19 June, 2018
Fishburn v Rochdale BC - Manchester County Court
A Claimant has discontinued her claim for personal injury after a poor performance in the witness box.
The Claimant alleged that she sustained a personal accident whilst walking along a pavement. The Claimant contended that she tripped on a slight depression in the road. The Defendant denied liability on the basis that the defect was not actionable or dangerous to pedestrians and sought to rely on the section 58 defence.
In the witness box, the Defence focused on what had caused her to fall. The defect measured 6mm at its worse and was a light circular depression in the pavement. The Claimant confirmed that she was walking along the pavement when she tripped. It was pointed out that she would not have encountered the trip edge which ran parallel to the kerb. When asked to describe how she fell, she explained 'she just fell' and could give no further explanation, despite being asked the question in numerous different ways. The photograph attached to her statement showed a small 'x' in the centre of the circular depression to identify where she had tripped but in evidence she said the 'x' was the point where she landed. She failed to appreciate that if that was the case it would mean that the cause of her fall must have been some distance away from the 'x'.
She was then asked to state which parts of her body she had injured and she confirmed the areas to be to her left knee and left ankle. She was directed to the A&E attendance note which showed that she complained of injuries to her left ankle and right knee. She disputed the contents of the contemporaneous A&E notes and reaffirmed that she had suffered injuries to her left ankle and left knee.
In an effort to repair some of the damage done to the Claimant's evidence during cross-examination, her barrister sought to re-examine the Claimant but only made matters worse. The Claimant was asked whether the photograph she had taken showed anything that had caused her to fall over to which the Claimant replied that "no it did not". At this point the Claimant's barrister requested a short recess to allow her the opportunity to take instructions from the Claimant. When the trial recommenced the Claimant discontinued her claim.
On the face of it, reading the above might lead one to believe that the Claimant had been dishonest in bringing this claim but the Judge was keen to point out that he didn't believe that the Claimant was dishonest as he believed that she had suffered a fall but that the Claimant couldn't prove what had caused it. Whilst Courts are becoming more receptive to the issue of fundamental dishonesty, a failure to establish the cause of the accident is simply not sufficient. There must be something more substantial which goes to the root of the claim.