Undermining of Claimant's evidence - case not proven. Murtagh v Newcastle City Council

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02 September, 2020

Chris Booth
Partner and Head of Insurance

The facts

The Claimant alleged that on 3rd December 2015 at around 5pm he was walking on Acorn Road, near to the junction with Osbourne Road in Jesmond, Newcastle, when he tripped over a roadworks sign that had fallen over on the pavement. The Claimant fell to his left side and suffered his main injury to his left wrist.

The Claimant attended at A&E that same day and a supportive/corroborative note was made as to how he had suffered his injury ('FOOSH (fell onto outstretched hand), tripped over sign, left wrist pain').

The Claimant brought a claim against the Defendant. The Defendant admitted breach of statutory duty but put the Claimant to proof that the accident had occurred as suggested and also raised contributory negligence on the basis that not only did the hospital records mention that the Claimant reported that the sign had been on the floor for four or five days, but the Claimant himself admitted to having seen it lying on the floor prior to his accident.

The matter proceeded to trial and was heard at Newcastle County Court on 26th August 2020.

The Claimant relied on a medical report from an Orthopaedic Surgeon. The report, whilst primarily concerned with reporting on the Claimant's injuries, had a section with regards to previous relevant injuries/accidents. That section specifically referred to previous accident claims and it stated quite clearly that the Claimant had not had any previous accident claims. Investigations had already been carried out by the Defendant in this regard that revealed that the Claimant had been involved in a road traffic accident in May 2002 (for which he brought a claim), and an accident in a supermarket in December 2008 (for which he brought a claim). During cross-examination the Claimant denied being asked about previous accident claims and said that he thought the expert only wanted to know about previous accidents involving his left wrist, for which the Claimant had not had any, hence why the medical report made no reference to those previous claims.

The Claimant's evidence contained within his witness statement, his medical report and his Particulars of Claim contained three different directions of travel prior to his accident. His witness statement indicated that he approached the sign diagonally across the junction of Acorn Road and Osbourne Road; the medical report said that he was walking along Acorn Road and was just about to turn left on to Osbourne Road; and the Particulars of Claim said that he was walking along Osbourne Road and turned right onto Acorn Road. When questioned about these different accounts, the Claimant said that there were irrelevant as the main issue was that he had simply tripped over the sign and seemed unwilling to provide a definite direction of travel when questioned during cross-examination.

Pre-proceedings, the Claimant submitted a Schedule of Loss. The main item claimed was for lost earnings which were claimed in the sum of £17,000. When proceedings were issued, however, the Schedule of Loss attached to the Particulars of Claim claimed loss of earnings at just over £1,000. The Claimant was asked why had he started off trying to claim over £17,000 but then reduced it to £1,000. The Claimant couldn't explain why but tried to say that his solicitors initially said that he was entitled to £17,000 but then said that actually he was only entitled to £1,000. He trusted their expertise and said that he thought that they would have calculated the correct figure for him. The Claimant explained that he was a musician, not an accountant. The Claimant went on to say that he recalled being asked a number of questions by his solicitors about his work and after he had given them everything they asked for, they sent him out a document that said that he was entitled to £17,000. He didn't think anything of it, he trusted that they knew what they were doing and so signed and returned it to them.

The Judge found that due to the Claimant's inconsistent evidence in relation to his direction of travel prior to his accident and because of his poor explanations with regards to the significant decrease of his loss of earnings claim, the Claimant had not managed to prove his claim.

Representations were made on the Defendant's behalf to invite the Court to find that the Claimant had been fundamentally dishonest, but the Judge was unwilling to make such a finding and gave the Claimant the benefit of the doubt.

Claim dismissed.

Forbes comment

This is a very good result for the Defendant. It shows that even where there is corroboration in the contemporaneous medical records (and thus suggesting that the accident could have happened as alleged), it is still worth scrutinising in detail every other piece of evidence. In this case, the Claimant believed that, just because there was an entry in his hospital records that indicated that he had tripped over a sign, he had already proved his case. The fact that there were so many significant inconsistencies in relation to his route and the lack of a sufficient explanation with regards to his lost earnings claim, harmed his credibility so much so that it was a strong indications that the accident probably didn't happen either as alleged or at all.

For more information contact Chris Booth in our Insurance department via email or phone on 0161 918 0002. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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