What do you need to prove in a trip or fall personal injury claim
At Hodge Jones & Allen , the personal injury department represents many individuals who have been injured as a result of a trip or fall. The injuries sustained can be wide ranging and can include anything from minor sprains to severe injuries which require surgery.
In this blog I identify several key areas which are critical to prove if your claim is to be successful.
Identifying the correct defendant
Trips or falls can happen anywhere; in supermarkets, train stations, offices and schools as well as outside on pavements and open spaces. Most of the time, identifying the correct defendant is very straightforward. The claim can be submitted easily to the defendant and investigations into the accident can start.
If an accident occurs on a pavement it may be easy to assume that the council are responsible. On a number of cases that I am dealing with, it has been necessary to carry out a land registry search to check whether the land is council or privately owned.
With an accident that occurred in an open area or in a temporary location, such as a fair ground or music venue, it may be very difficult to establish who is responsible and there may be multiple defendants.
These enquiries may take some time. It is important, however, to establish the correct defendant at the outset or time will be wasted later if the claim needs to be redirected to another party.
Under the Occupiers Liability Acts 1957 and 1984, the owner or occupier of a premises has a duty of care to ensure that all reasonable steps are taken to maintain a safe environment. If they have failed to do so, they may be responsible for an accident.
Under the Highway Act 1980, Highway Authority’s also have a duty of care to maintain the highway. They must show that they carry out regular inspections of the highway and that any actionable defects are repaired in a timely fashion. Defects are only actionable if they are approximately over 25mm on a footway and 50mm in the carriageway. Defects under this generally must be accepted by the public.
Be consistent. Terminology is key
Understanding the mechanics of the accident and getting the terminology right at the outset is very important. Was the injury caused by a slip, trip or fall? Did the ankle or knee roll or was it a jarring injury or was the fall forwards or backwards. Being consistent with the terminology and mechanics of the accident is important, if not it could affect the Claimant’s credibility and the case could fail.
It is for the Claimant to prove their case. This is why it is important to obtain as much evidence as possible immediately following the accident.
The more contemporaneous the evidence is, the better. For example photos taken or a witness statement obtained immediately after the accident will be stronger and will hold more weight than if it was obtained 18 months after the accident.
Evidence could include the following:
1. Photos / Video footage
It is crucial to take photos or video footage of the accident scene and / or defect as soon as possible after the accident. It is helpful to take a number of photos including long and short shot photos.
When an accident occurs outside, particularly on a pavement, it is not helpful to take lots of photos of the general state of disrepair of the pavement (potentially showing a number of potholes and defects) as this simply causes confusion as to which defect caused the accident.
Being able to show the date stamp (as well as the time and location) on the photos is also very helpful. Whilst most people have smart phones I am currently dealing with an individual who used a digital camera to take the photos post-accident but the date stamp was not set correctly. This has caused many problems in trying to prove the correct accident date.
It is also helpful to show the size of the defect by including a coin or a business or loyalty card in the photo.
Where did the accident happen? It will be necessary to mark the accident location on a map or be able to provide a detailed description of exactly where the accident occurred. This sounds very obvious but it is surprising how often an individual is unable to remember the exact accident location.
Independent witnesses can provide crucial assistance in bringing about a successful personal injury claim. If witness details can be taken at the scene this can prove invaluable. In addition, in an accident where the Claimant has been badly injured, witnesses may be able to assist with taking photos as well as providing an accident description and confirming the accident location.
4. Reporting the accident
All accidents should be reported and ideally recorded in an accident book. This is straightforward if an accident occurs in a supermarket, school or workplace for example. The accident description, time and location will be noted and the record then signed. In other cases, such as a pavement trip, it may be necessary report the accident online, by telephone or sending a letter. It is preferable to have written evidence of the accident being reported. The sooner that this can be done, the better.
CCTV is not always available but if it is, it should be requested immediately as it is not often kept for long.
6. Medical evidence
To be able to claim compensation for an injury, it is necessary to show that the injury was caused by the accident in question and not by some other means. This is called causation. GP, hospital and ambulance records will be important in terms of establishing causation.
Whilst trips and falls are common types of accidents, there is a lot to consider and it is preferable to instruct a solicitor as soon as possible after an accident. Crucial evidence can then be obtained and the correct defendant identified without delay which could lead to a successful settlement