Our popular bulletins and events will keep you abreast of the latest legal developments.

Our annual keynote seminar was held on Tuesday, 18 June 2019 at the Vale Resort. Speakers included Simon Evans, Peter Bennett, Amanda Evans and guest speaker, Steven Ford QC.

This edition considers a claim brought under the Occupiers’ Liability Act where the Claimant slipped and fell whilst visiting a leisure centre, as well as various case summaries.

This edition considers recent case-law regarding fundamental dishonesty, the meaning of ‘use of vehicle’ and apportioning liability for speeding.

Our annual keynote seminar was held on Tuesday, 18 June 2019 at the Vale Resort. Simon Evans considered the impact of the Civil Liability Act 2018, Peter Bennett provided a regulatory update and Amanda Evans and guest speaker, Steven Ford QC, discussed recent developments following CN v Poole BC [2019] UKSC 25.

Our monthly review of developments in the insurance and public sector. This edition considers a claim brought under the Occupiers’ Liability Act where the Claimant slipped and fell whilst visiting a leisure centre and case summaries relating to the recoverability of Counsel’s fees and the Court’s approach to Blamire awards.

This edition considers recent case-law regarding fundamental dishonesty, the necessity for bespoke life expectancy evidence, the meaning of ‘use of vehicle’ where a vehicle had been parked in a private garage which caught fire and apportioning liability for speeding.

Enquiries

Head Office

Capital Tower

Greyfriars Road

Cardiff

CF10 3AG

Tel: 029 2034 5531

BITC Cymru.jpg
Legal 500 Top Tier.jpg
Alarm Bronze.jpg
Cyber Essentials.png
Conveyancing Quality.jpg

© Copyright Dolmans Solicitors 2019. Dolmans Solicitors are authorised and regulated by the Solicitors Regulation Authority No. 48860

Taking a shortcut home

 

GJJ v Merthyr Tydfil County Borough Council [2018]

Background

The Local Authority is the owner and occupier of Troedyrhiw Park, Troedyrhiw, Merthyr Tydfil.

 

The Claimant is disabled and is wheelchair bound.

 

The Claimant alleged, in his Particulars of Claim, that he was injured in an accident that occurred at Troedyrhiw Park on 16 May 2012. He alleged that he was travelling over a section of pathway in the park in his wheelchair when his wheelchair connected with an extremely uneven section of path which had been caused by tree roots growing through the concrete. This caused him to fall out of the wheelchair and sustain injury.

 

The Claimant’s Solicitors wrote a letter of claim dated 16 July 2013 which was written exactly 14 months after the alleged accident occurred. The description of the circumstances of the alleged accident was very similar to that contained in the Particulars of Claim.

 

The letter of claim contained one piece of information which was not contained in the Particulars of Claim. It stated that the Claimant’s carer was present at the time of the alleged accident and that he assisted the Claimant back into his wheelchair after it had occurred. It was alleged that the carer had noted that the cause of the fall was tree roots which had grown under the path and caused it to become uneven.

 

No Accident Report Form was completed in respect of the alleged accident, which is not surprising given that this was a public liability claim.

The Claimant alleged that his accident was caused by reason of the breach of section 2 of the Occupiers’ Liability Act 1957 and/or negligence of the Local Authority, its servants or agents.

Witness evidence

The Claimant stated, in his Witness Statement, that the accident occurred at approximately 1:30pm on 16 May 2013. This date was incorrect because the alleged accident occurred on 16 May 2012 and we were surprised by such a basic error.

 

The Claimant said that he had met up with his friend and carer and that they were going to take a short cut back from the village to the Claimant's house through Troedyrhiw Park.

The Claimant said that the carer had stopped to talk to someone he knew and he proceeded to travel in his wheelchair. He remembered going over an uneven section of the footpath and being thrown over to his left and out of his wheelchair which landed on top of him. He shouted for help and his carer came to his assistance.

The Claimant stated that he could see that the path was very uneven and that there were tree roots protruding through the path which he described as being "a hazard and dangerous". He then said that he did not usually use this path in the park and was not, therefore, aware of its uneven surface.

