The Owl Man has flown

David first occupied a self contained basement flat in Albion Drive in about 1977, with his partner and young son, as a tenant of a Housing Co-Operative. he had a Rent Act registered rent of £6 per week. The Co-Op was wound up in about 1978, after it had ceased collecting rent. The property was one of many then transferred to Hackney Council in April 1982 in anticipation of the GLCs abolition in 1984.

Since the 1980s David, an artist, was also licensed to keep wild birds of prey. He looked after disabled and injured birds that were given to him to care for. He built aviaries in the garden for owls, buzzards and  saker falcons and flew them on Hackney Marshes and other open spaces.

In about 1983 the old bus station in Shrubland Road was pulled down and new homes built. A café at 97 Shrubland Road was demolished at the same time but Hackney Council refused to reinstate the fence between the café site and the end of David’s garden so he occupied and fenced off that site too, cleared it of demolition rubble and so extended the garden. He built a carp pond there.

The Council refused to accept rent from David who told him that they did not want the responsibility as landlord to repair the house.  The basement flat became very damp and so he moved out to squat the upper ground floor flat.  By 1989 the upper maisonette, which had also been squatted, was derelict and vacant.

In 1995 the Council intended to auction off some of its properties and it discovered that the Land Registry title to the Albion Road house had never been changed from the GLC’s name. Like many ex-GLC properties,  Hackney had never set up a housing stock record and rent account ( “…..- yet another one!!” – Hackney Memo 24.4.95). Hackney’s ownership of the Albion Drive house was then once again forgotten about.

David instructed solicitors who applied to the Land Registry for him to be registered with title but Hackney contested the application and it was refused by the Land Registry. Hackney then began Court proceedings for possession and David came to Dowse & Co to fight the claim.

The possession claim was defended and the dispute was settled on terms for the flat and garden to be transferred into David’s name and, on the same day, the Council purchased the flat and garden back from him for £280,000 and paid his legal costs.

 David bought and now lives in a listed cottage in Wales with a salmon river at the end of his meadows. His wild birds live in the orchard. Bill Parry-Davies, his solicitor, said “ This beautiful old house was a community asset but Hackney wouldn't accept responsibility as landlord for its repair. As a result it’s right to claim possession had already expired by the time it commenced the Court claim. The most difficult thing about the case was the timing of the settlement. Nature takes its course so the deal had to fit in with the breeding, nesting and fledging habits of the wild birds.”

Iain Sinclair has written about meeting David in his “Olympic Diary” for London Review of Books.

 Benjamin; the perils of the premature medical examination

Benjamin was driving his own car when it was struck, almost head on, by another vehicle, whose driver was uninsured, high on narcotics and attempting to evade police.  The other driver was killed in the collision.  Benjamin had to be cut out of his car. 

He suffered shoulder and neck injuries and was initially in a neck brace in hospital.  His motor insurers sold his case to their “panel solicitors” who sent him straightaway for a medical examination.  The doctor was a GP and his prognosis was that Benjamin would be over his problems in about six months (a standard prognosis given by doctors who examine patients without the benefit of reading the medical records).  Benjamin was sceptical about this and consulted us.  It seemed plain to us that he would not be over these problems so quickly and that the doctor’s prognosis was over optimistic.

In the event, we needed to refer Benjamin for orthopaedic and psychiatric examination.  Physically, Benjamin had suffered a shoulder injury which conflicted with his work and his pursuit or martial arts.  Psychologically, he had suffered panic attacks, loss of libido and travel anxiety.  The doctors we appointed took a more cautious view of Benjamin’s recovery and we negotiated compensation on the basis of their reports.  He recovered £17,000 for his injuries and loss of income and our costs were paid in full. Had he relied on the earlier medical report he would have recovered about 20% of that figure.

 We acted for Benjamin under a “conditional fee agreement” (more commonly known as “no win – no fee”).  No win – no fee as it now works will no longer exist after April of next year because of proposals which this government intends to force through to the detriment of accident victims like Benjamin.

George - a life changing car crash

George was travelling in the rear seat of a car being driven by his friend too fast, in a chase involving other vehicles.  George’s driver failed to negotiate a roundabout, the car turned over and George, who was not wearing his seat belt, suffered bad head and other injuries. 

He spent months in hospital before being discharged into the care of his family.  His head injury gave rise to considerable problems in motivating and caring for himself safely about the house.  His memory was badly affected as was his ability to retain information, to organise himself and to plan.  Our expert neurologist formed the view that he was not capable of managing his financial affairs and that he needed a “litigation friend” to represent him in the claim.  George gradually got better. He got over his physical injuries, though he was left with bad scarring.

