A CLAIMANT IS NOT FUNDAMENTALLY DISHONEST WHEN THEY DON’T PROVIDE INFORMATION THAT IS NOT ASKED FOR: JUDGMENT FOR £1,679,406 IN A PERSONAL INJURY CASE

In  Palmer v Mantas & Anor [2022] EWHC 90 (QB) Anthony Metzer QC (sitting as a Deputy High Court Judge) rejected an argument that a claimant had been fundamentally dishonest.  Judgment was entered for £1,679.406 instead of a finding of dishonesty.

 

 

“… that is a particularly difficult submission for the Second Defendant given that I was not provided with any reported authorities where a finding of fundamental dishonesty has been made in a personal injury claim because a Claimant had failed to volunteer information not asked of her during a medical legal assessment.”

THE CASE

The claimant brought an action for damages for personal injury following a road accident.  The matter proceeded to trial, the defendant alleged that the claimant was being fundamentally dishonest.

THE JUDGMENT ON FUNDAMENTAL DISHONESTY

The judge reviewed the principles relating to fundamental dishonesty and considered the defendant’s assertions.  The defendant’s case on dishonesty was rejected.

My findings in relation to the issue of fundamental dishonesty
    1. I have no difficulty in concluding that I found the Claimant to be an honest, helpful, impressive and dignified witness in her own case. Although I find there were some differences between what she maintained in her witness statements and what she said to various professionals, I consider that it is explicable in large part by the inevitable differences in recollection whenever she was asked to recite the history and symptoms (if she was wholly consistent every time, that would itself tend to be suspicious) and also explicable by her character by which she (and her mother too) would not tend to volunteer information over and above the questions asked, as she is someone with a reserved nature. I also consider that her SSD has contributed to a level of unconscious exaggeration: see further below. In fact, I find the Claimant has given a very largely consistent narrative to all the experts who have seen her in respect of her symptoms, and I accept her evidence that she did not initially believe that some of the symptoms, in particular the migrainous headaches, were connected to her accident in the early years after the crash. I consider that the substantial number of symptoms the Claimant now has arose from the outset of the accident and were caused or substantially contributed by it.
    1. In deference to the Second Defendant’s submissions in respect of the allegations of fundamental dishonesty on the part of the Claimant, I shall deal briefly with the specific matters asserted. In respect of the failure to refer in her first statement to part-time work for Casino Floor in 2015, I do not find that this was a dishonest omission, as the context in relation to work before and after that period concerned her resignation from the Hippodrome Casino and then her subsequent role at Conversocial from January 2016. In her Preliminary Schedule of Loss of October 2017, the Claimant referred to her time at Casino Floor. It was a preliminary witness statement which was not intended to be disclosed but because it was referred to in Dr Allder’s report, the Claimant served it in December 2018 upon request. I find that the fact that the Claimant did not make mention of her ability to engage in sport or exercise in that first (preliminary) statement was not dishonest, as it was primarily drafted for the purpose of providing details of cognitive and behavioural symptoms prior to Dr Allder’s assessment which was to take place shortly thereafter.
    1. Although I find that the Claimant was in error when she stated “The first time I tried to go out was in May or June 2015” in that first statement, I do not find that it was dishonest on her part. I consider the explanation to be down to her accepted brittle memory. The error also needs to be seen in the context of subsequent witness statements in which she addresses her ability to socialise, albeit in a more diminished way than pre-accident, and I find that the Claimant did not intend at any stage to mislead in relation to when she was first able to socialise post-accident. That is clearly demonstrated in her completed pain questionnaire for Dr Munglani. It appears to be a feature of most, if not all, of the medical legal experts that they did not focus upon the Claimant’s ability to socialise post-accident in any substantive way.
    1. In respect of impaired balance, I find that that is a symptom which was not only caused by the accident but that she was not dishonest when failing to mention it in her first statement as this was not an essential concern on her part at that time as it was intermittent, exacerbated by fatigue and migraines, and the Claimant’s focus was on other more pressing symptoms at the time. It is instructive to note that she did make specific reference to it when in discussion with Dr Allder a week later. There were also clinical findings from both Dr Surenthiran and Dr Raglan corroborating the Claimant’s claim of impaired balance. Although the Claimant conceded in cross-examination her description of walking “like a drunk” to Dr Jacobson amounted to a “hyperbole” – the only time she admitted doing so during his assessment – Dr Jacobson in my view significantly, attributed that to anxiety rather than an intention to deceive and agreed that balance “is not an uncommon symptom in migraine”.
