Lawyers giving up

[Derek Grim]

My sister is a health worker. Last year, while visiting a residential property, she walked along the driveway to the front door. A manhole cover gave way. She sustained a broken arm and needed an operation, pins inserted etc.

She gets legal support through her trade union. The union's lawyers sent a letter of claim to the occupier saying that he was liable under the Occupiers' Liability Act. The occupier didn't reply, but the lawyers later discovered that he was a tenant. So the lawyers then sent a letter of claim to the landlord saying that he was liable under the Defective Premises Act. The landlord replied and said that he had never received notification of the defect from the tenant, and so he isn't liable. (Apparently, for a claim to succeed under the Defective Premises Act it must be shown that a landlord had been informed of the defect - at least that what my sister's lawyers told her).

The lawyers then sent a series of letters to the tenant asking (a) if he has insurance and (b) whether he informed the landlord of the defect. The tenant has never replied. He has just ignored every single letter.

The lawyers now want to drop the whole case. They say that it's not worth suing the tenant as he probably doesn't have insurance and there is no evidence he informed the landlord of the defect.

Seems incredibly unfair. Are the lawyers right to just give up like this? Can something be done to prove liability - whether against the tenant or landlord? There is no doubt that the manhole cover was badly corroded (a subsequent report by the water company confirmed it). My sister has paid her union dues for years and is reluctant to allow the union's lawyers to throw the towel in, especially when the tenant has simply sat on his hands and refused to engage.

Any advice appreciated.

[atticus]

I am going to caveat this by saying (1) this kind of case was never my practice area and (2) I am professionally constrained in what I can say when I know other solicitors ae instructed.

Solicitors appointed by a union will have agreed with the union terms on which they agree to act. These are likely to include declining to act if their assessment of the chance of success does not meet a certain threshold level.

Your sister is presumably free to instruct other lawyers. She may be able to find one who will take the case on 'no win no fee' terms.

One thought that occurs to me is to sue both owner and tenant in the hope or expectation that things will come out that will assist in pinning liability on one or the other.

[atticus]

s4 Defective Premises Act 1972 may help: have the union's lawyers considered it?

https://www.legislation.gov.uk/ukpga/1972/35/section/4

4 Landlord's duty of care in virtue of obligation or right to repair premises demised.

(1)Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.

[sandfordboy]

Has the Landlord provided any evidence of maintenance inspections to confirm that the Drain cover was in a safe condition & capable of supporting the weight of a person (who it was reasonably foreseeable would need to walk over it) ? Has their maintenance inspections/schedule/check list even included an item for Drain cover inspection ? When was the last inspection carried out ?

[Derek Grim]

Has the Landlord provided any evidence of maintenance inspections to confirm that the Drain cover was in a safe condition & capable of supporting the weight of a person (who it was reasonably foreseeable would need to walk over it) ? Has their maintenance inspections/schedule/check list even included an item for Drain cover inspection ? When was the last inspection carried out ?

No, he says that neither he nor the tenant were under any obligation to carry out inspections because the manhole was the properlt of the water company. And the water company is saying that they were under no obligation because, even though it was their manhole, it was on private property! Seems bizarre.

[Derek Grim]

I am going to caveat this by saying (1) this kind of case was never my practice area and (2) I am professionally constrained in what I can say when I know other solicitors ae instructed.

Solicitors appointed by a union will have agreed with the union terms on which they agree to act. These are likely to include declining to act if their assessment of the chance of success does not meet a certain threshold level.

Your sister is presumably free to instruct other lawyers. She may be able to find one who will take the case on 'no win no fee' terms.

One thought that occurs to me is to sue both owner and tenant in the hope or expectation that things will come out that will assist in pinning liability on one or the other.

Thanks. That's helpful.

[sandfordboy]

Lets have some more detail. I assume that she was working in an official capacity for her employer when the incident occurred?
You say that she walked along the driveway, was there a pathway that contained the manhole cover? or did she have no option other than to walk along the driveway which contained the manhole? I assume that the damaged cover has been repaired? Any idea who carried out the repairs or instructed that those repairs be carried out?
Who are the Insurers for the landlord? Have you read through the fine detail of the landlord Insurance to ascertain their stance regarding any manholes at the property.
What is the requirement stated within the policy regarding regular & ongoing inspections? Is the tenant working in any capacity for the landlord? Did you take any photos of the broken manhole & surrounding area? Does the driveway/pathway appear in a poor state of repair? & just to confirm, it is @ a year ago that the original issue was reported & to whom?
The comment regarding a water company also raises a question. Is the manhole on the actual property or on a separate adjoining driveway?

