27 June, 2014
Forbes successfully defended a claim at trial on behalf of Wigan Council. The elderly Claimant alleged that she tripped on an actionable defect whilst crossing a road. It was alleged that the defect measured at least 30mm.
The Judge found the Claimant and her husband to be honest decent people who gave an account of the accident but whom both failed under examination to be able to identify to the Court exactly where on the crossing the Claimant had fallen and consequently it followed they were not able to point to which alleged defect had caused the fall or indeed which part of the alleged defect she tripped over.
Due to the age of the Claimant and her husband (who was present at the time of the accident), they were given ample opportunity to explain to the Court how the Claimant had fallen, but failed to do so. It was conceded that they did not see the defect before prior to the fall and that they did not see it afterwards. Furthermore, they were unable to point to an actionable defect on photographs of the accident scene.
The Claimant's solicitor gave evidence that the Claimant's husband had pointed to the pothole when he visited the solicitors' office which had prompted the photographs to be taken. The Judge stated that this was "simply not sufficient". During examination, the Claimant's solicitor contended that the photographs showed a defect of more than one inch before eventually conceding that in fact they did not. The Claimant's solicitor stated that the ruler and level were flush until eventually also being forced to submit that this was not the case.
Given the overwhelming evidence provided by the Defendant's witnesses, the Judge did not find that the defect was actionable. In her Judgment, District Judge Mornington criticised the Claimant's photographs, finding them to be "distorted" and "inaccurate" and "taken in such a way that could not be relied on". The Judge went further and also condemned the evidence of the Claimant's solicitor, stating it to be "discredited". The claim was therefore dismissed with an order for costs.