Forbes at Trial - Claimant "extremely fortunate not to have had a finding of fundamental dishonesty against her"

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07 October, 2021

In what was a strange day, and in circumstances that could only happen with a remote trial, a claimant has avoided fundamental dishonesty finding against her by what our local authority client's barrister described as "the skin of her teeth".

Ms Head claimed to have tripped on an uneven paving stone on land that was the responsibility of the local authority. Breach of duty was conceded but there were concerns about whether the accident had occurred as alleged or even at all. In particular, in her Claim Notification Form (CNF) she claimed to have fallen at 2.30 pm on the 27 August, and yet her hospital records showed attendance at 9.30 am on the same day, some 5 hours before she now said she fell. Further, there was a post on her Facebook page at 1.20 pm on that same day that said 'I'm stuck indoors A very sore knee It hurts!!!! Ouch'.

To make matters worse for her, when her statements were exchanged, she maintained the 27 August accident date, but her witness, who is her partner, gave the date of the 28 August. The statements also gave different and very exaggerated descriptions of ripped and damaged clothing as a result of the fall, which were hard to believe. There were even differences in the statements about the extent of care she needed post-accident, hers saying 6 weeks and his saying it went on for months.

She was also in difficulty about the mechanism of the accident as she had diary entries saying she "slipped and fell". Her diary entries came to light as a result of a Part 18 Request for Further Information that we had put to her. She was asked, amongst other things, about the different dates in her statement and that of her partner and in an effort to explain that away she said she was confused because she knew it occurred over the bank holiday weekend but could not recall which day but, having checked her diary, she was in fact now sure the accident had been on yet another date, the 26 August, after all, and she attend hospital the next day. She, therefore, had to disclose her diary entry which referred to her "slipping" not "tripping".

As a result, we advised our clients to maintain a denial and to put the claimant to proof of the happening of the accident as she alleged.

The trial was interesting. Due to the causation concerns, we had tried to ensure that the trial took place in person, but the court refused and listed it for a remote trial. As it turned out this led to further difficulties for the claimant. We insisted that her witness should be seen on-screen sitting next to her so that if he prompted her at all it would be seen by the judge. Her witness evidence was all over the place. At one point she conceded that she might have "slipped" and her partner audibly hissed "Noooooo!" So, he was then asked him to leave the room. After her evidence had concluded the judge ordered a short recess and specifically cautioned the claimant against speaking to her witness about the case during the recess. She agreed but clearly didn't realise that the remote hearing link had not shut down and she could be heard by everyone, including the judge, talking to her witness about the case and giving him a rundown on what had happened after he left the room and coaching him about what to expect.

As the hearing resumed, she was asked if she had been discussing the case, which she denied, as did her witness when he came to give evidence, even though it was pointed out to them that they had been overheard. Their credibility was shot to pieces by now.

Not surprisingly the claimant did not prove her claim. What is perhaps surprising is that the judge gave her the benefit of the doubt and did not make a finding of fundamental dishonesty despite saying that he came close. He concluded that

"I find her evidence to be ….. inconsistent and unreliable to discharge the burden of proof. And thus, the evidence is insufficient to establish causation. I dismiss the claim on that ground."

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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