Misjudged Claim Fails

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27 April, 2020

Sarah Davisworth
Senior Associate

A Claimant has lost her claim at trial after the Judge found that the accident occurred because the Claimant misjudged the kerb.

The facts

In November 2015 at approximately 17.30 the Claimant alleged that she was stepping off the pavement onto the road when she tripped on an uneven surface created by a broken kerbstone.

The Defendant admitted breach of duty but put the Claimant to proof regarding the mechanics of the accident.

The trial

The Claimant was the only witness and she gave evidence confirming that she was on her way to visit her friend with her three children at the time of the accident, one of whom she was pushing in a pram. Whilst the pram was mentioned in passing in one of the three medical reports, the Claimant did not refer to this in the Particulars of Claim or in her witness statement.

She explained that at the time of the accident she was telling her children to behave themselves when they got to her friend's house. She alleged that she pushed the pram off the kerb and fell down. She accepted she did not know where the kerb edge was, and that she could not remember which foot it was that caught or tripped on the defective part of the pavement. It was also put to her that she would have fallen anyway if she had stepped to the right or left of the defective kerb stone and she agreed. She also accepted that she would have fallen anyway even if the kerb had not been broken.

The Claimant alleged that she sustained an injury to her right knee and damage to her two front upper teeth. However, when the Claimant attended her GP following the accident there was no mention of any injury to the face or teeth. Furthermore, the Claimant was unable to explain what the £30.00 miscellaneous expenses claim included in the Schedule of Special Damages related to.

The Judge concluded that the evidence in relation to the mechanism of the accident was confusing. He found the Claimant's evidence to be unreliable and inconsistent, noting that the failure to mention the fact she was pushing a pram at the time of the accident was a "significant omission". In addition, he could not understand how she had tripped if she was descending the kerb. The Judge also found it was "troubling" that there was no reference to the dental injury within the GP records.

Whilst the Judge was satisfied that the Claimant had fallen, he was not satisfied that the she fell as a result of the Defendant's breach of duty. He remarked that it was more likely she was distracted by her children and "misjudged the step from the kerb to the road".

The claim was dismissed.

Forbes comment

We are delighted with the outcome of this case. Breach of duty had been conceded by the Defendant and there were no significant red flags in terms of causation. However, the burden of proof is on the Claimant, and the Claimant must be able to prove his/her case to establish causation. In his Judgment, the District Judge criticised the significant lack of detail in both the witness statement and in oral evidence regarding the mechanism of the accident.

For more information contact Sarah Davisworth in our Insurance department via email or phone on 0113 386 2688. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Insurance department here

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