Claimant's failing memory results in trial win

Our recent trial win in respect of a highways claim is a good reminder that the burden of proof lies with the claimant.

In the case the claimant initially alleged in his letter of claim that he was visiting his son's place of work when he tripped because of a pothole. He then subsequently told the medical expert that he was dismounting his motorbike and as he stepped down, the heel of his foot went into the pothole causing him to fall and sustain injury. The medical records reviewed by the expert referred to the claimant's accident occurring whilst he was pushing his motorbike, making no reference at all to a pothole or defect. As a result, there were clear discrepancies in relation to the actual accident circumstances.

Breach of duty had been admitted before the trial but the case was run on causation grounds.

The Claimant was cross-examined robustly in respect of his accounts at trial. His evidence was rather poor and demonstrated that he had very little memory of what had actually occurred. He maintained that he was not pushing the motorcycle at the material time, and that the entries in his medical records were simply a mistake. He was unable to shed any real light on the inconsistencies. He was also cross examined about further comments he had made to the medical expert about not being able to attend the gym, scuba dive and ride his motorcycle despite there being no physical reason for the same.

The judge noted in his judgment that the claimant's evidence at trial was to the effect that as he dismounted from the motorbike he felt excruciating pain in his right heel. At the time, he did not know what had happened and he was not aware of the presence of a pothole. He took himself off to hospital. When he returned later in the day he saw the pothole and he concluded that this had caused his accident. His medical records showed that his A&E records stated that he was pushing his motorbike when he suffered his injury. When he saw a consultant subsequently the injury was said to have occurred when he was pushing his motorbike. He then had a telephone consultation with a physiotherapist and the account given to the physio was that he felt a pop when pushing his motorbike.

In the proceedings the claimant repeatedly referred to stepping into the pothole but the version in the particulars of claim was slightly different to that given to the medical expert, and also that in his witness statement. Whilst the variations were minor differences, the lack of consistency was of some importance.

The judge ultimately concluded that whilst, by a very small margin, he was not satisfied that the claim was fundamentally dishonest, on the other hand, he could not find that the accident occurred as described by the Claimant. He was not satisfied that the accident involved the pothole. In those circumstances, the claim is not made out and was dismissed.

This was a good outcome for our client and highlighted the importance of carefully checking all of the accounts given by a claimant. At Forbes we scrutinise all claims for any "red flags" that might suggest that a claim is not all that it seems, and work closely with clients to ensure that claims they wish to challenge are robustly defended. Here, despite an admission of the presence of a pothole, the challenging of the claimant's numerous inconsistencies enabled our client to avoid any payments to the claimant or his solicitors.