GARY BANKS v DAIRY CREST GROUP PLC (2017)

Published in Lawtel issue 18 May 2018

Solicitor Robert Weeden

Total Damages: £25,000 (£25,494.69 RPI)
PSLA: £14,000 (£14,277.02 RPI)
Trial/settlement date: 14/7/2017
Type of Award: Out of Court Settlement
Court: Out of Court Settlement
Age at trial: 48
Age at injury: 45
Sex: Male

The claimant, a 48-year-old man, received £25,000 for the knee injury he sustained during the course of his employment in August 2014. He underwent an arthroscopy but continued to suffer discomfort in the knee and there was a risk that he would suffer further knee conditions in the future.

Employers’ Liability; Occupiers’ Liability: On 29 August 2014 the claimant employee (C), during the course of his employment as a maintenance engineer on a production line for the defendant employer (D), was inside a pallet machine, kneeling on a pallet, to repair sensors and wiring. The operations manager was standing watching on a gantry. There was always a high level of urgency to repair broken machines when one broke. On the day of the accident, when C attempted to stand, the instep of his right foot slipped into a gap of approximately one inch in the pallet on which he was kneeling. His right knee slipped inward towards his left knee.

C sustained injury and brought an action against D alleging that it was negligent in failing to comply with best practice and standards, pursuant to the Management of Health and Safety at Work Regulations 1999 and the Provision and Use of Work Equipment Regulations 1998, and in breach of the Occupiers’ Liability Act 1957.

Liability disputed.

Injuries: C sustained injury to the right knee.

Total injury duration: permanent

Effects: C sustained an acute torsional injury to the knee, an unstable medial meniscus tear and an acute large bucket handle tear of the medial meniscus.

Following the accident C was taken immediately to an accident and emergency department at hospital where he was provided with bandages, crutches and Voltarol and it was planned that he would be seen at a local hospital the following day. On 1 September 2014 he was seen at a different accident and emergency department where it was believed that he had sustained a soft tissue injury to the biceps femoris tendon and a sprain to the medial collateral ligament. He underwent a physiotherapy review and was given exercises to perform.

On 23 September 2014 C saw an orthopaedic surgeon. He had lost 20 degrees of full extension in the knee and suffered medial joint line pain. There was a positive result on a meniscal test.

On 22 October 2014 C underwent arthroscopy of the right knee. He recovered well from surgery and the knee looked pristine apart from a few minor grade II changes in the medial femoral condyle. He subsequently underwent further physiotherapy.

After the accident C used crutches for approximately four months. His mobility was very limited for approximately five months. He required help from his wife with carrying out personal care tasks and chores. Before the accident he had played football daily with his son but after the accident he was unable to do so.

At the date of a medical assessment on 22 September 2015, C continued to feel medial discomfort daily, particularly in damp or cold weather. He felt weak in the knee and suffered discomfort after kneeling for a long time. He did not describe any recurring locking or instability but stated that the knee could jar if he jumped on it. He was also only able to climb or descend stairs one at a time.

Prognosis: After the accident there was a predisposition to C suffering a future degenerative disease, although two thirds of the predisposition was attributable to a pre-existing minor degenerative change, only one third was attributable to the index accident. There was also a risk of approximately 40 per cent that he would develop mild to moderate medial compartment symptomatic degenerative disease of the right knee at 15 years after the accident. As a direct result of the index accident there was a risk of approximately 20 per cent that he would develop advanced symptomatic post-traumatic osteoarthritis of the knee which might result in the need for a total knee replacement.

Out of Court Settlement: £25,000 total damages

Background to damages: The machines were subsequently altered in such a way that engineers no longer needed to go into them to carry out repairs.

The case was settled on a global basis with no particular breakdown of damages. However, the following breakdown was estimated by the claimant’s solicitors:

Breakdown of General Damages: Pain, suffering and loss of amenity: Between £13,000-£15,000.

Simmons v Castle [2012] EWCA Civ 1288 10 per cent uplift: applied.

Express Solicitors Ltd for the claimant

This Quantum Report was provided courtesy of Robert Weedon of of Express Solicitors Ltd, solicitors for the claimant.

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