Forbes at Trial: Claim that failed to 'add up' dismissed by the Court

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20 January, 2020

Anon v Rochdale Borough Council

The Claimant alleged that she was walking her grandchildren to school when she tripped and fell over a raised paving stone. She fractured her left shoulder and brought a claim for personal injuries against the local authority.

The Defendant admitted breach of section 41 Highways Act, but denied that the breach was causative of the Claimant's alleged accident and put the Claimant to strict proof that her injuries were caused as a result of the accident.

The decision

During the course of the claim, the Defendant had highlighted a number of significant discrepancies in the Claimant's presentation of her claim. During the trial, the Claimant and her witness were the subject of intense cross-examination, following which the Judge opened her judgment by remarking that the Claimant's evidence was inconsistent and simply "didn't add up".

  • Firstly, there was a dispute regarding where the accident had happened. The Claimant's evidence was that she had fallen on the street but a review of the A&E records confirmed that her injury had occurred at home. The Claimant denied this and alleged that she had not been asked about the location of the accident. The Judge acknowledged that receptionists in A&E departments have a routine set of questions to ask patients, so it was highly unlikely that the Claimant was not asked this particular question. The Defendant also sought to rely on a letter from the fracture clinic, which similarly confirmed that the accident had occurred at home.
  • Secondly, there was inconsistent evidence as to the circumstances of the alleged accident. The CNF, medical report, Particulars of Claim and the Claimant's witness statement, all stated that she had been walking prior to her accident but the A&E doctor had recorded in the medical notes that she had been "running". The Defendant put Part 18 questions to the Claimant and she admitted to running. During cross-examination, the Claimant said that she did not really see the difference between whether she was running or walking, to which the Judge pointedly replied, "there was a big difference".
  • Thirdly, there was contradictory evidence as to whom the Claimant had reported her accident to. In her witness statement, the Claimant confirmed that after her accident she had continued to walk to school where she informed friends at the school gate. It is suggested that those friends were the first she spoke to about her accident but then in her Part 18 response the Claimant confirmed that a friend assisted her at the scene of the accident. She had previously disclosed a statement from the same friend, which did not make any mention whatsoever of assisting the Claimant immediately following the accident. During cross-examination, the Claimant was adamant that her friend had come to her assistance but she was unclear whether she had assisted her at the scene of her accident, at the end of the road, or at some point in between.

The Claimant was unable to say with any certainty when the photographs of the alleged defect had been taken. She said she knew immediately what had caused her accident, but the Judge noted that there was no supportive account in her medical records to confirm that she had tripped in the manner described. The A&E records referred to a "fall". DJ Evans commented, "It is not uncommon for people who fall on a street to look and try to work out what had made them fall".

Counsel for the Defendant contended that not only was this a case of Claimant who had not proved her case but one that had been fundamentally dishonest. However, the Judge concluded that whilst the Claimant was not a reliable witness there was not sufficient evidence to make a finding of fundamental dishonesty. She had failed to prove her claim and the matter was dismissed.

Forbes comment

In this case, Part 18 questions were used as a valuable tool to undermine the Claimant's claim. Following exchange of witness evidence, a series of Part 18 questions were put to the Claimant to clarify her case. In the Claimant's response, she noted that she was assisted at the scene of the accident by her friend. A second statement was then conveniently disclosed from the said friend, which confirmed that she had helped the Claimant after the accident.

Upon receipt of the trial bundle, it was carefully checked and it was noted that a new version of the Claimant's statement had also been included. The new statement added further evidence to confirm that the Claimant's friend had assisted her at the scene of the accident. The statement had not been previously disclosed to the Defendant.

Forbes successfully argued that the new version of the statement should be removed from the trial bundle and furthermore succeeded in an application to strike out the friend's second statement as it had been served out of time and no application for relief from sanctions and/or permission to rely on it had been made. We are delighted that the robust defence of this claim resulted in the dismissal of this claim. A fantastic outcome for Rochdale BC.

This claim was handled by Chris Threlkeld at Forbes Solicitors.

For more information contact Chris Threlkeld in our Insurance department via email or phone on 0161 918 0010. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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