurfaced or reconstructed. In special cases 'statutory undertakers' can dig up a road if there is an emergency or if they need to provide a new customer service. "

rs65

Have a look at this ...

http://www.access-legal.co.uk/images/100122_mot_Section58.pdf

Crazy_Jamie

adamc260 wrote: »

All google says about a section 58 is

"A Section 58 is a legal notice which is served on all the 'statutory undertakers' who carry out work in the county. Statutory undertakers can include the following type of companies – United Utilities, British Telecom, National Grid, Virgin Media. The Section 58 prevents 'statutory undertakers' from digging up the road for a period of between 3-5 years after the road has been resurfaced or reconstructed. In special cases 'statutory undertakers' can dig up a road if there is an emergency or if they need to provide a new customer service. "

Wrong section 58.

The basic situation is this. Any claim that you bring will be brought under the Highways Act. This effectively stipulates that a Highways Authority (usually the Local Council) has a duty to maintain the highway in a responsibly safe condition. Your argument, given the pothole that you stepped in, would be that they did not do this, and caused you injury as a result. Section 58 of the Highways Act provides a statutory defence to any claim brought under the Act, and stipulates that it is a defence for the Highways Authority to show that they took such care in all the circumstances that was reasonable to ensure that the highway was kept in a safe condition. This normally requires the Highway Authority to show that they had a system of inspection in place that was adhered to around the time of the accident.

Applying this to your situation, the Council cannot 'invoke section 58' strictly speaking. They can raise that as a defence, but they still have the burden of showing that they had the necessary system of inspection in place, and that it was adhered to. My guess would be that your solicitor has considered the evidence provided by the Council, and decided that the Council probably will make out the defence, and that your claim will fail. Albeit they haven't explained that part very well.

Just to make this absolutely clear for you; you can bring a claim whether the Council uses a section 58 defence or not. But to take a claim on a 'no win no fee' basis, the solicitor will need to be satisfied that your prospects of success are over 60%, otherwise you won't be able to secure ATE insurance (which is needed for a claim to be taken on a 'no win no fee' basis). So this is simply a matter of the solicitor assessing your prospects as below that level.

How far along is this claim, and how long has the solicitor been acting for you? If they have rejected the claim, there is nothing to stop you going to another solicitor and seeing if they will act for you. Chances are most solicitors will consider this has having insufficient prospects if one has, but there's nothing to stop you asking the question to other solicitors.

nickwilks7

thanks for that, certainly clears it up abit!

I had the accident in September and contacted the national accident helpline a week or 2 later, who then passed me on to a solicitor.
Then received a letter from them 3 weeks ago, saying that they will not be continuing with my claim.
so they acted for me for roughly 2 months.

Do you think i have a case? the council said they last inspected the road 10 months before my accident.

Crazy_Jamie

Unfortunately I cannot possibly assess the prospects of the defence succeeding without looking at the evidence that the Council have put forward. Section 58 defences succeed and fail based on the evidence, so without seeing that evidence I can't help you. One solicitor has already decided that your case does not have sufficient merits to proceed on a 'no win no fee' basis, which isn't positive, but that doesn't stop you from seeking a second opinion from another solicitor.

vaio

presumably there are accepted guidelines as to how frequently the various classes of roads need to be inspected for s58 purposes?

10 months, (so I guess annual inspections) does sound like a long time, might also be worth a foi request for the inspection report

Crazy_Jamie

vaio wrote: »

presumably there are accepted guidelines as to how frequently the various classes of roads need to be inspected for s58 purposes?

10 months, (so I guess annual inspections) does sound like a long time, might also be worth a foi request for the inspection report

Unfortunately there are not strict guidelines as to how frequently various classes of road need to be inspected. Matters to which the Court will have regard are listed at s.58(2), but beyond that cases often come down to public policy decisions. Even the case law in this area fails to offer definitive guidance regarding s.58 defences. That's why the view of the solicitor is important here; presumably they will have experience of these types of claims, and will have a 'feel' for whether the case is likely to succeed. I doubt the OP will be satisfied by that approach, especially as the view of the solicitor is that the OP's claim is not likely to succeed, but unfortunately there are no solid guidelines to point to.

As regards the second point, there would be no need to make a FOI request for the inspection reports. These would be disclosed under standard disclosure as an ordinary part of the litigation, as they would invariably either be used to support the Council's case, or on the flip side they would adversely affect the Council's case if they were not favourable. I highly doubt that the solicitor has made a definitive decision about the prospects of the case without seeing those documents.

vaio

Crazy_Jamie wrote: »

Unfortunately there are not strict guidelines as to how frequently various classes of road need to be inspected. Matters to which the Court will have regard are listed at s.58(2), but beyond that cases often come down to public policy decisions. Even the case law in this area fails to offer definitive guidance regarding s.58 defences. That's why the view of the solicitor is important here; presumably they will have experience of these types of claims, and will have a 'feel' for whether the case is likely to succeed. I doubt the OP will be satisfied by that approach, especially as the view of the solicitor is that the OP's claim is not likely to succeed, but unfortunately there are no solid guidelines to point to......

http://www.yottadcl.com/files/downloads/510/Well+Maintained+Highways+Code+of+Practice.pdf is sort of the thing I was thinking about, the table on p94 covers frequency for assorted types of highways, all bar one have frequencies of > annual

Crazy_Jamie wrote: »

.........As regards the second point, there would be no need to make a FOI request for the inspection reports. These would be disclosed under standard disclosure as an ordinary part of the litigation, as they would invariably either be used to support the Council's case, or on the flip side they would adversely affect the Council's case if they were not favourable. I highly doubt that the solicitor has made a definitive decision about the prospects of the case without seeing those documents.

Your probably right but for my own peace of mind (if I was the OP) I'd be getting the inspection & defect reports together with the KPIs for inspections, repairs & repudiated claims. If nothing else it will save any future solicitor a considerable amount of legwork.

Crazy_Jamie

vaio wrote: »

http://www.yottadcl.com/files/downloads/510/Well+Maintained+Highways+Code+of+Practice.pdf is sort of the thing I was thinking about, the table on p94 covers frequency for assorted types of highways, all bar one have frequencies of > annual

I didn't realise you were referring to standards that Council's themselves follow, as opposed to set standards that a Judge will use to make a finding in relation to the case. In which case yes, as a matter of course Councils will either adhere to a general policy of that sort, or have their own specific policy. In terms of the relevance of such policies at trial, obviously if a Council doesn't adhere to the policy that it has laid down itself then its position will be weakened considerably. It's not necessarily fatal, but it certainly wouldn't help.

vaio

they are guidelines developed and published by the Dept of Transport so although not statutory must have considerable weight for a judge and I'd guess most council's inspection policies will follow them