Court success: medical records crucial in kerb trip claim

  • A man who tripped on a kerb and then contracted MRSA post-surgery – resulting in his knee having to be amputated – sued a local authority
  • He claimed the pin kerb served no useful purpose and was a foreseeable hazard
  • The court rejected the claim, after hearing that the fall happened because the claimant was intoxicated

The claimant sought damages from Newcastle City Council following a fall over a pin kerb separating a path from an adjacent paved area.

He landed heavily on his right knee and sustained a significant fracture resulting in extensive treatment. Unfortunately, he contracted MRSA following surgery, as well as a persistent infection that did not respond well to treatment, eventually resulting in an above knee amputation.

Twelve months later, for apparently unrelated reasons, the claimant’s other leg was amputated.

The claimant alleged the kerb presented a trap for people seeking to cross the area and served no useful purpose. He said it was reasonably foreseeable that pedestrians could trip over it, given its proximity to the path, the adjacent road and a nearby school.

He accepted it did not form part of the highway and as such brought the claim on the basis of a breach of the Occupiers Liability Act 1957 and/or in negligence.

Area was ‘well-lit’

Following investigation, it was discovered that the kerb had been installed in the early 1990s and there had been no previous recorded incidents of anyone falling over it, or any other complaints since its installation. Furthermore, the area was well-lit and the tarmac next to the kerb was a different colour.

Even under street lighting the contrast between the two areas of tarmac should have been obvious to the claimant.

As such, with the agreement of Newcastle City Council and taking into account the potential value of the claim, we elected to have an early liability trial. Shortly before the trial, the claimant made a Part 36 offer to accept 50% contributory negligence. This was rejected.

Medical records showed excessive alcohol habit

At trial, while the judge was sympathetic to the claimant, he made a poor witness.

It was clear from medical records that the claimant was in the habit of consuming excessive alcohol on a daily basis, and A&E records confirmed he was in an intoxicated state, which the claimant had denied.

The judge was also not persuaded by his claim that, despite living in the area for many years, he had not come across this kerb before. The judge also accepted the insured’s evidence regarding the lack of previous complaints and the assertion that it was reasonable to install such a kerb to protect houses at the bottom of the hill from flooding.

He concluded the kerb was obvious, and the reason the claimant tripped was because he was intoxicated, not because the kerb presented a danger to pedestrians.

Commentary

This is an excellent result and reinforces the importance of checking the claimant’s version of events against the contemporaneous medical records.

Putting the claimant to strict proof in situations like this when the stakes are high was the right decision.