Insurance Team Successes - March 26

MM v PPG Ltd and X City Council

Another trial success for the Alice Norcross led team. This one was particularly pleasing as it was the first case taken to trial for a new city council client.

The Court Judgment (slightly amended) is below:

I have heard evidence from three witnesses including the Claimant and from the two Defendants.

The claim arises from an accident which I have no doubt occurred on 5 April 2021 when the Claimant was cycling on a road bike on a section of road where cycling was prohibited. The Court has before it a number of photographs and I will come back to them. They have made it possible for me to understand the nature of the defect complained of. I received submissions on whether what is shown in the photographs is dangerous and whether it ought not to be in that condition and is therefore a breach of duty.

I heard evidence from the Claimant and found him to be honest and straightforward. He was clear he was on a route he takes as matter of course as part of his cycling routine and he was clear he had not anticipated difficulties caused by ironwork and other cyclists in the group had cycled there on previous occasions without incident. I have not concerned myself with injuries sustained by the Claimant as I am not asked to make a finding in relation to those at this stage but I have seen the medical report.

I heard from the witness on behalf of the First Defendant. I found her to honest, straightforward and clear without an axe to grind. Miss M. was cross examined in relation to whether there was any record in relation to the repair of this area. There was an application before the trial started to admit evidence of emails passing between Miss M and another party. I refused to admit these as it was late but I heard from Miss M that she believed that responsibility for the defect was not with the first Defendant.

Then I heard on behalf of the Second Defendant from Mr L. He was cross examined and has given evidence in relation to matters including the level of defect the Council considered was something which required attention albeit I accept it is not as straightforward as simply measuring a defect.

What I do know and find as a fact is there is nothing broken about this area. It appears to me that this was as it has always been. It is a piece of concrete slab placed in a piece of ironwork in a utility box but as it was intended to be. I find as a fact there is no defect in the sense it requires repairs.

I also find as a fact there appears be around the outside a gap of approximately 20 mm and having seen the photo of a bicycle tyre in the gap which does not appear to have ever had any filling, I find that that gap did exist. In terms of the depth of gap clearly at one stage it was deeper than 12 mm as the tyre has gone down more than that.

I have heard evidence form Mr L. about the assertion that the First Defendant carried out repairs at the locus. It would appear from the evidence from Mr L. that he mentioned post incident that he was aware of an incident and notified people at the First Defendant and asked for them to look at it. It seems to me that is not directly relevant.

 I have to look at the photographs and consider the evidence as a whole and consider if on the day of the accident the condition was dangerous. I have been referred to a number of authorities which take the Court to the same decision. It is useful to look at Paragraph 12 in Galloway which defines the appropriate test. It applies to the liability of both the First and Second Defendants.

(To find for the claimant) I would need to conclude that it was dangerous and this box cover represented a reasonably foreseeable danger and risk of harm and would need to conclude that to a reasonable person it would represent a real source of danger.

I was also referred to the bowling green test. Members of the public cannot expect a perfect environment always. It is right to say a danger may be imposed by a 20 mm gap but that does not mean the test is Galloway is met. It may be said in an environment such as this it would be a counsel of perfection to ensure it was perfectly smooth.

In this case I am not satisfied the criteria has been met and am not satisfied that the condition, as it was, created a reasonable foresight of harm or whether a reasonable person would regards it as a real source of danger. It is part of the fabric of this part of Liverpool which the Claimant has unfortunately come to grief on.

In my judgment this does not represent a real source of danger and for those reasons I dismiss the claim.

Forbes comment:

This is another case which illustrates that despite a public perception that any trip or fall caused by a minor imperfection in the highway will lead to compensatory damages for any injury sustained as a result, the reality is that courts will generally take a more reasonable common sense approach and as the judge indicated here, no one can expect our roads and pavements to resemble a bowling green. That being said it is essential to gather evidence both in documents and from witnesses to seek to establish  (as in this case) that either a defect should not be regarded as dangerous per se,  or to establish the statutory defence that the council has adopted a reasonable system of inspection and maintenance and done what can reasonably be expected of it to maintain a safe highway even if a genuine accident has unfortunately occurred.

DG v X MBC

Trainee solicitor Zara Peters assisted partners Claire Opacic & Nicola Dawn in a very tricky public liability and property damage matter for a regular MBC client. The Claimant, who was a Litigant in Person, claimed that a pothole caused damage to the shock absorbers of his car.  However, his particulars of claim were extremely vague and did not even specify the location of the alleged damage or the dimensions of the supposed defect.

