When the claimant's evidence doesn't get him past first base

Alice Norcross
Alice Norcross

Published: January 19th, 2022

7 min read

Mr Rigby brought a claim against Wigan Council alleging that he had tripped and fallen as a result of a significant pothole in a road.

The matter was listed for a two-day trial but all came crashing down for the claimant before lunch on the first day.

His first problem was that two of his witnesses had not attended court. One was his girlfriend who he said had taken the photographs of the alleged defect, and the other, his mother, was going to give evidence of the length of time the pothole had been present. Both of them were said to be unwell or had someone they had to care for who was unwell but had not provided any direct evidence of that, there were no Civil Evidence Act notices and no attempt was made to try and get them to give evidence remotely. The district judge agreed that she could put little weight on those statements.

The claimant's problems did not end there. Giving his own evidence he was very contradictory and blamed his solicitors for discrepancies between the evidence he was giving and his witness statement despite accepting that he had signed it as being true and verbally agreed with it being true on the day of the trial.

He was contradictory about whether he was going to or coming back from the shops, he was contradictory about whether he had fallen over or simply stumbled, and he could not explain why he had not reported the fact that he said he'd seen the defect on many occasions.

Much was made on cross-examination of the fact that the claimant's photographs show the length and breadth of the defect but there were none of the depth which seemed very strange when preparing for a tripping claim. Our barrister left that for the judge to make her own mind up about but with a clear inference that maybe the depth was not all that great.

There was a further issue on the photographs in that one clearly showed a man's hand, and the claimant had to concede that it was his hand, not that of his girlfriend, as initially suggested.

He was a thoroughly unprepared witness who did himself no favours.

Perhaps one of the most damning pieces of evidence for the claimant was that the clinical records indicated that the claimant had gone over on his ankle in a ditch causing pain to his foot and heel. The claimant was at great pains to suggest that a ditch and a pothole were effectively the same thing which the court was having none of. It was pointed out that the claimant worked as a tree surgeon and so would likely encounter ditches all the time and this was a likely explanation for his injuries.

Over lunch, it was suggested to the claimant's barrister that a drop hands settlement might be available and the claimant accepted that the claim be discontinued. The judge described the claimant's decision to discontinue as a wise one.

Forbes Comment

This claim was being defended on the basis that there was a good S58 defence that the Council "had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic." In the end, the Council's witnesses did not need to give evidence at all. Whilst this can be frustrating for defendant witnesses who gear themselves up for trial and attend on the day only to be told they are not going to be called, it is, of course necessary to fully prepare for the trial. In this case, it was the claimant falling apart that allowed the case to be successfully concluded for the defendant as swiftly as it was, without any defence witnesses being called. That cannot be relied upon.

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