[Derek Grim]

Lets have some more detail. I assume that she was working in an official capacity for her employer when the incident occurred?
You say that she walked along the driveway, was there a pathway that contained the manhole cover? or did she have no option other than to walk along the driveway which contained the manhole? I assume that the damaged cover has been repaired? Any idea who carried out the repairs or instructed that those repairs be carried out?
Who are the Insurers for the landlord? Have you read through the fine detail of the landlord Insurance to ascertain their stance regarding any manholes at the property.
What is the requirement stated within the policy regarding regular & ongoing inspections? Is the tenant working in any capacity for the landlord? Did you take any photos of the broken manhole & surrounding area? Does the driveway/pathway appear in a poor state of repair? & just to confirm, it is @ a year ago that the original issue was reported & to whom?
The comment regarding a water company also raises a question. Is the manhole on the actual property or on a separate adjoining driveway?

She was working for her employer in an official capacity at the time of the accident.

It was the main driveway that led from the street to the front door of the property. It was the only available route to the front door.

The damaged cover and frame has since been repaired by the water company.

The landlord has said that he doesn't have insurance (though we know he owns more than one property).

Photos were taken immediately following the accident.

The driveway itself did not appear in a particularly poor state of repair.

The manhole is located on the property itself.

[PallasAthena]

Whether the landlord is insured and what his policy says is irrelevant to whether he is legally liable. And if he is insured he is under no obligation at this stage to disclose to your sister a copy of his policy or the identity of his insurers.

[echat11]

Has your sister got any Legal Expenses Insurance with any of her household insurance policies?

[sandfordboy]

There is a lot of information here that should be carefully considered. A landlord's primary duty regarding third-party liabilities is to take reasonable care to ensure the property is safe for tenants, visitors, neighbours, and members of the public. This legal duty arises from common law, the Defective Premises Act 1972, and the Occupiers' Liability Act 1957, among other statutes.

Key Landlord Duties Affecting Third Parties. A landlord's obligations are primarily focused on maintaining the safety and structure of the property to prevent injury or damage. Key duties include:

• Structural and Exterior Maintenance Landlords are responsible for the structure and exterior of the building, including the roof, walls, foundations, drains, and guttering. A falling roof tile injuring a pedestrian or a trip hazard on a poorly maintained path could lead to a claim.
• Essential Services Maintaining the installations for supplying water, gas, and electricity, and ensuring sanitary fittings (sinks, baths, etc.) and heating/hot water systems are in good working order is mandatory.
• Gas and Electrical Safety Landlords must ensure all gas appliances and electrical equipment are safely installed and maintained by a qualified, registered engineer, such as one from the Gas Safe Register.
• Fire Safety Ensuring provided furnishings meet fire safety regulations and that adequate smoke alarms are installed and working.
• Hazard Mitigation Conducting regular risk assessments and prompt repairs to address any defects that could cause injury or property damage. Landlords can be found negligent if they are aware of a defect (or should have been aware through inspection) and fail to act.
• Common Areas For multi-occupancy buildings, landlords are typically responsible for maintaining shared areas like entrance halls, stairs, and fire escapes.

Insurance for Protection Landlords should have comprehensive property owners' liability insurance (also known as landlord liability insurance). This insurance covers the costs of compensation and legal fees if a third party (tenant, visitor, or member of the public) is accidentally injured, or their property is damaged, due to a problem with the rental property. Most policies offer coverage of £2 million or £5 million as standard

[wales01man]

If your sister was on Employers business surely they have insurance to cover this and a claim to them should see the insurer then claim against the tenant/ landlord or am i wrong

[sandfordboy]

I agree with WALES01MAN & additionally, do you have a copy of your employers remote working/working off-site/lone working risk assessment ?

[Derek Grim]

Has your sister got any Legal Expenses Insurance with any of her household insurance policies?

I will advise her to check. Thanks.

[Derek Grim]

I agree with WALES01MAN & additionally, do you have a copy of your employers remote working/working off-site/lone working risk assessment ?

Would the employer be liable though? I'm certainly no expert, but I was under the impression that if an employee were to make a personal injury claim against their employer, they would have to show that the employer had been negligent in some way? I think in this case the employer would probably argue that they weren't responsible for the state of a manhole on a third party's property. But I will certainly tell my sister to look into claiming against her employer if people think their is mileage in it. Thanks again.