CLAIMANT LIED ABOUT “JOB OFFER”: FOUND TO BE FUNDAMENTALLY DISHONEST AND LOSES £130,000
I am grateful to Aled Morris from Horwich Farrelly for sending me a transcript of the judgment of HHJ Murdock in Hawkins -v- Holmes (County Court at Leicester, 1st April 2022). It is a case where the court found the claimant to be fundamentally dishonest. In a claim put, at one stage at £1.1 million the claimant was awarded £130,000. All of the claimant’s damages were lost due to the dishonesty.
” I am going to be blunt. The claimant has lied about how the letter of employment was created. He has needed that
letter to support his claim for lost earnings, and in my judgment there simply is no evidence that he was going to be employed by Mr James from the Monday following on from his road traffic accident. It is simply untrue. There never was a job, there never was a job offer, and the letter is simply a creation.”
The claimant was seriously injured in a road traffic accident. The trial was in relation to damages. There was a substantial claim for loss of earnings and care. The claim for loss of earnings was based on an assertion that the claimant was about to start a new job, with someone who would have taken over his scrap metal business.
The claim was originally put in excess of £1.1 million but reduced to £500,000 prior to trial (after fundamental dishonesty was pleaded).
The judge found that the claimant had exaggerated his symptoms. The letter that supposedly supported a claim for loss of earnings was not genuine. The claimant was found to be fundamentally dishonest. The claimant would, if honest, have recovered substantial damages.
THE CLAIMANT’S ATTACK ON THE DEFENDANT’S EXPERTS
One feature of this case is the claimant’s vehement attacks on the defendant’s expert witnesses. They were accused of being “mistaken” and lying. This feature of the case was not helpful to the claimant. The allegations were dismissed by the judge.
But I am going to put all that to one side for a moment. I am going to turn to an issue
which I am going to call allegations of other people either making mistakes or lying. He told
me that Mr Ford had lied in his reports on a number of occasions – I am just going to
illustrate a few of those. Mr Ford reports that the claimant informed him that he can
experience difficulties breathing through his left nostril; however his mother stated this is
related to his right nostril, and Mr Hawkins insisted his breathing difficulties were associated
with his left nostril and his mother maintained that it was the right. He said that: “Mr
Hawkins and his mother argued about this for some considerable time during my
assessment.” Mr Hawkins said that Mr Ford was mistaken when he records there being an
argument. Again, Mr Ford recalls that the claimant told him: “I think I have lung cancer
because of the accident.” Again, Mr Hawkins says that that was a mistake by Mr Ford,
when he records that.
51. Mr Hawkins further says there was another error when Mr Ford does the grip test that I
have referred to earlier. It is recorded in Mr Ford’s report as follows: “I measured Mr
Hawkins’ grip strength using calibrated dynamometer. Right hand grip strength was
measured at 9lb a foot and left hand grip strength was measured at 1lb per foot” and he goes
on to record that the court would also be advised that this measurement for right hand grip
strength was by any means accurate it is highly unlikely, on the balance of probabilities, that
Mr Hawkins would have been able to put the amount of strength which he did through his
right hand so it is clearly an error in the report when Mr Ford reports that it is the left hand
that measured at 1lb per foot. Quite clearly, he has mixed up the right and left at that stage.
Mr Hawkins, I am afraid, could not see that. He described that as him lying when he says
that. He also accused Mr Ford of not doing the grip test properly, but of course could not say
in what way the grip test was not performed properly.
52. But it does not stop with Mr Ford. Mr Hawkins tells me that Mr Pearce got things
wrong. Mr Pearce records that the claimant was observed to flex and extend his lumbar spine
in a normal manner whilst getting undressed. Mr Hawkins tells me that Mr Ford is wrong
when he says that. Mr Pearce records that Mr Hawkins had virtually no left side neck rotation
and Mr Hawkins rotated his trunk when looking to the left, which is an inappropriate sign.
Again, Mr Hawkins says that Mr Pearce is wrong when he records that, and in respect of this
comment, that Mr Pearce noticed that the claimant was stating it was difficult to use his right
hand and being observed to use his right hand in a normal matter during the interview and
examination. Mr Hawkins told me that Mr Pearce is wrong and that he was lying about that
observation. And likewise, paragraphs 73 and 74 of that report, the claimant is reported as
saying that – “Mr Hawkins reported severe low back pain, examination was associated with
inappropriate signs” and he says “I could move my back and Mr Pearce has got that wrong.”
