Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 49
10. Treat early medical histories with care
based upon a deliberate, forceful push did not assist
where the judge found that no such push occurred.
Obtain the complete records and identify who gave
each history, when it was taken and the claimant’s
clinical condition. Do not conceal inconsistencies,
but place them in their proper medical and
evidential context.
6. De昀椀ne any alleged change of visitor
status precisely
If it is contended that the claimant became a
trespasser, identify the relevant premises, the act
said to exceed the permission, the point at which
status changed and the legal basis upon which it
changed. A duty which disappears for a few seconds
and then reappears is unlikely to provide a workable
analysis. It does not 昀氀icker on and o昀昀.
11. Secure key witnesses promptly
If the defendant serves hearsay statements from
identi昀椀able witnesses, seek contact details and
attendance without delay. Where appropriate,
obtain permission to call them and consider witness
summonses. Keep a clear record of any failure
to provide information necessary to secure their
attendance.
7. Plead illegality with restraint
Identify the o昀昀ence, evidence and legal consequence.
A breach of workplace rules, misconduct, criminality
and contributory negligence are di昀昀erent matters
and should not be con昀氀ated.
12. Require precision in any plea of
contributory negligence
Ask the defendant to identify the precise act or
omission relied upon, the danger which the claimant
should have appreciated, the reasonable alternative
course said to have been available, and the alleged
causative e昀昀ect.
8. Obtain evidence directed to
contributory negligence
Evidence should address the duration of the conduct,
the parties’ position, any warnings, the claimant’s
opportunity to disengage, his appreciation of the
hazard and the causative e昀昀ect of his actions. Moral
criticism alone will not establish a deduction.
Learning points for defendant solicitors
1. Test the danger directly
Do not rely solely upon the age of the building or
compliance with historic standards. Ask whether the
feature was reasonably safe for the building’s actual
use and present users.
9. Consider whether a separate falls expert
is required
If the claimant relies upon expert evidence on fall
mechanics, the defendant should decide whether that
evidence requires a specialist response. A decision
not to serve the defendant’s own expert evidence
may leave the claimant’s opinion substantially
uncontroverted.
2. Avoid an exclusively technical Building
Regulations defence
Non-retrospectivity may answer an allegation of
direct regulatory breach. It does not, without more,
answer a claim in negligence or under the Occupiers’
Liability Act 1957.
10. Put allegations fairly and expressly
Any allegation that the claimant is fabricating,
exploiting convenient memory gaps or giving
dishonest evidence must be put squarely in crossexamination. It should not emerge for the 昀椀rst time
in closing submissions or on appeal.
3. Preserve the complete documentary record
Secure all inspection, maintenance, accident,
learning and risk-assessment materials. Internal
documents which acknowledge danger or
recommend remedial work may be more in昀氀uential
than the formal litigation position.
A practical framework for stair and balustrade cases
The following sequence may assist practitioners on
both sides.
4. Consider carefully whether hearsay witnesses
should be called
1.
De昀椀ne the claimant’s legal status and permitted
use of the premises.
2.
Identify the physical feature alleged to create
the danger.
3.
Obtain accurate measurements, plans and
good-quality photographs.
5. Do not build an appeal on a rejected
factual premise
4.
Establish the date of construction, original use,
changes of use and relevant refurbishment.
Every expert concession and legal submission must
be linked to the 昀椀ndings actually made. A concession
5.
Identify applicable regulations and standards,
distinguishing legally binding requirements
from evidence of contemporary safe practice.
If the defendant serves witness statements as
hearsay, it should decide whether the witnesses can
and should attend. A party may face obvious forensic
di昀케culty if it introduces untested evidence, fails to
facilitate cross-examination and later attacks the
reliability of its own material.
EXPERT WITNESS JOURNAL
47
AUGUST 2026
