The Ombudsman's final decision
Summary: We will not investigate how Mrs X broke her wrist tripping over a hazard on the pavement. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect Mrs X to approach the court with her claim.
The complaint
Mrs X says she suffered a painful fracture of her main wrist bone tripping over a hazard that she says is still there. She says her wrist was in plaster for six weeks.
Mrs X would like the Ombudsman to investigate as she is dissatisfied with the Council’s definition of a trip hazard and denying liability for her injury.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
I considered information provided by Mrs X.
I also considered the Ombudsman’s Assessment Code.
My assessment
The Council has denied liability for Mrs X’s injury. It says it has a reasonable system of inspection, maintenance and repair as required under s58 of the Highways Act 1980. It says the trip hazard measured 15mm and the courts have said that defects up to 25mm should not represent a hazard.
The Council as a local highways authority has a statutory duty to maintain roads. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
If a person considers that a highways authority has failed to properly maintain a highway it is responsible for, they can apply to a Magistrates’ court for an order to be made under section 56 of the Highways Act 1980, requiring the authority to take whatever action is needed to bring the highway up to standard.
In terms of Mrs X’s personal injury claim, we would normally expect her to pursue this via the courts. This is because it is essentially a negligence claim, and only the courts can decide if the Council is liable for her injury. And the courts have the power to award damages against the Council. The Ombudsman has no powers to enforce an award of damages.
Final decision
We will not investigate Mrs X’s complaint because it is reasonable to expect her to go to court.
Investigator's decision on behalf of the Ombudsman