27 November, 2015
Opening question: "When did you first think that your fall might have been caused by a hole in the road?"
Claimant's answer: "I'm not sure exactly. It was some days later when I was replaying the accident in my mind".
In this highway tripping claim, the defence secured an early victory when the Claimant replied that sometime after the accident she had a flash back and at this point she realised that the road defect had been the cause of her accident.
The Claimant alleged that she was walking near her home and as she crossed the road, she tripped and fell on a defect around a gully cover striking her head on a road sign suffering an injury.
Prior to the accident, the defect had been identified for repair by the Defendant during an ad hoc inspection and had been marked with white lines.
Whilst the Judge described the Claimant as an honest witness who gave genuine evidence, he concluded that the Claimant could not remember the mechanism of injury, and as a result the claim was "brought on a re-imagining of which she described as a flash back".
It was clear from the contemporaneous evidence, and particularly the medical records which made reference to a trip on a kerb, that the Claimant did not know what had caused her accident. As a result, the claim failed.
This judgment reiterates the principle that a Claimant must be able to identify the exact defect which gave rise to the injury. In this instance, the defect upon which the Claimant allegedly tripped had been marked for repair using white paint and documentation obtained suggested an alternative cause. Pre- marked defects can provide a target for opportunistic Claimants, the Judge in this case found that the markings were clear and obvious, and that it was more probable than not, that she would have seen the lines and avoided the defect.
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