Introduction

The accident occurred on 17/10/2007.  At the time of the accident the Claimant was a 22 year old kitchen fitter.

The Claimant was crossing the road and had just reached the pavement on the other side when his foot went into a dip in the pavement and caught against a raised paving stone situated next to a manhole cover.  This caused him to lurch forward and his left shoulder hit a brick wall on the corner of the road. 

Injuries

The force with which the Claimant hit the brick wall caused his left shoulder to dislocate.  He was taken by ambulance to hospital where his shoulder was manipulated back into place and immobilised.  Over the next 18 months he suffered 3 further spontaneous dislocations due to the fact that his shoulder was unstable.  It was suspected that he was suffering from a Bankart lesion, which is a condition caused by repeated dislocation of the shoulder.   Abduction in the left shoulder was reduced by 50%. 

Due to the instability in the shoulder and the spontaneous dislocations there were long periods of time when the Claimant was unable to work due to his injuries.

22 months post accident the Claimant underwent a diagnostic arthroscopy confirming the suspected Bankart lesion and the fact that his shoulder remained prone to further dislocation.  Following that procedure he was admitted to hospital for an open anterior stabilisation procedure on the shoulder.

The Claimant's prognosis was good in that he had a good functional recovery in the left shoulder but he continues to have restricted external rotation on the left side, and he also has a large prominent scar to the left shoulder.  It was not expected that he would be affected by any future deterioration or be disadvantaged on the open labour market.

The legal case

A letter of claim was sent to the Defendant on 07/07/08.  In making allegations the Claimant relied upon the fact that the area in question was generally in a poor state of disrepair and that they were sufficiently hazardous to be actionable in law.

The Defendant denied liability and relied upon the Statutory Defence stating that it had a reasonable system of inspection and repair in place and that at the date of the accident the Highway Authority were unaware of the existence of the relevant defect.  They provided disclosure of inspection records to support their denial.

Consideration of the records showed that the defect had been recorded on the inspection sheets as early as September 2006 and then at intervals of 3 months up until September 2007, 2 months prior to the Claimant's accident. 

The Defendant admitted that the hazard had been identified on the records pre-accident but continued to deny liability and rely upon the Statutory Defence.  Further documentation about inspection dates and maintenance records were sought by the Claimant and following their disclosure, the Defendant admitted liability on 23/03/09 as it could be seen that the hazard had been recommended for repair but nothing had been done to rectify it. 

Limitation in this case was due to expire on 17 October 2010 and on 6 September 2010 the Claimant put forward an offer to settle in sum of £31,438.78.   The Defendant failed to respond and proceedings were issued to protect the Claimant's position.  Following the issue of proceedings the Defendant entered into negotiations and settlement was agreed on 1 November 2010 in the sum of £27,000 plus CRU.    

Settlement

The settlement was broken down as follows:

General Damages     £10,000

Special Damages      £17,000

The main heads of claim under Special Damages were past loss of earnings and past care.

The claim was funded by way of a Conditional Fee Agreement and, in addition to his compensation, the Defendant also agreed to pay the Claimant's CRU of just over £500 and his legal fees.

For the Claimant:  Sarah Towler, Russell-Cooke LLP

For the Defendant:  Zurich Municipal