53. Again, I am just going to put all that to one side for a moment, and I will come back to
it all in due course. I am going to return to what I am going to call “the Professor Kemp
issue” and the background to that is that the defendants have appointed Professor Kemp to
undertake a report on the claimant. Professor Kemp attended upon the claimant on three
occasions but that report was unable to be finalised.
54. The claimant, in response to that, has provided a witness statement. In his oral
evidence in front of me, he told me that Professor Kemp was worse than Mr Ford and that
Professor Kemp was a bad man. He also, in evidence, told me that Professor Kemp had said
to him “I see you drive an expensive car” and “That’s a really nice car” and that Professor
Kemp had said that he knew who the good solicitors were and who the bad solicitors were,
and that Professor Kemp had whispered in his ear “I like that last little bit”.
55. He also said in evidence that his impression was that Professor Kemp was “hanging it
out, hoping that I would die” and that Professor Kemp was in some way “laughing at me”. I
do not think he meant physically laughing at him, I think he meant laughing at the claimant’s
predicament, and he was of the view that Professor Kemp had told him, that is the claimant,
after their last interview that Professor Kemp had everything he needed to be able to prepare
his report and that when he got a letter recording that Professor Kemp was unable to produce
his report because Professor Kemp was saying he had not got everything that he required, the
claimant’s view was that Professor Kemp had lied to him and his mother about being in a
position to undertake his report.
THE CLAIMANT’S OWN WITNESS STATEMENT
The claimant’s difficulty was that none of his allegations were recorded in detail in the witness statement. His response was an attempt to disown the statement.
56. When taken to his witness statement and it was pointed out that, really, none of that
detail was set out in his witness statement, the claimant, from my notes, variously said “I
never wrote the witness statement” and then he said “I probably did not read the witness
statement before I signed it”, then he said that the witness statement was read to him and then
he said that he does recall what was in it. I am afraid he could not be consistent even about,
as it were, the preparation of his witness statement, and in my judgment, his witness
statement is an example of the claimant getting caught out and then making up his evidence
to try to get around the problem. For example, “I never wrote it” to “Well, I did but I
probably didn’t read it”. It was, I think, what I might describe as a very desperate attempt to
try and resolve a problem, and I will come back to the Professor Kemp issue again in a little
more detail in a moment.
57. I am going to, now, touch upon another issue, and I am going to call it “the signature
issue” and that is the claimant’s evidence was that he had forgotten how to write his
signature, that he kept missing out the “o” and the “h”. He was then taken to his witness
statement, where it is clear from it that he has signed his name with an o and h clearly visible.
That prompted the claimant to then say that before signing it he would write out his name and
use the written out printed version to be able to do his signature. He was then taken back to
his witness statement in which it was pointed out there his name was, printed, underneath his
signature, and he could have used that, and then he said in response to that that he had not
noticed his printed name underneath his signature.
58. I am afraid I found that piece of evidence, frankly, incredible. At first, “I forget how to
do my signature and I don’t put in the ‘o’ and the ‘h’.” Then he is shown that his signature
contains it, so then he has to come up with an explanation for that, that is “I have to print it
out”. Then he is shown the printed version, and in my view it is just, again, the claimant
making up evidence to suit a difficulty that has been established with the original evidence
that he gave.
THE “JOB OFFER”
The claimant asserted he had a job offer from a friend who was going to take over the claimant’s scrap business and then employ him. The judge rejected this evidence.
73. I am going to try and now draw some of these threads together. I am going to be blunt.
The claimant has lied about how the letter of employment was created. He has needed that
letter to support his claim for lost earnings, and in my judgment there simply is no evidence
that he was going to be employed by Mr James from the Monday following on from his road
traffic accident. It is simply untrue. There never was a job, there never was a job offer, and
the letter is simply a creation.