He said that his carer took him back to his house and placed him in his chair. He slept in the chair as he could not go upstairs to bed. The pain in his left arm was getting worse so he decided to go to Prince Charles Hospital in Merthyr Tydfil for treatment on 20 May 2012. He was told that he had broken his left arm and it was put in a cast. This was 4 days later.

He concluded his Witness Statement by stating that he was aware that the Local Authority had repaired the pathway over a year after the accident occurred and put down new tarmac over the paths where the roots were growing through.

A Witness Statement was disclosed from the Claimant’s carer who said that he had been his carer for approximately 5 or 6 years.

He described the events that occurred on 16 May 2012. He confirmed that he was talking to a man in Troedyrhiw Park when the man noticed that the Claimant was falling out of his wheelchair. He said that he saw the Claimant falling to his left and his wheelchair toppling over on top of him.

He attended to the Claimant who was in shock and seemed disorientated. He helped him back up and into his wheelchair.

He stated that he could see that there were large bumps in the path with protruding tree roots which had caused the wheelchair to tip over. He described the path as being "really uneven and dangerous".

He said that he then took the Claimant back to his house. Like the Claimant, he said that he did not normally use this particular path within the park and was not familiar with it.

He alleged that he tried to persuade the Claimant to go to hospital for treatment, but he would not do so. He saw the Claimant a few days later when he said that he had been to Prince Charles Hospital in Merthyr Tydfil and had been diagnosed with a broken left arm.

Witness evidence was obtained on behalf of the Local Authority from two employees. One was employed as a Team Leader in the Ground Maintenance Department and the other was employed as Principal Environmental and Street Scene Officer.

The Team Leader gave evidence regarding the operation of and the activities carried out at Troedyrhiw Park at the time of the alleged accident.

He confirmed that the Local Authority did not operate a formal system of inspection of the park. He said that the groundsman would walk around the park twice a day looking for any items that needed to be removed or reported.

He acknowledged that there was a small rise which ran across the footpath in the area where the alleged accident occurred which had been caused by the root from a nearby tree extending across the footpath. He believed that it was about an inch high. He said that the Groundsman never reported the small rise to him nor to his Line Manager.

He said that no incident was reported to him or the Groundsman on or after the day of the alleged accident. He first became aware of the matter following receipt of the letter of claim  dated 16 July 2013. He carried out an inspection of the area and decided that it would be appropriate for some repair works to be carried out to it. He instructed a local contractor to undertake the work which involved cleaning underneath the roots, pinning them down lower and removing some of the roots completely. The work was completed a few weeks later.

He was not aware of any previous similar incidents or accidents occurring at the park and was not aware of any complaints being received. He said that the repair works were carried out as a precaution and were not an admission of any liability on the part of the Local Authority.

The Principal Environmental and Street Scene Officer provided a very brief Witness Statement because his knowledge of the matter was limited. He confirmed that he agreed with the contents of the Witness Statement of the Team Leader.

He confirmed that the Groundsman did not notify him of the alleged accident on the day in question or at any time after that.

He also confirmed that he was not aware of any previous similar incidents or accidents occurring at the park and was not aware of any complaints being received.

We were unable to interview the Groundsman because we were informed that he was on long term sick leave.

Causation and liability

The Claimant alleged that his accident was caused by reason of the breach of statutory duty and/or negligence of the Local Authority, its servants or agents.

We took the view that the evidence of the Claimant and his carer was not very convincing. We were surprised that they both said that they normally used other paths within the park and had not previously used this particular path.

The Claimant said that he was not travelling very fast at the time of the alleged incident, but there was simply no way of being able to prove or disprove that fact.

The witnesses confirmed that the Local Authority had a reactive system of inspection in place and that they responded upon being notified of the claim. We formed the view that the Claimant would have difficulty in establishing that the accident had occurred as alleged, that the accident was not foreseeable and that the Local Authority had in place a reasonable reactive system of inspection. We advised the Local Authority and its Insurers that they would be justified in contesting the matter to trial.

