A FINDING OF FUNDAMENTAL DISHONESTY: SOCIAL MEDIA, SURVEILLANCE EVIDENCE AND INACCURATE STATEMENTS LEAD TO CLAIMANT LOSING £44,890
I am grateful to Aled Morris from Horwich Farrely for sending me a copy of the decision of HHJ Beard in Anderson -v- Porch (14th January 2021), a copy of which is available here OT APPROVED HORWICH, F38YJ633, ANDERSON, PORCH, 14.01.21 (SWAN) – COETJ. It is an example of a fundamental dishonesty case with the claimant giving an inaccurate account of the impact of his injuries which were, initially, severe.
The claimant was bringing an action for damages for personal injury. He had significant surgery. Liability was admitted. The issues related to the extent of his injuries.
THE CLAIMANT’S OWN TWITTER ACCOUNT UNDERMINED HIS CASE
We have another example of the claimant’s own social media activity undermining his case. The claimant had returned to running and put messages on his Twitter account.
On 12 September 2016 the Claimant sent a tweet, as they are called, on a Twitter account. It indicated the following:
“22.06 5K, work to do to get back to sub 20 by Christmas. Hills, I’m
coming for you. #5K #sub20.”
The Claimant was cross-examined in respect of that and, I have to say, his explanations in his oral evidence were not satisfactory. At some points he agreed that he was running. However, he would not accept that he had run 5 Kilometres (hereafter 5K). He then qualified that by saying:
“Not in competition.”
He could not indicate whether running 22.06 (minutes and seconds) was a reflection of him running 5K in a continuous running or a breakdown of 5K running with breaks. In my judgment the tweet is obvious. It indicates that the Claimant has run a 5K distance at a figure of 22 minutes and six seconds and that he intends to do further training in order to run less than 20 minutes over 5K by the Christmas of 2016 hence the indication:
“Hills, I’m coming for you.”
On 22 October 2016, there is an indication that the Claimant had, within 22 minutes run a 5K competitive race. In my judgment, this evidence demonstrates that in the September and October of 2016 the Claimant had returned to running. Whether this was in terms of competitions, training for competitions, or simply a return to gain fitness is of less importance than the fact that the Claimant was setting himself targets and running distances.
MISLEADING THE MEDICAL EXPERT
The Claimant told me that he had read this report near the time it was prepared and he accepted during cross-examination that some matters recorded there were not accurate.
He said he could not remember if he had told Mr Ennis about the matters recorded there. He said that he had not corrected these inaccuracies because of carelessness. I do not consider that the account recorded was incorrect nor do I consider that the Claimant was careless. I detect exaggeration on the Claimant’s part at this stage. As I have already indicated by October 2016 the Claimant had taken part in a competitive race. Therefore, telling Mr Ennis that he was not running or not engaged in any of those activities, it appears to me, was significantly misleading Mr Ennis. I do not accept that the Claimant does not remember what was said. I consider that the Claimant did tell Mr Ennis these things and, therefore, was misleading him.
The judge viewed extensive evidence of the claimant involved in various activities which were inconsistent with the account given to the medical experts and set in the Particulars of Claim and schedule of loss.
Having observed the Claimant’s movements in the recordings from early 2019, it appears to me that the Claimant could not possibly have considered that, in signing this document, that it was an accurate and truthful representation of his condition. In terms of day to day tasks the Claimant, again, reported that he had returned to running in February 2017 and that he had engaged in a short format endurance triathlon in October of 2017. That too was inaccurate, it was not a short format event, in October he took part in a full Iron Man event of significance involving many miles of swimming, running and cycling. I do, however, come to the conclusion that, the Claimant having not after that October competed in triathlons, was accurate in one aspect of his evidence. This is that he found that the triathlon led him to conclude that he was no longer properly able to take part in such events. Although that conclusion was on a subjective basis, because it can be seen that his finishing time was significantly more comfortable than in an Iron Man event in Wales in 2013 (although it has to be said that the environment was entirely different in Barcelona than it would have been in Wales).
INACCURATE WITNESS STATEMENT
The claimant also signed an inaccurate witness statement.
It seems to me that the descriptions originally given to the medics are of less importance, or at least lesser importance, than when the Claimant began to maintain those descriptions and used them in making and advancing the claim both in the schedule of loss and the first witness statement. He appended a statement of truth to all of these documents.
22. There were further observations recorded of the Claimant in February of 2020, on the 19th, 20th and 22nd, that is shortly after the Claimant signed his statement. Again these recordings show the Claimant using his right arm in what most people would consider
a normal fashion.
THE MEDICAL EXPERTS VIEWS AFTER SIGHT OF THE SURVEILLANCE EVIDENCE
The claimant’s own expert found the surveillance evidence
“It is difficult to correlate the Claimant’s statements with regard to the effects of his daily living, such as dressing, toileting, brushing his
teeth and shaving, when the footage demonstrates he is able to undertake repetitive tasks comfortably using his right arm, and
appears to be unhindered in any activities of daily living outside his home. On the balance of probability, this element of the Claimant’s
stated history cannot be relied upon.”
THE CLAIMANT’S SUPPLEMENTAL STATEMENT
The claimant made a supplemental statement confirming the surveillance evidence was not consistent with the surveillance evidence.
“I have to accept that the surveillance footage documented in the reports is not entirely consistent with the comments I made in my
previous statement and to the experts, Mr Ennis and Mr Shewring,when examined by them.”
THE JUDGE’S FINDING OF FUNDAMENTAL DISHONESTY
The judge found that claimant had been fundamentally dishonest.
“In my judgment the chronology of these events are key. The Claimant by September/October 2016 was beginning to recover. By the beginning of 2018 his recovery had made in strides. Certainly by March 2019 the Claimant’s disability had his arm. The Claimant maintained that this was due to the use of medication. He however maintained to the medics that his abilities were much more limited than they actually were. I have no doubt the Claimant used painkillers to mask some pain however I cannot say to what extent….
35. Taking an objective standard of ordinary, decent people telling a Court that a document signed as being true, that the effects of the injury remained much worse than they actually are, is, in my judgment, dishonest within the meaning given to it in Ivey. When a claim is for personal injury and the extent of damages depend on the severity of that injury it is difficult to see how such dishonest statements are not a substantial aspect of the claim and, therefore, they must mean that, in respect of this claim, by making those statements and maintaining them the Claimant has been fundamentally dishonest.”
WHAT THE JUDGE WOULD HAVE AWARDED
The judge held that he would have awarded £44,489.00 in damages. That sum was to be set off against the claimant’s liability to pay the defendant’s costs which were to be paid on an indemnity basis.