In Smith v London Borough of Haringey [2021] EWHC 615 (QB) Master David Cook found a claimant to be fundamentally dishonest. A failure to disclose previous back problems, coupled with an exaggeration of her medical condition was found to be deliberate.

“The Defendant has been put to great trouble and expense to rebut the loss of earnings claim and the Claimant’s exaggerated assertions of disability. Ultimately the Claimant has only herself to blame for this situation and I am not satisfied that she would suffer substantial injustice by a result that Parliament clearly intended when enacting this legislation.”


The claimant suffered an injury following being assaulted by a service user at work.  Liability was agreed on a 75:25 basis in her favour.  In the assessment of damages she appeared as a litigant in person.


    1. On 15 January 2020 the Claimant served her updated schedule of loss and responses to Part 18 Questions. The Claimant personally signed the statement of truth on these documents. I note at this point the Claimant had received the report of Dr Isaac and the report of Mr Pearse had been served by the Defendant.
    1. In answer to the question whether she experienced any limitations or had experienced any back problems before the accident she replied:
The Claimant has not experienced limitations or had experienced (sic) any back problems prior to accident apart from when she had a whip-lash in her neck, which was very temporary. The Clamant has never had or experienced any limitations lower, pelvis and legs at time previously.
    1. In answer to a question concerning paragraph 11 of her witness statement of 21 February 2019 where she stated that she believed her diagnosis of soft tissue injury at A&E the day after the incident was wrong she replied:
This was the first instance at the hospital following the attack and the hospital had not done full investigations into my complaint. It was an early diagnosis until they realised that the treatment that was being given to me was not helping and they did further investigation and realised my disc was damaged. The Claimant’s GP had sent to hospital to be examined by the Gynaecologist team because of the pain radiating from my back to the pelvic. After two examinations, it was concluded that there was nothing wrong with the pelvic but that the pain was being contributed from her lower back pain. It is clear that the soft tissue diagnosis is wrong.
    1. Shortly after the Claimant provided this material to the Defendant the Defendant disclosed video tapes of surveillance carried out on 18 February, 8 March, 26 September, 9 November and 13 November 2019 and made an application to rely upon the surveillance tapes, to file an amended defence and to access the Claimant’s DWP records. The video evidence was put forward by the Defendant on the basis that it showed the Claimant undertaking a number of activities which she had stated she could not do or only do with difficulty. Shortly after the application was made the Claimant parted company with her solicitor.
    1. At a hearing on 24 February 2020 I entered judgment for the Claimant for 75% of her damages and gave permission for the Defendant to rely on the surveillance evidence, permission for an amended defence and a reply and made further directions for the assessment of damages. I also gave permission for the Claimant to rely upon the report of Dr Isaac which had been served late.
    1. Dr Isaac noted in his report that the Claimant’s cognitive function was grossly normal, with no gross deficits apparent in comprehension, attention or memory. At paragraphs 82 and 83 of his report he stated:
82. My impression is that the orthopaedics experts cannot explain Ms Smith’s persistent back pain as being caused by the soft tissue injury of the index event. Such injuries should clear up by themselves in a matter of months. I note there is difference between the orthopaedic experts as to Ms Smith’s pre-existing physical vulnerability. I of course defer to the relevant experts in their opinion on the nature and cause of any physical injuries Ms Smith’s sustained in the index event.
83. I also note that Ms Smith has reportedly given a different account of the index incident (paragraph 64, above), stating to me and to the experts that this was due to an assault by the client, FM.”
    1. Dr Isaac noted that if the orthopaedic experts view was accepted then the Claimant’s pain cannot be readily explained by the circumstances of the 2014 assault, there could be a psychiatric explanation but this would depend upon whether her account of the event and her subsequent clinical trajectory was both full and accurate. He identified two diagnostic possibilities. First an adjustment disorder with mixed anxiety and depressed mood (DSM5 309.28, ICD 10 F43.23). Second Somatic symptom disorder with predominant pain (DSM 300.82, ICD10 45.1). He was clear that there was no evidence of any other psychiatric condition and no evidence of Post-Traumatic Stress Disorder.
    1. The Claimant responded to the amended Defence, which set out in detail Defendant’s case under each of the seven headings set out at paragraph 5 above, in her Reply and a witness statement dated 18 March 2020 and which she signed with a statement of truth. She told me when giving evidence that she had received some help with these documents from a friend or adviser and that the words used did not entirely reflect what she had meant to convey and that for cultural and linguistic reasons some of the meaning had been misrepresented. For reasons which I will come to in due course I reject that explanation and find both the Reply and witness statement accurately set out what the Claimant intended to be her evidence.
