01 December, 2020
The Claimant alleged that on Saturday, 7th May 2016 at approximately 7.30am she was making her way to a local newsagent when she fell down inside an open drainage grid. Various accounts referred to her falling into the narrow hole up to her waist, with one account claiming, incredibly, that she went into the hole so deep that only her head was showing. She suffered a fracture to her right ankle.
The Claimant was said to be assisted by an apparently independent witness who found her in the hole. He then went across the road to the Claimant's home to inform her son and together they returned to her and helped her out of the hole and then back home.
The Claimant called for an ambulance just after 9am and a recording of that call was obtained. A transcript of that call was made available during the trial.
The matter was defended pursuant to s58 Highways Act 1980. The Defendant had in place a reasonable system of inspection and could show that routine inspections of the area where carried out. The Defendant received a complaint four days prior to the alleged accident date that the drainage cover had become loose. A member of the defendant's Highways Team attended and secured the cover back in place.
The Claimant's case was scrutinised in detail so that every inconsistency between the CNF, medical report, Particulars of Claim, witness statements and ambulance call transcript was highlighted.
The trial judge found the Claimant's explanation of the 90-minute delay between the time of the accident and the calling of the ambulance unconvincing. The court was also unconvinced by the evidence of the independent witness and the explanation surrounding how he came to became involved with the case after the claim had been made. Finally, there was grave criticism when the Claimant's daughter conceded that the care and assistance for which a claim had been made, was in fact care which she was already providing pre accident.
The Judge vindicated the Defendant's Section 58 defence and accepted that everything had been done which could have been done so the claim failed.
The Judge however found that the independent witness was dishonest which therefore tainted the claim, resulting in the court finding that the claim was Fundamentally Dishonest therefore disapplying QOCS. The Judge also found that the claim for care and assistance was also Fundamentally Dishonest pursuant to Section 57 Criminal Justice and Courts Act 2015, further justifying the disapplication of costs. Costs recovery is ongoing.
This is the 4th claim from the same family group that we have successfully repudiated on behalf of our clients, so it is particularly pleasing to obtain the Fundamental Dishonesty finding. It sends a clear message that such claims will be robustly defended.