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Forbes successfully defends one of the last pre-QOCS cases

Pahatouridis v Newcastle CC

Forbes has successfully defended one of the last pre-QOCS cases. The Claimant allegedly fell on the highway in January 2013 prior to the introduction of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 on 1st April 2013. The Claimant had a CFA/staged ATE premium and had the claim for personal injury succeeded then the local authority would have had to pay out an eye-watering sum in costs to the Claimant.

The facts

The Claimant alleged that she was walking with her husband on 16 January 2013 when she tripped on a defect on the pavement causing her to fall and suffer injury to her ankle.

The Defendant denied that the highway was in a dangerous and/ or defective state and put the Claimant to proof on the circumstances of the accident. The Defendant also relied on the statutory defence pursuant to section 58 Highways Act 1980 as no defects had been noted at the location of the Claimant's alleged accident during the pre-accident highway inspection.

Quantum was also in dispute and the Defendant put the Claimant to proof in relation to injury and causation. The Defendant considered the claim to be exaggerated. The Claimant had sustained an earlier injury to the same ankle, but she claimed she was symptom free at the time of the index accident. She therefore alleged that all of her ongoing symptoms were accident related. The Defendant's experts considered that the Claimant was significantly disabled at the time of the index accident and that she had only been modestly injured by the index accident. They also disputed that the Claimant had developed a psychological condition and CRPS as a result of the accident. Damages for care and assistance were claimed in the sum of £75,000; it was vehemently disputed by the Defendant that she had lost any earnings (either past or future), or that she warranted a Smith award.

The Decision

The court accepted that the Defendant's system of inspection was robust and that the system of inspection had been adhered to. Although the pre accident inspection had been undertaken by an employee who had since retired and not available to give evidence at trial, the court held that the inspector had not missed the defect during the pre-accident inspection. Furthermore, the court held that a defect identified at the same locus during a highway inspection 6 months prior to the pre-accident highway inspection on 28 November 2012 was a different defect to the one that had allegedly caused the Claimant's injury.

The matter was listed for a 3-day trial with 6 lay and 4 expert witnesses due to give evidence. The matter was dismissed at the end of day one and the Claimant was ordered to pay the Defendant's costs.

Commentary

We are delighted with the successful outcome of this case. It was a difficult section 58 defence with numerous potential issues. However, despite the issues the Council had faith in its robust system of inspection, repair & Highways Team. The matter carried a significant risk to the Council. If the Claimant had been successful, she would have been entitled to a 100% success fee on her costs and counsel's fee plus a staged ATE premium totaling over £150,000. The Claimant's costs were estimated to be in the sum of £300,000. Given the potential costs implications, the Defendant employed a strategy, which was designed to ensure that the court was made aware of the credibility issues whilst ensuring that the ATE provider could not avoid indemnity.

For more information contact Chris Booth in our Insurance department via email or phone on 0161 918 0002. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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