Counsel’s Advice was sought in advance of trial and Counsel agreed with our assessment of the case.

Quantum

The issue of quantum was not straightforward and developed in a highly unusual fashion. The Claimant issued a Claim Form in which he claimed damages not exceeding £5,000. We were surprised that the Claimant had limited his claim for damages to £5,000 bearing in mind the nature of the injury sustained by him. His medical expert, Mr Hariharan, was of the opinion that he had sustained a fracture to his left humerus as a result of the alleged accident. We took the view that such an injury was likely to attract an award well in excess of £5,000.

The Claimant referred to a Schedule of Special Damages in the Particulars of Claim, but no Schedule was served upon us. We raised this in issue in correspondence and in the Defence, but the Claimant’s Solicitors did not respond to it.

The Claimant subsequently issued an Application for permission to increase the pleaded value of the claim from damages not exceeding £5,000 to damages not exceeding £150,000. The Claimant served a Schedule of Special Damage which consisted mainly of a claim for the cost of care and assistance from 16 May 2012 until 25 September 2015 in the sum of £33,811.68 and continuing (presumably on an indefinite basis). It would appear that the Schedule of Special Damage was intended to be served with the Claim Form and Particulars of Claim.

The Claimant’s Application for permission to increase the value of the claim to damages not exceeding £150,000 was granted by the District Judge in Merthyr Tydfil County Court. The District Judge commented that the increase in the value of the claim was “dramatic”, but felt that he had no alternative other than to allow the Application. The case was then transferred to Cardiff County Court.

Cardiff County Court allocated the matter to the multi-track and gave directions, which included permission for both parties to obtain expert medical evidence and rehabilitation costs evidence.

Expert evidence

We instructed Mr David Pemberton to act as the Local Authority’s medical expert witness. He examined the Claimant and produced a report which was disclosed to the Claimant’s Solicitors. Mr Pemberton and Mr Hariharan discussed the matter and prepared a Joint Statement. In summary, they concluded that the Claimant had sustained a severe fracture of the left humerus, that he received appropriate initial conservative treatment, that there was initially mal-union and that it took 18 months for the fracture to stabilise, that the injury was likely to have taken 2½ years to recover, during which time he would have had a significant restriction in activity and would have required periods of assistance for his day-to-day activities. They also concluded that he would not require further surgery or physiotherapy and that his loss of movement was likely to be permanent. They emphasised that the Claimant was already suffering from a number of pre-existing medical conditions which were unconnected to the alleged accident.

The parties instructed rehabilitation costs experts to interview the Claimant at his home, assess his current and future needs and provide a view as to the likely costs involved. The Claimant instructed Ms Hill of Steddy Disability Associates and the Local Authority instructed Ms Aykroyd of Tessa Gough and Associates. Ms Hill and Ms Aykroyd discussed the matter and prepared a comprehensive Joint Statement.

We were pleased that there was a significant amount of agreement between the experts and the upshot of their evidence was that the Claimant’s claim for care/occupational therapy costs was assessed in the region of £11,000. This compared with the sum of £33,811.68 claimed in the Schedule of Special Damages. The level of rehabilitation costs was so low because the Claimant was already suffering from a number of existing medical conditions which were totally unconnected to the accident, including the fact that he had sustained an amputation of the left leg below the knee.

Notwithstanding the fact that the Claimant was given permission to increase the pleaded value of his claim to damages not exceeding £150,000, it became clear that the true value of the claim was significantly less than this. This became evident when the Claimant made a Part 36 offer of £28,000 shortly before trial. The offer was rejected.

Trial

The matter was listed for trial on 15 and 16 August 2017. The trial was in relation to the issues of factual causation, liability, medical causation and quantum. The parties agreed that there was no need to call the expert witnesses to give oral evidence at trial in view of the large measure of agreement between them.

There then followed what can only be described as a sequence of highly unusual events.

