Unmarked and Unlit Traffis Island - Council Negligent
Discussion
I originally posted this saga on the Traffic-Answers.com forum, but since I'm off to the Small Claims court on Monday, I thought I'd ask here as well. Sorry for the lengthy notes, but I need bit of technical and legal support to back up my case.
Here's a link to the original post from October and my 2 updates (last one today)
www.traffic-answers.com/forum/index.php?topic=2249.0
All pointers and advice gratefully received in this PH thread. Thanks for all your help!
It's not just about the money any more (but still £500 I can ill afford), but letting the local council know they can't just make up their own traffic legislation as they go along, and they will be held responsible when they totally fail in their procedures and actions.
Here's a link to the original post from October and my 2 updates (last one today)
www.traffic-answers.com/forum/index.php?topic=2249.0
All pointers and advice gratefully received in this PH thread. Thanks for all your help!
It's not just about the money any more (but still £500 I can ill afford), but letting the local council know they can't just make up their own traffic legislation as they go along, and they will be held responsible when they totally fail in their procedures and actions.
On my reading of the facts as you present them, and based on my humble opinion only:
You only have a claim against the council if:-
i) they have failed in their duty of care and
ii) you have suffered loss
iii) as a result of that failure.
i) Their duty of care to maintain is limited to reasonable efforts, and subject to being reasonably informed. This is a requirement which avoids the council being legally responsible for every accident when snow falls, or there is an undiscovered problem (mud on road is a good example). *If* there were no specific reports of the bollard in the road to the council, they may have a cast iron defence in that they could not have been reasonably expected to know about it. IE - they have not failed their duty of care with respect of keeping the bollard out of the road.
They may have other duties of care with regard to lighting etc but...
iii) Your loss was directly from the bollard in the road being struck by the other driver. This would suggest that you may have a claim against:-
a) the person who left the bollard in the road, and
b) the other driver who caused it to be in your path
I'm not sure how all the other facts about the size and design of the island affect this responsiblity. As I understand it, the bollard in the road was the issue, not the lighting or design of the island, or the faulty fuses, or the contiuned calls to maintain the site.
Without the other driver there to go after (who failed to see a stationary object and struck it, and caused it to be in your path, causing damage to your car), I think you are unlikely to succeed unless you can find a reason that the council knew there was a bollard in the road and did nothing to correct it or warn drivers about it.
You only have a claim against the council if:-
i) they have failed in their duty of care and
ii) you have suffered loss
iii) as a result of that failure.
i) Their duty of care to maintain is limited to reasonable efforts, and subject to being reasonably informed. This is a requirement which avoids the council being legally responsible for every accident when snow falls, or there is an undiscovered problem (mud on road is a good example). *If* there were no specific reports of the bollard in the road to the council, they may have a cast iron defence in that they could not have been reasonably expected to know about it. IE - they have not failed their duty of care with respect of keeping the bollard out of the road.
They may have other duties of care with regard to lighting etc but...
iii) Your loss was directly from the bollard in the road being struck by the other driver. This would suggest that you may have a claim against:-
a) the person who left the bollard in the road, and
b) the other driver who caused it to be in your path
I'm not sure how all the other facts about the size and design of the island affect this responsiblity. As I understand it, the bollard in the road was the issue, not the lighting or design of the island, or the faulty fuses, or the contiuned calls to maintain the site.
Without the other driver there to go after (who failed to see a stationary object and struck it, and caused it to be in your path, causing damage to your car), I think you are unlikely to succeed unless you can find a reason that the council knew there was a bollard in the road and did nothing to correct it or warn drivers about it.
Getting councils to acknowledge they are/were aware of something is highly unlikely. I have so far reported some fly-tipping behind our house twice, the second time they had no record of the first call (even spoke to the same guy, who didn't remember me!)
Difficult one - even in small-claims court, where it will be judged on balance of probability, there's no guarantees which way it'll go.
Bugger, but many things in life are.
Difficult one - even in small-claims court, where it will be judged on balance of probability, there's no guarantees which way it'll go.
Bugger, but many things in life are.
Hi 7db - I understand your position, and I'm sure this will be the sole basis of the Council's defence on Monday.
What I maybe didn't make clear was that the bollard was lying on its side on the island (maybe overhanging the edge by an inch or 2). Since the road markings were not updated to go around the island, the island itself stuck out into the lane (and so the bollard did also). If the correct road markings were present, the bollard would not be in the lane, but behind the white line in the centre of the road.
As it was pitch dark and raining that evening, visibility was poor, plus the bollard on the other end of the island was also not lit. With zero bollard lights plus faint road markings which give no warning of the island sticking into the lane ahead, its easy to see how the other driver could have clipped the bollard.
I believe the council failed to act with reasonable care, since their own maintenance team had replaced/re-fused/re-lamped the bollards several times before, each time writing on the job sheet that a complete new light assembly was required to be fitted into the island base. Instead they just kept patching it up with silicone each time a fault was reported. Despite all their inspections and repairs, none of their engineers reported the lack of road markings.
On the balance of probability issue .... if the island was planned and installed properly with the required lighting and road markings, if the faulty bollards were fixed and working correctly, and if the lane was wide enough not to have to swerve out of the way of the island, then would the other driver have hit the bollard? The answer is probably no. In fact, would the bollard have been knocked over by someone else in the first place? Who knows!
What I maybe didn't make clear was that the bollard was lying on its side on the island (maybe overhanging the edge by an inch or 2). Since the road markings were not updated to go around the island, the island itself stuck out into the lane (and so the bollard did also). If the correct road markings were present, the bollard would not be in the lane, but behind the white line in the centre of the road.
As it was pitch dark and raining that evening, visibility was poor, plus the bollard on the other end of the island was also not lit. With zero bollard lights plus faint road markings which give no warning of the island sticking into the lane ahead, its easy to see how the other driver could have clipped the bollard.
I believe the council failed to act with reasonable care, since their own maintenance team had replaced/re-fused/re-lamped the bollards several times before, each time writing on the job sheet that a complete new light assembly was required to be fitted into the island base. Instead they just kept patching it up with silicone each time a fault was reported. Despite all their inspections and repairs, none of their engineers reported the lack of road markings.
On the balance of probability issue .... if the island was planned and installed properly with the required lighting and road markings, if the faulty bollards were fixed and working correctly, and if the lane was wide enough not to have to swerve out of the way of the island, then would the other driver have hit the bollard? The answer is probably no. In fact, would the bollard have been knocked over by someone else in the first place? Who knows!
Good luck with the action.
From your additional information, it sounds to me even more that the bulk of the liability lies with other driver. He struck an object that was nearly entirely off the carriageway. He might have a claim against council for i) leaving there and ii) poor lighting (were streetlight present / working?).
However, what I think counts for nothing - it's what the chap facing the other way in the court thinks that counts.
From your additional information, it sounds to me even more that the bulk of the liability lies with other driver. He struck an object that was nearly entirely off the carriageway. He might have a claim against council for i) leaving there and ii) poor lighting (were streetlight present / working?).
However, what I think counts for nothing - it's what the chap facing the other way in the court thinks that counts.
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