That's exactly what happened to our client, who suffered serious injuries after tripping over a short metal post projecting from a pavement just outside a car park.
At the time of her accident, she was working in a self-employed capacity for a council, who it turned out was the local authority responsible for the highway and car park where the accident occurred.
The post was the remnant of a height restriction barrier that been removed, but had not been cut flush to the ground creating a hazard for pedestrians.
When she stumbled over this post, our client hit her right shoulder against a brick wall before she fell and was immediately aware that she had suffered a significant injury to her right shoulder.
She was taken by ambulance to the West Middlesex Hospital where she was examined, given pain relief and had X-rays taken which revealed a fracture of her right shoulder. Although discharged home she was told to attend her local hospital as the injury was serious and would require further treatment.
The consequences of the accident left our client unable to pursue her work as self-employed contract accountant for almost two months. She could not drive, could only use a computer keyboard with her left hand and found it particularly difficult to use a mouse as she been left with residual dysesthesia (a lack of sensation) in her right thumb.
Her injuries also meant she could not perform some of her normal household tasks or pursue leisure activities such as sailing that she had previously enjoyed.
It was then that she approached Shoosmiths about the possibility of making a claim, if only to compensate for her potential loss of earnings as well as the pain and discomfort she suffered.
As it seemed the accident had happened on the highway, a claim was submitted to the council. Their response via their insurers was to strenuously deny liability. As a Public Liability claim under the Highways Act 1980, it was open to the defence to rely on a 'Section 58 defence' which is frequently used by highway authorities defending cases of this nature.
The Section 58 defence allows a council or highways agency to defend claims on the basis that they had taken 'reasonable measures' to ensure that problems such as those which lead to our client's injuries are found and dealt with swiftly.
Public liability claims against local or highway authorities that use the Section 58 defence are always complex and frequently unsuccessful. Only if a claimant can prove that the council or highways authority did not follow their own guidelines or that their system differs from the recommendations of the national recommended standards for highway maintenance would a claim succeed.
A site inspection then established the fact that the stump was not on the highway, but actually on land occupied by the car park, albeit on the edge adjacent to pavement. This took away the defendant's initial argument as we could rely on the Occupiers liability Act.
Paul Ashurst, a senior associate in Shoosmiths personal injury team who handled the case, explains:
'The defendants agreed (indeed had proposed) that the post was on land that formed part of the car park and not the highway, hence they were not to blame, even though they operated the car park. That being the case, which they could hardly refute, we could then claim using occupier's liability.'
An occupiers' liability action is based on the negligence of something having been done, albeit negligently, as opposed to a failure to maintain, which would be the basis of a public liability action against a highways authority.
However, the crucial difference between occupiers' liability and public liability cases is that in the former, a Section 58 defence, which is usually relied on by highway authorities to snuff out claims, cannot be used.
As a consequence of this tactical shift, the defendant had no option but to admit liability for our client's injuries.
Our next step was to arrange an expert medical report to determine the extent of our client's injuries and the likelihood of recovery. By the time our client was examined, the fracture had healed but her discomfort and limitation of movement in the shoulder persisted.
Paul Ashurst comments:
'The medical report established that our client had indeed sustained her injuries as a direct consequence of the accident. The expert also maintained that the ongoing symptoms were related to complex regional pain syndrome. His report concluded that there would be little, if any, improvement in these symptoms and our client would have to accept them as a permanent handicap.'
Armed with this information that would allow us to determine what support our client would need and how much her claim should be worth. On disclosure of the medical evidence and documents supporting the claim for financial loss the defendant after a period of protracted negotiation accepted our Part 36 offer to settle at £50,000.
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If you have suffered a personal injury due to the negligence of others we can help. Email us through the website, chat to us online or call our client services team on 03700 868686.
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2023