We were contacted by the Claimant’s Solicitors just over a week before trial and were informed that there were some problems in relation to the Claimant and his witnesses. They informed us that they had not spoken to the Claimant for some time (which we thought was unusual) and that they had been informed by his carer that he was not well. They also informed us that the carer had fallen in Merthyr Tydfil town centre, had fractured his ankle and was in hospital awaiting surgery. We asked if this meant that the trial would have to be adjourned, but were informed that the carer would be well enough to attend court!

We had further conversations with the Claimant’s Solicitors during the next few days when we expected to be informed that an Application would be made to adjourn the trial or that the claim had been discontinued. However, we were informed that the Claimant and his carer would attend the trial.

We attended the trial at Cardiff County Court on 15 August 2017 when the matter was listed before the designated Civil Judge, His Honour Judge Robert Harrison. We were informed by the Claimant’s Solicitors that the Claimant was not present as he had been taken ill overnight and transported to Prince Charles Hospital for treatment upon the advice of his carer. We took the view that the case could not proceed if the Claimant was not present, but the Judge wanted further information regarding the Claimant’s medical condition and inability to attend court.

The Claimant’s Solicitors made several telephone calls to the Claimant and to Prince Charles Hospital in order to obtain updated information regarding his condition. The upshot of this was that we were eventually informed that x-rays of the Claimant’s chest and leg were clear and that he had been discharged by the hospital. We were informed that the Claimant would be well enough to come to court on the following day ie – 16 August 2017. The Judge adjourned the trial until the following day whilst making it clear that the Court should be informed of any further difficulties immediately.

We returned to the office and shortly afterwards received a telephone call from the Claimant’s Solicitors in which they said that the Claimant had suffered further problems and would not be well enough to attend Court the following day as originally intended. We agreed to their request for the trial to be vacated and to be re-listed at a later date.

We have to say that we were very suspicious of the Claimant’s admission to hospital and his inability to attend Court given the history of the matter and the events leading up to the trial. Nevertheless, we were obliged to accept that the Claimant would not be well enough to attend Court. 

The Claimant was ordered to disclose the hospital records and x-rays relating to his attendance at hospital on 15 August 2017. The Claimant eventually did so, but the records and x-rays were not entirely consistent with the Claimant’s version of events.

The matter was eventually re-listed for trial before His Honour Judge Patrick Curran QC on 4 and 5 December 2017. The Claimant and his carer attended Court on this occasion and gave oral evidence. The two witnesses gave evidence on behalf of the Local Authority.

The evidence of the Claimant and his carer was riddled with inconsistencies and discrepancies throughout and their evidence was different in many respects from the evidence contained in their signed Witness Statements. 

The Local Authority’s witnesses gave evidence regarding the system of reactive inspection at the park in accordance with the contents of their signed Witness Statements.

The Judge referred to the inconsistencies in the evidence of the Claimant and his witness and concluded that that the accident had not occurred as alleged. He also found that if the Claimant had established that his accident had occurred as alleged, there was no breach of statutory duty or negligence on the part of the Local Authority.

The Judge gave Judgment for the Local Authority and ordered the Claimant to pay the Local Authority’s costs of the action not to be enforced without further order. Unfortunately, this was a QOCS claim and it was not possible to recover any costs from the Claimant.

Comment

The case is important in highlighting the benefit of taking a robust stance in relation to a suspicious claim. Whilst there were numerous inconsistencies in the Witness Statements and documents, there was insufficient evidence to enable the Local Authority to plead and/or raise the issue of fundamental dishonesty. The Claimant was required to prove his claim in Court on oath and failed to do so.

The Claimant’s Solicitors gave the impression throughout that they were content and willing for the matter to proceed to trial. However, it was clear that they had concerns about the case because they approached us on a number of occasions (particularly in the latter stages) and asked if the Local Authority intended to make any offers of settlement. We informed them that no offers would be made and that the case would have to proceed to Court. 

 

Whilst we were concerned that the Court was likely to be sympathetic towards the Claimant given the circumstances of the alleged accident, we were also aware that the Claimant had a colourful history which was likely to be relevant given the issues of integrity at stake.  The Local Authority were equally adamant that they wanted to contest the claim and readers will appreciate that this stance was entirely vindicated given the outcome of the case.