Cheshire East

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High Court Master refuses to allow council to resile from admissions made in pavement fall case

The London Borough of Barnet should not be allowed to resile from admissions it made about the state of a pavement on which a resident was seriously hurt in a fall, Master Stevens has ruled in the High Court.

In Shah v London Borough of Barnet [2021] EWHC 2631 (QB) Sudir Shah tripped and fell on an uneven pavement and sustained injuries describe as ”life changing” including loss of the functional use of his right arm, loss of sensation in his right hand and a prognosis that he will “not be able to go back to normal activities of daily living and will require assistance from his wife with all activities”.

Master Stevens said it had been put to her that admissions could be resiled from by Barnet with the permission of the court because material documents were not available at the time of the liability decision and there were now reasonable prospects for Barnet to make out a successful section 58 defence under the the Highways Act 1980.

Barnet said it had found two pre-accident defects reports not at precisely the spot where Mr Shah fell and had found an absence of other complaints of defects in the vicinity, which the council felt indicated “good evidence a court could be persuaded at trial the highway was not dangerous at the time of the accident”.

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Master Stevens said: “If there had been other evidence before me that [Barnet’s] record-keeping was well-maintained and comprehensive this might have carried more weight.

“It was fairly put by the claimant that even their own accident did not appear on any disclosed records nor did that of an accident involving the claimant's neighbour which had been reported.”

She said the claimed discovery of a works orders for the resurfacing of the accident location after Mr Shah’s fall, which showed this was not in response to his injury “is pretty weak as an argument for displacing the admission”.

Barnet’s claim that new evidence showed a change in Mr Shah’s direction of travel was “hopeless in my view as an argument to justify resiling” as he had been “at pains to assist with identification of the precise cause and location of his fall from his earliest communication with the defendant”.

Master Stevens said Barnet also hoped to rely on an increase in the quantum of the claim.

The council had initially thought this would be £30,000 to £40,000, “so it was accepted as a case to settle”, but when the claim went to insurers for review it was seen as likely to exceed £50,000.

Barnet’s stance on the potential cost of damages for Mr Shah drew criticism from Master Stevens.

She said: “I have struggled with all the defendant's submissions on value. I have read the claimant's letter of complaint and to my mind it should have been obvious to anyone responsible for claims valuation, that the claim had significant value; indeed the opening lines of the letter, which were not recited in any of the defendant's evidence in support of their application stated ‘I am writing to make a formal complaint against the council in relation to life changing injuries I sustained tripping on the pavement of The Grove’.

“I agree from reading the records that the claimant at no time indicated his claim was limited to general damages and I consider it an unusual assumption that that was likely to be the case in any event given the description of those injuries. Moreover the level of quantum does not affect the question of who is liable.”

Barnet said it had difficulty locating relevant highways documents due to a changing system and the file moving from an in-house file handler to solicitors.

Master Stevens said: “Whilst this may have provided me with an explanation of what had happened, none of it enlightened me as to why the highways department was not asked in this instance to help with the searches sooner and before the admission or before solicitors were instructed.

“The defendant had an in-house insurance claims team well used to dealing with claims that required highways searches to be performed.”

She said Barnet’s characterisation of its admissions as a “windfall" for Mr Shah was "offensive".

Master Stevens said a significant part of the new information on which Barnet now hoped to rely upon had been requested by Mr Shah in January 2020 and Barnet “failed to conduct a search in such a way as to locate the documents which were subsequently made available after the admission when seeking to resile.

“I find this remarkable given that the ‘new' system of ordering highways documents, cited by the defendants as an explanation, had been introduced in late 2017 so over two years before the admission.”

Master Stevens felt it would “reflect poorly on the justice system to allow the defendant another last ‘bite at the cherry’ in respect of liability arguments when so many experienced claims handlers have reviewed the matter already, and over a considerable period of time”.

She concluded: “For all the reasons above my determination is that the defendant should not be granted permission to resile from their admission. Judgement is to be entered for the claimant.”

Mark Smulian

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