    1. On 18 March 2020 the Claimant applied to the court for an order to restrict the Defendant’s ability to rely on the surveillance evidence on the basis that it infringed her HRA Article 8 rights. On 16 April 2020 that application was dismissed as being totally without merit.
      1. On 10 November 2020 I made an order staying the claim. It transpired that the Claimant had been made bankrupt on 26 January 2020 and had not informed the defendant or the court of that fact. The Claimant indicated that she was attempting to persuade the Official Receiver to assign the cause of action to her. The Claimant was successful in her efforts to persuade the Official Receiver to assign the cause of action to her. On 15 December 2020 I gave the Claimant permission to put written questions to the Defendant’s experts and for the Defendant to call its experts at trial.
  1. At the conclusion of the Claimant’s evidence on the second day of the trial I pointed out to her that the claim set out in her schedule of loss was clearly overstated. To her credit she recognised that the sum presented for her annual loss was too high as it included some extra payments and was expressed as a gross sum, she blamed this on her former solicitor and on this issue I accept her explanation. She accepted that her annual loss was more properly stated as a net figure of £25,039. She did not however accept the medical evidence she had produced in anyway undermined her claim and was adamant she wished to proceed with her claim for loss of earnings until the date of her retirement which would amount to approximately £241,459 on the amended figures.


    1. Both Mr Pearse and Dr Mallett commented on the surveillance evidence in their supplemental reports. Neither expert changed his opinion as a result of considering this evidence. Mr Pearse commented:
The video surveillance highlights an individual who was able to mobilise in a normal manner and perform repetitive flexion and extension of the lumbar spine without difficulty or apparent discomfort. The footage also shows the Claimant using a crutch for the first time as she attended a medicolegal appointment. I can confirm that there is no medical indication for the use of the crutch. “
Mr Mallett commented :
There is nothing in the surveillance or further documentation that leads me to substantially alter the findings of my report except to say that it underlines the fact that Ms Smith’s account of her symptoms and disability cannot be relied upon. If her account of her physical symptoms cannot be relied upon, then in my opinion (although it is not possible to infer her mental state directly from the surveillance) the account of her psychological symptoms cannot be relied upon either.”
The Assessment of the Claimant’s damages
    1. On the basis of my findings the expert evidence with one minor exception only supports an award of pain suffering and loss of amenity. I find that the Claimant suffered a self-limiting lumbar soft tissue injury to her wrist and lumbar spine which fully resolved within three months.
    1. In my judgment the Claimant’s soft tissue injury to the lumbar spine falls at the margin of chapter 7(B)(c)(ii) and (iii) of the JC Guidelines (15th Edition). I would assess a sum of £2500. The Claimant’s wrist injury would fall within Chapter 13(c) Minor Injuries. I would assess a sum of £2,300. Allowing for overlap I would award the total sum of £3,200 general damages.
    1. Any pain the Claimant currently experiences cannot have been caused by the 2014 incident and there is absolutely no evidence to suggest that the diagnosis of soft tissue injury made at the time was wrong. It follows she can have no claim for loss of earnings as she continued to work until she was made redundant in July of 2017. There is a small claim for damage to clothing in the sum of £250 which I shall allow.
    1. Before interest the Claimant is entitled to damages of £3,450. The damages fall to be reduced by 25% in accordance with the agreement on liability, that is £2,587.50.
Fundamental Dishonesty
    1. I must now consider whether the Defendant has proved to the civil standard that the Claimant has been dishonest in the presentation of her claim. In considering this issue I must apply the test as set out by the Supreme Court in Ivey v Genting Casinos Limited [2017] UKSC 67 [Lord Hughes, para 74]:
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
    1. I have already noted that the Claimant informed Mr Percy she had never experienced problems with her back before and that she denied a history of low back pain to Mr Pearse on 18 February 2019. In her schedule of loss dated 15 January 2020 she stated that she had not suffered any back problems prior to the incident in April 2014. In her Reply dated 18 March 2020 she maintained that she did not have a history of back pain. In her witness statement of the same date she accepted that she had suffered whiplash in an accident which occurred in April 2013 but maintained this had not caused her any lower back pain only some neck and upper thoracic pain.
