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news from Dowse & Co

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It was 1894 when George J Dowse founded the solicitor’s practice that still bears his name in Dalston today.

This photograph shows Mr Dowse, solicitor, who founded our firm Dowse & Co in 1894

Those were the days when the public arrived in their thousands to Dalston Junction by train from the former Broad Street station in the City, to see the elephants and acrobats performing at Dalston's circus, the North London Colliseum and Amphitheatre.

Sir Robert Fossett's circus performed at Dalston's circus in its opening season in 1886. His great grandson still owns and runs a circus today

Perhaps Mr Dowse advised the art dealer living at 10 Dalston Lane who gave up his Georgian home in 1898 to enable the sumptious new entrance to be built when the circus was converted to the Dalston Theatre of Varieties.

This 1898 architect's drawing shows the original circus entrance of the Dalston Colliseum and the proposed new entrance for the Dalston Theatre which was to be built in front of it at 14 Dalston Lane

 

Mr Dowse may later have advised Hackney's very own international star of the music hall, Marie Lloyd, who thrilled the crowds at the Dalston Theatre of Varieties and who lived locally in Graham Road E8.

Marie Lloyd - Hackney's very own international star of the Victorian music hall

She had been summoned to the Town Hall by the Burgesses of Hackney to answer allegations of licentious and lewd performances. But her performance before the Burgesses was said to have been such innocence and charm it was ranked to have been one of her finest. A triumphant acquittal!

Dalston Lane at the turn of the century. Opposite Dalston Theatre, which has now been demolished, you can see the buildings where Dowse & Co now has its offices at 23-25 Dalston Lane.

Mr Dowse may also have known the Mayor of Hackney, Herbert Morrison, who in 1920 opened the “the greatest cinema in the British Empire" which Dalston Theatre had by then become after fortunes had been spent.

A sketch of Dalston Theatre in 1886 which in 1920 became the cinema later known as the Gaumont

But those were the old days when the Courts were only for the rich and justice seemed to favour the highest bidder.

But by 1945, after the heartache of the second World War,  Herbert Morrison had become a government Minister working for equality and establishing the welfare state.  The Legal Aid Act of 1949 established the principle of equal access to justice for all regardless of wealth. People of “small or moderate means”, of which by then Dalston had no shortage, were finally entitled to a solicitor to champion their claims and protect them from injustice.

But what would Mr Dowse think of the “Access to Justice” reforms since the 1990’s when even pensioners are disqualified from legal aid because, despite their poverty, they own their own homes? Or of the groaning bureaucracy where completion of a 7 page application to the National Assistance Board in 1949 has been replaced with 27 pages of box ticking for the Legal Aid Agency?

Or which has disenfranchised millions of people and spawned an industry of “claims farmers” who are allowed to tout for clients’ claims and sell them on to solicitors for a handsome fee?

80% of legal aid solicitors are in small firms.

A combination of bureaucratic overload and relentless cuts has meant that over 3,000 independent legal aid firms have disappeared from our high streets in recent years.

The latest rationalisations are aimed at cutting the number of legal aid firms still further.

This threatens competition in the marketplace, the survival of local professional services and removes clients’ freedom of choice.  Clients will have to travel to large “one stop shops” (the Legal Aid Commission's “preferred suppliers”) staffed with armies of unqualified, and badly paid, para-legals.

For over 100 years Dowse & Co has served its community whether rich or poor.

The current legal aid reforms further erode the benchmark of professional advice for the needy and of equal access to justice.

But despite this, Dowse & Co continues to strive to provide that equal access to justice to its locality and Londoners alike.

 

30 April 2014 ~ Maternity Discrimination and Shared Parental Leave – A baby step in the right direction?

There is new concern about a rise in maternity discrimination claims brought by employees against their employers. This has led to the government announcing a £1 million investigation into the impact of maternity discrimination. The investigation is being carried out by the Equality and Human Rights Commission and will focus on employers’ practices towards employees who are pregnant or on maternity leave. The Commission will investigate employee's experiences in the workplace and provide evidence on the extent, causes and effects of pregnancy and maternity discrimination.

Under the Equality Act 2010, it is unlawful to treat a woman unfavourably because of her pregnancy or because of an illness suffered by her as a result of her pregnancy. It is well established in case-law that no comparison is required either with how a man would be treated in an equivalent situation or with how a non-pregnant woman would be treated. It need only be shown that the discrimination is because of the woman’s pregnancy. In the recent example of Nixon v Ross Coates Solicitors the employee requested a move to another office following gossip relating to her pregnancy. This request was refused by her employer. The Employment Appeal Tribunal found such refusal was unreasonable and amounted to pregnancy related discrimination. In part, due to this increasing concern about pregnancy related discrimination, the government is introducing shared parental leave from April 2015. Shared parental leave may help challenge stereotypes many women are faced with in the workplace.

