refused injury claim

#1 2011-01-25 17:06:30
ajn

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2011-01-25

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refused injury claim

Hello a while back my son fell down a pothole and his ankle came up like a balloon so he went to a&e hospital, I took photos of the hloe and injurys sent them of to injury layers 4 u and the council refused the claim were not happy with this and still cant understand why. Ive still got the photos of the hole and the injurys to his ankle which left him black and blue almost to his knee is this fair cheersTtony

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#2 2011-01-25 18:59:26
Injurylawyersuk

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2011-01-25

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Hi AJN

Trips and slips in the highway are very difficult for solicitors to deal with as the Highways Authroity has a statutory defence to claims if they can prove that they have effeciently maintained and inspected the highway where the defect was.

What stage did IL4U get to with your sons claim?  Give me some more information and I will try and help you understand the situation.

1.  How big was the defect and what is the cause of it?

Generally speaking a defect must be in excess of 1 inch on a pathway and 2 inches in the road to class as actionable and be reasonably dangerous to the normal person.  If not in excess of 1 or 2 inches this may be the reason they could not help.

2. What type of road is it? Main road, side road, With shops or schools on it or just houses?

All roads are classified according to the traffic which uses it and the level.  A main road with a school on it would attract a high footfall therefore the authority would have to inspect it monthly.  If a small culdesac with just a few houses it may be anually.  If they can show they have inspected accordingly and the defect was not present and developed in between they have a defence, unless it was reported to them in the intervening period and they failed to act on it.

I hope this gives you some insight.  Do let me know some more information and I can see if we can enlighten you a little more.

Regards
Matthew Waterfield
INJURY LAWYERS UK LTD
www.freeinjuryclaim.com

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#3 2011-01-26 13:35:24
Injurylawyersuk

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Hi AJN

The photos were not posted.  But I get the general idea.  There may be various reasons then if the defect was large. 

Is the Defect still there?

There may be no way of establishing who owns the land if it ajoins a highway and garages.  The garages may be owned by a housing authority etc although the council would know or a land registry search could possibly tell the solicitors it is more than likely that the solicitors feel the claim has less than a 50% chance of succeeding given the reasons from the council who like I explained above may have been able to demonstrate a defence to the claim.

The only way to break a defence to the claim is evidence against them.  First of all to prove the hole has been there for a long time, secondly to prove that it should have been spotted in routine inspections.  Thirdly picking holes in their documentation which is normally very standardised and completed well after the report of the accident to cover their backs.

So things to do to help your solicitor reconsider the claim.

1.  Go to local houses by the defect and ask them how long the defect has been there and whether anyone reported it.  If they are prepared to say it has been there for a long time, and even better that it has been reported several times then take their details and pass them to the solicitors.  They can take witness statements from them to damage the defence of the council.

2.  Take photo's of the area now.  If the defect has been repaired then it can be shown it was dangerous in the eyes of the council.  They would not repair something that is not dangerous as the money would be spent elsewhere.

3.  If the area is not repaired take photos.  Call the council and report the defect then count how long it takes for them to repair it.  Keep a note of the time you called, date and who you spoke to.  If in 2 months it has not been repaired take more pics and repeat the process.  If then it does not get repaired their defence to the claim is gone they have NO system in place to maintain the highway and the claim will succeed. 

Unfortunately a lot of solicitors simply do not understand this area of Personal Injury very well at all therefore tend not to deal with this type of claim.  BUT there are always good and bad points to every claim.

I hope this helps anything further I can help with do let me know, unfortuantley we cant handle the claim for you as you already had solicitors dealing and like I say many solicitors do not deal with this type of claim.

Regards
Matthew Waterfield
INJURY LAWYERS UK LTD
www.freeinjuryclaim.com

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#4 2011-01-26 17:51:28
ajn

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2011-01-25

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Hi in answer 1 you posted was where the problem with the claim started as no one could recall the pothole being there and the council said I had no witnesses. The hole is on a council road after stepping of a council pavement in which there is a sign put up by the council saying this area is for the residents blah blah no ball games allowed  type grassed area with paving around it, the hole has been repaired maybe i should have just got some one to make up a story as thats how i feel they have treated me seems like they will get away with this because of my limited knowledge of claiming,yesterday i emailed the council again saying im not happy with the way its gone now there asking for the details again ajn

Injurylawyersuk wrote:

Hi AJN

The photos were not posted.  But I get the general idea.  There may be various reasons then if the defect was large. 