    1. The Claimant’s pre-incident medical records reveal a very different picture.
i) 2003 – GP records: ‘Chronic back pain
ii) 17.02.03 – GP records: ‘Ongoing back pain…Letter from Homerton Hosp re: physio for back pain…low back pain 6/52
iii) 18.02.03 – Physio referral for “neck and low back pain”.
iv) 21.7.05 – GP records: “Had car accident 29.11.04 … backache”
v) 08.11.05 – GP records: “Back pain still there
vi) 02.02.06 – North Middlesex University Hospital Radiology Thoracic and lumbar spine.
vii) 09.01.06 – GP records: “Pain in lower thoracic and upper lumbar spine since after accident Nov 29th 2004
viii) 02.03.06 – Tottenham Walk In Centre: “Back pain on and off for the last year
ix) 10.04.06 – GP records: “Back pain ongoing for a while…starting physio next wed”
x) 12.04.06 – Physio records: “Chronic non specific LBP post RTA
xi) 05.08.06 – Physio discharge – “Chronic LBP
xii) 08.08.06 – North Middlesex Hospital A&E – “presented to the A&E Department with rta back pain
xiii) 19.02.07 – GP records: “Back pain
xiv) 20.02.07 – North Middlesex University Hospital Radiology Thoracic and lumbar spine.
xv) 2009 – OH records refer to “time off work in 2009 having hurt her back“.
xvi) 04.06.13 – Ambulance Records: “L sided chest and back pain” .
xvii) 04.06.13 – A&E Records: “Back pain“.
xviii) 11.11.13 – North Middlesex University Hospital – “C/O PAINS TO CHEST AND BACK”
    1. The Claimant was subjected to detailed cross-examination by Ms Reynolds on the content of these entries, in the course of cross-examination the Claimant accepted that she knew she must give truthful answers to the questions put to her by the experts.
    1. The Claimant denied that note (i) referred to her and suggested her GP had made a mistake when transcribing her notes as a new patient and also suggested that the record did not refer to her because her date of birth was wrongly recorded. I reject that explanation. Her previous GP’s notes clearly referred to back pain and a reference to physiotherapy in February 2003 and the error in relation to her date of birth was a simple mis transcription of her date of birth, 05.12.69 instead of 05.12.68.
    1. The Claimant was asked about the many entries referring to back pain following a car accident in 2004. Her response was that she did not remember the accident at all until she saw the relevant entries while going through her medical notes shortly before the trial. She then said that she was now able to recall the episode because it happened after the birth of her child and described details of accident which involved a low velocity bumper to bumper collision.
    1. Broadly speaking the Claimant was forced to accept that the entries in her medical notes were accurate but she continued to maintain she could not recall many of the incidents until she examined the records. Notwithstanding this the Claimant was able to recall under cross-examination details of pain she suffered following her epidural when her child was born and details of an injury she suffered at work in 2009. A more telling example is provided by the entries relating to the Claimant’s admission to hospital via ambulance in 2013 with backpain. In her witness statement and when first asked about this she denied that it had happened, when that denial came untenable due the number of records relating to the incident she accepted that it had happened and blamed the person who had drafted her statement for failing to mention it.
    1. In my judgment the Claimant demonstrated a clear ability to remember the past details of events associated with the recorded instances of back pain which is wholly inconsistent with forgetting.
    1. I have found that the Claimant demonstrated inappropriate signs in her examination by Mr Pearse on 18 February 2019 as set out at paragraphs 32 and 33 above.
    1. I accept that the Claimant told Mr Pearse the following on 18 February 2019;
i) she uses a crutch to aid mobility,
ii) she remains unable to undertake any household chores,
iii) she continues to rely on online shopping deliveries as well as help from her sister with household shopping.
    1. I accept that the Claimant told Dr Mallett on 26 September 2019 that;
i) she can only manage around 4 minutes walking on a good day before she has to stop and rest,
ii) she can drive an automatic car for around 5-10 minutes maximum,
iii) her sister has to help her with her shopping.
    1. In her schedule of loss dated 15 January 2020 the Claimant stated that her pain prevents her from going out and that she is confined to the house.
    1. I have reviewed the surveillance evidence carefully. In my judgment this evidence clearly demonstrates the Claimant has much greater functionality than she was prepared to admit to Mr Pearse and Dr Mallett.
    1. On 18 February 2019, which was the date of Mr Pearse’s assessment, the Claimant is shown driving and walking normally while carrying bags and demonstrates normal lumbar flexion with fluid movements.
