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November 29th 2017

Accidents at Work

Employers and council agree damages for worker who broke leg in fall from top of lamppost which ‘snapped in half like a twig’

Samuel McFadyen

Samuel McFadyen

Senior Solicitor, Personal Injury

Employers and council agree damages for worker who broke leg in fall from top of lamppost which ‘snapped in half like a twig’

A GRANDFATHER says he feels a huge sense of relief following the conclusion of a legal battle against his former employers and a local council after suffering a devastating accident at work from which he came close to losing his leg.

A GRANDFATHER says he feels a huge sense of relief following the conclusion of a legal battle against his former employers and a local council after suffering a devastating accident at work from which he came close to losing his leg.

Malcolm Smart was employed as a street lighting supervisor, an industry he’d worked in for more than 30 years, when he fell three metres to the floor as a concrete lamppost he was working on snapped.

The fall caused multiple fractures of his left leg and ankle, with doctors considering at one stage whether it would be better to amputate the limb rather than operate.

Neither Mr Smart’s employers at the time, construction and services specialists Kier Group, nor Medway Council which owned the street lights, have ever admitted being responsible for causing his injuries.

However, following representation from accident at work legal specialists Hudgell Solicitors, which alleged a number of Health and Safety and Work Equipment regulation breaches, both defendants have now agreed to a joint damages settlement to compensate for the injuries suffered, and the impact it had on his life.

Worker heard ‘cracking sound’ as lamppost snapped in two, causing his fall

Speaking about the accident, Mr Smart said he had been working alongside his son who hadn’t wanted to go up the ladder – which are then tethered to the lamppost – so he offered to do so instead.

He said: “I had about 15 jobs on this particular day, and we could not get cherry-pickers or scaffolding to this lamppost for logistical reasons. It was work policy that if there is no vehicular access, ladders could be used, which is quite common.

“We were told to use ladders up to 5 metres, with the heaviest person standing on the bottom of the ladder, and the ladder tethered at the top.

“I was working with my son on this day who also worked at Kier and he wasn’t very happy with going up the ladders, so I said ‘it’s not a problem’ as despite being a supervisor I was allowed to help out when it was needed.

“My son is heavier than me, so he stood on the bottom rung and I carried out my normal visual checks, and went up.”

After carrying out basic visual checks, Mr Smart went about his job. Although there was no apparent physical evidence of any defects with the lamppost, it snapped internally, with Mr Smart saying he heard a ‘cracking sound like a twig being snapped’.

“It happened very quickly, I heard the crack and I felt it through the ladders,” he said.

“I can remember shouting ‘I’m falling’, mainly so my boy could get out of the way. I hung on to the ladders and fell, ending up lying flat against them with my face against the lamppost and my foot was sticking out at a funny angle as I landed.

“The next thing I knew, my boy was shouting ‘shall I call an ambulance?’ and I asked him to give me a minute as I was heavily winded and needed a minute to think about how I was. When I saw my leg at this weird angle, I said he’d better call after all.”

Doctors considered amputation of limb before frame was pinned to leg for support

The accident happened on December 11, 2012, and Mr Smart, who was 58 at the time, was taken to Medway Maritime Hospital, in Gillingham, Kent, where he was sent for X-ray after being transferred to the Trauma Unit.

He was then told by a doctor that he wouldn’t be going home “this side of Christmas”.

“By this time it was really, really painful, and I blacked out at one stage. When I woke up my leg had been set and put in a cast and I knew nothing about it,” he said.

Within a few days, Mr Smart says he was told by a nurse that they were looking for an orthopaedic surgeon who would be willing to work on him, as he was a smoker, had rheumatoid arthritis, and because of his age it might be better to amputate the limb.

“I said I didn’t care how long it took to find a surgeon, I wasn’t losing my leg,” he said.

Two weeks later he had surgery, and had a frame with 15 pins was attached to his leg. He was eventually discharged home with his leg still in the frame on December 28 after more than two weeks in hospital.

He says he suffered agonising physiotherapy and attended regular outpatient clinics for three full years, but after seeing no improvement in the pain, he underwent another operation in November 2014 to fuse his left foot and ankle together, leaving him with just 10 per cent movement in his foot.

He added: “It makes some things more difficult, but the pain is now 90 per cent gone. I walk with a limp and my left leg is 15mm shorter than the other one now, and I have to wear packing in my work boot.”

Mr Smart, now 63, of Seabrook, Kent, did not return to work at Kier Construction until eight months after the accident, when he says he was limited to answering phones and paperwork.

He left that job in June 2016, and is now employed as a supervisor for a lighting firm in Ashford, Kent, where he says he has had incredible support from his new bosses. His son also quit his former job and again works alongside his dad.

‘I’m so relieved it’s over, and settlement has stopped me blaming myself’

Mr Smart, who has been married to his wife for 41 years and also has another grown-up son and three grandchildren, said “I’m so relieved it’s over finally. It’s been an incredibly hard time on myself, my wife and my boys.

“My boy who was with me that day somehow blamed himself, but I’d much rather it had been me that fell that day instead of him. His life was on hold for four years while he acted as my taxi driver, taking me to hospital and missing work sometimes to help me.

“We’re all just starting to get our lives back, and hearing they were prepared to settle was a huge relief as I was dreading it going to trial at court. Even though I was there as a witness, and I hadn’t done anything wrong, it still wasn’t a place I wanted to put myself or my family and I was always thinking about it.

“Hudgell Solicitors have been fantastic as they’ve helped me so much, physically, but also mentally. Knowing they’ve finally agreed to compensate me and take responsibility for what happened to me makes me feel so much better. I knew I hadn’t done anything wrong but I was anxious and doubting myself, going over it all the time. Now, after this, I know for sure it wasn’t my fault, and that makes such a difference.”

Solicitor says ‘substantial settlement’ was justified given injuries suffered in accident

Senior solicitor Samuel McFadyen, of Hudgell Solicitors, represented Mr Smart and said it was only right that the Kier Group and Medway Council came to an agreement over damages.

He said “It is significant that we never had any admissions of liability in the case, and through all representations both Kier Group and Medway Council denied being responsible. However, once we reached the stage where all parties were due to be called to court and give evidence, they jointly agreed to offer a substantial settlement.

“It is simply not right that in situations such as this, an injured party such as Mr Smart is stuck in the middle of two bodies simply looking to protect their own interests. His life has been hugely affected over the past four years, and an early settlement would have helped him overcome his injuries quicker and soften the blow of not being able to work.

“There were so many areas of concern in this case, from the use of a ladder at such a height without supports to the failure of the council to maintain and test the stability of the lamppost, which was more than 30 years old, to ensure they were aware of any dangers

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