Shared parental leave

In April 2015 parents will be able to share parental leave allowing parents to take up to a total of 52 weeks off work after having or adopting a child. This leave can be shared between parents, and mothers can choose to return to work more quickly and give their unused allowance to the fathers. The idea is that the new system will allow parents to choose a pattern that works for them. The government is hoping that it will encourage fathers to play a more active role in their children’s lives and that it will reduce the burden mother’s face in terms of balancing childcare and employment. Some commentators have said however, that the changes do not go far enough to improve the situation. A concern is that fathers will not exercise their rights or will be put off from exercising their rights by employers. Further, many families will simply not be able to afford the father not working. The wage parents will receive whilst on parental leave will only be at the statutory rate unless employer’s own rules are more generous. Whilst increasingly women are becoming the main breadwinner, for most families men remain the main earner. There has also been criticism from employers that that new system will be too onerous on small businesses and are worried that employees will abuse the new rights. However, there are safeguards in place to ensure that this does not occur. Employees must indicate to employers how they plan to share their parental leave at least eight weeks in advance. Furthermore, employers will be able to insist that employees take their leave in continuous blocks, although if the employer agrees it can be take in several shorter blocks of time. The employment rights of parents and the burden on employers is something which of course needs to be finely balanced. Shared parental leave is a positive step in challenging the negative stereotypes of mothers in the workplace and may over time assist in reducing the still too frequent cases of women facing pregnancy related discrimination at work.


27 November 2013 ~ Employment Law Advice: New Fixed Fee Service

(and free initial advice)

Cuts to legal aid in April 2013 included the ending of Legal Help advice and assistance on employment law.

At Dowse & Co we are committed to maintaining access to tribunals where workers have been denied their rights. We remain committed to your rights at work. Besides a free initial telephone consultation, we now offer the following fixed fees* for advice and assistance which we hope will be affordable for clients:
An unpaid wages (including holiday pay)/unlawful deductions claim:
to advise on substantive merits and procedure, and prepare a claim form to be issued by the client - £150 plus VAT.
An unfair dismissal or redundancy claim:
to advise on substantive merits and procedure, and prepare a claim form to be issued by the client - £250 plus VAT.
A discrimination claim: </em> to advise on substantive merits and procedure, and prepare a claim form to be issued by the client - £425 plus VAT.
Multiple claims:
where a claim includes two or more of the above claims the fixed fee will be 100% of the highest fee and 50% each of the lower fees. For example, a claim including discrimination and unfair dismissal will have a fixed fee of £425 plus £125 = £550 plus VAT.

*Note: These fixed fees will not apply where documents to be considered exceed 100 pages, and in those circumstances we provide an individual estimate of costs. For any legal work beyond preparing a claim form we will advise about the funding options available in the circumstances, including offering “no win no fee” in suitable cases. The fixed fees apply from November 2013 until further notice.

3 January 2017 ~ Jonathan and the oil spill

Jonathan (our client’s name has been changed) was cycling to work when his bike shot out from under him as he ran over a patch of oil on the roadway. He suffered a serious fracture of his right femur. Fortunately, other road users were able not only to attend to him but to see the presence of oil on the highway. There was no obvious culprit, but one witness suggested it might be a council rubbish lorry exuding spillage as it proceeded on its collection.

In these cases it is important to try to identify the defendant so that the claim can be made against that driver’s insurers. If a defendant cannot be identified, a claim is made against the Motor Insurers Bureau (MIB) under the “Untraced Drivers’ Agreement”. Under this agreement, the MIB will pick up liability for injuries caused by drivers who cannot be traced. In the case of a spillage on the floor, they have to be satisfied that the spillage was identifiable and posed a risk. In this case, not only did the emergency services attend and confirm the presence of oil on the floor, but they were able to report it to the council, who sent out a cleaning team to remove it. So the MIB were not able to deny liability to compensate. The amount of compensation was heavily disputed, however. The first element was the value of the claim itself. A medical report prepared by an orthopaedic consultant appointed by the MIB was fair, but we posed questions to the consultant to tease out of him information which his report did not give and which was relevant to the length of time Jonathan was unable to work following his accident. It was also necessary to ask the consultant whether the metalwork which had been inserted into Jonathan’s hip to stabilise it when the fracture was fixed could come out, given that Jonathan had reduced bone density. The consultant believed that the metalwork could be removed without adverse effects and that when it did come out, Jonathan would experience a marked lessening of pain. There would, however, be a period of incapacity following removal while he recovered from that second operation. Defendant insurers and the MIB will always take a low conservative valuation of injuries as they are often guided by a computer programme giving approximate values. In this case we were able to improve upon their offer considerably by providing reported case decisions upon similar injuries. There were additional claims for Jonathan’s loss of income, the expenses he would not have incurred but for the accident (cost of ready meals at home, cost of travel and the like) and all of these figures were disputed by the MIB.

