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Unpalatable claim found fundamentally dishonest

11/07/2019

We often find cases from across a variety of sectors can provide interesting updates for those in the hospitality and leisure sector, offering a fresh perspective on claims within the industry. 

The following case is an excellent example of implementing fundamental dishonesty post-defence which can mean a difference of thousands in costs saved.

Background

In this case the claimant was employed by the defendant as a machine operative. On the day in question he alleged that he was moved to work on a different machine.

After a short period of time the claimant went to the canteen for his break. Whilst walking to the canteen he approached a stack of pallets and slipped on plastic wrapping left on the floor nearby and fell to the floor sustaining injury. He made a claim in the sum of £28,000.

Liability was robustly denied throughout. The claimant should have been operating under a clean as you go policy regarding his workstation which would have resulted in no wrapping being present on the floor.

In addition there were a number of inconsistencies with the claimant’s version of events, particularly surrounding the accident itself and exactly how many pallets fell on him. The claimant’s allegations changed throughout the life of the claim, increasing the amount of pallets that allegedly fell on him from four to eight, which eventually led to his claim being dismissed at trial. 

Judgment

The judge found the claimant to be completely inconsistent, his version of events changing again at trial, whilst the defendant’s witness was seen as credible and helpful. For that reason the judge was unable to disregard the amount of inconsistencies and his own appraisal of the claimant’s credibility.

Conversely he found the defendant’s witness to be very credible and helpful, with the evidence they provided at trial consistent with the defendant’s position throughout the claim.

The judge concluded that an accident had occurred and the claimant had fallen and hurt his thumb, which was evidenced in his medical records. Importantly, however, he did not find that the accident occurred as a result of any wrongdoing on the part of the defendant. 

Fundamental Dishonesty

Fundamental dishonesty was not pleaded in the defence however counsel for the defendant quickly made an application for a finding on the basis that the accident did not take place as the claimant alleged. In fact, the only way the claim could have been put forward was on the basis that the claimant tripped on stacked pallets. The actual way the accident occurred would not allow the claimant to allege negligence.

The judge asked for some time to consider this and on returning to court stated;

“I of course have to consider the interpretation and meaning of Fundamental Dishonesty at 44.16 and section 57 and I am directed that the claimant shall be found fundamentally dishonest if the court finds that the claimant has acted dishonestly with the presentation of this primary claim. In relation to this case I have found that an accident did happen. The question is whether or not in presenting his claim, the accident occurred differently and does that go to the root of the claim. This leads me to conclude that at the heart of this claim there was fundamental dishonesty on behalf of the claimant and a finding of fundamental dishonesty is justified, the claimant losing their costs protections under the provision” 

Costs were therefore awarded in favour of the defendant in the sum of £11,466.

For more information please contact Melanie Franzoni 

Author

Melanie Franzoni

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