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.
