EXAGGERATION IS NOT NECESSARILY FUNDAMENTAL DISHONESTY: WHEN THE DEFENDANT DIGS A BIG EVIDENTIAL HOLE FOR ITSELF

The judgment of HHJ Hampton in Smith -v- Ashwell Maintenance Limited (Leicester County Court 21/01/2019) is available through a Linked In post provided by barrister Andrew Mckie. It provides a number of lessons for those collecting evidence. In a case where the defendant was seeking to attack the evidence of the claimant the trial judge was highly critical of the evidence called by the defendant.  The defendant served witness statements and witness summaries – when those witnesses gave evidence they supported the claimant’s case.  A witness summary provided by the defendant was so inaccurate that the judge was driven to the conclusion that there was an element of bad faith.  The defendant’s experts evidence did not go unscathed.

 “I am driven to the conclusion that there was an element of bad faith on the part of the Defendant in seeking to introduce this witness summary in this way.”

THE CASE

The claimant was injured whilst working on gas installations. He fell down a four foot hole and injured his ankle.   Initially contributory negligence was in issue, this allegation was withdrawn shortly before the defendant’s witness on this issue gave evidence.  The defendant’s case was that the action should be dismissed because of the claimant’s fundamental dishonesty.

THE DEFENDANT’S APPROACH TO THE EVIDENCE: “SURPRISING IN THE CONTEXT OF MODERN LITIGATION”

Given that this was a trial where it was the credibility of the claimant that was very much to the fore the judge had a surprising amount to say about the evidence of the defendant.

“The trial of this case, which has proceeded over seven court days, has been characterised by contradictions throughout. It has also been characterised by a hostility to the Claimant on the part of the Defendant’s representatives and medical experts, which I find surprising in the context of modern litigation, particularly from the medical experts engaged.
“The history of the hostility arose at an early stage. An accident report compiled by or on behalf of the Defendant dated 15th July 2013 describes the accident as occurring when the Claimant “slipped into a hole”. By 17th July 2013, this description had been changed to “jumped into a two foot six inch hole”. Notification by the Defendant to the HSE describes the Claimant as having jumped. The reference to a four foot hole was altered to read two foot six inches. The significance of the alteration, is that a two foot six inch deep hole would not require being shored up. “
In early denials of liability, the Defendant relied on witnesses who were not in fact on the site at the time. After the early denial of liability, primary liability was admitted on 5th October 2016. In the Defence, the Claimant is put to proof of the accident, with further reference being made to the accident documentation, asserting that the Claimant jumped into the hole. The only factual witness relied upon by the Defendant at trial was Mr Price, who was on the site at the time of the accident and heard but did not see the fall. He persisted with the suggestion that the Claimant jumped into the hole, notwithstanding the admission of primary liability”

THE WITNESSES THAT THE DEFENDANT CALLED – ALL OF WHOM SUPPORTED THE CLAIMANT…

The defendant called witnesses who said that they had been “customers” of the claimant at a time when the claimant said he could not work. The claimant’s explanation was that he did not do the work but provided gas certification for work done by his son.

“As a result of the approach taken by the Defendant in seeking permission at a very late stage in the weeks before trial to rely on evidence of individuals it was asserted were the Claimant’s customers, I gave permission to both the Claimant and the Defendant to exchange further witness statements about the Claimant’s alleged working activities. The customers were generally identified as the residents of properties referred to in the Gas Safe Register.”
“3. Three of these customers volunteered without prompting, that when they contacted the Claimant to seek his services in installing or repairing boilers, having followed up recommendations for the Claimant from various sources, the Claimant said he could not do the work himself because he was either not well enough or not fit enough. Such an account was volunteered by Mr Singh, Mr Fern and Ms Cozens. Most of the customers who were called did not actually see the work going on. Those who did, Mr Jackson and Ms Zubryckyj (whose statement was read) said that it was Jayke Smith who did the work. Although Ms Cozens and Mr Fern referred to having paid the Claimant, this was consistent with the Claimant’s evidence that he would receive payments on behalf of his son. “

AN INACCURATE WITNESS SUMMARY PROVIDED BY THE DEFENDANT: ACTING “WITH AN ELEMENT OF BAD FAITH”

A witness summary prepared by the defendant was found to have been prepared “with an element of bad faith”.

