Defeating Slips and Trips

November 13, 2020

By Alice Dobbie

Alice Dobbie provides a toolkit for public authorities, employers and insurers

After road traffic accidents, slips and trips are the second largest cause of accidents in the UK. Employers, public authorities and insurers bear the brunt of consequential litigation.

But not every slip or trip is one for which a defendant should be legally liable. Set out here is a basic toolkit to enable employers, public authorities and insurers to identify the right claims to defend, and to do so robustly.

  1. Is there any evidence that the accident happened?
  • Did the Claimant go to A&E/Walk-In/GP?
  • Did the Claimant take photographs of the injury at the time (ask for the original digital image so that you can analyse the photograph’s metadata if necessary)?
  • Did the Claimant see the medico-legal expert during the currency of the injury or is the injury self-certified and therefore dependent on the veracity of the Claimant?
  • Did the Claimant have a witness to the event?
  • Did the Claimant contact the Defendant to report the hazard?
  • Did the accident generate an accident book entry?
  • Did the accident generate an accident report (including to the HSE)?
  • Did the Claimant attend NHS physiotherapy (rather than private physiotherapy prompted by medico-legal report)?
  1. Is the account of the accident plausible and consistent?
  • Triangulate all your sources of information to check this. Those sources are probably:
      • CNF account
      • Letter of claim
      • Medicolegal report
      • Any other contact notifying the Defendant of the accident
      • Accident book account
      • Accident report account
      • Account in any medical notes (A&E/walk-in/GP/physiotherapy)
  • Consistency is key. If necessary, create your own spreadsheet of accounts so that you can see if there is a chronological progression towards an account that holds the Defendant liable, when that was never intimated in the early accounts of the injury (eg descriptions of falling might subtly change over time to descriptions of tripping).
  • Always ask for the date that the CFA was entered into. If a Claimant asserts that their soft-tissue injuries arose 24 hours after the accident, but the CFA for a PI claim was entered into on the day of the accident, proceed cautiously.
  • Do a social media check routinely.
  1. Is there an alternative explanation for the injury?
  • If the pain came on some time after the alleged event causing the injury (which is common in many soft tissue claims), could the causative event have been something else?
  • Check whether medical records show pre-accident issues with the allegedly injured area.

Once you are satisfied that the accident broadly took place as alleged, then you must turn to identifying defences (statutory ones under the Occupiers Liability Act 1957 or The Highways Act 1980 for example, or common law defences).

As you do so:

  1. Use Part 35 questions
  • Think of these as an early opportunity to test a claim. The questions can include challenges to diagnosis and causation as well as basic accident details.
  1. Use Part 18 questions
  • They are not vehicles to ask a Claimant to explain inconsistencies or account for unusual features of the case. That is unlikely ever to assist a Defendant, and much more likely to improve a Claimant’s case.
  • Instead, use them to draw out details that can then be cross-referenced against all the other documents in the case to check for consistency and honesty.
  1. Be alert to exaggeration or dishonest, additional heads of damage
  • Section 57 of the Criminal Justice and Courts Act 2015 means that an honest claim for general damages accompanied by a dishonest claim for an item of special damage (however low value the special damage) can cause the whole claim to fail. The Claimant cannot recover the ‘honest’ portion of the damages. If, for example, a Claimant claims for gardening costs for the duration of an injury, find a google map satellite view of their address and check that (a) they have a garden and (b) that the level of costs claimed reflects the size of the garden. Dishonesty or exaggeration here can defeat the whole claim.
  1. Make sure that your witness statements are as robust as possible
  • Don’t approach statement drafting thinking that the witness will be ready to give you the best descriptions or analysis. Instead, expect to have to draw that out of them.
  1. Make offers
  • Costs protection is essential. In the right cases, consider making early Part 36 offers which reflect the Defendant’s best case scenario on quantum. Remember that a ‘drop hands’ offer can’t be made in the form of a Part 36 offer, but can be communicated as a Calderbank offer which can later be drawn to the attention of the court for costs purposes.

Alice is a member of the Personal Injury: Defence team at Exchange Chambers. She acts exclusively for Defendants. She is a specialist in civil fraud, negligence and costs.