Have you been injured in an accident that wasn’t your fault? How would you like to claim thousands of pounds in compensation?
Many people think such advertising messages have created a ‘compensation culture’ that has pushed up insurance costs – and tax bills.
Action in the courts, where people seek compensation, poses local authorities with not just a double whammy, but perhaps even a triple whammy.
We can face hefty costs if a case goes against us, premiums go up and we can also suffer reputational damage.
Against the backdrop of reductions in local government finance this is a real conundrum for councils.
In April it will be the first anniversary of the Legal Aid, Sentencing and Punishment of Offenders Act which over a period of time may hopefully change the way in which ‘no-win, no-fee’ cases are funded.
Under the new arrangements, as a claimant you still don’t pay upfront fees or have to cover your lawyers’ costs if the case is lost.
However, if you win you will pay a ‘success fee’ out of the damages awarded – although this can be no more than 25% of those damages.
My council recently successfully defended a six-figure personal injury claim in Telford County Court which involved an unfortunate incident where a member of the public suffered a serious fracture to her ankle after she fell while out walking her dog along an unlit path through a park at night.
The incident happened on a path, which had started to crack and a depression had formed measuring 70cm across and 7.8cm deep at its widest point.
The claimant alleged she lost her footing due to the change in the level of the path and proceedings were brought for both negligence and for breach of Section Two of the Occupier’s Liability Act 1957.
We appointed DWF solicitors to defend the claim – supported by our claims handlers Gallagher Bassett – on the basis that we operated a system whereby paths in parks were inspected on an annual basis and areas which required attention were marked on a plan so repairs could be considered.
The area where the path had started to crack was highlighted during the pre-inspection report as requiring future monitoring but not urgent repair. The court heard if the area had been considered to be immediately dangerous then a repair would have been carried out regardless of budget.
The area in question was not considered to be dangerous and so no repair was ordered. No other complaints or accidents had been reported to the council either before the accident or since.
Our officers also denied there was any obligation to light the path in question. In the current financial climate facing local government, the important note here is that councils obviously can’t continue to do everything they would wish to and choices have to be made.
But at the same time, it is vital that robust and transparent systems are in place in case circumstances arise which can lead to a challenge. His Honour Judge Main QC accepted that the duty under Section Two of the Occupier’s Liability Act ‘to take all care as is reasonable in the circumstances for the reasonable safety of visitors’ was not an absolute one.
He accepted it was not necessary to eliminate all dangers.
He also accepted that the lady in question did lose her footing as a result of contact with the defect in question.
But he said he had to consider whether the pre-accident assessment of the defect in 2009 was correct and whether the council had a reasonable system in place to protect users of the park.
In summary, the judge accepted that assessment of defects such as this was by necessity a judgement call on the part of the inspector.
He found that the council’s system was reasonable and that although budgetary concerns were not given paramount importance by the court, a balance had to be struck between public and private interests.
The judge considered that the defect was not one which required immediate repair, and that members of the public must expect depressions in paths in parks, in the same way that minor defects must be accepted on a public highway. The claim was dismissed.
As reductions in government financial support for councils continue, councillors the length and breadth of the country will be faced more and more with making judgement calls on what they can – and can’t – reasonably be expected to do in delivering public services.
This judgement shows that even when faced with a significant defect and a claimant who has suffered a serious injury, if the evidence responds to the legal arguments as to whether in fact the council has breached its duties under the Occupier’s Liability Act, cases can still run the course and succeed on that legal argument.
Cllr Gareth Snell is leader of Newcastle-under-Lyme BC.
