Summary: We will not investigate X’s complaint about an injury they suffered after tripping on a defect in the road. This is because the complainant has an alternative legal remedy, to pursue a claim of negligence through the courts. Only the courts can decide whether the Council was negligent. It is therefore reasonable to expect them to use their legal remedy.  

The complaint

1. X complains that the Council failed to maintain the road leading to X injuring themselves after tripping on a defect.

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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)
3. Negligence claims and interpreting the law around civil liability are generally best decided by a court where the Council does not accept insurance liability. Only a court can decide whether the problem should have been dealt with by the Council before it caused injury to a person’s property, or if it is liable to pay damages.

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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Final decision

6. We will not investigate X’s complaint because they have an alternative legal remedy, through the courts and because only the courts can achieve the outcome they are looking for, it is reasonable to expect them to use this remedy.  

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Investigator's decision on behalf of the Ombudsman