In the event, Jonathan recovered £32,000 damages together with the MIB fixed costs under the Untraced Drivers’ Agreement. These fixed costs are subject to a maximum of £3,000 and VAT and inevitably leave a shortfall which has to be paid from the claimant’s compensation. Jonathan’s compensation was paid into a Personal Injury Trust to preserve his entitlement to means tested benefits. It is vitally important that if an accident victim is getting means tested benefits, they do not deprive themselves of those benefits by receiving a large lump sum of money that will bring them over the threshold for benefits entitlement.


1 February 2016 ~ Leonard v Metropolitan Police

Leonard, a cautious and careful cyclist, was half way through executing a right hand turn along a busy road in Islington when suddenly and without any warning he was struck by a Police car driving at speed on the wrong side of the road to answer an emergency call. Leonard had no recollection of the accident until he woke up in hospital.

He suffered lacerations to his scalp, to his face, fractures to his cervical vertebrae, cuts and bruises to his limbs and torso, some of which required skin clips. He was a week in hospital.

When he was discharged, recovery was slow. He had to rely on a neck brace for a couple of months, he suffered dizziness, headaches, neck pain, pains in his feet and of course scarring which he treated carefully but which would never disappear.

An orthopaedic expert provided the foundation report on his physical injuries.
A neurologist reported that he had suffered a mild traumatic brain injury which gave rise to symptoms, including the dizziness, lasting up to 12 months.
A plastic surgeon reported on the scarring and was able to indicate which scars would become paler with time and which were likely to be permanent. He did not believe the latter would be improved either by surgery or laser treatment.
An ENT expert reported that the dizziness was likely to have been caused by the accident at least for a year or so. (In fairness to the defendant, the MPS had paid for rehabilitation treatment which included expert assessment of “vestibular dysfunction” and had paid for vestibular physiotherapy during his recovery).
An ophthalmologist examined him and reported on “visual field disturbance” experienced since the accident.
There was a psychological element to Leonard’s injuries as the whole episode had aggravated a previous depressive disorder.

Leonard was unemployed at the time of the accident and so it did not cause him any loss of income, but in addition to all his physical injuries, the accident deprived him of the loss of enjoyment of his bicycle (he did not feel able to return to cycling) and prevented him from attending to his garden, his pride and joy.

The Metropolitan Police had accepted liability from an early stage and had behaved honourably towards Leonard by paying for the physical and psychological therapy that he needed to get back on his feet. (The emergency services owe the same duty of care as other road users and are not excused negligent driving because of the service they perform.)

We established a good working relationship with the case handler for the Metropolitan Police, which enabled Leonard to be placed at the centre of the whole claims process, as the claimant should be. Where the legal representatives on both sides are sensible in the conduct of a case, it generally pays off. Cases get sorted out quicker and the victim can get back to their own life.

After negotiation, the MPS agreed compensation at £35,000, money which was placed into a Special Needs Trust to avoid Leonard losing his entitlement to means tested welfare benefits. They also paid Leonard’s legal costs.


4 January 2016 ~ Harry v Bike Republic

Harry, a keen commuting cyclist bought a “Flying Machine Base Urban Model RD2” from the defendant’s shop. The bike has a Gates carbon belt drive with an 8 speed internal hub. The belt engages with an alloy rear sprocket and the inner teeth of the sprocket, where it sits on the hub, suffered shearing/wear causing it to slip as he set off from a standing start. This happened on two occasions before the saw the reason his right leg gave way as he attempted to set off from traffic lights.

Harry had reported the problem to the bike shop and in fairness to them, they privately admitted that other customers had reported similar problems and the manufacturers had reverted to the use of steel sprockets. Harry recovered the damaged sprocket from the shop, which was sensible, as any expert would need to examine it to provide an opinion on the cause of the defect/failure.

In law, the sprocket was defective under the EU Product Liability Directive and the Consumer Protection Act 1987. Any expert evidence needed to prove this defect was likely to be expensive. Manufacturers don’t like admitting defects in materials or construction and will often go to great lengths to allege customer misuse.

