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Council Insurers Deny Liability - Pavement Accident with Mobility Scooter


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Hi all can anyone advise what to do next - Council insures deny liability "Council carry out regular inspections of the accident locus. Driven inspections take place quarterly and walked inspections are carried out on an annual basis" the area was not considered defective.

 

Situ - my old mum (83) in her class 2 mobility scooter attempted to ride up a kerb (not lowered) onto the pavement but the kerb being high and curved ) the angle meant as she got the front wheels up the rear wheels then hit the kerb uneven and made her scooter unstable and it toppled sideways the scooter went over with my mum thrown out on to the road prostrate and could not get up so an ambulance was called and she was taken to hospital and along with shock, cuts and bruises she suffered a dislocated shoulder and 3 fractures to her arm and was in hospital for 3 weeks and is still having physio and her arm which is still painful.

 

I submitted a claim to council because the kerb is not lowered for mobility and is far too high, just around the kerb itself from where my mum attempted to get on the pavement is a temporary type concrete ramp (that is breaking up) this ramp not sure why or when it was put there or if it is supposedly for use by mobility scooters but it is dangerously located as it could only be used by a scooter or pushchair or pram by going into the very busy road to use it.

 

Council have sent copies of records of inspections, maintenance, complaints and other accidents for the 12 months prior to the accident and note all inspectors are fully qualified, no mention of the temporary ramp why/when it placed where it is? I have contacted the council Access and Mobility officer who has apparently recently been and inspected the site and has recommended it should be lowered and made accessible?

 

Mum herself does did not want solicitors involved wasted costs she says but I will convince her to pass it over to good firm of solicitors to deal eventually but first I am just going through prelims (form filling and photo's of location & kerb) until we get to the stage where insurers wont budge!!

 

Any help advice - I believe the kerb is high and so it should have been reasonable foreseeable that it was at least a danger to disabled mobility scooters any advice re proving council liability/breach of duty.

 

Thanks all

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Hello,

 

Your description of the event is not the best, but my understanding is that your mother attempted to get her scooter up and over a kerb that was not a proper drop kerb access point. If this is the case then the council are not liable for damages. She will only have a chance if the kerb in question forms part of a drop kerb ramp that has not been lowered to the maximum 25mm upstand level.

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Mr Government appreaciate your response advise but do you feel there is any mileage in that all kerbs leading to and surrounding have all been dropped but this one had not and left the option either go on the busy road or attempt the kerb?

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You need to look at this in terms of accountability, how much responsibility did your mum have to take her scooter onto the pavement using a proper dropped kerb facility, and by choosing to drive over a normal kerb how much of the damages can be attributed to her own actions. Because in court thats what will be looked at.

 

The council will only be liable if the kerb that caused the accident was defective. ie damaged and a risk to highway users, or not properly installed as a drop kerb crossing facility. If not then your going to have a difficult time proving liability on the council.

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I also forgot to say that in your email you state that there were other existing dropped kerbs surrounding the area, the fact that your mother did not use any of these other safe crossing areas will count against her.

 

As for the kerb that caused the accident, it may be that, that kerb was meant to be at full height forming part of the footway and not part of a crossing facility. without a photo it is hard to say.

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Thank you for response, I apologise that my description is not the best and I am taking on board what you are saying.

I refer to the dropped kerbs because mum had been safely using them but this one kerb was not lowered so her choice was either become stranded where she was or attempt to drive around using a very busy road which for her was a more frightening prospect than riding up the kerb!

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I ride a mobility scooter and i woudl not have attempted it. Also in the instrcutions received with teh mobility scooter it probablys tates that this shoudl not be attempted. I doubt if there are any grounds for a claim, but hope your mum gets better soon and it does not prevent her from getting around. can you do a google earth location for us so thatw e can see where the incident happened as may be able to offer further advcie.

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Thank you for response. I fully understand at the end of the day the decision to ride up the kerb was mum's and hers alone. Mum is doing well recovering slowly and accepts may well never recover full use of her arm but still works with physio.

