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Forbes at Trial: Costly Claim Fails at First Hurdle

Cox v Bury

A Claimant's claim for personal injury was dismissed after the Court concluded that the alleged pothole was not cause of the Claimant's accident.

The Claimant alleged that she tripped in a pothole measuring in excess of 50mm and sustained a fractured elbow. The Claimant brought a claim pursuant to s.41 Highways Act 1980. The Defendant denied that the defect was actionable or hazardous to pedestrians.

The claim was limited to £25,000 and the matter was therefore allocated to the fast track. In the Claimant's pleadings, the claim for care and assistance was simply marked "TBC". When the Claimant subsequently filed an Updated Schedule of Loss, the claim for care and assistance totaled in excess of £138,000. The Defendant filed a robust Counter Schedule of Loss and the Claimant was asked to explain why the claim had not been particularised at the outset of the matter when the amount of care and assistance ought to have been known to the Claimant.

On the morning of the trial, the Judge noted that an application had not been made to increase the value of the claim from £25,000 to £150,000 and ordered the Claimant to pay an additional £7500 by way of Court fee before the trial could be heard. After the Claimant's representative promptly paid the Court fee, the Judge agreed to deal with the issue of liability only.

The Claimant and her husband were cross-examined at length, and after just hearing the Claimant's evidence, the Judge proceeded to give her judgment. The Judge concluded that the Claimant had not fallen in the pothole. She based her conclusion on the medical records, which did not refer to a trip or a pothole. Furthermore, the Judge remarked that there was also only one reference to the pothole in the Claimant's own witness statement. In all likelihood, the Judge concluded that when the Claimant returned to the area a few days after the accident, she found a pothole and resolved it was the cause of the accident. On the balance of probabilities, the Judge was unable to conclude that the accident was caused by a pothole in the road and dismissed the claim.

Forbes comment

Although the claim had been valued in excess of £25,000, the Claimant's representatives had failed to take steps to increase the value of the claim or to pay the increased Court fee. The Courts are alive to this issue, and where claims have been underestimated, the matter will not be heard until the correct Court fee is paid.

For more information contact Olivia Hart in our Insurance department via email or phone on 01254 662831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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