Peter Wake Ken Slade 20 September 2016

Breach of duty: they think it’s all over – but is it?

Breach of duty: they think it’s all over – but is it? image

Claims for damages arising out of accidents on property for which local authorities are responsible are nothing new, particularly in connection with defects in pavements, roads or other surfaces.

Ideally of course, such claims can be successfully defended on the basis of evidence produced by the local authority of regular and effective systems of inspection, maintenance, identification and repair of defects within appropriate timescales. In addition, there will be processes in place which enable the public to report defects and records of such reports kept, which can be produced when required.

Understandably, however, and particularly in the present economic climate when resources are stretched as never before, there will be situations when a council will be faced with a personal injury claim which, on the alleged facts, has seemingly occurred in circumstances arising from a breach of its statutory duties around the condition of the accident location. In such scenarios, there may be an assumption that this means a claimant will inevitably be compensated.

However, it is important to remember that a core legal principle in litigation of this type is that claimants must prove their case and the burden of this rests with them.

In practical terms this means that even in cases where a council has had to admit a breach of duty then, assuming this is the only admission, a claimant must also prove the factual circumstances of the case and that the admitted breach was the cause of the accident and injury. This, of course, is the threshold which the claimant must overcome at court if the claim proceeds to a contested court hearing.

So how does a council go about properly testing the claimant’s evidence and making sure the claim is one that merits a payment of compensation? Of course, all cases turn on their individual facts but there are some general principles to consider:-

  • Does the claimant’s journey make sense in terms of where the claimant was going to and from and why?
  • Who was with the claimant and are they providing support evidence? If not, why not? If so, is the witness evidence credible and/or genuinely supportive of the accident circumstances?
  • If medical attention was sought then what do the records say and are they consistent with the alleged facts (time and location), the alleged mechanism (nature of defect and how it caused the accident) and alleged injuries?
  • Scrutinise expert medical reports to consider whether they are consistent with the other evidence, particularly in relation to the history provided to the expert as to how the accident occurred, the injuries suffered and how long they lasted.
  • Compare the claimant’s written statement with the wider evidence in the case and the factual allegations that were made at the outset of the case (e.g. in a letter of claim or claim notification form).
  • Consider whether there is any other available evidence that is relevant to the facts of the case, for example CCTV footage or information from social media.

Of course, often the most productive ‘investigation’ will prove to be the cross-examination of the claimant and his witnesses at trial. There is inevitably an element of the unknown in cases that proceed to a contested court hearing. However, the enquiries outlined above will often assist a local authority in deciding whether to take a case to trial. It is also essential to provide the court with the information it needs to understand any particular issues of concern (e.g. appropriate plans or maps if a claimant’s route is to be carefully scrutinised).

In a recent tripping case in which we acted for the local authority, breach of duty was admitted, but the claimant was put to proof of her case at trial. At the final hearing, and after hearing the claimant’s evidence, the judge had significant concerns about the credibility of her evidence as to the route that she was taking and the inconsistent evidence provided about her injuries. In dismissing the claim the judge said that “for a claimant to persuade a court to award damages, there has to be some level of consistency between the supporting evidence and her written and oral evidence.”

This is salutary and timely reminder for claimants that the cases they bring are theirs to prove. It is right and proper for local authorities to make the sort of genuine and legitimate enquiries we have referred to above, particularly given that, if compensation is to be paid, then it is often being paid from scarce public funds that must necessarily therefore be diverted from other areas.

Peter Wake is head of local government litigation and Ken Slade is a principal professional support lawyer at Weightmans.

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