A Hat trick of Forbes Trial Successes for Chris Threlkeld

Although on the surface the claims had little in common, the manner in which the claims fell apart revealed many similarities, the chief common denominator being that each claimant’s account did not stand up to scrutiny under counsel’s cross examination.

Case 1

The claimant alleged she suffered an injury to her right ankle whilst walking along the pavement when she tripped due to an uneven/raised flagstone.

The claim was defended due to a number of concerns the council harbored as to the genuineness of the circumstances. For instance there were different reasons given for the Claimant's journey/reason for being out. They varied from her leaving her daughter's house to return to her own home, to her going out for a walk with her daughter and/or granddaughter.

Also, the direction of travel (i.e. away from her daughter's house and not towards it) meant that the claimant could not have encountered the trip edge, whereas the circumstances in her claim form and Particulars of Claim alleged that she tripped.

Following her accident, she said in her witness statement that she managed to hobble all the way home, but in her claims questionnaire she stated that her daughter's partner drove her home following the accident.

According to the medical report of Mr Page, whilst there was reference to uneven paving, the cause of her injury seemed to have been when her right ankle simply 'gave way'. This injury could therefore have simply come about due to the Claimant having a weak ankle and it just giving way

The Claimant sought to play down/deny any previous ankle injuries to her medical expert, yet her medical records revealed a significant history of injuries to that right ankle.

Had these discrepancies not emerged Forbes also had the luxury of an available Section 58 defence (based on a reasonable inspection and maintenance system) with 2 witnesses  ready and available to substantiate it.

When these discrepancies became clear under cross examination, the claimant, probably following advice from her own barrister, asked if she could discontinue her case on condition she would pay a substantial contribution towards defendant costs. She was possibly advised that otherwise she could face a finding of fundamental dishonesty. This was agreed, and judgment for the defendant was entered.

Case 2

Remarkably this claim ended up with the same outcome as case 1.

The claimant alleged he had come off his bike as a result of it going into a pothole on the highway.

Again, under expert cross examination a somewhat different picture began to emerge. It was put to the claimant that contemporaneous ambulance and hospital records showed that he did not know/could not remember what had caused him to come off. Therefore,how could he be sure at a later date that it was a pothole which caused him to fall off rather than some other reason (eg. being hit by another vehicle). Under pressure of cross examination he accepted this. When it was suggested his insistence that his accident was as a result of a pothole was potentially dishonest, the claimant requested to discontinue his claim, again agreeing as a condition to pay a substantial contribution toward s defendant costs.

Case 3

The claimant alleged that as he was exiting a block of flats which the defendant housing group occupied, he placed his hand on the handrail to assist with walking down the ramp. The rail was very loose and unstable, allegedly causing the Claimant to fall and bang his face/mouth on the handrail.

On later inspection following the notification of the claim the rail was inspected and was noticed to be loose. However, suspicions were raised as to the veracity of the accident circumstances when the account in the Notification form differed from that provided in the medical report. One account stated  the claimant had fallen onto the handrail but the other alleged it had sprung back hitting him in the mouth and breaking some teeth. There was also inconsistency as to whether or not he had lost any teeth in the incident, the dental evidence failing to support his claim of lost teeth at the time of the alleged accident.

There was therefore much for defendant counsel to cross examine the claimant on, and he did not disappoint as can be seen from a summary of some of the issues raised below:

 Counsel explored with the Claimant whether it was his case his teeth were knocked out then and there. The Claimant eventually confirmed that was not his case and that his teeth had been loosened,  not lost.

The Claimant was taken to the various entries referring to his teeth being knocked out and put to him that this was not true.

The Claimant was asked how he was able to access a block he did not live in.

Counsel queried  with the Claimant how he could know that the door he was exiting at the time was closest to the town centre if he had never used it before.

He explored with the Claimant why he would be out visiting Ms X  and going to town if he was so afraid of COVID as he set out in his witness statement.

The Claimant was challenged on his failure to report the accident to the Defendant.

Counsel challenged the Claimant's failure to report his accident to his GP until  a year and five months later.

The Claimant’s failure to attend physiotherapy was also challenged.

Counsel put to the Claimant his inconsistent accounts and his failure to report his supposedly knocked out teeth to Dr Ibrahim who prepared his medico-legal report, and he took the Claimant through his dental records indicating he had appeared incredibly keen to obtain implants.

 Finally, Counsel suggested to the Claimant that his teeth had in fact been knocked out as a result of him being hit  by a baseball bat as was set out in his dental records, and that he had fabricated the accident in order to substantiate a claim for his broken teeth.

The Claimant’s witness and friend, Mr Atkinson was then called but was of little persuasive value to him since he had not himself seen the alleged accident.

It was not surprising therefore that the judge dismissed the claim but it was a surprise and disappointing  he did not make a finding of fundamental dishonesty, simply finding instead that the claimant had failed to prove his case.

 Forbes comment.

These successes have not come about by accident. In all three claims the win has resulted from a combination of factors, namely: careful preparation;  forensic investigation to gather supportive witness statements; obtaining and perusing medical records; choosing and fully briefing talented barristers who can expertly cross examine witnesses, and readying defendant witnesses to give evidence if required.  I have sat in on many trials in my career and I can vouch for the fact that it is one thing for someone to propose a falsehood to their own solicitor and get it down on paper, but quite another to maintain it under expert cross examination in the witness box in front of a judge. In all 3 of the cases highlighted there was more than a whiff of invention, and not one of the 3 claimants was able to present a convincing set of circumstances to warrant a finding in their favour.