Positive lies and deafening silences - when is a Claimant being fundamentally dishonest?

In Pegg v Webb and another [2020] EWHC 2095 (QB) the High Court, reversing the decision of the trial judge, found the Claimant had been fundamentally dishonest in the presentation of his injuries to a medical expert and to the Court.

This decision will be welcomed by insurers and NHS defendants familiar with some claimants who escape a finding of fundamental dishonesty, despite giving evidence at trial that profoundly contradicts their witness statement and expert medical evidence.

Background

The Claimant was a passenger in a car involved in a road traffic accident on 2 June 2016. He allegedly suffered soft tissue injuries to the neck, left elbow and left knee as a result of the collision. At trial, the Defendant had two arguments.

Principally, that this was a bogus claim based upon a collision which never happened or that was contrived between the parties. The trial judge found that this was not a dishonest claim and that the Claimant had proved there was a genuine collision. The Defendant did not appeal this finding.

The Defendant’s second line of defence was in relation to the damages claimed by the Claimant based upon the medical report. It was argued that the Claimant misled the medical expert by exaggerating his injuries and by failing to disclose relevant information. The Defendant submitted that the following issues were evidence of fundamental dishonesty:

• Failure to disclose relevant pre-existing injuries. The disclosure of the Claimant’s GP records showed that he had reported ankle, foot, knee and back pain at various attendances between 2013 and 2015. He was therefore unable to say how long he had suffered symptoms in his knee as a result of the accident. The Claimant failed to inform the expert of these previous musculoskeletal injuries and they were not mentioned in his witness statement.
• Failure to disclose a separate incident. The Claimant had a quad bike accident in July 2016 after which he experienced pain in his back and left leg. The note of his subsequent hospital attendance made no reference to the road traffic accident or the injuries resulting from it. Although occurring four weeks after the index accident and six weeks before the appointment with the medical expert, the Claimant did not tell the expert about the incident or the hospital attendance. Again, the quad bike incident was not mentioned in his witness statement.
• Inconsistent evidence provided at trial. On the basis of the expert medical examination, the report predicted a full recovery for the Claimant in six months from the date of the accident. This was endorsed in the Particulars of Claim and the Claimant’s witness statement. In the course of cross-examination the Claimant conceded that he had made a recovery from his neck injury within three to four weeks and from his elbow injury within four to five weeks of the accident.

Trial judgment

The trial judge partly accepted the Defendant’s submissions. He found that the Claimant had failed to tell the medical expert about his relevant pre-existing injuries but that this did not amount to dishonesty. He accepted that the medical expert had asked about previous musculoskeletal injuries but, since he could not be certain of what precisely the question was, he was not satisfied the Claimant had deliberately hidden this information.

The trial judge distinguished this from the quad bike accident, which he accepts the Claimant knew was relevant information to tell the expert but that he did not do so. However, he did not make a finding of fundamental dishonesty. As to the discrepancy between the evidence at trial and the Court documents, the trial judge was not satisfied that this was dishonest, accepting the argument that after three years, the Claimant may have trouble recalling the precise longevity of relatively minor injuries.

Summary: The trial judge dismissed the claim on the basis that the Claimant could not rely on the medical report but did not find evidence of fundamental dishonesty. The Defendant was ordered to pay 60% of the Claimant’s costs, having turned a one-day fast track trial into a two-day multi-track claim with its fundamental dishonesty defence.

Appeal

The Defendant submitted that the trial judge failed to follow through his reasoning to its logical conclusion, which was that the Claimant had been fundamentally dishonest. In particular, if the Claimant knew at trial that he had recovered from his injuries within five weeks of the accident, he should have told the medical expert that he had no residual symptoms in the neck or elbow and the symptoms in his left leg were similar to those he had previously. He would have been aware of his recovery when signing the Particulars of Claim and his two witness statements.

Factors pointing to dishonesty

Martin Spencer J allowed the appeal, concluding that there were factors which, ‘pointed strongly, if not inexorably, to the conclusion that the Claimant had been dishonest in his presentation of his injuries to the expert instructed... and also to the court’ [25].

These factors were as follows:

1. The Claimant did not seek medical attention after the index accident. His solicitors arranged for physiotherapy after instruction.
2. The Claimant did not reference the accident when attending hospital for the quad bike incident. Martin Spencer J referred to this as the ‘first deafening silence’.
3. The Claimant failed to inform the medical expert of the quad bike accident – the ‘second deafening silence’
4. The Claimant positively lied about the longevity of the injuries in the Claim Form and his witness statements. He adopted the expert’s description of the injuries despite knowing that he had misled him into providing that prognosis. This was not explained by the length of time between the accident and the trial.

In his view, ‘no judge could reasonably have failed to have come to the conclusion that the claim for damages as presented by the Claimant in this action was a fundamentally dishonest one, perpetrated by fundamentally dishonest accounts to the only medical expert and in the various court documents.’ [26] The Claimant was ordered to pay 70% of the Defendant’s costs, assessed on the indemnity basis.

Practical implications

• Other courts and judges should be encouraged to take a more robust approach to findings of dishonesty where the Claimant’s conduct goes beyond genuine confusion or mistakes in evidence. Claimants who fail to disclose relevant information to medical experts and in their witness statements should be held responsible for their ‘deafening silences’.
• If the evidence of such conduct is unambiguous, defendants should seriously consider submitting appeals where claims are dismissed without findings of fundamental dishonesty. This will be an important deterrent against fraudulent claims.
• Defendants must continue to be wary of penalising costs orders where arguments of fundamental dishonesty are not successful. Even on appeal, Martin Spencer J reduced the order from 100% to 70% of the Defendant’s costs to reflect the failure to prove dishonesty in respect of the accident itself.