    1. With respect to the Claimant’s assertion in her second statement that she had not returned to running, I do not find that she was being dishonest. The focus of that statement was on headaches and cognitive, behavioural and psychological symptoms, and I note that it was not served until June 2019 with the Claimant’s third statement in which she set out in detail post-accident levels of physical activity including jogging and other attempts at exercise. Lee Palmer confirmed in his evidence that by that time, he was accompanying her to the gym which would include the Claimant exercising with gentle jogging on a treadmill and using weights. It is important to note that the Claimant stated that when she referred to running, pre-accident she was training for a marathon. I do not find there is a gross disparity in the Claimant’s evidence in relation to the extent of post-accident running, particularly when the social media evidence (in particular the Bear Grylls 10K event) is considered in context, considering the Claimant’s and Mr Clark’s evidence in relation to that event, specifically concerning the Claimant’s extent of participation. That requires taking into account the Claimant’s and Mr Clark’s evidence to how long it took her to complete and how she completed it, describing it as more “a gentle jog” and that she only did “several of the obstacles”, and also taking into account the evidence of Lee Palmer and the fact that she disclosed this 10K race to Mr O’Dowd, as well as recognising the unchallenged evidence that Claimant is a competitive person who would not wish to reject all challenges post-accident and attempts to return (as far as she could) to something like the levels of exercise which she had previously enjoyed. I also considered Dr Jacobson’s view that this evidence placed the Bear Grylls event in a difference context. I therefore accept the Claimant’s evidence in relation to what she maintained about the Bear Grylls race.
    1. I do not find that the Claimant not disclosing the full extent of her travelling in her earlier witness statements was dishonest by omission. She referred to some of her travel in those statements and to some of the experts. Her and her father’s witness statements were disclosed prior to the Second Defendant disclosing the social media material. The Claimant has clearly posted extensively about her holidays on social media and if the Second Defendant’s case was to be made out, namely that she was dishonest from early 2017, I find she would not have chosen to disclose voluminous amounts of material about her travels, particularly as it was accessible to the general public. The question of the Claimant’s ability to travel on holiday was not apparently a focus of any of the medical legal experts as the Claimant had never indicated that she was housebound. In general terms, the holidays that she did undertake were relaxing – even when she skied in Breckenridge in February 2016, she took part in mornings of gentle skiing in contrast to the much more intensive skiing she undertook pre-accident and, where they were not simply about relaxing, she was attending a retreat in India to learn about gentle massage and was with her partner, family or friends. I also consider the oral and agreed written evidence about the manner and extent to which the Claimant was able to enjoy her holidays and the difficulties with her symptoms she described to them.
    1. More generally, I reject the Second Defendant’s assertion that the Claimant was actively withholding her level of functioning between 2014 and 2019 when the medical legal assessments were completed. As I have indicated above, I consider that the Claimant, although clearly articulate, intelligent and straightforward had chosen to respond by answering questions from the medical legal experts which I consider to be reasonable and not deceitful in any way. Indeed, acting otherwise by seeking to take charge of those interviews might have been perceived as controlling and tending to dictate the findings that the experts would subsequently make. I accept the evidence from her family that she is reserved and tends to keep her emotions in check, save for the one incident with Dr Miller, and that she considered that approach was both respectful and appropriate. The extent that the Claimant expressed distress during those assessments and indeed in her evidence before the Court, I find was genuine and not artificially constructed. I find that the reporting of her pain and dysfunction was also honest and reflected her state of mind at the time when she was being examined. It is clear from the evidence of many of the experts, in particular Drs Munglani and Agrawal that there were times she was suffering from chronic pain. SSD with predominant pain needs to be understood as a condition which fluctuates. Although Dr Jacobson considered the Claimant “uses language loosely”, he put that down to personality and educational and considered she was not being deceitful. Dr Murphy and Dr Torrens agreed (as summarised above) that the Claimant was suffering from “very brittle” memory which I find is a substantial reason for the Claimant not volunteering further information about the progression of her symptoms in the context of not being asked specifically, which I do consider was not indicative of a deceitful and consciously withholding character on her part. In respect of the suggestion the Claimant lied about cycling arising from Dr Munglani recording the Claimant was “absolutely incapable” of riding a bike and that the Claimant “does not ride a bike”, I accept the evidence from the Claimant corroborated by Dr Munglani that she was asked questions and answered in the present tense, and she was not lying or seeking to deceive him or indeed any of the other experts. Other experts confirmed that she was not cycling at present and social media confirmed that she had cycled fifty miles over three days in August 2015. I have already indicated that entries on social media need to be considered in appropriate context. Being disclosed publicly, they need not be indicative of dishonesty and in the context of this case, I do not find it they were, as the Claimant specifically referred to use of a bicycle post-accident in her second and third witness statements served before the social media evidence was disclosed when her integrity was not apparently an issue.