 

Good idea to google maps but don't know how to put link in but if you copy & paste - Knowsthorpe, Easy Road Cross Green Lane (Stop 45025630), Leeds LS9, UK (Knowsthorpe, Easy Road Cross Green Lane (Stop 45025630))

 

Mum had just come agross the zebra crossing onto the footpath and turned up right past the shop with the blue shutters on the left and the 20mph sign, she rode off the path as this kerb is level with the road and across the gap which is the drive into Ladysmith factory, she attempted to get up the curved kerb onto the path opposite located just before the white van! This is not the clearest picture but just at rear of the white van you can see the concrete ramp? I have added some photo's to help clarify.

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Edited by howierips
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Picture No 2 is the most interesting as it shows that somebody has placed a temporary DBM ramp on the carriageway edge adjacent to the kerb line, is this the point at which your mother attempted to get up the kerb? because if so then you have a case.

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Having just looked at google maps and refered back to your description your mother was crossing over the vehicle access and upon reaching the other side, was for some reason on the very edge of the footway and attempted the go over the Radius Kerb of the access, which is much higher than the other kerbs.

 

When you look at google maps the view of the left side of the vehicle access is very clear, and you can make out that all of the kerbs are in fact 'dropped' which is very different from the right side. This does offer you some case as both sides of the access should be identical. Although it is still not clear cut.

 

I would reccomend that you take photographs and measurements (kerb height) of both sides of the access and go chat with a solicitor using the free 30 min consultation that many offer, and get their opinion.

 

Although my gut feeling is that its still probably not good for you, but still worth the effort.

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Hi thank you for taking the time to review the area and give your thoughts it is much appreciated you are in the correct place. Mum did not attempt to use the DBM ramp as it is only accessible from the busy road, she had come across the crossing where the kerbs are all dropped and turned right towards the vehicle access if I remember correctly the kerb on the left side of the vehicular access (learning terminology!) is lower but it too has a small DPM ramp!

 

These ramps were obviously placed there for a reason but they are not recent and on the councils past walk and drive past inspections the inspector has not considered the safety aspects that these kerbs are not identical and that thier existence likely to cause confusion to users who easily can get off the left footpath but the Radius Kerb directly across from it is too high (where mum had her accident) but there is the DBM ramp (that you can see in the photo) incorrectly located slightly around the kerb which users are drawn to but to use it they must go into the busy road.

 

I will get photos and measurements of the kerb on the left (as soon as snow clears) and will seek a solicitor but did not know really what or if there was any sort of case but I at least I now have a little more to work with and can do the leg work and get photos and measurements before wasting everyone's time.

Edited by howierips
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just so that i am clear of the events, your mother crossed the road using the 'Zebra Crossing' upon reaching the other side she turned 'Right' on the footway and proceeded along the footway past the shop with the Blue shutter. When she reached the Vehicle Access starting from the left side (as looking at it from the road) she proceeded to cross and by the time she reached the right side of the vehicle access she was now running along the edge of the vehicle access and carriageway boundary at which point she attempted to drive over the 'Radius' kerb which is much higher than the other kerbs behind the Radius kerb.

 

Do you know why when she was on the left side of the access where she must have been located more centrally, why she would vear towards the front edge of the access by the time she reached the other side? This is very important, because if she had stayed on the middle of the access she would never have been in a position to have put herself at risk. was there some sort of obstruction that caused her to move off the centre line?

 

Did she definately cross the 'Zebra Crossing' and use the footway, instead of crossing halfway over the 'Zebra Crossing' and then using the road until she came to the vehicle access?

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Hi, your understanding of events is correct (I was with her that day), she did definitely use the zebra crossing and turned right using the footway (we have an independent witness to this a shop owner with whom we exchanged pleasantries as we passed his shop). Why she was off centre line –at the footway edge left of the vehicle access there is the lower kerb that does have a smaller DBM ramp which is not centre but to the right as she looked at it (please see photo attached and zoom in, this is best picture I have at present) this meant as she came off the footpath she was already nearer the edge of the carriageway boundary, she says that she rode off the footway having already seen ahead to the ramp (right of the access) on the other side and was heading for it but whilst in the act and movement also realised that to use this ramp she would have to go in the road that was busy with cars and buses going past and not safe so in the split seconds it took diverted to attempt to ride over the curved ‘Radius’ kerb.

 

Mum was confident using her scooter and had only weeks before finished her supervised training that had been conducted over a number of weeks in the use of mobility scooters and did know she was not entitled to ride on the road with her class 2 scooter, she used the dropped kerbs that day I had witnessed her riding well out of her way to get to and use them.

