7 November 2017 ~ Negligent repairs to paving - TfL settle for £25,000 damages
On 19 November 2015 Gillian (we have changed her name) was walking along Tooley Street next to London Bridge Station during the rush hour when she tripped over the raised edge of a paving stone. She suffered a fractured right wrist and severe injuries to her face which left permanent scarring.
Because Tooley Street is part of the Red Route Network the responsible authority for maintenance of the pavement was Transport for London. TfL denied liability. They argued that their maintenance records showed that Tooley Street was subject to weekly inspections to identify any defects on the pavement and that any such defects identified were repaired promptly. As part of their defence, TfL disclosed before any proceedings were issued their maintenance records. The records demonstrated that the defective paving stone had been subject to repairs four days before on 15 November 2015.
The TfL contractors responsible as part of their documentation had taken photographs of the pavement which enabled the precise paving stone to be identified as the same one responsible for our client's accident. In the face of the denial of liability, on behalf of our client we issued Court proceedings in the County Court alleging that the paving stone had been negligently repaired on 15 November 2015 and but for that the paving would not have been standing proud presenting a danger to pedestrians when our client tripped over its edge a few days later. TfL submitted a defence speculating that the pavement may have been subject to movement by heavy vehicles parking up on the pavement during deliveries to local shops. This however, was improbable given that the pavement was near to a bus stop and on a Red Route and without any obvious retail outlets nearby.
Before the Court issued directions setting down the claim for trial, TfL accepted an offer to settle the claim for £25,000 together with our client's reasonable costs. The compensation payment included a sum for remedial facial surgery to improve the appearance of the scarring.
Practice point: Local authorities responsible for the maintenance of public pavements are provided with a statutory defence under the Highways Act 1980 where they can demonstrate that they have a reasonable system of maintenance and inspection in place. Such a defence, however, will not save them where there is evidence as in this case that the maintenance was negligently performed. It was our submission that on the balance of probabilities a Court would have found that a paving stone should not have been rocking out of alignment within four days of repairs whose purpose was to prevent such rocking and ensure that the pavement was reasonably safe for pedestrians.
3 January 2017 ~ Edward and the missing grate - £65,000 recovered
Edward (our client's name has changed), a maintenance worker in a food factory, was called to service a machine. As he made his way there, he noticed an open grate in the factory floor and instructed his co-workers to close it. Unfortunately, they reopened it and left it unguarded so that when Edward stepped back, his leg fell down the pit and he struck his knee, suffering a serious cartilage tear. He tried to go back to work following this injury but could not manage it and particularly could not work in the cold factory environment.
Edward got another job working for a friend in a warmer environment but his injuries persisted, such that new films were taken of his knee which showed that his cartilage had re-torn. A further meniscectomy was required where the cartilage remnant was removed and repaired.
At the beginning Edward was represented by other lawyers and they made a claim upon the employer. Edward then moved to London and came to us. At this point, the employer’s insurers offered to settle Edward’s claim for £15,000, a figure we were able to advise him was really far too low to justify serious consideration.
Court proceedings were launched against the employer and the case wound its way towards trial. There was a very wide gulf between Edward’s claim and the Defendant’s valuation of it. In order to bridge this claim, a “joint settlement meeting” was held. At that point, the parties were about £30,000 apart and the joint settlement meeting broke up with the case unresolved.
However, after further efforts were made, settlement of Edward’s claim was agreed for £65,000 which included an interim payment of £10,000 which we had secured for him when we took over the case.
As a post script to this report, the costs claim we submitted to the Defendant’s solicitor’s was equally hard fought and went on for some months before we could account to Edward with his compensation. In this particular case, the insurers ended up paying more than we had been willing to accept initially because of the additional work they put us to in contesting costs. Disputes about costs can be time consuming and frustrating to the Claimant who has won his case but he cannot get full recovery of his money until costs are agreed and paid.
1 February 2016 ~ Carol; the spinal fusion that did not work
Carol had a history of lumbar spondylosis, scoliosis and spinal stenosis. She had had painful symptoms for about 10 years, and undergone treatments at hospital including a “lumbar decompression” but without relief.
On the recommendation of her orthopaedic specialist, she had a procedure known as “lumbar instrumentation, decompression plus fusion”. This required the insertion of metalwork into the spine with bone grafting. These operations lead to fairly intense pain but it was expected this would resolve after about 3 months. When it did not, further films were taken which revealed that one of the screws inserted in the operation had fractured. Revision surgery was therefore undertaken, four months after the original operation and the fractured screw was removed and replaced with an additional strengthening rod inserted. Carol has never been free of pain but the new screw has not failed. Carol was left with a claim for about six months of fairly serious additional pain caused by the failure of the screw. Was it a defective screw (in which case it would be a product liability claim) or was the clinician negligent in the way the screw was selected, inserted and relied upon?
In claims of this type, the claimant will generally sue both the manufacturer and the health authority in the knowledge that she has potentially a good case against one or other of them. It may not become clear until after proceedings have started who (if either) is more likely to be found liable. As long as the decision to sue both was reasonable, the unsuccessful defendant is likely to be ordered to bear the costs not only of the claimant but of the successful defendant.