    1. Arguably, the highest point of the Second Defendant’s case on fundamental dishonesty arose from the disparity between Mrs Tavengwa’s record of the Claimant’s presentation in May 2018 and how the Claimant presented to all the experts and on the surveillance evidence. I agree that the description of the Claimant’s dysfunction noted in the record is at variance with all other descriptions. Mrs Tavengwa’s assessment report is of course hearsay and has not been verified as being accurate by the Claimant, who commissioned her to obtain practical case management. In oral submissions, Mr Woodhouse suggested that it was not open to the Defendant to call Mrs Tavengwa to prove the accuracy of its contents but respectfully I do not agree. Either party could have chosen to call Mrs Tavengwa as there is of course no property in a witness and although there is no suggestion from either party that Mrs Tavengwa’s record was not accurate, it is simply impossible to be wholly sure one way or the other about it, particularly as the Claimant herself was unable to verify its accuracy. It is therefore important to consider her record with a degree of caution. I find that the Claimant’s absence of memory may well be explicable by her psychological state at the time. The observations suggest she became very tired and questions had to be repeated, her mother had to assist and she broke down several times. Aside from arguably in the presence of Dr Torrens where the Claimant was also visibly distressed, I do not place too much reliance upon the Claimant providing somewhat coherent details to Mrs Tavengwa, who was clearly unable to successfully calm the Claimant down. I consider the unchallenged evidence of Sharon Palmer that Mrs Tavengwa had asked the Claimant for a description of her symptoms on her worst day, which I find gives a valid explanation as to her description of level of dysfunction. Dr Jacobson helpfully agreed that “after thirty minutes [the Claimant] was effectively shutting down” and I find that, although it is markedly different to what the Claimant said in her witness statements and to all the medical legal experts, it does not support the contention of fundamental dishonesty on the Claimant’s part, particularly bearing in mind that it was not part of the Claimant’s pleaded case, it was disclosed in accordance with the Claimant’s disclosure obligations, and the Defendant did not take the opportunity, as it could, to seek to call Mrs Tavengwa.
    1. Similarly, I do not find how the Claimant completed the DWP Capability for Work questionnaire indicated dishonesty in respect of her answers, which I find was explicable by the Claimant describing how she felt at the time, particularly in relation to the answer about the walking of fifty metres. It needs to be understood that this questionnaire was merely a screening document before an assessment with a healthcare professional; it was significantly not suggested she exaggerated her history to that person.
    1. Finally, and more generally, I do not find that the Claimant deliberately under-reported her pre-accident medical history. She served a substantial preliminary Schedule of Loss and I do not find that she deliberately withheld the information about her attendance at hospital following the Halloween party, of which I find she had no recollection at that time.
    1. In all the circumstances, I find applying the relevant law from Section 57 of the Criminal Justice and Courts Act 2015 and the appropriate burden and standard of proof that the Second Defendant has failed to establish that the Claimant was fundamentally dishonest. For the reasons set out above, I do not consider she was dishonest with any of the medical legal experts, with her family and friends, with her GP and all other professionals that she involved herself with from early 2017 and in respect of her Preliminary (and subsequent) Schedules of Loss and her claim generally. I do not accept the Second Defendant’s assertion that she was dishonest in respect of her witness statements as to the level of her disability with the purpose of maximising the level of compensation recoverable in the claim. I note in conclusion on this issue that a substantial part of the Second Defendant’s case is essentially that the Claimant was dishonest by omission, i.e., chose only to answer questions asked by the medical legal experts and omitted to disclose her true level of function. I have already set out why I do not consider that as a fair approach to expect of the Claimant when being asked about the history and symptoms by all the medical legal experts. I am fortified in my view that that is a particularly difficult submission for the Second Defendant given that I was not provided with any reported authorities where a finding of fundamental dishonesty has been made in a personal injury claim because a Claimant had failed to volunteer information not asked of her during a medical legal assessment.
  1. For all those reasons, I reject the Second Defendant’s primary submission on fundamental dishonesty. I now turn to the assessment of quantum.