I'm interested in…

  • Strategy & Procedure
  • Motor
  • Fraud
  • Disease
  • Catastrophic Injury
  • Commercial Insurance
  • Costs
  • Liability
  • Local Authority
  • Professional Indemnity
  • Scotland

Fundamental dishonesty finding in tripping claim

Hough v Stevenage Borough Council
13.12.16
Luton County Court

Alison Standfast reviews her recent successful defence of a tripping claim brought against Stevenage Borough Council. Alison draws out the significant credibility issues faced by the Claimant, leading to the dismissal of the claim and the finding that the Claimant had been fundamentally dishonest about the circumstances of the accident.   

Facts

In the early evening of 14th July 2014, the Claimant was walking along a pathway when his left foot tripped on a defect on the pathway. He alleged that this caused him to fall over his bicycle as he was walking alongside it and sustain injury. 

A Claim Notification Form was submitted at stage 1 and on the basis that a hazardous defect was present in the pathway and the Council did not have any prospect of a successful s.58 defence, breach of duty was admitted. 

The Claimant submitted a stage 2 pack with an offer supported by the medical report of an oral and maxillofacial surgeon in which the expert reviewed the A&E records (triage) from the same evening which stated "fell off push bike – 15mph…" 

One hour later, the Claimant was examined by a senior doctor who recorded the Claimant "fell from push bike just tripped, fell not wearing helmet sustaining head injury". 

The following day, he was examined by a maxillofacial surgeon who recorded in his notes "I reviewed Mr Hough today following an accident on 14 July when he fell off his push bike…"

Evidence produced in support of the claim

The Claimant's medical expert interviewed the Claimant and reported, "Mr Mark Hough gave me an account of the accident that occurred on 14/07/2014… stated that he was riding his bicycle and his cycle hit a pot hole, he went over the handlebars and his face hit the ground".  In his conclusion, he confirms "the injuries are consistent with the accident described". 

At stage 2, causation was denied, contributory negligence alleged and the claim exited the portal process.  The Claimant's solicitors immediately pursued proceedings and the Particulars of Claim stated "on or about 28 July 2014 at approximately 8:00pm, the Claimant was walking along the pathway pushing his bicycle with his right hand when his left foot tripped on a defect in the pathway causing the Claimant to fall over the bicycle and sustain injury."

In the Defence, the Council put the Claimant to proof as to the circumstances of the accident and identified all notes where the Claimant had told a treating healthcare professional, and his own medical expert, that he was riding his bike rather than walking alongside it.  It was also specifically pleaded that the Particulars of Claim, supported by a statement of truth signed by a senior litigation executive at the Claimant's solicitors, were wholly inconsistent with the various contemporaneous records referred to by the Claimant's medical expert and contrary to what he had told the medical expert himself.

When witness statements were exchanged, the Claimant stated "the circumstances of the incident where [sic] that I was pushing my pedal bike with the right hand as I walked along the path.  As I did so my left foot caught in a pot hole and I fell over my bike and onto the floor".

Findings

At the trial, after hearing evidence from the Claimant and submissions from Counsel, District Judge White was of the view that the most damning piece of evidence was the first medical note made where the note "15mph" appears - this was information that would only come from the Claimant himself and the judge found, on the balance of probabilities, it was unlikely that this detail would have been given if the Claimant had been pushing a bike.  He did not accept that the Claimant's version of events was correct particularly as more than one entry contradicted his pleadings. 

Moreover, there was no contemporaneous mention of the Claimant suffering an accident as a result of a defect in the highway.

Due to the significant credibility issues faced by the Claimant, the District Judge dismissed the claim. 

Costs

Counsel for the Council applied for an Order that the Claimant should not have the protection of qualified one-way costs shifting (QOCS) as he had been fundamentally dishonest as to the mechanism of the accident which was the foundation of the claim.

The Court was referred to:

  • Gosling v Screwfix (2014, Cambridge County Court)

  • Meadows v La Tasca (2016, Manchester County Court)

  • s.57 Criminal Justice and Courts Act 2015

The Court agreed with the Council that the mechanism of the accident was fundamental; it went to the heart of the claim.

The Court awarded the Council its costs, summarily assessed, with permission for the Council to enforce these pursuant to CPR 44.16 as the Claimant had been fundamentally dishonest about the circumstances of the accident.   

Comments

This claim serves as a reminder that, even when breach of duty has been admitted, a Court can dismiss a claim for failure to prove the necessary causation and for fundamental dishonesty.

The Court concluded that the inconsistencies in this case were not collateral or peripheral and went to the heart of the case. The mechanism of the accident was the very foundation of the claim even in circumstances where the Claimant would almost certainly have recovered damages, had he pleaded that he had been riding his bike and his witness statement had supported that pleading. The reasons for the dishonesty are unclear and in this case may relate more to poor preparation by the Claimant's solicitors as the references to tripping only commenced once solicitors were instructed.

It was not necessary for the court to determine why or how the dishonesty had come about; motive was not required.   

Contact

For further information please contact Alison Standfast, Senior Solicitor on +44 20 7 6454179 or at alison.standfast@dwf.law

Share your views

Please complete your details below to share your views. All comments are moderated and only your name and comment will be visible.

Your Comment

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Top