In this case the shop’s insurers admitted liability early on and expert liability evidence was not needed. Harry had suffered tendon/ligament damage to his knee and he had organised sports rehabilitation physiotherapy himself for which he had paid. We obtained a report from an orthopaedic doctor with an interest in knee problems. His report identified the likely length of time the knee had been affected by the injury. (Harry had since resumed cycling).

The shop’s insurers made an offer of £4,500 to compensate him for the injury, the medical expenses he had incurred and his other out of pocket losses (the shop had paid for repairs to the cycle).

The insurers also paid the recoverable costs Harry incurred. The lesson of this case is that where a product is alleged to be defective, retain the product until it can be examined by an expert appointed by your solicitor. If the item is released to the defendant, it may be sent off for destructive testing thus depriving you of the evidence you need to prove the case.


26 September 2014 ~ Traffic accident (but no collision) - cyclist recovers £10,000

A car pulled out of the petrol station straight into the path of Rory’s (our client’s name has been changed) push bike. In performing an emergency brake, Rory went over his handlebars and as he attempted to break his fall on the road, he suffered undisplaced fractures of both wrists and damage to one front tooth which developed crazing of the enamel. He also suffered a permanent cosmetic scar on his calf.

Ironically, Rory’s quick reactions saved the car from sustaining any impact damage. This was repaid by the car driver pointing out to passers by, who had stopped to help, that his car was unmarked and that Rory must have just fallen off the bike through his own fault (cyclists do these things, you know!).

Although the garage had no CCTV cameras facing the road, (we went along to investigate), a helpful motorist who had given his details to Rory, provided a very clear witness statement** which put the blame squarely on the driver, whose insurers took a more sensible attitude than he had. They did not dispute liability and Rory recovered £10,000 for his injuries, including his out-of-pocket losses and the cost of a new porcelain veneer for his tooth.

**Guidance: If you are ever in a road traffic accident always try to get the name and address of any witnesses, or ask some else to do so if you are not able because of your injuries.


23 July 2014 ~ Over £12,500 recovered for injured cycle courier

Our client Jim (name changed) was knocked off his bike in the City by a black cab in January 2014.

Liability was admitted. Jim suffered a serious injury to his right shoulder and was not able to work as a courier for about 10 weeks. He had only a small amount of savings to live on.

Before Jim had had time to speak to us, the cabbie's insurers - Haven Insurance - offered £2,000 to settle his claim. This is how they put it to him:- "We offer you the opportunity to settle your claim with us directly in the sum of £2,000. Traditionally, this is done by seeking the services of a solicitor; however we offer a service that is very much similar to that offered by a solicitor. What we offer to you directly is the option to conclude your injury claim without the need for further inconvenience".

Given that Haven represent no one but the interests of their shareholders and policyholders, it is disgraceful that they suggest to accident victims that they provide a service similar in any way to an independent solicitor, who will only be concerned to represent the interests of his client.

After we were instructed to act for Jim, the insurer's next gambit was to make an offer of £6,750 before we had any medical evidence about the extent of the injuries and any disability. This caused Jim anxiety because if he rejected the offer and failed to beat it at a later trial he would be penalised in costs. Fortunately we were able to arrange a medical report quickly and on that basis valued the claim at over £15,000.

After hard negotiation Jim decided to accept an offer of over £12,750: six times the original offer from Haven.

Insurance companies work on the basis that a good percentage of accident victims will accept the first offer made and before they have sought legal advice. Don't be tempted; you are likely to be accepting a grossly inadequate settlement which you will come to regret.

Consult an experienced solicitor. Don't let insurers treat you like a fool!


23 April 2014 ~ Cyclist Hits Pothole Outside Battleship Building, Harrow

On 6 November 2012 David (our client's name has changed) an experienced cycle courier was halfway through his workday of deliveries around London, and looking for the safest route to the Battleship Building on the Harrow Road.

As he approached the building at around 1:30pm, David’s attention was distracted by the traffic and confusing roads under the A404 overpass. Unbeknownst to him, David was approaching two potholes at a speed of about 15 mph. As his front wheel clipped the potholes, he lost his balance and crashed to the tarmac.

David suffered a broken wrist, multiple soft tissue injuries and lacerations. He was unable to continue his job as a courier, greatly affecting his family’s income.

He instructed Dowse & Co in the knowledge that we had acted for many other pothole victims.