Unfortunately, before the matter was referred to Forbes, there had been confusion as to who was dealing with the result that deadlines were missed. Since no acknowledgement of service or defence was filed within the court deadline, judgement was entered for the claimant  in default. Even worse, a Notice of Warrant was served upon the Council to pay the Claimant’s damages (£621.60).

As soon as the matter was referred to Forbes we served an application to get judgement set aside and the hearing for this application on the 23 September 2025 was successful.

The matter proceeded to a final hearing on the 8 January 2026, and the defendant was successful in getting the claim dismissed. The judge found that the Claimant’s case was too vague, stating that by not specifying the location or dimensions of the defect, the claimant did not give the local authority the opportunity to fully respond via the statutory defence. The judge then ordered the Claimant to repay the damages he had been paid to the council within 14 days.

Forbes comment:

Whilst this case involved quite a small amount of money it was important to the client to establish that council tax payers money should only be awarded where there is a genuine claim that is fully pleaded so that it can be properly assessed and defended if appropriate. This was also an example of a situation that perhaps initially seemed hopeless being turned around by doggedly refusing to give up and applying good legal principles. As Shakespeare reminded us. “Alls well that ends well”.

It's always pleasing to win your first trial particularly a difficult one against the odds so you have to maintain this standard now Zara. No pressure!

MU v X PLC

In the Complex Team, Nick Holgate (Partner) assisted by Grace Pickup (Solicitor) were both delighted that a potentially large claim for a major Construction client was discontinued before trial. Our client was Principal Contractor on site and employed the claimant (C) as a banksman. C had been specifically instructed not to get involved in unloading activities as a result of a pre-existing medical condition.  He was struck by roofing materials falling from a 3rd party vehicle delivering to site.  On behalf of the defendant we filed a robust defence pleading that the C was suitably trained and instructed, and that the cause of the accident was the negligence of a 3rd party who weren’t pursued.  Forbes threatened a strike- out. However, that proved unnecessary as C discontinued at this point.  Nick estimates this resulted in a client saving of approximately £40k.

OS v X Borough Council; A County Football Association Limited and A Sunday League

David Mayor assisted by trainees Rebecca Davidson and Darcey Black acted for the 2nd and 3rd Defendants on the instructions of Sports Cover.

This claim arose out of an incident which is alleged to have occurred on 26 September 2021 during a football match played as part of the 3rd defendant’s Sunday League competition. The Claimant was participating in a League game on the pitch when he performed a slide tackle in the 18 yard-box. As his right upper leg contacted the ground it was impaled by a net peg protruding from the pitch, causing injury and loss.

The Claimant alleged that the First Defendant was liable for his injury as it was the occupier of the pitch in question and that it failed to check the pitch for hazards before it was used. He also alleged that the Second and Third Defendants were occupiers of the pitch, as they hired the pitch from the First Defendant and exercised a significant degree of control over it, and that they too failed to check the pitch for hazards before it was used. The Claimant further alleged that the Referee and/or Linesmen were responsible for inspecting the pitch and that the Second or Third Defendants were vicariously liable for their failure to do so as they supplied them to officiate.

The arguments against D2 and D3 therefore required the Claimant to prove that one or both of them were occupiers and/or vicariously liable for the actions of the Referee.

Forbes successfully applied to strike out the claim against D3 on the basis that the League is not an actual legal entity that can be pursued.  Somewhat bizarrely, the Claimant did not seek to apply to amend his pleading to allege that the Executive Committee and/or others “behind” the League were the correct Defendants instead. In fact they really did very little in response other than show up to the hearing to try to persuade the Judge that the league was an “entity”.  They were unsuccessful, and were ordered to pay our costs of defending D3.
The claim then proceeded against D2 alone and we were only a few weeks from trial when the Claimant served a “drop hands offer” (i.e. he would withdraw his claim if he was not pursued further for costs) which was accepted.

Forbes Comment:

This is one of several cases David has been involved in dealing with the issue of whether a Football Association can be held vicariously liable for the actions of Referees, other officials, or clubs which operate under its jurisdiction. This is important because if any case was successful on such ground, it would have disastrous consequences generally, since it would mean that any sports association could be liable for actions or omissions of its member clubs that they had no idea were even happening.  In this case for example the third defendant, didn’t have its own insurance and it wasn’t clear it was covered under the FA policy. That could lead to a situation where volunteer mums and dads operating a Sunday league could have their personal finances and assets on the line which would obviously be very worrying and might mean that many teams would not survive. Although this case did not go to trial it is encouraging that the claimant was obviously advised by his solicitors that he would probably not succeed. Watch this space for potential further developments.

