Defendant One Step Ahead

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02 March, 2017

Jacobs v Symphony Housing Group

Liverpool County Court - January 2017

The Claimant alleged she sustained an injury after slipping on pooled water and catching her foot on the lip of the top step of a communal entrance. The communal steps gave access to the flat owned by the Claimant.

It was alleged that the lip on the top step had caused water to pool. The Claimant contended that the Defendant had failed to repair the alleged defect even though the lip had been brought to their attention.

The Defendant admitted the existence of the lip but maintained that it was only 5mm in height and did not present a foreseeable risk of injury.

Causation was also denied by the Defendant, at trial the Defendant relied on the Claimant's inconsistent medical records which suggested that the injury had been sustained in an alternative manner. The Claimant contended in cross examination that the numerous inconsistent medical entries were incorrect. The Judge however rejected the Claimant's evidence and refused to believe that the paramedics, the triage nurse, the attending doctor at A&E and the doctor who took the history two days after the accident had all mistakenly recorded the accident circumstances with no mention of any trip or slip. The Judge noted that the Claimant was an intelligent and articulate person who expressed herself clearly, he remarked that this was not a case where language difficulties or poor diction could have caused several medical people to make incorrect entries in the records.

The Judge concluded that the Claimant had failed to discharge the burden of proof and dismissed the claim.

Forbes comment

Although, the Court found that the Claimant had failed to prove her case, for the sake of completeness he considered whether the presence of the "lip" to the top step was a breach of the Defendant's duties under the Occupiers Liability Act and at common law. The lip was at the most 10mm high. The Judge referred to the recent Court of Appeal case of Dean and Chapter of Rochester Cathedral v Debell (2016)EWCA Civ 1094 and found that the presence of the lip at the maximum height of 10mm did not amount to a danger which was sufficiently serious to require the Defendant to take steps to eliminate it, therefore on that basis the claim would have failed as well.

Following the handing down of the Judgment the Defendant made a formal application for a finding that the Claimant had been fundamentally dishonest. The Judgment was scathing of the Claimant and implied that the Claimant had fabricated the claim with the Judgment recording "there are far too many inconsistencies between the contemporaneous accounts to give credibility to her pleaded case". Regrettably despite the critical comments regarding the Claimant's conduct the Judge was not prepared to make a finding of fundamental dishonesty.

For further advice please contact Nick Holgate by email or on 01254 222399.

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