Traditionally, age brings with it wisdom – and the respect of others. But what if you’re 84 years old and you’re accused of telling lies “in court”?
It’s one thing to exaggerate, for example, medical symptoms caused by an accident – but to invent them?
Here’s an anonymised true story of a case we dealt with and how a scenario of that nature played out in practice.
Our client was injured after she fell into an excavation that had been made by a national utilities company.
It was right outside her garden gate. There were no warning signs in place. Our client had a registered sight impairment.
She opened her gate, minding her own business, took one step and suddenly down she went.
After her accident, the utilities company covered the trench with hard plastic matting so it was impossible for pedestrians to fall in. If they had done that before the accident, it could not have happened.
We alleged that the utilities company had been negligent and that had caused our client to fall and injure her leg.
But the utilities company, through their insurers and solicitors, did not accept liability.
Instead, based on what they alleged they had been told by their employees, they accused our client of, at best, exaggerating her injuries and, at worst, inventing the accident.
After falling in the hole, our client had continued to her nearby local shop to get milk. She then returned home. Her daughter was there and saw her mother shaking and in distress with the shock of the incident.
For the utilities company, the version of the “accident” was rather different.
They alleged that, when our client returned from the shop, their employees helped her over the trench and she was laughing and joking with them – with no mention of any accident.
In the face of a denial of liability and no settlement offers on the table, there was only one way to get compensation.
We had to raise a personal injuries action (in Elgin Sheriff Court).
The utilities company still refused to accept that they had done anything wrong. Not only did they deny that the claimant had been injured as she said, they also maintained that any fault lay with the local authority.
According to them, the Moray Council had had a duty to send letters to all local residents in advance of the works to let them know about the fact and timing of the streetworks (to lay cabling).
We had to investigate that with the Council and they were extremely helpful in providing convincing evidence that the duty to notify lay with the utilities company and not with them.
But how were we going to establish that the accident had happened as our client had described?
Fortunately, we had a few ways we could back up our client’s version of events.
Firstly, she had been helped out of the hole after her fall by a near neighbour who was willing to confirm that evidence.
Secondly, our client had initially assumed that the workmen had been Council employees and so she phoned the Council to report her accident. That phone call and a couple of subsequent calls had been recorded and we were later able to recover these recordings from the Council via a Subject Access Request (under Data Protection rules). The date of the first call and the content of all recordings was consistent with our client’s version of events, backing her up as having kept the same account of the accident throughout.
We had a number of photographs of the locus, taken at different times, which we could produce to the Court to help explain the basis of the claim more clearly. The utilities company also produced locus photos but these were printed in such a way that the vertical and horizontal axis ratios were out of synch, giving a misleading impression of how ‘safe’ the works at the locus had appeared at the time.
It was fortunate that our client held her nerve in the face of the unfounded attacks on her evidence and her character.
As the court case approached its later stages, the utilities company finally made a settlement offer – which was rejected.
They then made a further offer which was nearly three times their original offer. Again, this offer was rejected.
Finally, they increased to an offer which was over four and a half times their original offer and our client accepted it.
We think that this case may be an example of an increasing trend whereby serious allegations about credibility are made against personal injury compensation claimants.
As the utilities company put it:
“We have significant concerns regarding the veracity of the pursuer’s allegations, and her credibility, in light of evidence that will be given by our client’s employees, should this case proceed to Proof. The sudden change in the pursuer’s behaviour and attitude towards our client’s employees on the day of the alleged accident is somewhat concerning and not typical of someone who has genuinely involved in an accident.”
An increased desire on the part of those claimed-against to “polarise” the case may be linked to the introduction of Qualified One-way Costs Shifting (QOCS) for personal injury cases in Scotland.
Given that insurers defending such claims will generally have to meet their own costs whether they successfully oppose the claim or not, there is benefit to them in trying to frighten genuine claimants to abandon their claims early for fear that they might be disbelieved in court.
You cannot completely protect yourself against the risk that your opponent will run a “dishonesty” defence against your claim.
However, you can take steps to strengthen your position and, in this case, that included the following:
- Take photos of the accident locus and your injuries as soon as possible after the accident;
- Report your accident to whoever you think was to blame for it as soon as you can (even if you get the wrong organisation, it’s still worthwhile because the record or ‘recording’ is made);
- Work out who the witnesses are who are potentially favourable to your case and ask them to give evidence about the facts within their knowledge (in this case, that included eye-witnesses to the accident but also witnesses to important background facts such as the failure of the utilities company to provide any prior warning to residents of the works to be carried out).
How we can help
We hope you have found this article – giving an example of the kind of pressure insurers may try to put on you during your personal injury claim and ways that can be resisted and overcome – to be insightful.
We’re always happy to deal with any questions arising from our articles. If you have any questions at all, please get in touch with us. You can call either of our accredited specialist personal injury solicitors – Marie Morrison and Peter Brash – on 01343 544077 or send us a Free Online Enquiry.
All initial enquiries are without obligation and free of charge.