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Edited by howierips
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I am sorry to say that my opinion of the situation is now that your mother does not have a case. The reason for this is that on the Left side of the vehicle access where your mother started to make her crossing, that all of the kerbs appear to be of regulation height (maximum 25mm upstand). The footway is also resonably wide at this location, I do not have any measurements but from apperance it looks to be about 2.5m wide, which is bigger than the standard 1.8m wide footway. Being as the kerbs are at the correct height and the footway is wide and that there were no obstructions your mother should have proceeded across the middle of the access and crossed over the other side where the kerbs were also of regulation height. It was your mothers choice to attempt to drive over the high level radius kerb thus causing the accident. The were no other mitigating circumstances that prevented her from driving over the lower kerbs on the right hand side.

 

not what you want to hear, but as I have a lot of experience with Highways Authority accident claims this is my honest opinion.

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Mr Government, sadly it is not what I wanted to hear and just to be perfectly clear you do not feel there is any mileage in that the DBM ramps are located inconsiderately (not central of the kerbs) and the DBM ramp on the right that she was heading towards is located in the road and the fact that these kerbs both left and right of the access are curved as opposed to square and being curved they are especially more dangerous to mobility scooter users even if they are careful to ride off and onto them at a centre point – do you agree? It is my thought that these curved kerbs should have been subject to special consideration during any survey or inspection that recommended the lowering of kerbs leading to this particular access it was incorrect to not include these curved kerbs?

I do thank you for taking your valuable time to review the facts for me and for giving me the benefit of your experience and expertise it is very very much appreciated.

I have now had contact with the Access & Mobility Officer who has been to the site in question and has agreed to submit works to have these kerbs lowered (subject to funding) so going forward if and when they do get lowered should mum ever venture out around here again on her scooter she and other users will be safer.

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I am sure that this case has no mileage. but this is based upon certain assumptions (from photos) which you can only clarify by physically measuring.

 

The height of the kerb face on both sides of the vehicles access is not greater than 25mm for a distance of at least 1.2m of kerbing starting from the back edge of the footway going towards the front.

 

The issue of the DBM ramp in the carriageway located a few meters further right of the access is not part of this case, as she did not attempt to drive over that. Although I do agree that, that ramp should be removed as it is a risk and not a properly formed access point.

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  • 1 month later...
Picture No 2 is the most interesting as it shows that somebody has placed a temporary DBM ramp on the carriageway edge adjacent to the kerb line, is this the point at which your mother attempted to get up the kerb? because if so then you have a case.

 

It has transpired that the Temporary DBM ramps were not placed there by the council they have admitted, further none of thier inspections reports mention them being there so they were not considered a risk when clearly they are because they caused confusion.

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I am not surprised that the DBM were not placed by the council, this is something that I have come across a lot with people doing it for the purposes of creating a driveway.

 

Anyway, as to the relevance for you claim. It's still not easy, you can definately go along the line of the DBM ramp caused your mother confusion resulting in her accident. However we still end up back with accountability. How much of the accident can be attributed to your mother, I'm not going to try and guess. But I can guarantee that in court a proportion of the blame will be upon her. Therefore even if you win your case you will not get 100% of the compensation you are after.

 

But your case is now very much stronger because of the DBM ramps and the councils failure to identify them on previous inspections, which is basically the councils statutory defense, and if they have failed in that duty then your half way there. If I was the highways inspector for that road, I would now be crapping myself. Because any half decent solicitor will rip him apart on the stand for failing to identify the DBM ramps, and will then continue to allege further incompetence of duties.

 

I am not trying to convince you either way, just to give you the best viewpoint of both sides of the claim. This accident has liabilities with both parties.

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Once again thank you Mr Government for your prompt and valuable response that ties excactly with what I was thinking, it is appreaciated that mum has a responsibility as she was the one making the decisions riding her scooter but was confused by the ramps. We await the insurers further responses now, we have no predetermined amount of compensation and would be happy to consider offers for pain and suffering, we have told the insurers that mum is aware of the legal process but for the moment is happy to deal with this matter herself saving costs of a legal representaive, we will continue with the correspondence with the insurers until such time they either make an offer or thier continued denial is stalemate then as necessary hand the case over to a solicitor to conclude.

 

Your advice is very much appreaciated.

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