At a glance
- We’re pleased to share a fraud success from a claim involving a nightclub fall incident
- The plaintiff’s ‘unconvincing’ evidence was rejected in court
- The case demonstrates the benefit of intelligence evidence and a robust approach to dubious claims.
We’re pleased to share a recent fraud success from a claim involving a nightclub fall incident, where the plaintiff’s ‘unconvincing’ evidence was rejected in court as she was ‘less than forthcoming’ about what she had to drink, her footwear, as well as exaggerating her disability, and the recovery she had made. It was therefore concluded that the Judge was not satisfied, on the balance of probabilities that the Plaintiff slipped and fell and the claim was dismissed.
The Plaintiff attended a friend’s birthday celebration at our Insured’s Nightclub bar premises on the 31st May 2013. Whilst dancing on the dance floor she allegedly slipped on a wet floor. According to the Plaintiff, she had only had 2 drinks pre-accident (a liqueur and a cocktail), and was not intoxicated. She also alleged that she was only wearing platform shoes at the time. A statement from her friend, suggested the Plaintiff had slipped previously on the dance floor and that the she witnessed both falls, and that the Plaintiff slipped rather than tripped. The Plaintiff alleged that her skirt was wet and, although the friend’s original statement did not mention that, when giving evidence in Court, she stated that she did note that the Plaintiff’s skirt was wet.
Digging further into the evidence
It was found that the Plaintiff’s medical records, however, highlighted that the Plaintiff only reported that she fell due to “jiving in high heels”. The CCTV footage suggested that the Plaintiff was unsteady on her feet prior to the accident, was dancing vigorously as the accident occurred, and was wearing 6 inch stiletto heel shoes. The CCTV footage confirmed that the Insured did permit patrons to dance when carrying drinks, and the inspection records showed that there were a high level of spills dealt with each evening. There was a concern that a systems defence would therefore fail, but the weight of the evidence did suggest that the Plaintiff had stumbled rather than slipped, and a decision was taken to contest this matter, which proceeded before the judge on the 13th January and 21st January 2020, to determine causation issues.
Clearly if the Court determined that the fall occurred due to a slip, a successful defence would turn on the assessment of the system operated to keep the floor clear, clean and safe. The main case in this area is still a decision in Ward v Tesco Stores (1976). The Northern Ireland decision, in the case of Stennett v Dunnes Stores (Bangor) Ltd, also assessed suitable systems, and in that case, the judge held that a “clean as you go” policy was not adequate and required documentary evidence. Counsel’s view was therefore that the informal nature of our Insured’s system did leave it ripe for criticism.
The main basis of contesting the case was that the CCTV footage tended to support a stumble, rather than a slip, and there was no reference to a slip in the medical records. Furthermore, the Plaintiff maintained she was significantly disabled, continuing to use a crutch some 5 years post-accident, and the images on social media suggested that was not the case.
Counsel did review the case in light of the decision in Summer v Fairclough Homes, and the local decision of Cooper v Byford and another. Counsel’s view was that it was unlikely that, in this case, the Judge would believe there was sufficient evidence of exaggeration to render the claim forfeit in its entirety, should the Judge decide that the Plaintiff did slip as alleged. It remained Counsel’s view that it was more likely that the Judge would reject the claim outright, on the basis that the Plaintiff simply “went over on her ankle” due to high heels, possible intoxication and her vigorous dance style. Counsel did open to the Judge, in the alternative, should he find against us on primary liability, that he would address the Court on the Summer v Fairclough Homes point.
Ultimately, the Judge rejected the Plaintiff’s claim on the basis that he did not find her evidence credible and that the accident occurred because she inverted her ankle and that there was no evidence of a slip. He therefore did not need to address in detail issues pursuant to Ward v Tesco Stores or Summer v Fairclough Homes.
In relation to the value of the claim, if the Plaintiff’s medical evidence was accepted, the general damages had a potential of up to £70,000.00. The Defendant argued, however, that if the Court accepted the Defence medical evidence, namely that the Plaintiff was significantly exaggerating the ongoing sequel of this incident, the claim had a value no greater than £40,000.00.
In giving Judgment, the Judge initially commenced by an approach to valuation of the case and confirmed he preferred the Defence medical evidence, and was of the view that the Plaintiff had been “less than frank in her presentation”. He confirmed that he would value the claim, therefore, at £40,000.00. The Judge then turned to the issue of how the Plaintiff sustained her injury, and expressed dissatisfaction with her witness evidence. In particular, he noted that, despite the Plaintiff being in the company of many friends, she only brought the one witness to support her case. The judge stated that this witness was not able to provide convincing evidence. He stated that the Plaintiff, herself, was an “unconvincing witness”. He noted she had not been forthcoming about what she had to drink that night, and that the hospital history stated “alcohol on board”. The Judge said he thought it was unlikely the doctor would have referred to this if he did not think alcohol played a part in the accident. He noted the reference to “jiving with heels” and noted that the Plaintiff had substantial 5-6 inch stiletto heels on. Despite the Plaintiff making the case that her skirt was wet, the Judge noted that she had been dancing for 2 ½ hours, which would cause anyone to perspire, and noted that there was nothing in the contemporaneous notes about a slip.
The Judge stated that, taking into account all the evidence, and having had the opportunity to watch the Plaintiff give her evidence, he had difficulty in accepting her testimony. The Judge then stated the Plaintiff was “less than forthcoming” about what she had to drink, her footwear, and that she had exaggerated her disability, and the recovery she had made. The Judge concluded that he preferred the evidence of the Defendant’s Engineer, and that the CCTV did appear to the Judge to show that the Plaintiff fell due to her footwear, energetic jiving and what she had to drink.
It was therefore concluded that the Judge was not satisfied, on the balance of probabilities that the Plaintiff slipped and fell. He dismissed the Plaintiff’s claim.
This is a very pleasing decision, where our High Court Judge has rejected the evidence of the Plaintiff and her witness, and found it to be unconvincing to the extent that he did not accept her testimony, and furthermore the Judge held that there was exaggeration of the Plaintiff’s disability and the recovery which she had made, particularly taking into account the social media images. The case demonstrates the benefit of intelligence evidence and a robust approach to dubious claims.