Cat-walking Claimant Fails to Impress the Court

Forbes has once again successfully represented a Defendant Highway Authority in respect of an alleged tripping claim.

The Claimant alleged that she tripped and fell due to a pothole in the pavement. The location of the alleged defect was very close to a wall which meant, in order to encounter it, she must have been walking with her shoulder brushing against the wall in order for her right foot to come into contact with it. With her right foot going into the hole, it might have been expected that it would be the Claimant’s right shoulder that would have been brushing the wall, but during cross examination at trial she said that she was walking with her left shoulder brushing the wall. When it was put to her that if that was the case then her right foot could not have come into contact with the pothole and instead it must have been her left foot, the Claimant insisted that it was her right foot.

To justify this, the Claimant proceeded to argue that she walked with one foot in front of the other, like a catwalk model. It was pointed out by Counsel that she had not been observed walking in such a manner at the court. The Claimant however proceeded to insist that this was her manner of walking and even later tried to give a demonstration by walking down the side of the courtroom akin to a fashion model walking down a catwalk!

On top of the Claimant’s outlandish submissions, she also struggled to prove the defect was the cause of her accident. She admitted in evidence that, following the accident, she did not turn around to identity the pothole but just continued home. She did not go back until a week later. The Claimant also said that at the time of the accident it was covered in leaves by about 80% and she therefore had to admit that she would not have been able to see the hole even if she had turned around to see what had caused her fall. She then admitted that when she went back about a week later, the leaf coverage was down to 1%. This seemed unlikely, but in any event, when she went back she was looking for the most obvious cause of her accident, and seemed to have grasped the hole as the same without evidence that it was actually involved.

Based on this testimony the Judge could not be persuaded that she had proven her case and the claim was dismissed.

Forbes Comment:

This case provides a useful reminder that the burden of proof lies with the Claimant and it can be worth maintaining your denial where the accident circumstances do not seem to properly make sense.