Seven figure settlement secured for spinal cord injured client after she fell over a wall whilst on holiday.

The Aspire Law team has settled a case following a devastating incident when our client suffered life changing injuries whilst on holiday with her partner. Settlement was agreed for a lump sum of seven figures on the eve of a liability trial listed in the High Court of Justice in London.

Our client suffered a T12 ASIA B spinal cord injury leading to paraplegia. This settlement, on a difficult and evidentially complicated case, was achieved using leading experts, Counsel: Robert Weir KC of Devereux Chambers, Consultant Forensic Engineer, as well as Damian Horan and Siobhan Thomas from Aspire Law.

 

The background

The client was on a package holiday in Kenya with her partner when this tragic incident happened. They were staying at a hotel and had arrived in the early hours of the morning. After having lunch and exploring around the shops on site, they decided to relax and sunbathe on the artificial beach within the grounds of the hotel.

 

The artificial beach was covered in deep sand with sun loungers left by the hotel for guests to use. The beach was on a raised terrace structure, directly adjacent to the ocean beach, with the intention of creating an ‘infinity view’. Unbeknown to our client, there was a sheer drop of around 2 metres from the edge of the terrace to the ocean beach below.

 

Our client was moving her sunbed to be next to her partner but was having some trouble dragging the sunbed due to the deep sand. As she was doing so, she stumbled in the sand and lost her grip on the sunbed, causing her to fall backwards over the low perimeter wall. In doing so she fell some 2 metres over the low wall and onto the ocean beach below.

 

Liability

The client approached us after having consulted another law firm, who had not made much progress with the case. We immediately contacted the tour operator and requested that they engage in offering early rehabilitation, given the severity of our client’s injuries. Whilst they initially agreed to carry out an Immediate Needs Assessment, no offers to fund any rehabilitation were forthcoming and liability was strongly contested throughout the case.

 

We initially instructed a Kenyan lawyer to provide advice as to the legal position in bringing a claim under Kenyan Law. We established that essentially the same rules apply to Kenya as the English principles in law, in that the occupier owes the same common duty of care to visitors to take such care as in all the circumstances to see that visitors will be reasonably safe in using the premises for the purposes for which they are invited or permitted to be there.

 

The legal opinion of the Kenyan lawyer was that they believed the appropriate standard of care would be to impose guard rails on the perimeter wall or, at minimum, place warning signs on the steep drop, therefore the initial conclusion was that the client had an actionable case.

 

The next step was to obtain expert evidence on the health and safety aspects and issues as to local standards. We instructed an engineering expert to visit the hotel and surrounding area to investigate matters and make comparisons with similar hotels.

 

Our expert was able to discover that following the accident, the hotel took two steps: it put up a warning notice and it also fenced the edge so that a guest could not accidentally fall over the edge as our client had done. He also conducted research into the construction of the boundary wall and the appropriate building regulations.

 

Litigation process

The defendant refuted liability throughout and we therefore commenced proceedings in the High Court.

 

Legal issues

It was agreed that The Package Travel, Package Holidays and Package Tours Regulations 1992 (‘the Package regs’) applied to the holiday contract between the client and the defendant.

The effect of the Package regs is that the defendant is liable pursuant to regulation 15 for the non-performance or improper performance of any obligation promised under the holiday contract even though that obligation is to be performed by a supplier, such as the hotel in this case.

 

Holiday contractual terms

As to the obligations promised under the holiday contract, the starting point is the terms and conditions of the contract itself. Our case was that it was an implied term of the holiday contract that the defendant would deliver services promised under the contract to a reasonable standard befitting a hotel of the standard of the hotel (this being a 4-star hotel).

The Defence accepted that the defendant promised the holiday would be delivered to a reasonable standard. It was also common ground that there was an implied term that the services promised under the contract would be carried out with reasonable care and skill.

 

The relevant standard of care

The emphasis was placed by us on the claim being brought in English law for breach of contract and/or pursuant to the Package regs. We argued that this was a claim made against an English defendant, which is bound by its contractual obligations even though performance of some of these obligations was delegated to the Kenyan hotel.

Where the holiday is abroad, a question arises as to how to judge whether reasonable care has been taken and/or the holiday has been provided to a reasonable standard.

 

Breach of duty

Our case was that guests may not appreciate there was such a sheer drop and may want to move their sunbed to a different position, therefore there was a foreseeable risk that a guest, such as our client, may well fall over the wall from the artificial beach.

It was argued by the defendant that it was customary practice at this and other local hotels to traditionally maintain an ‘infinity view’ cutting down on any obstruction towards the view. However, we were able to counter this argument by illustrating by way of expert evidence that various railings/fences were in place at the hotel in question (and indeed other local hotels) which provided edge protection which actually obscured, rather than maintained, the infinity view.

 

Contributory negligence

The defendant contended that the fact there was a sheer drop of 2 metres should have been obvious to our client. We argued that our client had arrived in the early hours of the morning, she was on holiday and there to relax and enjoy herself and was doing what any other guest would reasonably be doing whilst on holiday.

 

Developments throughout the duration of the case

We approached the opponents to engage in a Joint Settlement Meeting (JSM) to which they refused. They maintained that there was no evidence of breach of local standards, and they had no concessions to make. Instead, their response was to invite us to discontinue the claim.

During the litigation process, we made several split liability offers in an effort to resolve the dispute and avoid trial, all of which were rejected.

 

Interim application

Shortly before trial, the Defence made an application requesting permission from the court for their expert and lay witnesses based in Kenya to attend trial via video link. We opposed the application for various reasons.

The defendant’s application was successfully contested and Mrs Justice Eady ordered that all witnesses must attend trial in person.

 

Negotiations

Following the successful outcome of that hearing, the Defence reassessed the case. Having robustly denied the claim from the outset, they began to make several low value offers, all of which were rejected. With the threat of trial looming, we successfully concluded settlement for a 7-figure sum on the eve of trial.

 

Conclusion

This was a hard-fought case against an opponent who was unwilling to make any concessions until shortly before trial. With the expertise of Mr Rob Weir KC and expert evidence we were able to successfully settle what was a very difficult and technical case.

 

Life after an injury and a personal injury settlement

Our client’s dream was to move permanently abroad with her partner where she could receive the care she wanted. The compensation award has allowed her to do just that, and she has now purchased a suitable property with adaptations.

Our client was signposted to Damian Horan through an Independent Living Advisor from the Aspire Charity, whilst she was receiving rehabilitation at Stanmore hospital.

 

Damian Horan of Aspire Law says – This is a great example of where by getting a second opinion from a specialist spinal cord injury solicitor can make all the difference to the outcome that can be secured. Instructing a specialist spinal cord injury solicitor is probably the most important decision our client made following her accident. The damages secured will make such a positive impact on her future.

 

Siobhan Thomas of Aspire Law says – This was a very challenging case for many reasons. It was heart-breaking to hear how our client had been on holiday when this tragic incident happened. We had to fight almost to trial to get the best outcome, but it was definitely worth the effort, and I am delighted to have secured such a fantastic settlement for our client.

 

How Aspire Law can help

This case is an example of the high level of work and expertise of our personal injury team, and the benefit that can be provided from this level of appropriate legal guidance to those who may be accessing spinal cord injury support services through providers such as Aspire or the Spinal Injuries Association.

If you or a family member require expert legal advice as a result of a spinal cord injury, please contact us today.

Injured On Holiday

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