Mr C was walking along a pavement in Crondall Hampshire when his foot went into a pothole causing him to fall to the ground and land on his right knee and shoulder. As a result he suffered a personal injury to his right knee, Shoulder and ankle.
As a result of the accident Mr C attended his GP surgery and local hospital for treatment. The ankle injury was so severe Mr c had to have keyhole surgery to the ligaments and tendons in his right foot and afterwards had to wear a cast and was told it could take 6 to 12 months for his injury to fully heal.
Mr C wanted to be compensated for the accident and instructed Hayward Baker Personal Injury Solicitors to act for him in his claim for personal injury compensation. When Mr C was signed up to a No Win No Fee agreement he was advised by his solicitor to take out an After the Event Insurance policy (ATE Policy) to protect him against the risk of losing. Should his case go to Court for a Trial them if Mr C lost his case then the insurance policy would pay the legal costs. Mr C agreed and as soon as his signed paper work was received by his solicitor his claim was submitted to the local Council who were responsible for the pavement where the accident happened.
When Mr C’s solicitor write to the Council (defendant) the reason they blamed them for the accident is as follows:
“The reason why we are alleging fault is because you failed to maintain the road/pavement in a reasonable state of repair, contrary to the duty imposed by section 41 of the Highways Act 1980. You failed to institute a proper system of inspection of the road/pavement and/or caused or allowed the road/pavement to be or become in a state of dangerous disrepair. Furthermore you failed to warn pedestrians of the danger posed by the defect, and you failed to take any reasonable care to see that pedestrians would be safe in using the road/pavement.”
The letter was acknowledged by the Council and they stated that they would now investigate the matter after which they will revert back on the question of liability.
The investigation period went past 3 months so Mr C’s solicitor chased the council to ask that they now confirm their decision on liability and should they not hear form them with 14 days would have to assume liability for the accident is denied. Shortly after the chaser letter was sent to the Council they replied again by letter stating that liability was denied. The reason given for the denial was that under the Highways Authority Act 1980. Section 41 of that Act imposes upon the highway authority a statutory duty to maintain that highway, however the County Council is not obliged to to guarantee that the surface of the highway is kept in perfect conditions at all times.
In order to discharge its statutory duty, and in the interest of public safety, the highway authority has in place an inspection scheme. Highway inspectors do carry out regular inspections to identify defects requiring repair or remedial action. In this particular case the area where the accident happened is subject to 4 driven inspections per year in accordance with the County Council Policy. At the last inspection two months prior to Mr C’s fall the defect was not present. If in between inspections a third party had reported the defect then repairs or remedial action would have taken place.
The highway authority will therefore rely upon a statutory defence provided by Section 58 of the Highways Act 1980. The defence will succeed if it can be shown that the highways authority has taken such care as in all the circumstances that were reasonably required to secure that part of the highway to which the claim relates was not dangerous to traffic. As the highway has complied with its duty to maintain the highway, and had no knowledge of the defect, this defence is replied upon.
Along with their denial letter the council also supplied records relating to that particular part of the highway being the maintenance records, records of complaint and Hampshire County Council Policy and Procedure Document, in place at the time of the accident.
Mr C’s solicitor studied the documents and formulated a letter to him explaining the Councils position on liability. His solicitor advised that they would now have to prove the following:
- That the defect was legally dangerous;
- The council have a duty to maintain. The Highways Act 1980 imposes a statutory duty on the council to maintain;
- The Council knew the defect was there but failed to repair it.
Mr C’s solicitor attached photographs of the accident location and asked Mr C to mark the photographs with an X in the exact location of the defect.
The photographs were marked my Mr C and returned to his solicitor who he also advised that he had now seen a specialist and was to have an operation on his ankle within the next 8 weeks. The operation went as planned and Mr C wore a cast for 8 weeks and after which he had to wear a supportive boot and attend several sessions of physiotherapy.
Hayward Baker Solicitors now having carefully studied the documents given by the Council wrote back to them stating that there are two weaknesses in their defence which they believe the Court would find in favour of Mr C.
The solicitor noted that the Council had stated that the last inspection took place 9 weeks prior to the accident and at that time the defect was not present. A copy of the photograph showing the defect was attached and the council were informed that this photograph was taken by Mr C shortly after the accident and showed that the defect is approximately 40 mm deep. Hayward Baker would be asking the Court to find that a footpath with a relatively low volume of traffic would be unlikely to deteriorate within the 9 weeks from the last inspection prior to Mr C’s accident.
Secondly, they noted that the Council stated that the area is subject to 4 driven inspections a year. However, according the HCC’s own policy it says inspections of all footpaths should be on foot.
If either of the above points were accepted by the Court then Mr C’s claim must succeed. The insurers were invited to review their position on liability.
Five months had passed and Mr C was still receiving treatment from his local hospital when a letter arrived with his solicitor informing them that based on information received liability in this matter has now admitted by the Council. Mr C was informed of this by his solicitor and was told that this meant that if the medical report confirms that his injuries were caused by the accident then the Council would pay him compensation.
Further records were received from Mr c’s Physiotherapist stating that to enable the ankle to heal properly he may need an operation to have the bone fused. Mr C’s solicitor took steps to arrange a medical appointment with an ankle surgeon to see if they would recommend that Mr C has a further operation on his ankle. Mr C explained was going to have a fusion operation but now was told this is a last resort and Mr C is going to have an x-ray guided injection to this ankle instead.
After Mr C had his injections his solicitor arranged for a medical appointment with an orthopaedic consultant who would examine Mr C and formulate a report upon his injuries. To aid him in his examination the consultant was sent copies of Mr C’s GP records, hospital records and physiotherapy records.
Mr C was now asking because of the pain in his ankle and his difficulty in walking could he obtain money from the council to provide a dropped kerb so he could park closer to him home. His solicitor advised that if the consultant deemed this necessary and made reference to it in his report then there is no reason why we couldn’t try to include this in his claim.
The report arrived at the solicitors office and the consultant stated that there is evidence of degenerative changes to Mr c’S right ankle. As a result he believes that the accident has accelerated the symptoms he is now experiencing. The expert adviseD that Mr C would have had the pain to his ankle regardless of the accident. However, the expert is of the opinion that the accident brought forward the symptoms by three to five years.
Also the consultant stated in his report that Mr c was suffering anxiety due to his ankle injury and he recommended that Mr C see a Psychologist.
The consultant had not commented on the dropped kerb so Mr C asked if this could be raised with the consultant to see if he could add this opinion to his report. In a subsequent response from the consultant he did not believe that Mr C required a dropped kerb at his property.
Mr C was sent a copy of the reports for his approval which he signed and returned stating that he would now like to try and settle his claim.
The claim was disclosed in full to Council and an offer to settle the claim for just over £9,000.00 was received by Mr C’s solicitor. Mr C was sent a letter advising of the offer and explaining the consequences of taking or refusing the offer. Mr C’s solicitor advised him that it was a reasonable offer and advised he take it.
Mr C called his solicitor and told them him that he was not happy with the offer and wanted to make a counter offer of £15,000.00. The council made a counter offer of £10,000.00 but Mr C still wanted to hold out for more.
After numerous negotiations by his solicitor asking that the council increase their offer Mr C was eventually awarded £11,000.00 in full and final settlement of his claim.
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