Pull the other leg!

Article

06 February, 2018

Wigan Council - DDJ Glassbrook - Wigan County Court

A Claimant had her highways claim dismissed at trial after giving unconvincing evidence.

The Claimant alleged that she was walking along a road one evening with her friend, when her right foot got stuck in a pothole. She pleaded that she injured her right knee as a result, but at trial gave evidence that she had in fact suffered an injury to her left knee.

The Defendant put the Claimant to strict proof that she suffered a fall; that she suffered a fall at the specific spot she alleged; and if that defect was actionable, the Defendant sought to rely on a Section 58 Defence.

The Claimant alleged that her friend took photographs of the defect the day after the accident in January 2014. She also produced subsequent photographs which she alleged had been taken in May 2014. The digital properties however confirmed that the photographs had been taken in April, May and June 2014. None of the photographs appeared to have been taken in January 2014. The date of the photographs was crucial to the claim. The Defendant sought to rely on the defence pursuant to section 58 Highways Act 1980. The post-accident inspection took place on March 2014 when the defect was not noted for repair. The Defendant therefore argued that the defect was not actionable or dangerous at the time of the Claimant's accident.

The Defendant sought an explanation for the discrepancy by way of Part 18 questions. The Claimant replied that the photographs had been taken on a new camera and the date hadn't been set correctly. The properties also showed that the photographs had been taken on three different mobile phone devices rather than on a single camera as suggested by the Claimant. The Claimant was also asked who took the photographs and she responded "can't remember been that long". In response, the Defendant sought expert technological evidence to review the Claimant's photographs and to prepare a report. At this point, the Claimant's solicitors came off record and the Claimant pursued her claim without representation.

At trial, the Highways Technical Officer indicated that in his view the defect shown in the Claimant's photographs was not very old and he explained why. The Judge found him to be an honest and reliable witness and he accepted that the photograph allegedly taken in January 2014 was not evidence that the defect was actionable at the time of the accident. Even though the section 58 defence was not required, if it were the Judge was impressed by the evidence of the highways inspector and found that the defence would have been made out.

In summary, he found the evidence from the Claimant to be "less than convincing". She was not an honest or reliable witness and as a consequence the case was dismissed.

Forbes comment

This case is yet another example of how digital forensics can help us to defeat claims. Digital properties confirm exactly when a photograph was taken. Mobile phones are increasingly used to take photographs of alleged defects, and the times and dates are automatically updated as they are linked to the internet. This evidence is almost irrefutable and provides compelling evidence at trial.

If you are looking for any more information with regards to our services view our Insurance section. You can also contact Elizabeth Bower in our Insurance department via email or phone on 01254 222411. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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