Fundamental Dishonest Finding, despite claimant witnesses "creating an ostensible impression they were straightforward".

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07 October, 2021

Chris Booth
Partner and Head of Insurance

Forbes successfully defended a claim arising out of an alleged tripping accident and obtained a finding of fundamental dishonesty despite the judge finding that the claimant's witnesses did not "present as dishonest". However, he found that the claimant did seek to mislead the court, and that what he and his witnesses said, and the objective assessment of it, drove the judge to the conclusion that the claimant had not proved that the accident occurred in the way he alleged and a finding of fundamental dishonesty.

The alleged facts were that the claimant had tripped on a raised drain cover, and then slipped on wet leaves as he tried to save himself, losing his balance and fracturing his ankle. The council accepted that the drain cover was a hazard and that the claimant had suffered an injury around the time alleged, but denied that the accident had happened where he alleged or that he tripped.

The defence of this claim was presented on the basis that he and his witnesses were simply lying about the circumstances. There were numerous records of the claimant slipping, but not tripping, for example in the initial contemporaneous medical records. The claimant was called to give evidence with his witnesses out of the Court room so they could not hear his version of events. He blamed his friends (who were his witnesses) for the inaccuracy of the mechanics of the accident in the medical records. However, the evidence at trial from one of them was that whilst he had made the call to 111 and had given an account to the hospital triage, he has simply guessed at the circumstances as he was not aware of the actual circumstances of the accident until later that day. This was simply not credible, as there had been a car journey with the 2 of them to the hospital of some 45 minutes. The Judge said that it was an absurdity to suggest that they did not talk about how the claimant had come to injury himself. Another witness was unable to have given any account to the hospital as he said he stayed with the claimant whilst the other one spoke to the triage nurse.

In later medical records, the account that the claimant gave was always slipping and not tripping, and there was no one for him to blame for that continued inaccuracy. Grudgingly he eventually conceded that the evidence of the slip could only have come from him.

Yet a further witness had posted on Facebook that the claimant had slipped. The claimant removed that post after proceedings had been started, and then the witness tried to explain it away as banter at the trial, saying that she had no idea he had even had an accident when she posted her comments.

In considering the inconsistencies the judge said:

"As to the claimant and his witnesses, all created an ostensible impression they were straightforward. But in deciding whether they are accurate and honest, what matters is not the general impression in the witness box but an objective assessment of their evidence and the way it hangs together and whether it is credible and potentially honest."

His conclusion was that he made a positive finding that the claimant had sought to mislead the court, and this led to a finding of fundamental dishonesty. Costs were awarded to the defendant as a result.

Forbes Comment

Findings of fundamental dishonesty are not simple to achieve. We have often had cases where a judge has decided that the threshold has not been met despite not accepting the claimant's version of events. It was refreshing to see this judge's approach, taking a forensic look at how all the evidence hung together despite his decision that the witnesses seemed on the face of it to be straightforward.

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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