Case of GB -V- X City Council

The Claimant alleged that he sustained a facial injury and a right olecranon fracture, requiring surgical intervention, after falling from an e-scooter. The incident was said to have occurred when the wheel of the e-scooter struck a metal grid with a missing hole.

At the time of the accident, the Claimant was riding the e-scooter on a public footpath. Proceedings were brought against the local authority as the relevant highway authority.

It was accepted that the Defendant council owed a duty to maintain the highway pursuant to section 41 of the Highways Act 1980. In the alternative, the Claimant alleged common law negligence. The Particulars of Claim asserted that the council had breached its statutory duty and/or duty of care by failing to properly repair or maintain the highway, resulting in a dangerous defect which caused the Claimant’s injuries.

While Recorder Cameron accepted that the Claimant was an honest witness, the claim was dismissed.

The Judge found that the apparatus forming the alleged defect belonged to Yorkshire Water. However, he held that this did not affect the Council’s liability, concluding that if a highway is out of repair, it is out of repair regardless of whether the condition was caused by a third party. On the evidence, the Judge was satisfied that the claim had not been brought against the wrong Defendant.

Notwithstanding this finding, the case highlights an important practical consideration. Where it is identified that the alleged “defect” does not relate to the fabric of the highway itself but instead concerns apparatus placed on the highway by a statutory undertaker, careful consideration should be given to directing the claim against that statutory undertaker rather than the highway authority.

The Judge held that the duty under section 41 of the Highways Act 1980 applies only where the highway is being used in a reasonable manner. In this case, the Claimant had failed to provide any evidence that the use of e-scooters on public footpaths was tolerated or otherwise reasonable. The Judge noted that the use of e-scooters on public footpaths is unlawful and therefore amounted to an unreasonable use of the highway. On that basis, no statutory duty was owed in the circumstances.

In any event, the Judge found that the alleged defect did not amount to a dangerous defect for reasonable use of the highway. In reaching this conclusion, the Court took into account the absence of any prior complaints regarding the defect and was satisfied that the highway was in a reasonably safe condition.

The Judge further found that the accident was caused by the speed at which the e-scooter was being ridden and the small wheel size of the scooter, rather than any actionable defect in the highway. There was no duty on the Defendant to guard against such risks.

Although it was not necessary to determine the point, Recorder Cameron stated that, had a duty been breached, he would have found in favour of the Defendant under the section 58 defence on the evidence. The Judge also indicated that, had liability been established, a substantial reduction would have been made for contributory negligence. This reflected the Claimant’s failure to wear a helmet and his speed of approximately 15 mph on a footpath where traffic would typically travel at 4–5 mph.

The Judge clarified that while the Claimant’s use of a footpath was unlawful, the severity of that illegality alone would not have been sufficient to dismiss the claim.

The Claimant’s claim was dismissed in its entirety. The Claimant was ordered to pay the Defendant’s costs, not to be assessed or enforced without further order of the court.

Jessica Bevan (Paralegal) supported Tim Smith (partner) in this claim.

B v A large Home Construction Limited Company

Ridwaan Omar (Partner Insurance) assisted by Nicola Preston acted for the defendant in successfully defending an Occupiers Liability tripping claim. The claimant alleged he had fallen and sustained injury as a result of a defect in the pavement outside a premises he was visiting.

However at trial he was vague about the alleged defect apart from confirming it was the difference in the level between the kerb and the surface of the pavement.

The defendant’s witness P gave evidence that the difference was around 10mm which was industry standard and he also explained why it had not been possible to complete the final topping until later.

It also emerged in evidence that the claimant (C) was very familiar with the state of the pavement having visited on an almost daily basis.

The judge made findings of fact that the likely difference in height that the C fell on was probably about 10mm as stated by Mr Potter and that did not constitute a real danger. One might expect C to  have taken extra care knowing there were unmade pavements on the site which he knew well.

The judge relied upon the cases of Debell (regarding Occupiers Liability Act “real source of danger”) and Mills v Barnsley (Highways Act but referred to in Debell) and also James v Preseli. He held there was no duty under section 2 of the OLA to ensure absolute safety and that there had to be balance between public and private interest in relation to the standard imposed in tort.

The judge concluded this was pure accident and as there was no breach of duty on the part of the defendant he dismissed the claim.

The usual QOCS costs order was made (C to pay D’s costs not to be enforced without permission of the Court).