After reviewing the case, we determined that Westminster Council was responsible for the highway directly under the A404 overpass. Council highway authorities are under a statutory duty to maintain public highways to a safe and reasonable standard. Had the highway authority maintained this road, David would have been in good health and not out of work for many months.

The defence
As with many pothole cases, Westminster Council rested its defence on the grounds that they inspected roads in the borough on a regular basis (monthly in this case). The Council provided detailed inspection records. But they made a critical error. They claimed that anything over 55 millimeters deep would be deemed a defective pothole thus requiring repairs.

We were able to research this topic and provided evidence that under the borough’s Highways Maintenance Management Plan published in 2005, a defective pothole must be deeper than 22 millimeters to require fixing. Based on David’s photographs provided from the scene of the accident, the two potholes in question were clearly deeper than 22 millimetres.

Further, we were able to demonstrate that the council inspectors failed to identify the potholes on two visits in late November and December, in other words after the accident, and the implication was therefore that they had also missed the potholes in October 2012, before the accident. So, while the policy was in line with a decent statutory defence the implementation was not, proving fatal to any defence, in our view.

The council at no time admitted fault and court proceedings were commenced on 5 November 2013, on behalf of David, and after we had endeavored to settle the claim in October.

In January 2014 the defendant made an acceptable offer in line with our valuation. Our client recovered £6,800 damages.

Pothole cases are often aggressively defended by local authorities and a high proportion require the claimant to issue court proceedings before any settlement is possible. In such circumstances you need experienced and expert legal advice on the merits of your case to be confident about pursuing a claim successfully.

We firmly contend that holding highway authorities accountable for potholes over time contributes to the safety of all road users in improved practice and maintenance.


26 March 2014 ~ Potholes in the UK and Cyclists: some advice

Every cyclist hits a pothole on the road sometime.

If cycling on the public highway in the UK, all local authorities have a statutory responsibility to maintain and repair the road such that it is reasonably safe for expected traffic.

If you are injured or your bike is damaged, the starting point is to determine if the pothole is a foreseeable danger to cyclists. There are no rules about what size pothole qualifies but a court will have to be convinced that it was dangerous enough to cause an accident in the particular circumstances and with regard to the road user: for example, gaps around a drain cover can be a real danger to cyclists but not to a motorist.

Potholes are a menace for bikes

Local authorities can defeat pothole claims by demonstrating that they have a robust inspection, repair and maintenance programme in place. So, although a pothole may have caused an accident if the council had acted reasonably to maintain the road, despite the accident, the claim will fail.

Compensation can be reduced for contributory fault if the court finds that a cyclists wasn’t paying enough attention to the road ahead (and ironically, the larger the hole the more likely that a council can run a successful argument), or if the pothole was on a familiar route, or near the cyclist’s home. All road users are expected to take reasonable care of their own safety, and that includes keeping a look out on the road ahead.

Make sure you take photos of the pothole and note its precise location. If there were witnesses take their details. Don't delay in seeking medical attention and tell your doctor about the accident.

At Dowse & Co we have a track record of vigorously pursuing pothole claims and have won many cases contested hard by local authorities.

Call Patrick Spence with any queries on 0207 254 6205.

7 November 2017 ~ Negligent repairs to paving - TfL settle for £25,000 damages

On 19 November 2015 Gillian (we have changed her name) was walking along Tooley Street next to London Bridge Station during the rush hour when she tripped over the raised edge of a paving stone. She suffered a fractured right wrist and severe injuries to her face which left permanent scarring.

Because Tooley Street is part of the Red Route Network the responsible authority for maintenance of the pavement was Transport for London. TfL denied liability. They argued that their maintenance records showed that Tooley Street was subject to weekly inspections to identify any defects on the pavement and that any such defects identified were repaired promptly. As part of their defence, TfL disclosed before any proceedings were issued their maintenance records. The records demonstrated that the defective paving stone had been subject to repairs four days before on 15 November 2015.

The TfL contractors responsible as part of their documentation had taken photographs of the pavement which enabled the precise paving stone to be identified as the same one responsible for our client's accident. In the face of the denial of liability, on behalf of our client we issued Court proceedings in the County Court alleging that the paving stone had been negligently repaired on 15 November 2015 and but for that the paving would not have been standing proud presenting a danger to pedestrians when our client tripped over its edge a few days later. TfL submitted a defence speculating that the pavement may have been subject to movement by heavy vehicles parking up on the pavement during deliveries to local shops. This however, was improbable given that the pavement was near to a bus stop and on a Red Route and without any obvious retail outlets nearby.