Is the Defect still there?

There may be no way of establishing who owns the land if it ajoins a highway and garages.  The garages may be owned by a housing authority etc although the council would know or a land registry search could possibly tell the solicitors it is more than likely that the solicitors feel the claim has less than a 50% chance of succeeding given the reasons from the council who like I explained above may have been able to demonstrate a defence to the claim.

The only way to break a defence to the claim is evidence against them.  First of all to prove the hole has been there for a long time, secondly to prove that it should have been spotted in routine inspections.  Thirdly picking holes in their documentation which is normally very standardised and completed well after the report of the accident to cover their backs.

So things to do to help your solicitor reconsider the claim.

1.  Go to local houses by the defect and ask them how long the defect has been there and whether anyone reported it.  If they are prepared to say it has been there for a long time, and even better that it has been reported several times then take their details and pass them to the solicitors.  They can take witness statements from them to damage the defence of the council.

2.  Take photo's of the area now.  If the defect has been repaired then it can be shown it was dangerous in the eyes of the council.  They would not repair something that is not dangerous as the money would be spent elsewhere.

3.  If the area is not repaired take photos.  Call the council and report the defect then count how long it takes for them to repair it.  Keep a note of the time you called, date and who you spoke to.  If in 2 months it has not been repaired take more pics and repeat the process.  If then it does not get repaired their defence to the claim is gone they have NO system in place to maintain the highway and the claim will succeed. 

Unfortunately a lot of solicitors simply do not understand this area of Personal Injury very well at all therefore tend not to deal with this type of claim.  BUT there are always good and bad points to every claim.

I hope this helps anything further I can help with do let me know, unfortuantley we cant handle the claim for you as you already had solicitors dealing and like I say many solicitors do not deal with this type of claim.

Kind regards
Matthew
INJURY LAWYERS UK LTD
0800 1123 156

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#5 2011-01-30 16:22:25
ajn

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2011-01-25

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Hello thanks for the reply Im waiting to hear from the Council ive said Im not happy and they got back asking what  the claim details so when I hear anything ill let you know I do feel there is a claim and they are trying to put it off cheers ajn

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#6 2011-02-11 20:14:42
ajn

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2011-01-25

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Dear Mr Newbury.



Whilst your comments are duly noted, the presence of any defect in the highway does not automatically impose a liability on the Council.



Pursuant to the Highways Act 1980, the Council has a valid Section 58 Defence to this claim.



The area where the accident occurred is subject to inspection every six months. The inspections are carried out on foot.



The inspection prior to the accident took place on the 26th June 2009 at which time no actionable defect was present at the location.



The Council did not receive any complaints concerning the defect prior to the accident. However, following a complaint on the 2nd December 2009 a works order was raised for the defect to be repaired.



We consider the Council has fulfilled their obligations under the Highways Act by having in place a system of inspection and repair.



Regrettably, we are unable to accept any liability on behalf of Cardiff Council.



Your son is of course free to seek further legal advice if he so wishes.



Yours sincerely



Antony Perry

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#7 2011-02-16 06:10:12
Injurylawyersuk

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2011-01-25

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Hi AJN

To save having to deal with this on an open forum.  Email me directly at matthew@injury-lawyersuk.com and we will see how we can help.  Just because they say they have inspected the area does not suffice.  They must produce documentation to prove the same.and as detailed above there are ways to counter these types of defences if there are genuine arguments to be made.

We dont charge and we will give initial advice before taking the matter further.

Look forward to hearing from you.

Regards
Matthew Waterfield
INJURY LAWYERS UK LTD
www.freeinjuryclaim.com

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#8 2011-03-02 19:06:19
Injurylawyersuk

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2011-01-25

Posts: 87

Hi Ajn

I hope you are well.  I was interested to find out whether you have been able to progress matters any further.  Did the council produce and disclose documentation with their letter above?

Regards
Matthew Waterfield
INJURY LAWYERS UK LTD
www.freeinjuryclaim.com

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