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Smith v Serendipity Holdings Ltd, Cardiff County Court, 18 March 2009

30 March 2009
The issues

Leisure claims – costs – conduct – indemnity costs – exaggeration.

The facts

The Claimant alleged that when attending a leisure park He paid £1.00 to take part in a penalty kicking attraction. He alleges that when he went to kick the ball he fell and injured himself and that the injury was caused because he was standing on Astroturf which was went and slippery. He brought a claim for damages against the Defendant. The Defendant’s evidence was to the effect that the Claimant would have been standing on a coconut mat and not Astroturf and that the floor and the mat were not wet. There was an issue as to when the accident occurred. The Claimant’s case was that he had injured his upper right forearm and bruised his buttocks. He subsequently told his orthopaedic surgeon that he had injured his left elbow and that he had had to take time off work. He subsequently claimed that he had been off work for 4 months. The Defendant disputed this and claimed that the Claimant had exaggerated his injuries.

The decision

The Defendant’s evidence was cogent. There was no factual evidence that was reliable upon which the Claimant’s case could succeed. Whilst the Claimant had undoubtedly fallen on the 29th October 2005 and injured his right arm and buttock, he had subsequently exaggerated his injuries. It was not true that he had had to take a substantial amount of time off work. He had questioned whether he would ever be able to work again, which had to have been an exaggeration on the basis of the medical evidence.

The Claimant had exaggerated his claim to the doctors, the Defendant and the Court and had put the Defendant to greater cost than they would have incurred if it had been the modest claim it in truth was. That factor took the case out of the ordinary and justified the Court in exercising its discretion pursuant to CPR 44.3 in relation to the amount and type of costs to be awarded. Exercising that discretion the Court would order that costs be paid on an indemnity basis.

For further information with regard to this case please contact Marie Macfarlane (telephone number: +44 (0)1392 288311 or email mm@vpinsurance.net).

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