George’s claim was complicated by his pre-accident history.  He was a young man  with only short periods of employment.  He had acquired a criminal record and committed one  serious offence before the accident, for which he was tried and convicted after it and sentenced to a period of imprisonment.  This made it difficult to assess George’s capacity to manage on his own outside prison and to calculate what his future loss of income (resulting from his injuries rather than from his police record) would be.  In fact, the trial of his claim was fixed to come on whilst he was still a serving prisoner. 

Obviously, the insurers for the other driver made as much as they could of George’s pre-accident history to try to reduce what they would have to pay.  His compensation was to be reduced anyway because of “contributory negligence” -  his failure to wear a seat belt, which resulted in his suffering far worse injuries than he would have suffered had he been wearing one.  (One other passenger in the car who was seat belted suffered a broken limb but no head injuries). 

The insurers also asserted that George was capable of managing his affairs as their own medical experts considered he had improved dramatically since the early post-accident period. It was difficult to be confident what the Judge would find on the conflicting medical evidence. If he was found to be capable, the value of his claim would be significantly reduced from the claim we put forward on his behalf.

Shortly before trial a “joint settlement meeting” was organised and after lengthy argument and discussion, the insurers increased their offer by degrees to a net sum well over £400,000 after taking into account the discount for his contributory negligence.  Further, because of his head injury, there was a risk that George might develop epilepsy and the settlement agreed (which the Court subsequently approved) included the right for George to come back to court to apply for further damages at any time during his lifetime if he should develop epilepsy. The damages awarded to George are called “provisional damages”, giving the right to return to Court if certain contingencies arise. George and his family were happy with the settlement and the fact that he would not have to face the possibility that he might be awarded less at  a trial.

George was represented under a no win – no fee agreement and his legal costs  were recovered in full from the defendant’s insurers. 

Under this government’s proposals  known as “the Jackson reforms” which will come into effect in April 2013, George would not get his costs back in full but would have had to pay for some of them out of his compensation.  Solicitors acting for claimants such as George have campaigned long and hard to resist these proposals.  The purpose of compensation is to restore a victim to the position he would have been in had the accident not happened.  People entitled to claim compensation do not chose to be victims. They pay the price – as he did – for any contributory fault leading to injury. But it is unfair and wrong that they should have to surrender part of the compensation awarded to them to enforce their rights against the person who caused their injury. 

Tripping hazards in the workplace: there is no “compensation culture” in this country

Government Ministers and insurers declaim the “compensation culture” and the Government promises to cut through “Health & Safety” red tape which we are told is stifling business.  But there is no “compensation culture” in this country,  as the Government’s own studies have long shown.  And there are very good social reasons why employees should be able to work in a safe place of work and not have to face avoidable accidents to the detriment of their own health.

Workers are entitled to a safe place to work.

Lisa’s case is a straight forward example.   She was working as a dental nurse in a busy surgery where her working conditions were obstructed underfoot with pipes and wiring leading from the patient’s chair to suction equipment.   Each time she passed the chair she had to either kick the wires under the chair or step over them to avoid tripping.   On the first occasion she forgot to do so,  her foot was caught under her and she fell heavily upon her ankle.   

The employer immediately changed the layout of the surgery (getting in an engineer to do it the very same afternoon!).

Lisa was entitled obviously to compensation,  but calculation of this was complicated because she had already suffered an undisplaced hairline fracture of the same ankle playing football with her son six months previously. That became clear when the orthopaedic doctor to whom we sent her for a medical report examined her previous x-rays. Her ankle had troubled her but she had not known of the fracture.  

Lisa in fact needed reconstructive surgery but the medical evidence was that this surgery would have been necessary anyway because of the original injury which the fall in the dental clinic had just aggravated.

So although Lisa recovered compensation for six months additional pain and suffering following the clinic accident and her loss of income following that accident and also following the reconstructive surgery,  her total claim was valued at £3,000.00 and it settled for that sum.  The insurers paid her legal costs in full.

Under Government proposals,  because Lisa’s claim was for less than £5,000.00,  notwithstanding its complexity,  she would not be entitled to be represented by lawyers unless she pays for them herself out of her compensation.  (The proposals are that the “Small Claims” case threshold is increased from £1,000 to £5,000). The likelihood of course is that faced with an insurer refusing to pay anything without a medical report, Lisa, a young working mother on limited income, would have just not bothered.

£3,250 for forearm trapped in lift door

£3,250 for  forearm trapped in lift door

Cynthia was staying with her friend, a tenant of the defendant Housing Trust. She went to take down a bag of rubbish one night and called the lift.  As she placed the bag into the lift,  the door quickly closed upon her arm.  Unable to free herself, she was trapped for quite some time before the Fire Brigade freed her using a crow bar. 

