Summary: The Ombudsman will not investigate this complaint that the Council will not compensate the complainant after she fell and injured her shoulder. This is because the courts decide personal injury claims.

The complaint

1. The complainant, whom I refer to as Mrs X, says the Council should pay compensation after she tripped on a paving stone and hurt her shoulder.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. The courts decide issues of negligence and assess claims for damages.

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How I considered this complaint

5. I read the complaint and the Council’s rejection of Mrs X’s claim for compensation. I looked at photographs of the street where Mrs X fell and the Council’s inspection record from November which did not identify a defect in the path. I considered comments Mrs X made in reply to a draft of this decision.

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What I found

Statutory defence - highways

6. The statutory defence allows councils to deny liability for accidents on the basis that they have taken reasonable measures to ensure that the highway, which includes paths, is safe.

What happened

7. Mrs X fell on 7 February and injured her shoulder. She says she tripped on damaged paving on a public path. Mrs X made a compensation claim to the Council.
8. The Council rejected her claim and denied liability for the accident. It explained that new paving slabs had been put down in February 2019. It said officers had inspected the area where she fell on 15 November and had not noted any defects. The Council fixed the path following Mrs X’s fall.
9. Mrs X says she is still experiencing pain. She is waiting for a scan and paying for physiotherapy. Mrs X says the Council has a moral duty to pay for her treatment. She says it is inconceivable that the defect would not have been apparent in November.

Assessment

10. I will not start an investigation because this is a matter for the courts. The role of the Ombudsman is to consider administrative fault causing injustice. We cannot establish liability for accidents or injuries.
11. It would be for the courts to decide if the Council has been negligent and whether it should compensate Mrs X for her injury. Only the courts have the necessary expertise to determine if Mrs X’s fall was solely linked to an issue with the path and to assess whether the Council has been negligent and if it could, or should, have noted a defect in November. In addition, the courts have the experience to assess how much compensation should be paid, if they decide the Council is liable.

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Final decision

12. I will not start an investigation because the complaint represents a personal injury claim which needs to be determined in court.

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Investigator's decision on behalf of the Ombudsman