Before the Court issued directions setting down the claim for trial, TfL accepted an offer to settle the claim for £25,000 together with our client's reasonable costs. The compensation payment included a sum for remedial facial surgery to improve the appearance of the scarring.

Practice point: Local authorities responsible for the maintenance of public pavements are provided with a statutory defence under the Highways Act 1980 where they can demonstrate that they have a reasonable system of maintenance and inspection in place. Such a defence, however, will not save them where there is evidence as in this case that the maintenance was negligently performed. It was our submission that on the balance of probabilities a Court would have found that a paving stone should not have been rocking out of alignment within four days of repairs whose purpose was to prevent such rocking and ensure that the pavement was reasonably safe for pedestrians.


3 January 2017 ~ Edward and the missing grate - £65,000 recovered

Edward (our client's name has changed), a maintenance worker in a food factory, was called to service a machine. As he made his way there, he noticed an open grate in the factory floor and instructed his co-workers to close it. Unfortunately, they reopened it and left it unguarded so that when Edward stepped back, his leg fell down the pit and he struck his knee, suffering a serious cartilage tear. He tried to go back to work following this injury but could not manage it and particularly could not work in the cold factory environment.

Edward got another job working for a friend in a warmer environment but his injuries persisted, such that new films were taken of his knee which showed that his cartilage had re-torn. A further meniscectomy was required where the cartilage remnant was removed and repaired.

At the beginning Edward was represented by other lawyers and they made a claim upon the employer. Edward then moved to London and came to us. At this point, the employer’s insurers offered to settle Edward’s claim for £15,000, a figure we were able to advise him was really far too low to justify serious consideration.

Court proceedings were launched against the employer and the case wound its way towards trial. There was a very wide gulf between Edward’s claim and the Defendant’s valuation of it. In order to bridge this claim, a “joint settlement meeting” was held. At that point, the parties were about £30,000 apart and the joint settlement meeting broke up with the case unresolved.

However, after further efforts were made, settlement of Edward’s claim was agreed for £65,000 which included an interim payment of £10,000 which we had secured for him when we took over the case.

As a post script to this report, the costs claim we submitted to the Defendant’s solicitor’s was equally hard fought and went on for some months before we could account to Edward with his compensation. In this particular case, the insurers ended up paying more than we had been willing to accept initially because of the additional work they put us to in contesting costs. Disputes about costs can be time consuming and frustrating to the Claimant who has won his case but he cannot get full recovery of his money until costs are agreed and paid.


1 February 2016 ~ Carol; the spinal fusion that did not work

Carol had a history of lumbar spondylosis, scoliosis and spinal stenosis. She had had painful symptoms for about 10 years, and undergone treatments at hospital including a “lumbar decompression” but without relief.

On the recommendation of her orthopaedic specialist, she had a procedure known as “lumbar instrumentation, decompression plus fusion”. This required the insertion of metalwork into the spine with bone grafting. These operations lead to fairly intense pain but it was expected this would resolve after about 3 months. When it did not, further films were taken which revealed that one of the screws inserted in the operation had fractured. Revision surgery was therefore undertaken, four months after the original operation and the fractured screw was removed and replaced with an additional strengthening rod inserted. Carol has never been free of pain but the new screw has not failed. Carol was left with a claim for about six months of fairly serious additional pain caused by the failure of the screw. Was it a defective screw (in which case it would be a product liability claim) or was the clinician negligent in the way the screw was selected, inserted and relied upon?

In claims of this type, the claimant will generally sue both the manufacturer and the health authority in the knowledge that she has potentially a good case against one or other of them. It may not become clear until after proceedings have started who (if either) is more likely to be found liable. As long as the decision to sue both was reasonable, the unsuccessful defendant is likely to be ordered to bear the costs not only of the claimant but of the successful defendant.

Expert evidence to prove a defective medical component is extremely specialised and expensive. Claims of this nature are also often very prolonged and hard fought. Carol was in her 70s and working part time and so it was a tactical decision, taken early on, to make proposals for settlement to the manufacturer prior to instructing an expert, setting out Carol’s claim and offering to settle for a proper proportion of that, allowing for potential arguments about why the fracture of the screw happened.

Fortunately, the manufacturer saw the sense of this and agreed an overall settlement which enabled Carol to recover just over £11,000 for the six months additional pain, a loss of part time income when she was unable to work and the gratuitous care and help provided by her husband during the period of her disability.

The manufacturer also paid the bulk of Carol’s costs. She might have recovered more if a trial had found in her favour, but of course she might have lost if fault could not be proved on the part of either the manufacturer or the clinician. And of course the case might have taken years to come to trial.


