Mr Whippey keeps his lolly

A look at some recent claims cases.

In this issue...

• Exaggerated claims - Claimants Beware!
• Claimant Penalised for Failing to Beat Defendant’s Part 36 Offer
• In the Dog House

Carol Walton’s insurers applied to the Court to commit Joanne Kirk for contempt of Court.  Mrs Kirk had sought damages in excess of £750,000 against Mrs Walton arising out of a road traffic accident in 2001.  Several documents, which were verified by signed statements of truth, painted a detailed picture of Mrs Kirk as having suffered significant and long-term disability as a result of the accident.  Mrs Walton’s insurers believed that Mrs Kirk was exaggerating both her disability and her consequential claim for damages.  On 16 February 2005 they paid £25,000 into Court and then engaged a surveillance company to undertake secret filming of Mrs Kirk, driving, walking and shopping.  They claimed that this surveillance demonstrated a huge gulf between Mrs Kirk’s verified statements of truth and the reality of her condition.  The surveillance videos were disclosed to Mrs Kirk’s solicitors and they subsequently accepted the £25,000 paid into Court and agreed to pay Mrs Walton’s insurers’ costs from 21 days after the payment into Court (the costs figure was eventually agreed at £21,000).  Mrs Walton’s insurers issued an application for committal for contempt of Court which was heard in March.

Mrs Walton’s insurers relied on the contents of the video, documents verified by statements of truth and also Mrs Kirk’s affirmation in her “incapacity for work” questionnaire and her application for a disabled parking blue badge, both of which were referred to in documents verified by a statements of truth.  In response, Mrs   Kirk contended that she had withdrawn from the litigation because she was exhausted by it and that the videos had no impact on her decision at all.  The Court found this difficult to accept.

The Court held that discrepancies between a statement verified by a statement of truth and video evidence does not automatically give rise to a contempt of Court.  The Court had to look at the degree of exaggeration or the circumstances in which any exaggeration was made.  The Court found that there was credible evidence that she had been injured to some extent by the accident and therefore was entitled to bring her personal injury claim.  The majority of the allegations as to the contempt were not therefore made out in the circumstances.

However, in respect of the incapacity for work questionnaire, Mrs Kirk could not have honestly believed in many of the statements made, including those verified in the statement of truth, and had known that they were misleading.  Some of the statements in the application were irreconcilable with the video evidence and were contradicted by her own witness evidence.  This interfered with the course of justice.  Therefore, although the majority of the allegations against Mrs Kirk were not made out, in filling out the claims for state benefit and in subsequently verifying them as part of the litigation, Mrs Kirk was guilty of contempt of Court.  The parties have been invited to make submissions as to the penalty to be imposed in consequence.

Comment

Because of the quasi-criminal nature of contempt proceedings, any genuine doubt will be resolved in favour of the “accused”.  Whilst it is not common for public bodies (who are subject to the Human Rights Act) to undertake surveillance where it is suspected that a Claimant is exaggerating a claim, this case does demonstrate the importance of obtaining Department for Work & Pensions benefits records and Job Centre records as these can be relied upon in support of any contempt of Court application.  There will be exceptional cases where video surveillance is indicated and the NHS Trusts would be wise to liaise with the NHSLA before doing so.

The Court made it absolutely clear that gross exaggeration and dishonesty would not be tolerated and that it was in the public interest that Claimants pursue personal injury claims honestly before the Courts and do not significantly exaggerate those claims for financial gain.  Perhaps Claimant solicitors should think about sending a copy of this case to their clients!

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At trial, the Claimant was awarded £1,670 for a whiplash injury to her cervical spine sustained in a road traffic accident.  She had made a full recovery from the injury by four months after the accident.

Prior to the issue of proceedings, the Claimant had made a Part 36 Offer in the sum of £2,362.35.  The Defendant had responded with a Part 36 Offer in the sum of £1,900.  At trial, the Claimant failed to obtain a judgment at least as advantageous as the Defendant’s Part 36 Offer.  The Claimant conceded that they were only entitled to the costs incurred before issue (because of the value of the claim these costs would have been fixed).  However, the Defendant argued that further to the overriding objective, the Court should go further and disallow all of the Claimant’s costs because to allow even fixed costs would give the Claimant what she would have received had the protocol been complied with. 

The Judge held that the Claimant’s offer was wholly unrealistic and that she had not complied with the rules and the pre-action protocol wholeheartedly.  The Court would not allow the Claimant to recover fixed costs; she was only allowed her to recover the cost of the medical report. 

Comment

In this case the Claimant was penalised because of her unrealistic stance pre-issue in a low value whiplash claim and because of her failure to comply with the protocol.  Also, the Court found that her costs schedule was, on any view, inflated. 

This case will be helpful to anyone defending low value public liability claims.  It also reinforces the tactical advantages associated with making well pitched pre-action Part 36 Offers.

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In this case, Mr Whippey (who, we understand did not make ice cream for a living!) appealed against a decision that he was liable in negligence to Mr Jones for injury caused to him in an encounter with Mr Whippey’s dog.  Mr Whippey’s dog jumped up causing Mr Jones, who was running at the time, to lose his balance and break his ankle.  W’s evidence was that he had let the dog off the lead and had lost sight of him for a period of time.  It was a large dog who had no tendency to jump up at people.  The Judge at first instance decided that, whilst Mr Whippey was not liable under the Animals Act 1971, he was liable to Mr Jones in negligence on the basis that the responsible carer must ensure and take reasonable care to ensure that the dog would not reasonably foreseeably cause some sort of injury. 

Mr Whippey appealed on the basis that the Judge’s approach to the legal test was wrong, because the dog had never actually physically run up to someone before and Mr Whippey, acting as a reasonable dog handler, could not have anticipated that Mr Jones’ injury would have occurred.

On appeal it was held that Mr Whippey clearly owed Mr Jones a duty of care and that Mr Jones’ injuries were not too remote to be recoverable.  The Court said that it had to be satisfied that a reasonable person in Mr Whippey’s position would contemplate that the injury was likely to follow from his acts or omissions.  The remote possibility of injury was not enough.  There had to be a sufficient probability of injury to lead a reasonable person to anticipate it.  The appeal was allowed on the basis that the test applied by the trial Judge did not accurately reflect the law in that the Judge had not placed sufficient emphasis on the need to establish that there was a sufficient probability of physical injury occurring to another park user by the dog making contact with the user, such that Mr Whippey, acting as a reasonable dog handler in the circumstances, ought to have anticipated it when deciding to unleash his dog.

Comment

This case reinforces the case law that the remote possibility of an injury is not enough to satisfy the legal test.  A reasonable person has to anticipate a sufficient probability of injury.  Not only was Mr Whippey judged against the standard of a reasonable dog owner acting responsibly, but he was judged against a reasonable owner of a hypothetical dog with this particular nature and temperament, a canine ‘Bolam’ test if you like.  Mr Whippey was lucky to keep his lolly!

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