25 July, 2019
The Claimant brought a personal injury claim after tripping in the street. The Defendant admitted liability but put the Claimant to strict proof at trial.
The Claimant alleged that she was on her way to pick her daughter up from school when she stubbed her little toe on a raised flagstone.
At trial, the Defendant subjected the Claimant to robust cross-examination. The barrister questioned the Claimant on the route she had allegedly taken to her daughter's school. The Defendant noted that the she had taken an unlikely route. When placed on the spot, the Claimant offered a rather convoluted account of her movements, which she had not previously explained in her witness evidence. She also described the pain immediately following the accident as being 10/10 but was unable to explain to the Court why she had failed to seek medical attention until the following day.
The Defendant also questioned the Claimant regarding the information she had given to the medical expert. She had told her medical expert that she had not had any previous problems with her left foot, yet her medical records confirmed a history of left foot problems.
Furthermore, her claims history revealed that this was her fourth public liability claim in five years. She had also made other claims, which brought her total number of claims to eight. Similarly, when asked about previous claims or accidents by the medical expert she had informed him that that she had not had any other claims, which the Judge commented, was "patently wrong".
In conclusion, the Judge found that the Claimant had not discharged the burden of proof and dismissed the claim.
This was an excellent result. The Judge was clearly not convinced by the Claimant; he described her as being "accident prone", and "obviously very familiar with making claims". He also commented that the number of previous claims she had made "set alarm bells ringing". Yet, unfortunately, the Judge did not make a finding of fundamental dishonesty against the Claimant and was unwilling to consider any suggestion that she had been dishonest. Defendants continue to face an inconsistent judicial approach to the issue of fundamental dishonesty, with many Judges preferring to conclude that a Claimant has been unreliable or simply unable to discharge the burden of proof.