4 January 2016 ~ Charmaine v Heathrow Airport

Charmaine, an American tourist in her early 60’s, was returning home and had passed through passport control at Terminal 1 at Heathrow. She had just deposited a water bottle in a rubbish bin and as she returned to put her cabin luggage through security, she slipped on a greasy floor and fell, suffering a displaced wrist fracture on her left dominant hand (a “Colles fracture”) and a non-displaced fracture on her left elbow. The manager of the terminal was sympathetic and behaved very properly. He told her to make a claim and paid for overnight hotel accommodation here.

When we lodged her claim, the claims handlers for the airport’s insurers repudiated it contemptuously. They blamed the cleaning firm which the airport employed and told us to redirect the claim to them. In fact the cleaning firm whom they named was the wrong one but even so, the circumstances of this accident and the place in which it occurred (an area of heavy footfall with a lot of directly employed staff supervising passengers’ security) made it impossible for the airport to escape liability and we told them so.

Charmaine had returned home to the US the next day. A metal plate was inserted into her left wrist and she was given extensive physiotherapy to mobilise the joint after the operation. We obtained a report from an independent orthopaedic surgeon in America in whose opinion “…all of the treatment that the patient received was fair, reasonable, necessary and causally related to the subject accident”. He assessed that she had a moderate risk of further arthritic change within the left wrist with some loss of function.

Provision of this medical report made no impression upon the insurance company’s claims handlers. As far as they were concerned, we were wasting everyone’s time pursuing a claim against Heathrow Airport.

So proceedings were taken and a Defence was served by the airport’s solicitors denying everything and alleging that if the accident occurred as Charmaine said “then the same was wholly caused or alternatively contributed to by her own negligence”. They said she had failed to pay proper attention, to keep a lookout, to see the spillage on the floor if there was one, to wear adequate footwear or to take care for her own safety.

Understandably, Charmaine thought this added insult to injury, but this is normal behaviour by insurers. The insurers and their solicitors no doubt hoped they could string the case out for another year or so by letting it run its normal course but on her behalf we sought summary judgment, by applying to the court to say that really the long and wordy Defence was a sham which did not withstand proper scrutiny. We also applied for a large interim payment of damages.

This had the desired effect of concentrating the insurers mind and after negotiations; they agreed damages of £25,000. They also paid most of Charmaine’s legal costs.

As to costs, there are two points arising out of this case which are worth noting. The first is that under the current rules introduced by this government in April 2013, Charmaine does not recover all her costs. The government favours liability insurers and removed the burden of them paying all the cost of putting victims back in the position they ought to have been if the accident had not occurred. That is a fundamental injustice.

The second point is that Charmaine had first approached a large well known personal injury firm in London who had been recommended by lawyers in America. Charmaine’s case was simply too small for them. They did not think they could make it pay, given the additional problems of her residence abroad and the limited “fixed recoverable costs” if the claim were confined to £25,000. In the event, we were able to undertake her claim productively for her and profitably as we managed to avoid the “fixed recoverable costs” regime.


13 March 2014 ~ R (A Child) v Kent CC
Epilepsy following brain injury

R, a schoolboy aged 8 years, fell several feet through a gap in fencing from an upper to a lower playground at school, struck his head and was knocked unconscious. He had significant pain in the head when he came round. There was no external bleeding. He had suffered an undisplaced fracture of the parietal bone and some bleeding on the brain, but this was treated conservatively and did not require surgical intervention.

He had headaches on discharge from hospital, was kept off school for 3 weeks before returning initially part time and curtailed his hobbies and sports for about 6 months after the accident, following which he returned to them without difficulty. He complained of a “squishing” in his head and a high pitched noise in his ear, but these episodes passed, there were no incidents of neck or back pain, and no fits or blackouts. He had occasional nose-bleeds for about a year post-accident. He had made a fairly substantial recovery from the head injury by a month post-accident.

In medical terms, the undisplaced skull fracture and the bleeding on the brain, were all manageable. But in the longer term, such injuries can give rise to a risk of epilepsy. Epilepsy may deprive a person of a driving licence and may therefore close off job avenues in later life. The neurologist we originally instructed had estimated the long term risk of epilepsy at 10% at 5 years post-accident, 13% at 10 years and 15% at 20 and 30 years (all against a background rate of 1% in the general population). In other words, a substantial risk.

Two and a half years after the accident, R was assessed by a consultant paediatrician, an EEG was performed which was shown to be normal with no epileptiform features.

Four and a half years after the accident a brain MRI revealed no abnormalities. Absent any seizures in the time since the accident, the consultant neurologist revised his opinion on the future risk of epilepsy and reassessed this at 2.5%.

