Prepare To Fail

Article

25 July, 2011

Cusimano v Calderdale MBC - DJ Hawksworth - July 2011

Forbes Insurance Department represented Calderdale MBC in a claim brought by this claimant who alleged that she suffered injuries as a result of a tripping incident at 8pm on 31 January 2009. The claimant was put to strict proof that the accident occurred as alleged.

It was the claimant's case that she had tripped on a defect after going for a walk following a journey home to Halifax from Nottingham where she had been visiting relatives.

She claimed that she had been dropped off by her son at the end of her road but that, instead of walking home, she had set off in the opposite direction as she wanted to 'stretch her legs' after her long journey. There was an issue over the distance walked before her trip as her statement said 20 yards whereas it was clearly nearer to 200 yards between the drop-off point and the accident location.

Medical treatment was not sought by the claimant until 8 February 2009. The reason given by the claimant for this delay was that there had been heavy snow and ice on the roads in the week following her accident and the claimant, an MS sufferer who walked with the aid of a stick, did not want to risk another fall due to the weather conditions.

The A&E records relating to the attendance on 8 February 2009 supported that the claimant had suffered an accident a week earlier but suggested that this had been due to her slipping on ice. This was strongly opposed by the claimant who produced a Met Office weather report suggesting that the temperature did not drop below freezing pre accident.

The claimant relied on accident location photographs provided by an accident management company who, it emerged, she had been put in touch with by a friend of one of her sons. These photographs were supposedly taken on 4 February 2009, prior to the claimant seeking treatment. It was also worth noting that these photographs did not show any snow or ice present, despite the claimant's claim that her delay in seeking treatment was due to the weather conditions in the week post accident.

Another point of interest was that the claimant's youngest son had provided a witness statement in support of another claim against the defendant. This other claim related to an accident in February 2009, shortly after the claimant's accident date. The claimant denied that she had any knowledge of her son's involvement in another claim until the statement was disclosed to her. The methodology of the accident location photographs would suggest however that the same accident management company was involved in both claims.

During the trial, the claimant conceded that she had expected to be thoroughly questioned on the adverse medical record entries but that she had not 'prepared' herself for questions on the other issues.

The trial judge found that, in light of the issues raised, he could not be satisfied that causation had been established in this matter and dismissed the claim, ordering that the claimant pay the defendant's costs.

Forbes Comment

The issue that first raised eyebrows in relation to this claim was the reference in the A&E records suggesting that the claimant had slipped on ice. While this was a factor in the judgment, it was ultimately a combination of a number of issues with the claimant's case that emerged over the course of this matter that caused this claim to fail.

The claimant had, by her own admission, prepared herself for questions relating to the medical record entries but not the other issues raised. This raises the following question: if the claimant was simply giving a truthful account of what had occurred, why would she have needed to carefully prepare responses to the questions that were going to be put to her?

For further information on the above case please contact Philip Harding on 01254 662831 or email philip.harding@forbessolicitors.co.uk

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