“An indication of the vigour with which the Defendant has pursued its allegation that the Claimant was working, is demonstrated by the Defendant’s contact with a Mr Reyat, who is engaged in a business with Mr Singh in managing and letting properties. The Defendant presented a witness summary from Mr Reyat dated 2nd November 2018 in which it is asserted that the Claimant fitted a boiler and that the Claimant became aggressive when the question of receipts was discussed. In stark contrast to that, the Claimant obtained a witness statement from the same gentleman dated 20th November 2018 and he was called at trial. Mr Reyat completely disavowed the contents of the witness summary under oath. He made it clear, that whilst he and Mr Singh had secured the services of the Claimant’s son, after making contact with the Claimant, to carry out the boiler work to one of their properties, it was Mr Singh who dealt with the Claimant and his son and not Mr Reyat. He commented in the witness statement, which he adopted under oath in his evidence, that “I have notified the solicitors that I don’t want anything to do with the case but they do not seem to want to listen”.
35. I am driven to the conclusion that there was an element of bad faith on the part of the Defendant in seeking to introduce this witness summary in this way. If it were not for the efforts and application shown by the Claimant’s solicitors in dealing with this aspect of the evidence, by tracking down relevant customers and securing CPR compliant witness statements, the witness summary might have been presented to the court uncontradicted. A witness statement was also obtained by the Defendant from Ms Rusu, the tenant of Mr Singh and Mr Reyat at whose home the boiler was installed. The witness statement obtained by the Defendants inferred that it was the Claimant who did the work. Ms Rusu also provided a witness statement to the Claimant, and was called to give evidence. Although she referred to the older man and his son coming to do the work, and that they were both there all day, she did not see them work and she stayed in her bedroom. She was unable to say who actually did the work. It is the Claimant’s case that on this as on other projects, the Claimant remained with his son but did not engage in any work activity. An account which was confirmed by Jayke Smith.”

 

THE DEFENDANT’S MEDICAL EVIDENCE WAS SUBJECT TO CRITICISM AS WELL

The judge was critical of the defendant’s medical experts.
“Thereafter orthopaedic evidence has been provided on behalf of the Claimant by Mr Forward . Both Mr Forward and Mr Beverly, instructed by the Defendant, are consultant trauma and orthopaedic surgeons. The difference between the approach of these two witnesses was notable, this is unusual in the context of modern litigation. Both parties sought to convince the court that the curriculum vitae of their respective witnesses indicated that witness was a more reliable source of information for the court. I note that Mr Forward is still in active practice in one of the largest trauma clinics in the East Midlands area. Mr Beverly has retired from NHS practice, but nevertheless has a great deal of experience as a trauma surgeon in District Hospitals, where I anticipate he will have seen a very large number of ankle injuries. I find that both these gentlemen had the appropriate qualifications to provide a court with an opinion.
45. However I have a number of reservations about the quality of Mr Beverly’s opinion. His report contains references to another patient’s notes, but it is not clear that he has excluded them from his deliberations. Mr Beverly incorrectly stated that Dr Miller had diagnosed CRPS, notwithstanding the analysis given by Dr Miller, the consultant pain expert instructed by the Claimant in his reports in which he rejects the diagnosis of those treating the Claimant, that the Claimant had Complex Regional Pain Syndrome (CRPS) giving his reasons. Mr Beverly accepted this was a mistake, but did little to excuse it. I find that there was a want of care on the part of Mr Beverly in undertaking a proper analysis of the materials presented to him for his report.
46. There are contradictions in his evidence. In his oral evidence, Mr Beverly gave the opinion that the Claimant suffered an ankle sprain from which he would have recovered within three to four months. In his supplementary report dated November 2017, he observed that the Claimant would have been capable of returning to the same or similar employment within two to three months. He was prepared on the one hand to offer an opinion that the Claimant’s cardiac problems and history of smoking, about which he professes no expertise, would have prevented and continues to prevent the Claimant continuing with his employment. Then has stated in his later report that he could have gone back to the same employment within two to three months of the accident…
51. Mr Beverly’s scornful dismissal of Mr Siddiqui, referred to above as “simply a registrar”, notwithstanding that he has described in his letter as a specialist orthopaedic registrar, does him no credit ...
53. In conclusion, I do not find Mr Beverly’s opinion to be reliable. I accept Mr Forward’s conclusions given in the joint orthopaedic report that the Claimant continues to have significant problems, and that the original ankle injury was a severe sprain with a minor fracture. I accept Mr Forward’s opinion that some patients with apparently simple ankle sprains fail to fully recover and develop a range of permanent symptoms that may never be fully explained, diagnosed or treated. The fact, that as the Defendant suggests, this may be a tiny fraction of such patients, does not inevitably lead the court to the conclusion that the Claimant is not one of them. I find that he is.

THIS IS NOT TO SAY THAT THE CLAIMANT’S EVIDENCE WAS PERFECT

The judge found contradictions in the claimant’s evidence.  However these were not of a nature so as to justify a finding of fundamental dishonesty or lead to the striking out of the claim.

“For the reasons given, I do not find that the Claimant has engaged in fundamental dishonesty in this claim. I do not find that he has faked injury, or continuing pain, for the purpose of financial gain.
62. Nevertheless I find that there has been a degree of overstatement, in Dr Miller’s words, embellishment, of the Claimant’s pain and its affect upon him. I find that the Claimant has engaged in this conduct in order to convince rather than to deceive. I accept that the surveillance evidence can only be a snapshot. Nevertheless he is walking albeit, according to Mr Forward, not completely normally, with apparent ease and without walking aids. His conduct does not amount to the sort of conduct that would justify dismissal of his claim in accordance with the principles outlined in the Summers v Fairclough case. I note in that case surveillance evidence demonstrated the Claimant was playing football and that the trial judge found the Claimant had engaged in work for reward. Even so, Mr Summers’ case was not dismissed. “