Introduction 

Mr Sainsbury (C) was working as a self employed market stall holder. On 17/06/08 he was visiting a large warehouse provisions depot to buy produce for his stall. He was walking between traders when a forklift truck, driven by an employee of the Defendant (D), reversed over his foot.

C sustained injury and brought an action under the Occupiers Liability Act against D's employer, as they were vicariously liable for his actions. The allegations were that they were negligent in failing to provide D with a safe system of working and for failing to heed the presence of C in the warehouse.

Primary liability was admitted although D sought to pursue an argument for contributory negligence on an 85/15 basis alleging that C knew the location well and should have been aware of the path of the forklift trucks.

C rejected the contributory negligence argument and this was not pursued by D. Settlement was reached on a full liability basis.

Medical evidence

C attended hospital and was diagnosed with a left foot Lisfranc dislocation of the tarsometatarsal region.

He was admitted to hospital and the following day he underwent an open reduction and internal fixation procedure, whereby he had k-wires inserted into the left foot. He was discharged approximately 1 week later on crutches and told not to weightbear on the foot. As his job involved standing on a market stall all day he was unable to work.

Approximately 8 weeks later C was admitted to hospital again and had a second procedure to remove the k-wires. Again he was discharged on crutches.

In total C had 17 weeks off work following the accident whilst he recovered from the 2 operations. For at least 12 of those weeks he was on crutches.

Expert evidence was obtained from an orthopaedic surgeon and a podiatric surgeon. They reported that the injury had left him with a permanent limp in the left foot. He was unable to run and suffered from pain and stiffness in the foot, particularly after long periods of walking or standing and upon rising in the morning. The medical evidence was that these symptoms were likely to be permanent.

C needed bespoke orthoses for his shoes as his work entailed standing outside for most of the day. He was fitted with specialist orthoses on both the left and the right feet as he required additional shock attenuation to reduce pain and improve posture.
Degenerative changes were noted in C's left foot and it was considered that these would be likely to increase over the coming years, requiring a midfoot fusion operation within the next 10 - 20 years. Pain and stiffness in the foot would be a continuing feature.

Legal proceedings

C sought damages for the personal injuries and losses that he suffered as a result of D's negligence.

C came to Russell-Cooke for a second opinion after consulting with other solicitors. It was clear to us from the outset that C's continuing symptoms had not been taken into account when assessing the value of the case.

At a very early stage, following receipt of the orthopaedic evidence, D made an offer to settle this matter in the sum of £7,500. This was rejected by C who obtained further evidence from a Podiatric Surgeon regarding his orthoses.

Following receipt of that evidence, a Part 36 offer was made by C and negotiations ended in a settlement being reached on 17 February 2011 in the sum of £40,000.

The settlement

Breakdown of General Damages:

Pain, suffering and loss of amenity: £23,000
Future medical costs: £6,000
Future orthotic costs: £8,000
Miscellaneous future costs: £3,000
The Defendant also agreed to pay C's costs of the case.

Solicitor for the Claimant: Sarah Towler, Russell-Cooke

For the Defendant: Allianz Insurance