The following case handled by Assistant Solicitor, Craig Phillips, in the Occupier’s and Public liability department was published in the May 2015 edition of the Personal Injury Focus magazine.
LeGassick v 1) Sainsburys PLc 2) Essex County Council 2014
The Claimant, a minor, was traversing a pedestrian footpath that was suspended over the first Defendant’s land. Whilst under the supervision of a child-minder, as the Claimant was collecting leaves and acorns her face collided with a sharp exposed metal edge of a pedestrian handrail on the footpath and the Claimant sustained injury.
Evidence disclosed by the first Defendants prior to the issuing of proceedings noted that a works order had been raised for the repair of the handrail shortly after the Claimant’s accident. The first Defendant’s put the Claimant to strict proof in regards to the accident as having occurred as a result of allegedly having no such record of an incident having taken place.
The second Defendant denied negligence prior to litigation on the basis that they were unable to identify any such defect similar to that described by the Claimant during a post accident inspection and further relying on a section 58 defence for the locus.
Part of the handrail was noted to require repair by virtue of the second Defendant’s inspection on 28th October 2011. From the documentation disclosed from both Defendants it was not clear if this defect from 2011 was ever repaired an indeed whether it was the same defect that caused the Claimant’s injuries.
Instructions were obtained to issue proceedings against both defendants.
Allegations of Negligence against the first defendants as follows:
- Allowing the defect to remain in situ:
- Failing to undertake any or any adequate repair of the defect
- Failing to warn the claimant or her child minder by way of signs, tape or fencing as to the existence of the defect;
- Failing to create and implement any or any adequate system of regular inspection of the path; and
- Knowing the handrails had in the past been target of thieves, failing to undertake an increased inspection of the integrity and safety of the handrail.
Allegations of negligence against the second defendants as follows:
- As above but adding breach of statutory duty arising from s41 Highways Act 1980
- Noting that the defect was recorded as requiring repair on 28th October 2011 within 28 days by way of their own inspections the second defendant was put to strict proof that such repair was carried out
The first Defendant’s asserted that the locus was a public right of way and therefore they could not be the occupiers for the purposes of the Occupiers’ Liability Act 1957. They also pleaded they owend the claimant no duty to maintain the locus. It was further pleaded that the hazard was not foreseeable on the basis that the missing section of the handrail causing a sharp exposed edge to manifest was as a result of theft.
The second Defendant disputed that the locus was an adopted highway despite periodically inspecting the same and noting the need for repairs to the handrails in October 2011 prior to the claimant’s accident. They further pleaded that the handrail was a piece of street furniture therefore s41 of the Highways Act 1980 would fail to apply in the circumstances. In any event the second Defendants utilised and sought to rely upon a s58 Highways Act 1980 defence.
Following the service of CPR 18 questions on both Defendants a CPR 36 offer was made by the first Defendant’s in the sum of £9,000.00. This was accepted by the claimant and subsequently approved by the Court on 14th November 2014.
The claimant, a young girl, was born on 24th November 2008 and 4 years old at the time of the accident. She sustained 2 lacerations to her face diagonally across her forehead which ended at the top of her cheek bone. Hospital was attended immediately following the incident and steri strips and glue were applied to the site of injury.
At the time of examination by a Consultant Plastic Surgeon some 4 months after the incident the 1st scar measured 3cm long and 3mm width at its widest point. The second scar was described as faint and measured 2.5cms.
Quantum was advised by Counsel to be in the region of £7,650.00 – £8,075.00 which incorporated a 25% reduction in light of litigation risk.
Injury duration: permanent
Background to damages:
The case settled on a global basis with no particular breakdown of damages. However, the following breakdown is estimated:
General Damages: Pain, suffering and loss of amenity: £8,750.00
Past losses: £100.00
Future treatment costs: £50.00
Craig Phillips of Express Solicitors acted for the Claimant.