Miranda Walsh v Kirklees Council

CYCLING INJURY CIRCUMSTANCES

On 24 November 2013, Miranda Walsh was riding her mountain bike on a roundabout in Huddersfield when she came into contact with a road defect. The front wheel of her bicycle hit the defect and, as a result, she was thrown from her bicycle. She sustained a fracture to her right leg.

Ms Walsh intimated a claim against The Council of the Borough of Kirklees on the basis that the defect was dangerous to road users and breached section 41 of the Highways Act 1980. A repair to the road defect was carried out in July 2014.

The Council disputed Ms Walsh’s claim stating that the road defect was not dangerous and that she had simply slipped off her bicycle. The road has been inspected pre and post Ms Walsh’s accident and the inspectors had not reported a defect. In particular, the road had been inspected by two inspectors just 7 days before the incident with no defects having been recorded.

Ms Walsh’s claim against the council was dismissed. Judge Davey QC stated:

"there is simply not enough reliable evidence of the dimensions or condition of the pothole for me to say it is more likely than not that it presented a real source of danger.”

APPEAL

Ms Walsh appealed the decision. The appeal Judge stated:

“I accept that if the judge had failed to make use of measurements which could be taken from photographs before the Court, then the appeal would succeed because there would have been either a demonstrable misunderstanding of relevant evidence or a demonstrable failure to consider relevant evidence. 

At one stage, after a quick look at the photographs taken by Mr Donoghue, I was attracted by the proposition that measurements as to width and length were there to be seen from the photographs. However, having had the benefit of the excellent submissions from both Mr Pennock and Mr Howe, and the opportunity to look again at the photographs taken by Mr Donoghue in the light of those submissions and to read again the judgment of the judge, I have come to the conclusion that the judge was right to find that "there was not enough reliable evidence of the dimensions or condition of the pothole to say it was it is more likely than not that it presented a real source of danger".

This is because it is not possible to determine what effect the road material underneath the tape measure, together with the road material in that part of the relevant area nearest to the roundabout, had on the measurements of the pothole.”

KEY POINT TO NOTE

Interpretation of evidence is key. Exact measurement of the defect is crucial in relation to road defect cases.