Cynthia probably suffered an undisplaced  fracture of the forearm from the ordeal and was unable to return to her job as a care worker for a month, her wrist remaining sore for several months. In law, the Housing  Trust owed a duty to Cynthia (and all other visitors) under the Occupiers Liability Act to ensure she was reasonably safe using the lift.  For example, the Housing Trust  was responsible for routine inspection and maintenance of the lift.  It was unable to show compliance with this duty.

Although the insurers of the Trust were identified, they failed to respond to proposals to settle her claim so we issued proceedings on her behalf and entered judgment in default of acknowledgment by the defendant. Her compensation was agreed at £3,250 and her costs were paid as well.

Occupiers of buildings, such as houses, residential blocks, offices and shops owe duties to their visitors to ensure they and their possessions are reasonably safe while on the premises. Landlords will likely have additional duties to their tenants.

You can't photograph here!

Martin, a freelance press photographer, was sent by the local paper to the scene of a fatal cycle accident.  The emergency services were already present at the scene, which was cordoned off by the police.  

Police take exception to presence of photo-journalist

From outside the cordon, Martin began to take photos.  Some police present took great exception to this, he was assaulted by being rugby tackled,  held in a headlock and pulled around, his camera was seized and he was threatened that his vehicle would be seized also.  He was also roundly abused and called a “sick pervert”. His protests that he was an accredited photographer, only doing his job and not photographing the deceased, went unheeded.

Martin was badly shaken up, the assault aggravated longstanding back problems but more importantly, he suffered an adverse psychiatric reaction which left him with a low mood. He felt generally lethargic  and had problems concentrating. His sleep was disturbed.  He lost interest in seeing friends or socialising. He was prescribed anti-depressants It was recommended that he undergo a course of cognitive behaviour therapy to overcome these problems. 

The Metropolitan Police had accepted at a relatively early stage that what their officers had done was unjustified and confirmed that they would not contest liability.  But they did contest the claim for damages we put forward, and they attributed most of Martin’s problems to underlying difficulties in his history.  There was some evidence in Martin’s medical records of these difficulties. 

Fortunately, a settlement was reached shortly after the issue of proceedings, with Martin recovering almost £13,000 for the pain, suffering and psychiatric disturbance which had been caused by the assault.  The Metropolitan Police also agreed to pay Martin’s costs in full. 

In English law,  defendants cannot escape liability for their wrongful acts by saying  that their victim  already had –eg -  a bad back. The legal rule is that the defendant takes his victim as he finds him. So it’s bad luck on the defendant if his victim happens to be more vulnerable to injury. In fact this is known as the “thin skull” rule.

But often the real battleground  is the cause of the claimant’s condition, ie to what extent is the claimant’s pain and suffering attributable to the incident as distinct from pre-existing problems, which had or would shortly have appeared, even without the incident? Many cases resolve because both parties recognise that there are risks in proceeding to trial where the outcome cannot be predicted. In fact most accident cases are resolved far short of the trial itself. The skill lies in securing a good outcome for the client as quickly as possible.

Bus Accident- £10,250 recovered for 86 year old

Carina was an independent, healthy 86 year old who enjoyed her shopping trips up and down the Holloway Road (as well as foreign travel to Cyprus, the land of her birth).  She boarded a “bendy” bus when the bus lurched forward as it left the stop, throwing her to the floor. 

Unfortunately, as it is often the case with elderly people whose bones are more brittle, Carina’s accident led to a bad fracture of her leg, near her hip.  This required to be pinned with an internal nail when the operation to reduce her fracture was undertaken.  As a result of it, despite as good a recovery as might be expected for someone of such advanced years, Carina will remain reliant on one crutch for the rest of her life and will continue to require some help for dressing, bathing, housework, shopping and laundry.  Her age is such that the metalwork will have to remain in her leg. 

The bus company released the CCTV images of the accident, for which they denied any liability, contesting the claim that the bus driver had moved the bus off jerkily or that he had failed to ensure his passengers were safely positioned before doing so.   (One of the problems of the bendy bus is that the driver’s view of his passengers can be badly restricted, by the very length of the bus). 

There was really not much on the CCTV images to indicate fault of the driver, but by dint of perseverance, we persuaded the bus company to accept 50% liability for Carina’s injuries.  She had thought that she would end up with nothing and so was very pleased to be presented with a cheque for £10,250.  The bus company paid all her legal fees. 

It is noteworthy that if a defendant accepts part liability for an accident, it does not follow that they will only pay part of the costs!  Fixing a defendant with any part of the liability will normally result in full costs recovery of a skilfully run claim, as it did here.