An attempt to avoid the consequences of QOCS backfires

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Article

27 April, 2020

W v Anon Housing Association and Anon Council

The facts

A Claimant brought a claim after allegedly tripping on a raised and loose flagstone on the pathway outside of her home address.

The First Defendant housing association was the owner of the pathway and the Second Defendant local authority was responsible for carrying out regular inspections of the pathway pursuant to a contract between the two Defendants. Forbes acted on behalf of the Second Defendant only.

The Claimant discontinued against the First Defendant just two weeks before the trial.

The trial

At the outset of the trial, the Second Defendant asked the Court to adjudicate on a preliminary point of law. The Claimant had conceded that there was no statutory duty upon the Second Defendant as Highway Authority but continued to pursue the Second Defendant in negligence. The Second Defendant argued that it did not owe a duty of care to the Claimant.

The Court agreed that the Second Defendant did not owe a tortious relationship to the Claimant and that it would be unreasonable to impose such a duty on the Second Defendant because of the nature of the contract between the First and Second Defendant. The claim was dismissed.

Forbes comment

It is not known why the Claimant discontinued the claim against the First Defendant, ordinarily a claim would be pursued against the "occupier" and then it would be for the "occupier" to seek a contribution/indemnity for any alleged breach to carry out a contractual obligation (should it be necessary to do so). We strongly suspect the Claimant was seeking to avoid the consequences of QOCS and attempting to prevent a situation whereby the Claimant might have had to pay the costs of the successful Defendant from her own damages. However, in doing so, the Claimant's actions resulted in the claim being dismissed in its entirety.

For more information contact Olivia Hart in our Insurance department via email or phone on 01254 662831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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