S pencer Smith v Ashwell Maintenance Limited (Leicester County Court, 21/1/2019)
Claimant who was found to have exaggerated and overstated his difficulties not fundamentally dishonest on the basis that his motive was to convince rather than to deceive
The claimant was a qualified gas engineer who, on 14th July 2013 in the course of his employment, slipped and fell into a four foot hole and injured his ankle. The gravity of the injury and the extent of any continuing disability arising from it were the principal subjects of the litigation.
It was the claimant’s case that he had suffered a significant injury as a result of the fall, that he continued to suffer debilitating pain and as a result was unlikely to find gainful employment.
The defendant’s case was that the claimant had suffered a time limited injury from which he recovered in months and that the claimant’s presentation to the medical witnesses and of the claim overall was so exaggerated as to amount to fundamental dishonesty. Accordingly the court was invited to dismiss the claim either pursuant to the principles established by the Supreme Court in Summers v Fairclough Homes  UKSC 26 or pursuant to Section 57 of the Criminal Justice and Courts Act 2015.
The defendant relied on surveillance evidence and the claimant’s appearance in filming carried out on behalf of the Channel 4 programme “Selling Houses with Amanda Lamb”. The filming for Channel 4 was referred to as the Reef footage during the trial and showed the claimant undertaking various do-it-yourself and decorating activities and negotiating stairs without difficulty. In the course of filming the claimant attended an appointment with the first orthopaedic expert in the case, to whom he described being unable to squat or kneel and struggling with stairs.
In the surveillance footage filmed over a number of occasions in 2014 and 2016 the claimant was seen to be driving, walking without any or any substantial difficulty and engaging in activities which the defendant argued were work related.
HHJ Hampton described the trial as having been characterised by ‘contradictions throughout’ and ‘hostility to the Claimant on the part of the Defendant’s representatives and medical experts’, which the Judge found ‘surprising in the context of modern litigation, particularly from the medical experts involved’.
The history of hostility arose at an early stage, with various documents compiled by or on behalf of the defendant containing changing and contradictory accounts of the accident. For example ‘slipping’ into the hole became ‘jumping’ and the ‘four foot hole’ became ‘two foot six inches’ (the significance of which is that a two foot six inch deep hole would not require being shored up). In early denials of liability the defendant relied on witnesses who were not in fact on site at the time.
Much was made of the claimant’s appearance in the TV programme and the surveillance footage. The claimant was subjected to lengthy cross examination about the contents of his bank statements, which the defendant asserted established that the claimant had been working for financial reward. The Gas Safety Register was interrogated and the defendant followed up entries from the register indicating that the claimant had certified gas installations in the period following the accident. The defendant went so far as to contact householders occupying the properties referred to in the register.
The Judge observed that there were significant contradictions in the claimant’s case which he found ‘troubling’, not least the contrast between what he could be seen doing in the surveillance and TV footage and his presentation to the various medical experts. There was also ‘unconvincing’ evidence regarding the long-haul holidays the claimant had taken in that he said he had only been able to undertake one such holiday, when in fact he had undertaken three. The Claimant was described in a physiotherapy note in November 2014 as “mobilising unaided” but he attended a number of medico legal examinations using either crutches or a stick.
However the Judge also observed that there were objective signs of injury on examination in April 2014, including positive anterior draw, which is an objective test and cannot be feigned by the patient.
When cross examined about the various contradictions, the claimant asserted that the pain was variable and that much of what he could be seen doing on the Reef footage was thanks to strong painkillers. In relation to transactions indicative of the claimant’s engagement in working activity, the claimant gave what the Judge considered to be ‘acceptable explanations’ (mostly to the effect that his son performed the majority of the physical work and that his involvement was limited to the administrative side of things (such as the gas safety registrations) and light work.
The defendant was given very late permission to rely on evidence from a number of customers of the claimant, however three of the customers who were called to give evidence volunteered without prompting that when they had contacted the claimant with a view to procuring his services he had said that he could not do the work himself as he was too unwell. The defendant also presented a witness summary from a Mr Reyat, from whom the claimant later obtained a statement and went on to call at trial. The witness summary asserted, amongst other things, that the claimant fitted a boiler. Mr Reyat completely disavowed the contents of the witness summary at trial. The Judge said that he was ‘driven to the conclusion that there was an element of bad faith on the part of the Defendant’ in relation to the introduction of the witness summary. He observed that but for the efforts of the claimant’s legal representatives, the witness summary might have gone before the court uncon tradicted.
The Judge concluded as follows:
‘...this is not a case where there has been fundamental dishonesty by the Claimant...Nevertheless, I find that this is a case where the effect of the Claimant’s injury was not as severe as the Claimant presents. I find that the Claimant has been capable not only of putting on a show for the camera as seen in the Reef footage, but also putting on a show for the medical experts.  There is an interesting quote in the report of Dr Luscombe referring to an article in the learned journal Clinical Medicine published in November/December 2002 written by Dr Christopher Bas, Consultant Psychiatrist and Dr Tim Jack, Consultant Anaesthetist in which they state: “Outright faking of pain for financial gain is rare, but exaggeration is not, especially if the patient is involved in litigation. It is often difficult to determine whether this represents an attempt to convince or to deceive the clinician”.  That observation succinctly sums up the court’s own experience. I do not find in the present case that there has been an outright faking of pain. I do however find that there has been an element of exaggeration. It has been necessary to consider carefully whether the exaggeration represents an attempt to convince or deceive the medical witnesses and indeed the court. I note the Defendant’s attitude until half way through the trial, as to liability in this case. The Claimant must have felt, that from the earliest intimation of the claim, that the Defendant has shown a determination to avoid fully compensating him....Thus, I find, that the Claimant’s exaggeration and overstatement of his difficulties, are the result of an attempt by him to convince, rather than to deceive. I find to some extent, the Claimant genuinely believes himself to be more significantly disabled by his continuing pain than, objectively, is in fact the case.  Faking pain, as described by the learned authors referred to above, would almost undoubtedly amount to fundamental dishonesty. Exaggeration, with mixed motives of attempting to convince or deceive, is not’.
After a review of the medical evidence the Judge continued:
‘ For the reasons given, I do not find that the Claimant has engaged in fundamental dishonesty in this claim. I do not find that he has faked injury, or continuing pain, for the purpose of financial gain.  Nevertheless I find there has been a degree of overstatement...embellishment, of the Claimant’s pain and its effect upon him. I find that the Claimant has engaged in this conduct in order to convince rather than to deceive....His conduct does not amount to the sort of conduct that would justify dismissal of the claim in accordance with the princi ples outlined in the Summers v Fairclough case...’
The Judge went on to say that on the basis of his findings he was not satisfied that the grounds were established for striking out the claim pursuant to Section 57, but that even if he were wrong in that, he would find that it was not appropriate under the principles stated in the Fairclough case to strike out the claim, rather than give judgment on quantum in the ordinary way. He also found that if the claim were dismissed the claimant would suffer substantial injustice in circumstances where he had suffered a painful injury and was required to resist the defendant’s vigor ous attempts to avoid responsibility for the accident.
Injustice done or just deserts for the defendant – you decide!
Article by Bronia Hartley, Zenith Chamber 10 Park Square, Leeds, LS1 2LH. www.zenithchambers.co.uk