Trip and fall accidents and injuries on the road or in the street in Scotland are often caused by the surface being uneven and poorly maintained.
The 3,500 km Scottish motorway and trunk road network is the responsibility of the Scottish Government. The remaining 51,000km of public roads and the large network of street pavements, paths and cycle paths are usually but not always maintained by Councils.
Council responsibility should not always be assumed as some roads and paths remain in private control even although the public may have access to them. A good example of this would be a canal tow path.
Councils are under an obligation to carry out safety checks of the condition of our roads and paths on a regular basis. The frequency of those checks depends on the usage of the road or path. Thus, motorways are often checked on a daily basis while rural roads may only be checked every six months. Similarly, checks on the integrity of pavements and footpaths are subject to the frequency of usage of those paths.
Safety checks must be effective and achieve their purpose: if a pothole or defect is discovered it must then be repaired within a reasonable time. Where the Authority know about a danger but do nothing about it or delay unreasonably to repair the defect they may be found at fault for injury and loss as a result of that failure.
Streets and footpaths need not be as smooth as a bowling green. That would be unreasonable, uneconomic and probably impossible.
Trip hazards and potholes should be material or of significance. As a general rule footpath trip hazards over 20mm are is likely to be considered as a material defect by the courts. This is not a strict rule. A 20mm trip hazard on a stairway would be more dangerous than on the flat. Similarly, relatively minor trip hazards outside an old age home may also be deemed material as a consequence of the people who would normally use the path. The materiality of any trip hazard depends on all the facts and circumstances.
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