Kevin – Propelled off his seat

4 December 2012

Kevin – Propelled off his seat

Kevin, aged two, was enjoying the view from the very front seat on the top deck of the bus. He was sitting on the inside next to his dad. When the bus driver performed an emergency stop, to avoid running into a vehicle that was dithering in front, Kevin was propelled off the seat and, being unable to brace himself, struck his forehead on a screwhead protruding from the panel in front of his seat. He was left with a laceration to his left eyebrow, measuring 17mm x 2mm, which caused a pale scar. The examining doctor to whom we sent him reported that this had a “minor cosmetic impact” but would remain with him forever.

Fortunately, scars within the eyebrow are often shielded by hair growth.

No doubt the bus driver was only partially to blame, but in such circumstances, the victim need not chase every potential defendant but need only go after one against whom some negligence can be proved. That defendant will be liable for allthe damage, and is upto him to bring in other parties (eg the car driver in this case) should he wish to allege they are partly to blame. In this case, the negligence of the bus driver was driving too fast without regard to the behaviour of the driver in front.

Negotiations with the bus company insurers led to an agreed settlement of Kevin’s claim for£3,050, which compensated Kevin for his injury and his parents for the cost of trips to hospital.

When children bring claims which are settled by agreement, the agreement has to be approved by the Court to ensure that the child has received proper compensation and that this will be preserved for their benefit in an appropriate account and not be misused by a parent (this is the case in every such claim, there was no question of Kevin’s parents taking his money). The Court will usually rely upon a written Advice from a barrister or a solicitor whether the settlement is a reasonable one. In this case it was and the Court had no difficulty in approving the settlement for Kevin. He was represented under a no win no fee agreement and the bus company insurers paid our costs in full also.

Non-unionised agency worker recovers £15,500 for eye injury

Jim was a precariously employed agency worker at a large technology support company in North London, and in September 2010 was assisting with a  relocation to Manchester by transferring equipment from shelves to pallets. There was no trade union in the warehouse and Jim’s employment contract was with an off site employment agency.

Jim had to pick up a box from a shelf above his head and place it on a wooden pallet. In the chaos of the move, the floor around the shelves in question was littered with other boxes and materials. Knowing that the box would not be heavy and with other boxes obstructing the area, he did not use a ladder.

 As Jim reached up and tilted the box down towards him, a circuit board weighing about 4 kilos slid off the top of the box and hit him hard in the right eye. His injury required surgery under general anaesthetic and his eyelid was repaired. 

Warehouses need high standards of health and safety

 Aside from a small scar, his cosmetic injuries were minor. However, he began to experience other symptoms. He experienced watering of the eye, which worsened when outside and was particularly troublesome upon waking. He also noticed some itchiness and aching in his right temporal area. Since such symptoms did not exist before his accident, and we instructed ophthalmic surgeons to take a closer look.

 

They found the cause of the watering to be either the eye drops prescribed to him at the time of his accident, or some indirect bony damage, not noticed at the time. Either way, since the symptoms appeared after the accident, the experts concluded that they were attributed to the trauma.

 Jim needed expensive remedial surgery which including numerous follow-ups, and which had a 90-95% chance of success.

The technology company although not his contractual employer were pursued because they had control of health and safety at the workplace. They admitted liability but argued Jim was 20% to blame because he did not use a ladder. Further they argued that cause of the ongoing watering eye symptoms were not clear.

They offered  settlement of £10,000, and refused to fund the  recommended surgery.

We advised Jim to counter offer £20,000 and eventually the case was settled for £15,500.00. In our estimation Jim could have recovered more had he persisted with the case but for his own reasons he decided to settle without issuing proceedings.

Had Jim been unrepresented we suspect he would either have been offered nothing or grossly under settled the claim, to the benefit of the insurers who were liable. The basis of liability was that the circuit board had been negligently left in a dangerous position on the shelf and it was foreseeable that if disturbed it would fall off the shelf and injure a worker.

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.