06 September, 2010
Forbes Insurance department successfully defended a claim for Wigan Council where the Claimant was seeking damages relating to an alleged tripping accident near to his home address in December 2006 after going to a shop.
The Claimant produced photographs of the alleged defect allegedly taken two days post accident although the claim was not instigated until the three years after the alleged accident. When questioned about the photographs the Claimant gave contradictory evidence as to who took them, when they were taken and who was present. The Claimant said he could not remember the name of the claims farmer who he had spoken to and met at the site inspection. The Judge remarked in delivering her judgment that "proper efforts should have been made by his solicitors to establish who had taken the photographs."
Forbes had highlighted the fact that the Claimant had delayed seeking treatment at hospital for 4 weeks and during the course of evidence he conceded there was nothing wrong with him when he sought treatment. There had also been other inconsistencies in the Claimant's direction of travel and his explanation as to why he failed to take a direct route to his home from the shop.
In dismissing the claim, the Judge found the Claimant's evidence totally unreliable. She said she could not even find that he fell or on what day or where. Whilst she did not go as far as making a finding of fraud she stated that "this is a borderline case, and I feel this could have been all concocted by him. It is a nice little way of making money."
The Council's section 58 Highways Act Defence relating to the system of inspection was found to be both reasonable and diligently done and the Council would have discharged its burden of proof had the Claimant made out a case.
The Claimant was ordered to pay the Council's costs of the action in full.
In her final address to the Claimant, the Judge told him that he was lucky she had not found him guilty of fraud but gave him a warning that "Let it be known to your mates on the estate that unfounded claims will not succeed."
The case highlights that in highway claims the burden of proof remains with the Claimant. Unless he can overcome this hurdle the claim is unlikely to succeed. Inconsistent accounts given by the Claimant all go to the issue of credibility. The fact that the Council had a section 58 defence does not deflect the fact the Claimant has to prove his case on the happening of the event and causation before this burden shifts to the Council to prove their statutory defence.
For further information please contact Ridwaan Omar by email or call 01254 662831.