Summary: The Ombudsman will not investigate Ms X’s complaint the Council has failed to compensate her following a fall she says was due to the condition of the public highway. This is because the Ombudsman cannot establish liability in negligence claims, and it is reasonable for Ms X to use the legal remedy available to her.

The complaint

1. Ms X complains she fell over due to the condition of the public highway. Ms X received treatment in hospital following the fall. She says the fall broke her glasses. Ms X wants the Council to pay for her glasses.

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The Ombudsman’s role and powers

2. 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)

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How I considered this complaint

3. I considered Ms X’s complaint to the Ombudsman and the information she provided. I also gave Ms X the opportunity to comment on a draft statement before reaching a final decision on her complaint.

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What I found

4. The role of the Ombudsman is to look for administrative fault. But at the heart of Ms X’s complaint is an allegation of negligence against the Council, which she says led to her falling over. Such issues are for the Council’s insurers and, ultimately, for the courts.
5. The Council’s insurers have rejected Ms X’s claim and it is now open to her to take the matter to court. I consider it would be reasonable for her to do so. This is because adjudication on questions of negligence usually involves making decisions on contested questions of fact and law. These need the more rigorous and structured procedures of civil litigation for their proper determination. Only a court can determine if the Council has been negligent. It can decide if the Council should pay damages to Ms X, and what other actions, if any, the Council should take. These are not questions the Ombudsman can decide.
6. Also, Section 58 of the Highways Act 1980, gives a council the right to put forward in court a defence against claims for damage from the condition of the highway. The Ombudsman will not remove that right by investigating Ms X’s complaint

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Final decision

7. The Ombudsman will not investigate Ms X’s complaint. This is because it is reasonable for Ms X to use the legal remedy available to her.

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Investigator's decision on behalf of the Ombudsman