74. In addition, the claimant has, I am afraid, lied about his interaction with Professor
Kemp. I cannot explain why. It is what I might describe as irrational behaviour. I also note
that the claimant’s own expert has commented upon the surveillance evidence, that puts her
conclusions into doubt, and I am talking here of Dr Peters. In the joint report, she says: “Dr
Peters, having reviewed the CCTV footage, she notes the surveillance from 2006, prior to her
assessment, shows a male driving a vehicle on a number of consecutive days. If this male
was Mr Hawkins” – which it was – “she considers this inconsistent with his report during her
assessment in January 2017 in which he stated he hardly ever used his car, and she did not
observe any behaviour indicative of notable anxiety about leaving the house, being close to
traffic as a pedestrian or any hesitance towards driving, and the footing also does not support
notable ongoing avoidance of driving at the time of the assessment session as was also
reported by Mr Hawkins.”
75. So the claimant’s own medical expert sees those inconsistencies between the claimant’s
reports and the surveillance evidence, and I have already set out, and if I have not made it
absolutely clear, I find the inconsistencies are clearly made out. There are inconsistency after
inconsistency between what the claimant is telling her medical experts and what the video
shows, and just to illustrate with one example, and that is the claimant saying that he has this
great difficulty in driving his motor vehicle, he can only drive it for short periods of time, and
is indeed reluctant, effectively, to drive his motor vehicle, and yet he is seen driving a friend
to and from work over an extended period of an hour and a half. He does not stop to get out
of the car, he just drives the vehicle seamlessly for a considerable period of time. I am afraid
that is in total contrast to what he is telling medical experts over a long period of time.
76. It is put on his behalf that there are good days and bad days. I accept what, I think it
was Mr Peters said, which is that good days could explain minor changes in ability, but not
fundamental changes in ability in the way that there is between what the claimant says and
what the video evidence shows.
The judge found the appropriate award for damages for pain and suffering to be £58,000, he would have awarded dental costs in the sum of £28,830, past care in the sum of £2,549.22 and future care as £21,603.90. No award was made for loss of earnings. However all of these sums were subsumed by the finding that the claimant had been fundamentally dishonest. The total award, therefore, would be used to set off costs liability to the defendant.
THE JUDGMENT ON THIS ISSUE
87. His Honour Judge Clarke in a case called Patel v Arriva Midlands said this:
“Mr Hunjan puts before me two cases in which, on the facts, following a full
trial, it was held that although there were inconsistencies or exaggeration of
symptoms by the claimant, they were not fundamentally dishonest. Both of those
decisions turn on their own facts, in my judgment, as is the nature of the assessment
I agree, as it were, with what His Honour Judge Clarke says; the assessment of dishonesty is
on a case-by-case basis, and so what do I make of this case? I go back to, perhaps, one of the
points I made at the beginning of this, that there is a substantial claim for loss of earnings.
There is a substantial claim for care; past care and future care. In relation to the loss of
earnings claim, it was based upon a lie. I have found that there simply was no job offer and
that the alleged loss of income was based upon an offer of a job that did not exist. Worse
than that, there was then a creation of a letter to try to underpin that lie, and the loss of
earnings claim is a substantial part of this case. So on that head alone, in my judgment, there
is fundamental dishonesty.
88. I am afraid I go further to say that the care case was essentially based upon the
claimant’s exaggeration, deliberate exaggeration, of his symptoms. The inconsistencies
between the surveillance evidence and the evidence he was giving in his witness statement, in
court, and to the medicolegal experts, in my judgment, is clear and obvious. He was far more
capable than he has suggested. They showed inconsistent sides in many of the medical
examinations and to illustrate, I just turn to a couple, and that is that Mr Pearce found, for
example, Mr Hawkins had reasonable neck movements during the interview, however, he
had virtually no left-sided neck rotation. He rotated his trunk when looking to the left. The
claimant was observed to flex extend his lumbar spine in a normal manner whilst getting
undressed, but he stated he had severe lumbar spine pain in his evidence. I could go on; I do
not need to. Those were, in my judgment, deliberate exaggerations of restrictions, and so for
that second reason there is a care claim made in that sum of 470,000 and awarded only
24,000 is a clear and deliberate exaggeration, and again dishonest, and for that second reason
the claim must be dismissed.
89. From all of that, I am going to be dismissing the claim. I am going to be ordering the
claimant to pay costs, but less those sums that I have said would otherwise have been