Designer trouble
A de-cluttered approach to highway design is becoming increasingly popular but this could increase the chance of future claims. John Palmer reports on a case where the defendant authority was able to defeat a claim.
The case of Israel v Royal Borough of Kensington and Chelsea involved an accident where the claimant tripped over an upstand/kerb at a staggered crossing, sustaining injury
The claim was made in common law negligence and nuisance. Proceedings were initially commenced also alleging breach of statutory duty under the Highways Act 1980 but this claim was struck out prior to trial.
The claimant argued that the design of the crossing was negligent in that the kerb on the central refuge was a tripping hazard and a danger. The kerb was approximately 2½" high and 12" wide. It was present to act as a tapping rail for the blind and partially sighted.
The crossing formed part of the council's highway de-cluttering programme. Similarly designed crossings had previously been installed at another location within the borough which was the subject of detailed consultation, analysis and monitoring, the potential for tripping having been highlighted. The design gives pedestrians the opportunity of either using the crossing in a staggered way, with the assistance of red man/green man signalling or, traffic permitting, to walk straight across. Following the construction of the initial crossing detailed monitoring took place which revealed that the crossing design was safe. Statistical analysis showed a reduction in reported accidents. Subsequently the design has been adopted across the borough, other London boroughs and around the country.
Between the installation of the crossing upon which the claimant tripped and the date of trial, a period of approximately eight years, there was only one other complaint which did not result in injury or a claim.
Expert evidence was called by both sides. There was little agreement between the experts. In essence the differences were between the new "de-cluttered" approach against the old: cluttered or un-cluttered: guardrails or none. The claimant’s expert was of the view that the kerb was unnecessary and represented a trap for pedestrians using the crossing. The defendant’s expert considered the design perfectly proper and in keeping with current highway design practice.
The court held that whilst a duty of care was owed to the claimant, the defendant had discharged that duty with appropriate design, assessment and monitoring procedures. The kerb was held not to be a danger. The court did not criticise the height or width of the kerb in any way.
The defendant had used an entirely correct and systematic approach in moving to and adopting the new policy of highway design.
The claim was dismissed with costs.
Furthermore, had liability been established against the defendant, the court indicated it would have reduced the claimant’s award by 75% for contributory negligence.
Comment
This decision will be of use to other local authorities when faced with an attack on a similarly designed guardrail free crossing. The de-cluttered approach to highway design is becoming increasingly popular. The more this type of crossing is constructed the higher the chance will be of future claims. Whilst each case is very fact specific this case demonstrates that the design process has already been thoroughly investigated and examined in court and found to be perfectly acceptable.
John Palmer is a Director in the Local Authority Team at DWF. He can be contacted on 0207 645 9576 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..
DWF acted for the defendant council in this case.
