£6.6m PI claim falls away due to fundamental dishonesty

Lee: Very successful outcome

A claimant who sought £6.6m in damages has accepted a £25,000 ‘nuisance’ payment after allegations of fundamental dishonesty were raised, despite suffering a genuine injury.

The unnamed claimant tripped on a paving stone on a canal footpath in Leeds in February 2014.

He sustained a fracture to the hip, requiring surgery which left him with one leg longer than the other.

The claimant’s orthopaedic expert considered that he would need a hip replacement in the next five years.

The defendant’s expert said recovery was incomplete and was unlikely to improve. He did not think the back pain the claimant also complained of was accident related and believed the claimant could return to work as an osteopath within a year or so of the accident.

The claimant’s case was that, at the time of the accident, he was a self-employed osteopath. His original schedule of loss pleaded that he was unable to work for 14 months, before then returning part-time. He also pleaded that there was a 14-month delay in the progression of his practice as a consequence of the accident.

Further, he claimed that, if the accident had not happened, he would have been working 65 hours per week by October 2014.

However, what the claimant did not disclose was that he was suspended from practice from the General Osteopathic Council from April 2014 to February 2015 due to a real risk of significant harm to patients because of his chronic alcohol dependence.

Thereafter, he was subject to various practising conditions until May 2016.

The defendant pleaded that, other than dishonesty, there was no credible explanation for the claimant failing to declare this.

Nonetheless, the claimant continued to claim past loss of earnings without any reference to the fact he was suspended, and the effect on his earning capacity in 2014/2015.

The claimant updated his schedule of loss, this time referring to the suspension, but rather than reducing the figures claimed, they in fact jumped from £347,000 to £6.6m.

The claimant contended that, notwithstanding his suspension, he still could have carried out work providing alternative therapies.

He further pleaded that, but for the accident, he would have worked 65 hours a week to the age of 80. His loss of earnings claim was the vast bulk of the claim.

However, the claimant provided no supportive statements, either from patients confirming they would have been happy for him to treat them whilst suspended, or from colleagues.

There was also no evidence of bookings, lost appointments, testimonials or work diaries.

General Osteopath Council records indicated that the claimant was working shortly after the accident (and before his suspension) which, the defendant stated, demonstrated that physically the claimant was able to work.

The claimant maintained the claim for past loss of earnings of £14,000 during the period between 2014 and 2015 in which he was suspended. The defendant pleaded that this was dishonest.

Based on the claimant’s minimal disclosure of tax returns as compared to his own accounts, the defendant pleaded also that the claimant had made a false declaration to HMRC.

The defendant further argued that the claimant had misled his expert regarding his suspension and alcoholism.

The defendant pleaded that the schedule was fundamentally dishonest under section 57 of the Criminal Justice and Courts Act 2015 and/or CPR rule 44.16, and argued that the massive claim for loss of earnings was ‘fundamental’ to the overall value of the claim presented.

Even though the claimant genuinely believed his claim to be honest, the defendant – citing the 2017 Supreme Court ruling in Ivey v Genting Casinos on what amount to dishonesty – argued that, when viewed objectively, his conduct in presenting and pursuing the loss of earnings claim without proper evidence was dishonest or, alternatively, at least reckless as to whether he was being dishonest.

A month before trial, the claimant accepted a nuisance offer of £25,000.

James Lee, the associate in the Liverpool office of DWF who acted for the defendant, said: “An interesting aspect to this case was that liability remained in dispute throughout. Section 57 is of course engaged once the claimant becomes entitled to damages.

“Therefore, we were precluded from making any interim application under section 57, as there was no such entitlement to damages at the time.

“If the claimant had not accepted the offer, then the defendant could have admitted primary liability in order to make an application under section 57 at the start of trial…

“Given the unpredictable nature of any trial and the presence of the ‘genuine’ element of the claim, the conclusion of the matter on these terms represented a very successful outcome for the defendant…

“Even claimants presenting substantial claims are not immune from the risks involved from the potential of a finding of fundamental dishonesty.”

The defendant’s counsel was Andrew Lawson of St John’s Building in Manchester.

Meanwhile, a man who had brought personal injury proceedings against his employer following an accident at work, and had deliberately lied to the court and exaggerated his disability for financial gain, has been jailed for 16 months for contempt of court.

According to a Lawtel report of AXA Insurance v Masud, Judge Peter Blair QC, sitting in the High Court, ruled that considering the quantum of the potential claim, the individual’s age and the serious nature of his lies, it was appropriate to commit him to prison.

Surveillance had shown that, contrary to what the claimant had said, he could move around without difficulty, he could bend, twist and lean over, and could drive the family car. It has also shown that the claimant feigned disability when he thought he was being observed.

Another report of a fundamental dishonesty case has come from Geoffrey Brown, a barrister at 39 Essex, who acted in Mann v Armac, acting for the defendant on instructions from City firm Kennedys.

His Honour Judge Gargan, sitting at Middlesbrough County Court, made findings of fundamental dishonesty against the claimant in regard to both the nature/circumstances of the accident and his alleged post-accident disability.

The case involved an accident at work during a demolition project, involving the removal of asbestos. The claimant had given a signed statement on the day of the accident, describing it having occurred in an innocuous way.

He then made out that this was a false account, which his supervisor and manager had put him up to giving, in order to avoid adverse health and safety interest. But that was rejected by the court as fundamentally dishonest.

The claimant also maintained to his neurosurgical expert he had had to give up his sporting hobby of Thai boxing and was unable to any kind of household task.

There were, however, references in medical and physiotherapy records to ongoing participation in his sport.

The claimant’s explanations, that these were based on misunderstandings by medical staff or were a product of him bigging himself up to his physiotherapist, were also rejected as fundamentally dishonest.


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