Claimant who exaggerated impact of genuine injury found fundamentally dishonest

Pothole: Genuine claim

A claimant who suffered a genuine injury – but admitted being dishonest about the extent of his symptoms tripping in a pothole – has lost his argument that was not fundamentally dishonest.

The High Court agreed with the circuit judge that his lies about the extent to which his recovery was affected by his injuries went to the heart of the claim.

According to a report of the unnamed case by national law firm Browne Jacobson – which acted for the defendant council – the claimant was running along a footpath in Walsall with his two dogs when he put his foot into a pothole, fell and suffered a significant sprain that left him with a functionally unstable ankle which caused him to suffer subsequent falls and further injuries.

The extent of his ongoing symptoms led to an ankle operation in March 2017 that caused him to suffer further financial losses and receive care during his recovery.

He alleged that the council was in breach of its statutory duty to maintain the highway pursuant to section 41 of the Highways Act 1980. A breach of duty was conceded pre-issue subject to factual and medical causation.

However, investigations by Browne Jacobson uncovered that the injury had not – as he had claimed –prevented the claimant from playing rugby and training extensively for and participating in two triathlons, three Iron Man events, a half-marathon and a full marathon.

The defendant sought a ruling that the claimant was fundamentally dishonest.

Her Honour Judge Truman, sitting at Birmingham County Court, initially put that issue to one side and found that, even if the claimant had been wholly truthful from the outset, surgery would still have been an appropriate option that would have been offered and taken.

The ankle surgery/lengthy course of physiotherapy and claim for loss of earnings that arose following the operation were therefore all found to have been reasonable irrespective of the claimant’s attempts to overplay the extent of his ankle symptoms, and he was entitled to £71,992 in damages and interest.

But the judge went on to conclude that the only logical reason for the claimant’s significant omissions to his treating physicians, the medico-legal experts, in his two signed witness statements, in his part 18 replies and his schedule of special damages was a conscious attempt to inflate the value of his claim.

Browne Jacobson reported: “Ultimately, HHJ Truman disagreed with claimant’s counsel’s argument that the claimant’s dishonesty did not go to the heart of the claim or his analogy that it was akin to a creeper surrounding a tree rather than the tree itself.

“She was satisfied that the claimant had sought general and special damages that were more than was justified and that his dishonesty went to the heart of the claim. The claimant had deliberately misled and signed false statements of truth. He was fundamentally dishonest and accordingly the claim was dismissed.”

The claimant sought to appeal but Mr Justice Martin Spencer refused permission. He said HHJ Truman was “plainly correct” in reaching her finding of fundamental dishonesty.

Where quantum of damages was the only issue to be decided, the extent of the claimant’s recovery went to the heart of the issue before the court and as such, he agreed that the claimant was fundamentally dishonest.

The claimant has chosen not to pursue his appeal further. He has been ordered to repay the interim payments made to him by the council plus interest.

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19 January 2021
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