Mr R was working as a self employed painter on a building site in Hampshire. As he was walking between two new buildings he slipped and fell into a trench that had been dug out for pipes to be laid. As a result of the fall he suffered damaged ligaments in his right knee and leg.
Mr R reported the accident to his supervisor and shortly afterwards a safe walkway was established alongside and over the trench. Mr R attended hospital on the day off the accident and was driven there by his supervisor. The accident was reported to the site supervisor by the painting apprentice who was also informed by an electrician that somebody else had fallen into the same trench a few weeks previously.
Mr R took 3 weeks off from work as a result of the accident and suffered a loss of earnings as a result. He was also spending money on painkillers and had a course of physiotherapy for his leg injury.
Mr R wanted to claim compensation for his accident and to recover his out of pocket expenses. He instructed Hayward Baker Solicitors to fight his claim for personal injury compensation.
Once Mr R was signed up with Hayward Baker his solicitor took all the relevant facts and stated the claim to the site owners insurers (the defendant insurers) via the low value personal injury insurers portal. The reasons Hayward Baker gave for alleging fault for the accident were as quoted below:
‘You failed to carry out any, or any suitable or sufficient assessment of the risks presented to our client during the course of his work with yourselves. A risk assessment should have identified the risk of our client falling into an unguarded/unmarked trench and steps could then have been undertaken to remove the risk, for instance by fencing or guarding the trench.
You have also failed to provide our client with safe access and egress to/from our client’s place of work and/or to make our client’s place of work safe contrary to the Construction Regulations 2007. Furthermore the site was not kept in good order and the floor was not free from anything that could cause our client to slip, trip or fall, contrary to the Construction Regulations 2007.
In addition to the above you have a common law duty to take reasonable care for the safety or our client at work. You have failed to do this and as such are negligent in law.
Alternatively we hold you vicariously responsible for the negligent acts of your employees/contractors how failed to guard or fence the trench once the same was dug.’
The defendant insurers acknowledged the claim within 24 hours and said they would now investigate the matter. A few weeks went by and Mr R’s solicitor received notification via the insurers portal that the site owners had admitted liability for the accident. This meant that as long as medical evidence showed that the injuries Mr R received were caused by the accident then they were willing to pay compensation.
Mr R’s solicitor wrote to him explaining that as liability was now admitted they would arrange a medical appointment with a General Practitioner who would examine him and then formulate a report upon his injuries. This report would be sued in support of his claim for compensation and aid his solicitor in valuing the claim.
The medical report was received by Mr R’s solicitor several weeks later and the consultant stated that Mr R’s injures were as a result of the accident and that he should fully recover within 9 months of the accident date and recommended that Mr R attend a course of physiotherapy to help with recovery.
Mr R’s solicitor sent a copy of the report along with a draft schedule of out of pocket expenses with a covering letter explaining to him the next steps. If Mr R was happy with the report and schedule of out of pocket expenses (special damages) then he was to sign and return the relevant approval forms.
Mr R approved the documents and returned his signed authorities. A course of physiotherapy was arranged and the cost of which was added to the schedule of special damages as the insurers would be paying the physiotherapists bill. His solicitor then valued the claim and broke this down in a letter that Mr R could understand and sent him a copy and asked if he was now willing to disclose the claim in full to the insurers and make an offer in settlement of his claim.
Mr R once again gave his approval for his solicitor to disclose the medical report and special damages schedule to the insurers and invite an offer in settlement of his claim. An offer was made by his solicitor to the insurers for £5500.00 and Mr R had already agreed that anything above £3500.00 would be acceptable.
The insurers initially came back with a counter offer of £2643.97 which was rejected by Mr R. A second offer was put forward to the insurers by his solicitor for £4877.49 but this was also rejected. After some negotiation for his solicitor the claim settled for just over £3000.00.
The reason that the final payment was a little lower than Mr R’s solicitor had valued the claim was because the insurers would not accept Mr R’s claim for loss of earnings as no sick note was offered in proof that his Doctor had signed him off work for the 3 weeks.
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