Expert evidence to prove a defective medical component is extremely specialised and expensive. Claims of this nature are also often very prolonged and hard fought. Carol was in her 70s and working part time and so it was a tactical decision, taken early on, to make proposals for settlement to the manufacturer prior to instructing an expert, setting out Carol’s claim and offering to settle for a proper proportion of that, allowing for potential arguments about why the fracture of the screw happened.
Fortunately, the manufacturer saw the sense of this and agreed an overall settlement which enabled Carol to recover just over £11,000 for the six months additional pain, a loss of part time income when she was unable to work and the gratuitous care and help provided by her husband during the period of her disability.
The manufacturer also paid the bulk of Carol’s costs. She might have recovered more if a trial had found in her favour, but of course she might have lost if fault could not be proved on the part of either the manufacturer or the clinician. And of course the case might have taken years to come to trial.
4 January 2016 ~ Charmaine v Heathrow Airport
Charmaine, an American tourist in her early 60’s, was returning home and had passed through passport control at Terminal 1 at Heathrow. She had just deposited a water bottle in a rubbish bin and as she returned to put her cabin luggage through security, she slipped on a greasy floor and fell, suffering a displaced wrist fracture on her left dominant hand (a “Colles fracture”) and a non-displaced fracture on her left elbow. The manager of the terminal was sympathetic and behaved very properly. He told her to make a claim and paid for overnight hotel accommodation here.
When we lodged her claim, the claims handlers for the airport’s insurers repudiated it contemptuously. They blamed the cleaning firm which the airport employed and told us to redirect the claim to them. In fact the cleaning firm whom they named was the wrong one but even so, the circumstances of this accident and the place in which it occurred (an area of heavy footfall with a lot of directly employed staff supervising passengers’ security) made it impossible for the airport to escape liability and we told them so.
Charmaine had returned home to the US the next day. A metal plate was inserted into her left wrist and she was given extensive physiotherapy to mobilise the joint after the operation. We obtained a report from an independent orthopaedic surgeon in America in whose opinion “…all of the treatment that the patient received was fair, reasonable, necessary and causally related to the subject accident”. He assessed that she had a moderate risk of further arthritic change within the left wrist with some loss of function.
Provision of this medical report made no impression upon the insurance company’s claims handlers. As far as they were concerned, we were wasting everyone’s time pursuing a claim against Heathrow Airport.
So proceedings were taken and a Defence was served by the airport’s solicitors denying everything and alleging that if the accident occurred as Charmaine said “then the same was wholly caused or alternatively contributed to by her own negligence”. They said she had failed to pay proper attention, to keep a lookout, to see the spillage on the floor if there was one, to wear adequate footwear or to take care for her own safety.
Understandably, Charmaine thought this added insult to injury, but this is normal behaviour by insurers. The insurers and their solicitors no doubt hoped they could string the case out for another year or so by letting it run its normal course but on her behalf we sought summary judgment, by applying to the court to say that really the long and wordy Defence was a sham which did not withstand proper scrutiny. We also applied for a large interim payment of damages.
This had the desired effect of concentrating the insurers mind and after negotiations; they agreed damages of £25,000. They also paid most of Charmaine’s legal costs.
As to costs, there are two points arising out of this case which are worth noting. The first is that under the current rules introduced by this government in April 2013, Charmaine does not recover all her costs. The government favours liability insurers and removed the burden of them paying all the cost of putting victims back in the position they ought to have been if the accident had not occurred. That is a fundamental injustice.
The second point is that Charmaine had first approached a large well known personal injury firm in London who had been recommended by lawyers in America. Charmaine’s case was simply too small for them. They did not think they could make it pay, given the additional problems of her residence abroad and the limited “fixed recoverable costs” if the claim were confined to £25,000. In the event, we were able to undertake her claim productively for her and profitably as we managed to avoid the “fixed recoverable costs” regime.
13 March 2014 ~ R (A Child) v Kent CC
Epilepsy following brain injury
R, a schoolboy aged 8 years, fell several feet through a gap in fencing from an upper to a lower playground at school, struck his head and was knocked unconscious. He had significant pain in the head when he came round. There was no external bleeding. He had suffered an undisplaced fracture of the parietal bone and some bleeding on the brain, but this was treated conservatively and did not require surgical intervention.
He had headaches on discharge from hospital, was kept off school for 3 weeks before returning initially part time and curtailed his hobbies and sports for about 6 months after the accident, following which he returned to them without difficulty. He complained of a “squishing” in his head and a high pitched noise in his ear, but these episodes passed, there were no incidents of neck or back pain, and no fits or blackouts. He had occasional nose-bleeds for about a year post-accident. He had made a fairly substantial recovery from the head injury by a month post-accident.