    1. On 8 March 2019 she is shown driving to a leisure centre and leaning into her car without any apparent difficulties. She walks freely without restriction and swings a water bottle. After she is shown purchasing items from a shop and carrying them in a bag.
    1. On 26th September 2019, which is the date of Dr Mallett’s assessment she is shown driving for 78 minutes, a long journey. She is also seen comfortably bending into her car to retrieve items. She walks for a total of 32 minutes again freely and without apparent restriction.
    1. On 13 November 2019 she was observed driving to a shopping centre, shopping and in particular bending down to retrieve an item from the floor.
    1. The Claimant sought to suggest that Mr Pearse had not recorded her responses accurately and that his reference to her only being able to walk for 5 to 10 minutes were his words not hers. I have already accepted Mr Pearse’s account as accurate, however the matter goes further. In the Claimant’s DWP records there is a letter which she wrote on 10 December 2018 in support of her application for reconsideration of her claim for Employment and Support Allowance in which she describes her abilities in a manner which is wholly consistent with her account recorded by Mr Pearse. In fact in this document she states that she could not walk or stand for more than 2 to 5 minutes.
    1. The Claimant sought to explain Mr Pearse’s observation of inappropriate signs by suggesting that pain killers that she was taking could mask the pain. However, at paragraph 11 of her witness statement she has stated that she did not take pain killers when she was driving as they make her drowsy. She was driving on this day.
    1. The Claimant sought to explain away her ability to lean into her car by saying that it was leaning not bending. The fact of the matter is her spine was in flexion which is something she said to the experts and to the court she could not do.
    1. I agree with the observation of Dr Mallett that external surveillance does not provide a direct insight into a person’s level of subjective experience but if someone claims that they cannot do a particular activity and are then seen doing it, then clearly the issue is not whether such an activity is out of character or not but whether they have been misleading or inconsistent in their claim of what they are able to do.
    1. As I noted at paragraph 28 above the Claimant applied to the court in an attempt restrict the Defendant’s use of the surveillance evidence, I have no doubt that she did so because she appreciated that it contradicted the various accounts she had given to others of her abilities.
    1. I do not intend to examine every inconsistency and explanation given by the Claimant. In my judgment the Claimant has been both inconsistent and knowingly misleading in her accounts to the experts and to the court. She has demonstrated a willingness to manipulate the facts to suit her arguments. No proper explanation has been provided for the way in which this claim developed from a simple low value personal injury claim into a claim for serious injury worth over £600,000. I suspect part of the reason may well be because the Claimant is in financial difficulty, there being numerous references to this in the records. While the Claimant has sought to blame her solicitor for the way in which her claim was initially presented she has adopted, developed and maintained her claim while acting in person. In my judgment she has done so deliberately in order to bolster what she saw as an important element of her claim, the claim for loss of earnings. Given my findings there is simply no room to suggest that unconscious exaggeration may be at work.
    1. I have no doubt that the Claimant now experiences pain in her spine and pelvic area but this is a result of her degenerative condition which has nothing to do with the 2014 incident giving rise to this claim, a fact of which I have no doubt she is well aware particularly as it has been very clearly explained by the orthopaedic experts. It follows that I am satisfied on the balance of probabilities she has deliberately exaggerated her disability to the court and to the experts. The purpose of the deliberate exaggeration was to support her claim for loss of earnings.
      1. Applying the test in Ivey v Genting Casinos Limited I find the Claimant’s deliberate exaggeration to be dishonest. It follows I am satisfied that the Claimant is entitled to damages but that she has been fundamentally dishonest in relation to her claim. In the circumstances I am required to dismiss the claim unless I am satisfied that the claimant would suffer substantial injustice.
Substantial injustice
    1. I remind myself of the remarks of Julian Knowles J in Sinfield, section 57 of the Criminal Justice Act and Courts 2015 was intended to be punitive in character and “substantial injustice” must mean more than the fact that the Claimant will lose her damages. The Claimant has pursued this claim in the face of overwhelming evidence which she has deliberately but ineffectively sought to counter. The fact the Claimant may be in financial difficulty is no excuse. The Defendant has been put to great trouble and expense to rebut the loss of earnings claim and the Claimant’s exaggerated assertions of disability. Ultimately the Claimant has only herself to blame for this situation and I am not satisfied that she would suffer substantial injustice by a result that Parliament clearly intended when enacting this legislation.
  1. The claim is dismissed.


Barrister Megan Griffiths has prepared a summary of the case and issues, available here.