Holidaymaker hit by falling tree sues lawyers for £4.5m after compensation blunder - The Independent

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A holidaymaker hit by a falling coconut tree while lying on a sun lounger in Sri Lanka is suing her former lawyers, claiming they ruined her chance to claim £4.5m in compensation.

Claire Saywell was relaxing at the four-star Club Hotel Dolphin resort in the western town of Waikkal in February 2017 with her husband Darren when the 50ft coconut palm tree came down on top of her as she sunbathed.

She described how her legs were smashed and bent backwards at the knees in a "v-shape" by the weight of the falling trunk crashing through her lounger and she had to undergo emergency surgery in the Sri Lankan capital Colombo before being flown back to her home in Sittingbourne, Kent.

Mrs Saywell, who worked as an insurance consultant, subsequently enlisted major law firm, Slater and Gordon UK, to help her sue the travel agent she booked the trip through, Tui.

But she is now suing her erstwhile lawyers for a massive £4.5m instead, alleging that she lost her chance to claim when they missed a crucial deadline due to serving legal documents launching her claim to the wrong email address.

London's High Court heard this week that whilst Slater and Gordon UK Ltd have admitted breach of duty for having "failed to validly serve Mrs Saywell’s claim form in her personal injury claim," the firm is disputing that they owe her a penny on the basis that she probably would have lost her case anyway.

In a preliminary hearing, Howard Elgot, for Mrs Saywell, told the judge, Master John Dagnall: "This is a professional negligence claim by Mrs Saywell against her previous solicitors.

"Breach of duty by the defendant is admitted. They failed to validly serve Mrs Saywell’s claim form in her personal injury claim against Tui UK Ltd and her claim was struck out.

"On 16th February 2017, at about 1020am, the claimant was sunbathing on a sun lounger at a swimming pool in the grounds of the Club Hotel Dolphin, Waikkal, Sri Lanka. The weather was hot and sunny with a gentle breeze.

"The area around the pool was planted with well-established coconut palm trees - cocos nucifera - of approximately 25-30 metres in height and sun-loungers, including the one used by the claimant, were situated under the palm trees.

"Without warning, a large palm tree fell on her legs, causing her severe and permanent personal injuries.

"She has had about 10 operations on her legs. She has serious pain and continuing disabilities in relation to her legs.

"She has had to give up her job as a well paid peripatetic insurance executive and is unemployed. She requires single-storey accommodation.

"The defendant alleges that the falling of the tree was a natural disaster caused by a sudden gust of strong winds and not influenced by any human factor and that therefore there was no want of care by the hotel or its subcontractors", the barrister said in his written submissions.

Asking for permission to enlist an expert arborist - who had earlier looked at the evidence in the claim against Tui - to make a report about the state of it at the time it fell, the barrister said that the expert had previously said: "It was clear that in order to secure some form of utility line, a spike and concrete had been driven into the base of the tree...this had caused rot and damage to the trunk."

He explained that "these trees would not usually fall over in high winds, unless of course they were already rotten," adding that "in his view a lay person could note the damage being done to the tree."

"We say we had an exceptionally good chance of succeeding against Tui, whereas my learned friend says we had a terrible chance," he told the judge.

"The defendant objects to the claimant having permission to rely upon the evidence of an expert arborist.

"It is correct to say that the claimant can probably show that she had more than a negligible chance of success just on the evidence in the defendant’s file.

"But the evidence before a court would have been so much better. There would have been four witnesses as to the modest strength of the winds that day and better photographs of the distressed tree.

"With a finalised report and full lay evidence, Mrs Saywell is confident of showing that her chances of success would have been in excess of 90%."

However, Clare Elliot, for Slater and Gordon UK Ltd, told the judge that the planned case against TUI "didn't exceed the 51% likelihood of success," adding that the £4.5m damages figure is also "highly contested".

Master Dagnall, granting Mrs Saywell permission to call the expert arborist, said: "This is a solicitors' negligence claim, arising from an accident arising from a falling coconut palm tree on holiday in Sri Lanka.

"The defendants failed to serve the claim form in time, with the result that the claim was struck out," he added, describing the claim against the lawyers as a "loss of a chance claim".

"It is common ground that the question is the chance of the claimant [having achieved] a successful settlement or success at trial.

"There is no suggestion that her prognosis has improved recently."

The court also heard that the two sides will try to settle the case through alternative dispute resolution if possible.

Outside court, expanding on the circumstances of the missed deadline which led to the case against Tui failing, Mr Elgot said: "The defendants served using the wrong email address for Tui's solicitors. As a result the claim against Tui was struck out".

Club Hotel Dolphin in online publicity material boasts of offering "world class service" in a resort featuring two pools, a spa and gym, mini-golf, three restaurants, four bars and a tennis court.