Making a personal injury claim against a council: what you need to know

You can claim compensation from a council if you were injured because it failed to maintain a road or pavement, or failed to keep one of its buildings or public spaces reasonably safe. Different laws apply to highways and to council premises. Councils also have a specific legal defence for highway claims. This guide explains both, and the evidence that makes the difference.

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Which law applies?

Roads and pavements: the Highways Act 1980

The authority responsible for a highway maintainable at the public expense is under a duty to maintain it (Highways Act 1980, s.41). Pavements and footways are part of the highway. For most local roads and pavements, the highway authority is the local council responsible for highways. For motorways and major trunk roads in England it is National Highways.

To claim, you generally need to show that:

1. the defect made the highway dangerous to people using it in the ordinary way,
2. the danger was caused by the authority's failure to maintain it, and
3. that defect caused your accident and injury.

Council buildings and open spaces: the Occupiers' Liability Act 1957

In a council building, such as a library, leisure centre or council office, or in another area it controls, the council is the occupier. It owes visitors the common duty of care: to take such care as is reasonable in all the circumstances to see that visitors will be reasonably safe (Occupiers' Liability Act 1957, s.2(2)). The same Act applies to supermarkets and shops.

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The council's defence: section 58

In highway claims, the council can defend itself by proving it took such care as in all the circumstances was reasonably required to make sure that part of the highway was not dangerous (Highways Act 1980, s.58(1)). The council has to prove this defence; you do not have to disprove it.

Under section 58(2), the court must consider:

• the character of the highway and the traffic reasonably expected to use it,
• the standard of maintenance appropriate for a highway of that character,
• the state of repair a reasonable person would expect to find it in,
• whether the council knew, or could reasonably have known, that the relevant part was likely to cause danger, and
• where it could not reasonably be expected to repair it before the accident, what warning notices were displayed.

In practice, councils rely on their inspection and repair records: how often the road or pavement was inspected, whether the defect was recorded, and how quickly repairs were scheduled. Section 58 also says it is not enough for a council to show it hired a competent contractor. It must also show it gave proper instructions and that they were carried out.

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Evidence that matters

Because the outcome often turns on the condition of the defect and the council's records, evidence gathered early is especially valuable:

• Photographs of the defect from several angles, with something to show scale, such as a ruler or a coin. Measure its depth or height if you can.
• The exact location: street name, nearest house number or landmark, and a wider photo showing where it is.
• Witness names and contact details.
• Medical records from A&E or your GP made soon after the accident.
• Your own notes: the date, time, lighting, weather and what you were doing.
• Council records. Your solicitor can request inspection and repair records as part of the claim. Under the Freedom of Information Act 2000, public authorities must normally respond to information requests within 20 working days.

You can also report the defect to the council. This may get it repaired and creates a dated record, but do not wait for a reply before taking advice.

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If you were partly to blame

If you were partly at fault, for example by not looking where you were going, your claim is not automatically defeated. The court reduces your compensation to reflect your share of responsibility (Law Reform (Contributory Negligence) Act 1945, s.1).

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Time limits

You normally have three years from the accident, or from when you knew of the injury if later, to start court proceedings (Limitation Act 1980, s.11). For a child, time starts at 18 (s.28). Council inspection regimes, records and the defect itself can change, so act quickly.

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How the claim is made

Claims against councils follow the same pre-action rules as other personal injury claims:

• Most claims worth up to £25,000 start on the Claims Portal, and the council's insurer has 40 business days to respond on liability (Low Value EL/PL Protocol, paragraph 6.11).
• Other claims start with a Letter of Claim. The council then has up to three months to investigate and respond on liability (Pre-Action Protocol for Personal Injury Claims, paragraph 6.3).

See how a personal injury claim works for the full process, and our guide to pavement trip claims for more on footway defects.

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Summary

• Highway claims rely on the council's duty to maintain under s.41 of the Highways Act 1980. Claims about council buildings rely on the Occupiers' Liability Act 1957.
• Councils can defend highway claims under s.58 by proving they took reasonable care, usually through inspection records.
• Photograph and measure the defect, note the exact location and get witness details as soon as you can.
• The usual three-year time limit applies.

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Sources

• Highways Act 1980, section 41 and section 58
• Occupiers' Liability Act 1957, section 2
• Law Reform (Contributory Negligence) Act 1945, section 1
• Limitation Act 1980, section 11
• Freedom of Information Act 2000, section 10
• Pre-Action Protocol for Personal Injury Claims