In medical terms, the undisplaced skull fracture and the bleeding on the brain, were all manageable. But in the longer term, such injuries can give rise to a risk of epilepsy. Epilepsy may deprive a person of a driving licence and may therefore close off job avenues in later life. The neurologist we originally instructed had estimated the long term risk of epilepsy at 10% at 5 years post-accident, 13% at 10 years and 15% at 20 and 30 years (all against a background rate of 1% in the general population). In other words, a substantial risk.
Two and a half years after the accident, R was assessed by a consultant paediatrician, an EEG was performed which was shown to be normal with no epileptiform features.
Four and a half years after the accident a brain MRI revealed no abnormalities. Absent any seizures in the time since the accident, the consultant neurologist revised his opinion on the future risk of epilepsy and reassessed this at 2.5%.
Where there is a real risk of future deterioration, the court can be asked to make a “provisional damages” award so that if the risk comes to pass, the victim can return to court for a “second bite of the cherry”. But provisional damages awards are therefore always lower than conventional final awards to reflect the loss of finality to the claim for the Defendant. The Defendant’s insurer has to leave their claims book open for the claimant’s lifetime or whatever shorter period is ordered by the court.
In this case, Counsel had advised that we might not get more than £9,000 provisional damages. The problem is that if there is no further deterioration attributable to the original accident, there is no “second bite of the cherry”. So R might be left with £9,000 in total. As it was, after negotiations the defendant insurer was willing to offer £24,000 in full settlement of a final award and this appealed both to our young client and to his Litigation Friend. The court approved the settlement (no settlement can be made for a person under 18 or a vulnerable adult without court approval).
The insurance company paid our costs in full also. This was a case which started off before 1.4.2013, in fact R was 14 by the date of Court approval. If the accident had happened after 1.4.2013, when the Government brought in new rules, R would stand to lose a significant chunk of his compensation in legal fees if his case were now conducted on a no win no fee basis. Insurers are very happy with the government. Accident victims have fared very badly.
7 January 2014 ~ Keep the Shopping Aisles Clear!
Barbara was shopping in Tesco when she caught her foot in nylon banding tape, protruding from one of the store’s wheeled cages from which staff load the shelves.
Barbara fell heavily upon her knees and having been treated by the First Aid officer, made her way home.
Shops have a legal responsibility to ensure the safety of their visitors and once a visitor suffers an injury in a store due to an obstruction or a slippery substance on the floor, causing them to fall, the burden on the store is heavy. Effectively the store must show that the accident was not their fault. Shoppers have to take care of themselves, but shops display their goods in such a way as to attract the attention of shoppers, who are not required to walk the aisles staring at their feet to guard against hazards!
Supermarket chains such as Tesco face thousands of claims each year, they have liability insurance to face these claims and their lawyers are expert in dealing with them.
Barbara’s case was not one they contested. They made a “pre-medical” offer of £1,750. A pre-medical offer is one made before the defendant insurer has seen a medical report on the claimant’s injuries. As claimant lawyers, we do not like pre-medical offers because they are usually prejudicial to the accident victim. It puts the victim under pressure to take the offer (they may face a costs penalty if they do not later beat it) at a time when the long term injury suffered cannot yet be determined.
In Barbara’s case we looked carefully at the GP records and were able to advise that she would not better the offer if it went to court although the insurers were persuaded to increase it to just under £2,000.
The insurers also paid Barbara’s costs in full (this was a case started under the old costs regime).
10 December 2013 ~ Rainwater Concealed Pothole on Seven Sisters Road
The Law on Potholes
If a highways authority cannot demonstrate that they have a reasonable system of maintenance in place they are likely to be liable for any injury caused to road users who suffer injury due to disrepair.
In our experience, while all highways authorities these days have a maintenance policy which takes account, for example, of how heavily used a particular road may be, they can fall down on implementation of inspections and repairs.
Often local authority will deny liability in a pothole claim and whenever they do so they are duty bound to provide disclosure of their maintenance records. We always closely analyse such records to identify any failure in the inspection regime that gives rise to a breach of duty.
A recent case
Over the years Dowse & Co have run many successful claims for cyclists injured by potholes.
In May 2012 one of our clients was cycling home along Seven Sisters Road at about 10pm. There were a number of bricks missing from the surround of a drain cover at the time and this hole was concealed by rainwater. Our client’s front wheel was trapped in the pothole and she was thrown over the handlebars, landing on the road.
Following a letter of claim, on this occasion Transport for London admitted liability no doubt because their maintenance records were poor.
They did not argue that our client had contributed to the accident by not keeping a proper lookout of the road surface in front of her because the pothole was concealed underneath rainwater and it was night time.
Our client recovered £4,500 damages. Besides her physical injuries, she developed travel anxiety relating to cycling for nearly 12 months and lacked the confidence to return to cycling.
Cycling had been her main form of transport and as a consequence we were able to submit a claim for purchase of a weekly Oyster card for a 12 month period. That item of loss alone totalled nearly £500. TfL did not argue about the loss because our client was able to supply a full set of records referring to her Oyster card.
If you have an accident make sure you take some decent photographs shortly afterwards of the pothole as evidence. Sometimes we can also get evidence from witnesses who live on the street who can say how long the road have been in poor condition.