Inconsistent Claimant Loses Highway Claim

Article

30 October, 2014

14th October 2014 at Bury County Court

DJ Benson

Forbes has successfully defended another claim on behalf of Bury Council at trial. The Claimant alleged that he suffered an accident on 20 November 2011 on a back street when his foot went into a hole in the footway.

There were a number of inconsistencies in the Claimant's evidence, the Particulars of Claim, the medical report and the medical records. The Judge described some of these inconsistencies as minor, such as the exact time of the accident and the nature of the Claimant's employment at the time of the accident. More concerning for the Judge was the description of the hazard given by the Claimant at A&E, to the medical expert and to the GP. The description here was clearly that the hazard was a "ditch" not a hole. The Judge commented that there is a significant difference between a hole and a ditch. There was also a difference in that the medical expert recorded that the Claimant had just exited his car before the accident occurred, but in evidence and in his statement the Claimant said he had come from his home. However, despite the Judge being concerned about the inconsistencies, he felt that the Claimant was truthful in the evidence and, therefore, on balance he found that the accident occurred as alleged by the Claimant.

The Judge was satisfied that an annual walked inspection was sufficient. The Claimant sought to allege that the defect ought to have been repaired when it was reported by a member of the public on the afternoon of Friday 18 November 2011. Unfortunately, the report had been vague and simply stated that the surface was potholed. On the basis of this information, the Judge found that it was not unreasonable for the Defendant not to attend on Friday afternoon and for the repair to take place on the Monday. He found that the Defendant's actions were reasonable, it is not an absolute duty and for that reason he dismissed the claim. The Defendant was awarded its costs.

For further information please contact Elizabeth Bower by email or on 01254 222411

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