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Elizabeth Nugent v. Glasgow City Council [2009] CSOH 88


Proof:- In this action for personal injury the pursuer sought damages from the defenders for injuries she sustained as a result of tripping in a hole on the east footpath of West Nile Street, Glasgow, near Bath Street, on 11 January 2006. The pursuer sought payment of £200,000. By interlocutor of 20 May 2009 proof in the action was separated into a proof on liability and contributory negligence and a proof on quantum to be heard subsequently. Here the court heard the proof on liability and contributory negligence. The court considered the circumstances of the fall by the pursuer as she stepped into a depression in the pavement which was described as a "hole" and the defenders' system of street maintenance. Parties were in agreement as to the applicable law referred to in Hutchison v North Lanarkshire Council, 7 February 2007, unreported where a submission by counsel for the defenders in that case was in the following terms:- "At common law the duty incumbent upon a roads authority in relation to the maintenance of repair of footways or carriageways for which it is responsible is a duty to take reasonable care and does not extend to maintaining the surfaces of these footways, far less carriageways, in a uniformly flat and even condition. Irregularities in those surfaces are to be expected and it will always be a question of degree whether a particular defect gives rise to a reasonably foreseeable risk of injury...Even if a pursuer has suffered injury as a result of a defect which presented a reasonably foreseeable risk of injury, that is not sufficient in itself to establish fault on the part of a roads authority. The pursuer requires to establish that it was reasonable and practicable for the roads authority to have become aware of the defect (and to have repaired it) before she suffered injury. In order to do so a pursuer requires to prove that inspection in accordance with a practice common to roads authorities would have revealed the defect or that some special and exceptional circumstances, such as numerous previous complaints about the defect, made it reasonable and practicable to inspect the locus before the accident occurred... In the absence of any evidence establishing failure to comply with common practice, or special circumstances, the failure by roads authorities to implement its own repairs and maintenance policy may give rise to liability... but the allocation of finite resources among competing demands is entrusted to the discretion of the roads authority and the reasonableness of the policy decisions made by the authority is not subject to review by the Court in an action for damages unless the decision is so unreasonable as to fall outwith the ambit of discretion and relates to operational matters..." Here the court considered the appropriate standard of care in the case to ascertain whether the "hole" presented such a material or reasonably foreseeable risk of injury to pedestrians that the failure of the defenders to have it repaired before11 January 2006 amounted to a breach of their duty of reasonable care.