Summary: Mrs X complained about the Council’s failure to accept liability for injuries which she suffered when she fell on an uneven pavement. We should not exercise discretion to investigate this complaint. This is because it is reasonable for Mrs X to seek a remedy in the courts if her claim against the Council’s insurers is unsuccessful.

The complaint

1. Mrs X made a claim against the Council after she fell on an uneven pavement and suffered personal injury. She says the Council carried out repairs the following day, but it will not accept liability for the accident.

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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 have considered all the information which Mrs X submitted with her complaint. I have also considered the Council’s response. Mrs X has been given an opportunity to comment on a draft copy of my decision.

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What I found

4. Mrs X suffered injuries when she fell on a defective paving stone. She reported the incident and the Council sent workers to repair the pavement the following day. She says that this was an admission that the pavement was unsafe and that it should pay her compensation.
5. The Council sent her claim to its insurers who contacted her and said they did not believe the Council was liable. The works to the footway were carried out because the highway authority has a defence under section 58 of the Highways Act 1980 when an unreported defect causes an incident. Once reported the defect has to be dealt with in order to prevent further claims arising for which there would be no defence.
6. If the insurers do not accept liability, then it would be for Mrs X to take the matter to the small claims court. The Ombudsman cannot determine legal claims for negligence and only the courts can decide if a party is liable in tort.

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Final decision

7. We should not exercise discretion to investigate this complaint. This is because it is reasonable for Mrs X to seek a remedy in the courts if her claim against the Council’s insurers is unsuccessful.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman