Council trips up !
Posted: 6th October 2016
A judge hearing a pensioner’s claim against a district council for compensation after she was badly injured said it sounded like the nearby theatre was “a sick bay for the walking wounded”.
Adam Burgan, manager of The Octagon Theatre in Yeovil, said that one or two people a year had been given first aid at the theatre after tripping over dangerous kerb stones in the adjoining Petters Way car park. The court heard evidence that over a period of 12 years there had been at least eight such complaints and claims from injured people – contrary to the assertion on behalf of the council that there had never been any similar incidents in the past.
On the evening of 20 October 2012 Rosalie McLachlan left The Octagon Theatre with her husband Keith at approximately 9.30 to return to their vehicle a few yards away in the neighbouring car park. On the way back to the car, the 78 year old tripped and fell over one of a number of kerbs laid in between the parking bays. She broke her nose and her wrist, suffered damage to her teeth which cost more than £1,000 to repair and sustained a number of other minor injuries to her hands and shin.
The licensed lay minister, then living in nearby Mosterton, spent many weeks in recovery and was unable to live her normal very active life which included membership of four dance groups and lay reading at a number of churches within her area. She still suffers some discomfort as a result of her injuries.
She complained to the South Somerset District Council about the kerbs which had been installed ten or more years before to discourage anti-social behaviour – by “boy racers” – in the Yeovil town centre car park during the night hours. They did not respond and Williamsons were instructed.
The district council subsequently asserted that it had done all that was reasonably required of it as occupier within the terms of the Occupiers Liability Act 1957 to ensure the reasonable safety of visiting members of the public such as Mrs McLachlan. The council’s insurers, Zurich Municipal, told Williamsons in correspondence prior to proceedings that there had never been any similar incidents in the past.
Those claims on behalf of the council proved to be demonstrably false as Williamsons uncovered no less than eight prior complaints from visitors to the car park who had fallen and sustained injuries, some of them very similar to the claimant’s. Proceedings were issued in September 2015 and the claim remained hotly contested in all respects until trial.
On Friday 30 September following late transfer to the county court in Gloucester, His Honour Judge Harington heard evidence from the claimant and her husband as well as five witnesses called on behalf of the district council. He was also shown evidence of the many complaints that the defendant and its insurers had concealed including a letter written by one victim shortly before the claimant was injured.
Commenting on that letter, Judge Harington observed:
“It is difficult to think of a starker picture and I find it mind-boggling that the defendant did nothing”.
The court found that the kerb was a danger to pedestrians at night. The evidence established that the South Somerset District Council had failed to discharge its duty to ensure the reasonable safety of visitors to the location.
Specifically, it was said that there could have been lighting installed in empty tree beds situated on each side of the kerb where the claimant fell. Whilst the kerbs had been painted, the paint had faded. In any event, it was not reflective paint as it should have been. Barriers could have been erected to prevent access to the hazard. Warnings signs could have been, but were not, deployed.
The judge found also that the claimant, in threading her way through parked cars with her husband, had taken the safest route to avoid moving traffic in the poorly lit area. A suggestion from the barrister representing the district council that the claimant should perhaps have waited 10 minutes before returning to her car, whilst the traffic cleared, was met by stifled laughter in the court and evident surprise from the judge.
Quizzed about what counsel for the claimant, Tom Challacombe, said was the obvious requirement of a risk assessment, Property and Engineering Services Manager Gary Green for the council revealed that reliance had been placed on a risk assessment carried out 16 years earlier for a car park in another area of Yeovil.
Pressed further, he acknowledged that the only risk assessments that had been conducted were from a criminal perspective, with the aid of the police, to counter anti-social behaviour. Hearing from another witness, Principal Engineer Ian Case, about shortcomings in the layout and lighting of the car park, the judge asked:
“How many people have to injure themselves before you realise there is a design issue?”
Mr Case’s response was “I can’t answer that”.
Insurance and claims technician Jacky Pang, who said she was unaware of the removal of a number of these kerbstones after Mrs McLachlan instructed Williamsons, produced 22 photographs of the car park to demonstrate that visibility was good. Under cross-examination she was forced to accept that none of them showed the area where the claimant had fallen.
Despite a clear indication from the court of the likely outcome, the trial continued into the afternoon at the end of which judgment was entered for a sum of a little under £7,000 and the claimant’s costs of the proceedings.
Commenting on a welcome result, Williamsons director Michael Williamson said, “Our lady client wanted to pursue this case not for monetary advantage but to try and force the council to take action where they had wilfully failed to do so for many years.”
“It’s an over-simplification to say that a defendant will be liable where there have been similar accidents in the past but the number of similar occurrences in this case was remarkable. The failure of the district council to deal fairly with previous claimants and to act in the interests of the public as a whole is deeply worrying.
He added, “Even more concerning – though no great surprise to us – is the disgraceful behaviour of the defendant and its insurers in denying the existence of highly relevant previous claims which of course they had handled and of which they held records that we ultimately extracted from them. Insurers have in recent years persuaded the government and the Ministry of Justice to enact serious penalties for claimants who are found to have been “fundamentally dishonest” in their claims.”
“The behaviour of this major liability insurer is about as fundamentally dishonest as one can imagine – yet there are no sanctions”.
“It’s an important reminder of the valuable wider role played by genuine accident victims and respectable claimant lawyers not just to secure compensation to which victims are entitled by law but also to remind the wrongdoers of the standards of safety that they are tasked and paid to maintain”.
If you have suffered injury and loss as a result of a fall in a public place – particularly Petters Way car park in Yeovil – during the last three years then contact us without delay to see if you too have a legitimate claim. Email or telephone 01460 200450.