Where there is a real risk of future deterioration, the court can be asked to make a “provisional damages” award so that if the risk comes to pass, the victim can return to court for a “second bite of the cherry”. But provisional damages awards are therefore always lower than conventional final awards to reflect the loss of finality to the claim for the Defendant. The Defendant’s insurer has to leave their claims book open for the claimant’s lifetime or whatever shorter period is ordered by the court.

In this case, Counsel had advised that we might not get more than £9,000 provisional damages. The problem is that if there is no further deterioration attributable to the original accident, there is no “second bite of the cherry”. So R might be left with £9,000 in total. As it was, after negotiations the defendant insurer was willing to offer £24,000 in full settlement of a final award and this appealed both to our young client and to his Litigation Friend. The court approved the settlement (no settlement can be made for a person under 18 or a vulnerable adult without court approval).

The insurance company paid our costs in full also. This was a case which started off before 1.4.2013, in fact R was 14 by the date of Court approval. If the accident had happened after 1.4.2013, when the Government brought in new rules, R would stand to lose a significant chunk of his compensation in legal fees if his case were now conducted on a no win no fee basis. Insurers are very happy with the government. Accident victims have fared very badly.


7 January 2014 ~ Keep the Shopping Aisles Clear!

Barbara was shopping in Tesco when she caught her foot in nylon banding tape, protruding from one of the store’s wheeled cages from which staff load the shelves.

Barbara fell heavily upon her knees and having been treated by the First Aid officer, made her way home.

Shops have a legal responsibility to ensure the safety of their visitors and once a visitor suffers an injury in a store due to an obstruction or a slippery substance on the floor, causing them to fall, the burden on the store is heavy. Effectively the store must show that the accident was not their fault. Shoppers have to take care of themselves, but shops display their goods in such a way as to attract the attention of shoppers, who are not required to walk the aisles staring at their feet to guard against hazards!

Supermarket chains such as Tesco face thousands of claims each year, they have liability insurance to face these claims and their lawyers are expert in dealing with them.

Barbara’s case was not one they contested. They made a “pre-medical” offer of £1,750. A pre-medical offer is one made before the defendant insurer has seen a medical report on the claimant’s injuries. As claimant lawyers, we do not like pre-medical offers because they are usually prejudicial to the accident victim. It puts the victim under pressure to take the offer (they may face a costs penalty if they do not later beat it) at a time when the long term injury suffered cannot yet be determined.

In Barbara’s case we looked carefully at the GP records and were able to advise that she would not better the offer if it went to court although the insurers were persuaded to increase it to just under £2,000.

The insurers also paid Barbara’s costs in full (this was a case started under the old costs regime).


10 December 2013 ~ Rainwater Concealed Pothole on Seven Sisters Road

The Law on Potholes

If a highways authority cannot demonstrate that they have a reasonable system of maintenance in place they are likely to be liable for any injury caused to road users who suffer injury due to disrepair.

In our experience, while all highways authorities these days have a maintenance policy which takes account, for example, of how heavily used a particular road may be, they can fall down on implementation of inspections and repairs.

Often local authority will deny liability in a pothole claim and whenever they do so they are duty bound to provide disclosure of their maintenance records. We always closely analyse such records to identify any failure in the inspection regime that gives rise to a breach of duty.

A recent case

Over the years Dowse & Co have run many successful claims for cyclists injured by potholes.

In May 2012 one of our clients was cycling home along Seven Sisters Road at about 10pm. There were a number of bricks missing from the surround of a drain cover at the time and this hole was concealed by rainwater. Our client’s front wheel was trapped in the pothole and she was thrown over the handlebars, landing on the road.

Following a letter of claim, on this occasion Transport for London admitted liability no doubt because their maintenance records were poor.

They did not argue that our client had contributed to the accident by not keeping a proper lookout of the road surface in front of her because the pothole was concealed underneath rainwater and it was night time.

Damages

Our client recovered £4,500 damages. Besides her physical injuries, she developed travel anxiety relating to cycling for nearly 12 months and lacked the confidence to return to cycling.

Cycling had been her main form of transport and as a consequence we were able to submit a claim for purchase of a weekly Oyster card for a 12 month period. That item of loss alone totalled nearly £500. TfL did not argue about the loss because our client was able to supply a full set of records referring to her Oyster card.

If you have an accident make sure you take some decent photographs shortly afterwards of the pothole as evidence. Sometimes we can also get evidence from witnesses who live on the street who can say how long the road have been in poor condition.

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