The Issues

The Claimant was the front seat passenger in a vehicle being driven by his brother-in-law when, on 2 June 2016, the first Defendant, drove into the rear of the vehicle the Claimant occupied. Liability was admitted and so the claim was for the injury and losses alleged by the Claimant to have been suffered as a result of the accident.

At trial, the Claimant relied upon a medical report which stated that the longevity of those injuries was six months post-accident. Some weeks following the accident, the claimant was involved in a subsequent accident involving a quad bike in which he had to attend the Accident and Emergency Department due to the injuries sustained. He did not disclose this subsequent accident to the medical expert.

The Defence alleges that the Claimant had been fundamentally dishonest by exaggerating his injuries and had misled the medical expert by failing to mention pre-existing injuries. HHJ Rawlings somewhat acceded to the Defendant's submissions about the longevity of the injuries being inconsistent with the Claimant’s own evidence at trial such that no reliance could be placed upon the medical report.

HHJ Rawlings concluded that the Claimant had proved his case and that there was a genuine collision despite the Defence alleging it was a bogus claim based on a collision that never happened or was contrived. The Claimant was not found fundamentally dishonest. The Defendant appealed.

Held

Mr Justice Martin Spencer reversed the decision of HHJ Rawlings and found a number of factors which strongly showed that the Claimant had been dishonest in his presentation of his injuries to the expert instructed and to the court, but which HHJ Rawlings failed to deal with, either adequately or, in some cases at all. These factors are as follows:

1. The Claimant sought no medical assistance at all after the index accident. Although he did instruct solicitors and it was the solicitors who arranged physiotherapy.
    
2. The Claimant twice attended A&E in respect of the injuries he had sustained involving the quad bike. The Claimant then attended the walk-in centre some days later and a very full note was made, however, at no stage is there any evidence that the Claimant informed either the A&E doctor or the walk-in centre practitioner, of the injuries he had sustained on 2 June 2016 in the index accident, nor did he tell them that his symptoms from that accident had been getting steadily worse, as stated in his witness statement. This is the first “deafening silence”.
    
3. There is then the attendance upon the medical expert and the failure to mention the quad bike accident and subsequent injuries, which had taken place only a few weeks before. The only reasonable inference to be drawn is that the Claimant deliberately failed to mention it in order to mislead the medical expert about the effects of the index accident. This was the second incidence of "deafening silence".
    
4. Then there are what the Judge describes as “positive lies” told by the Claimant to the medical expert:
    
5. The Claimant was then further dishonest by lying about the longevity of the injuries in the Claim Form and his witness statements and, even worse, by accepting the medical expert’s description of the injuries and prognosis of six month's recovery when he knew he had misled the expert. When signing the statement of truth in the Particulars of Claim and Witness Statement, the Claimant knew he had not suffered symptoms from  his injuries sustained in the index accident for a period of six months. This formed the basis of his claim for damages.

Comments

Given that Mr Justice Spencer gave a finding of fundamental dishonesty and part 44.16 could be satisfied, the Claimant lost his costs protection.

Whilst the Defendant was justified in alleging fundamental dishonesty, a significant part of the costs incurred were in relation to the allegation that this was a bogus claim. Therefore Mr Justice Spencer adjusted the full order to reflect the Defendant’s failure to prove fundamental dishonesty in that regard and ordered the Claimant to pay 70% of the Defendant’s costs, to be assessed on the indemnity basis.

The appeal was allowed.

https://www.bailii.org/ew/cases/EWHC/QB/2020/2095.html

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