A fundamentally dishonest claim

 

DJB v Newport City Council [2019]

 

We recently acted for the Defendant local authority in a claim where the sheer number of inconsistencies led to the Judge making a finding that the Claimant had been fundamentally dishonest and sought to deceive the Court on a number of issues.

 

Presentation of the claim

 

The Claimant brought a claim for personal injury following an alleged accident he suffered when he was walking along the footway of Western Valley Road in Rogerstone, Newport.

 

The Defendant’s first knowledge of the accident was upon receiving a telephone call from the Claimant on 21 March 2017. He contacted the local authority to complain about a large sheet of metal in the footway which caused him to slip and injure his knee. The Claimant reported that his accident occurred whilst he was walking home on 19 March 2017. The customer services operative made a note of what was discussed (the call was not recorded) and the Claimant requested a Third Party Claim Form in order make a claim.

 

The Claimant completed this form on 4 April 2017 and returned it to the local authority. Within that form the Claimant described how, on 19 March 2017, at approximately 6:15pm – 6:30pm, he was walking down the path on Western Valley Road when his foot slipped on a steel plate. The Claimant said his right knee gave way, causing it to lock and he suffered torn ligaments as a result. The Claimant alleged that his injury was caused by the Defendant because a non-slip plate had been installed in the footway. The claims handlers denied liability on the basis that the metal plate had never been identified as being defective or slippery and there was no record of any previous complaints or other accidents.

 

Two accidents?

 

The Claimant instructed solicitors who presented a Claim Notification Form to the Defendant which stated that the accident occurred at 1pm on 13 March 2017. The Defendant reiterated their denial of liability and proceedings were commenced in February 2019.

 

The Particulars of Claim alleged that the accident occurred on or about 11 March 2017 and that the Claimant’s fall was caused by the presence of the metal plate in the footway which was slippery and dangerous due to the presence of gravel, loose vegetation upon it and it being wet. We filed a full Defence and raised a Part 18 request of the Claimant with a view to clarifying the inconsistencies as to the date and time of the accident. We had suspicions that the Claimant had suffered two accidents and requested access to his medical records. The Claimant refused to answer the Part 18 request on the grounds of the information sought and the premature nature of the request.

 

Further inconsistencies

 

In support of his claim for injury the Claimant had procured a report from a medico-legal expert.  That report stated that he was walking along the pavement on 13 March 2017, it was a dry afternoon, and when he stepped on a steel plate his right foot slipped on gravel on top of the plate and jarred his knee. The medical expert stated that the Claimant did not fall to the floor but his knee was painful and he had to hobble the remaining 400 yards home.

 

We obtained the hospital records which identified that the Claimant attended the Royal Gwent Hospital at 10:45am on 12 March 2017. The incident was noted as having occurred at 4pm on 11 March 2017. It was recorded that the Claimant slipped, fell and landed on his bum. His (right) knee was hyperextended and he had no pain initially. The Claimant was able to walk normally but woke up with pain the following morning (12 March 2017) which was constant and worse on movement. The Emergency Consultations department wrote to the Claimant’s GP on 13 March 2017 to notify them of the Claimant’s attendance at hospital with an initial complaint of knee pain (non-trauma). The letter noted that the Claimant had been diagnosed with a sprain/strain of knee and there was no reference whatsoever to any torn ligaments.

 

The parties exchanged witness statements. The Claimant’s evidence was that the accident occurred at approximately 1pm on 13 March 2017. He said it was a dry day and he took two steps on the metal plate when his right foot slipped, causing his knee to lock and he fell to the ground landing on his bottom. Such a description was identical to the hospital record, but obviously contrary to what the Claimant had initially told the local authority as well as the alleged wet nature of the metal plate. The Claimant described being in immediate pain in his right knee and said he attended hospital the following day (14 March 2017) where he was diagnosed as having torn ligaments in his right knee. This was not verified by the hospital record.

 

We adduced evidence from 3 witnesses. The highways inspector stated that he had never found the metal plate to be slippery. The senior technical officer gave evidence that the metal plate had been installed in the footway to resolve drainage issues, no previous complaints or accidents had been reported and upon testing the plate following the accident he did not find it slippery or in any way dangerous. The Defendant’s final witness was the customer services operative that spoke to the Claimant on 21 March 2017, who confirmed the accuracy of his note.

 

Trial

 

The claim was heard before District Judge Muzaffer in the Newport (Gwent) County Court on 15 November 2019. The Claimant was cross-examined at length regarding the time, date and circumstances of his accident. He was unable to explain the significant number of inconsistences across his own documents and gave the impression that he was being inconvenienced by being asked to do so. The Claimant’s evidence was so poor that his Counsel invited the Judge to give an indication as to whether it was necessary to call the Defendant’s witnesses to determine the claim. We submitted that, in light of the Claimant’s oral testimony, the issue of fundamental dishonesty was at the forefront of the Defendant’s mind (given the significant costs that had already been incurred) and there were aspects of their witness evidence which were relevant to that issue. The Judge was bemused by the submission, noting that even the Claimant’s Counsel had no confidence in his client’s case, but wanted to hear from the Defendant’s witnesses before delivering judgment.

 

The Judge found that the Claimant had not proved his claim. Within his judgment, he described the Claimant as “extremely arrogant and evasive” and commented “it was almost as if he saw no reason as to why it was necessary for him to trial the numerous and significant inconsistencies”. In contrast the Judge had no reason to call into question the credibility of the evidence from the Defendant’s witnesses. The Judge was not satisfied that the Claimant’s accident occurred on 11 March 2017 and went on to say that even if he had there was ample evidence that the Defendant had taken reasonable care throughout. He accepted that the metal plate was anti-slip and that the Defendant had a positive system of inspection.

 

“The Claimant has not been truthful”

 

The Judge was also satisfied on the balance of probabilities that the Claimant had acted dishonestly. He said his rationale was somewhat interlinked but pointed to what he described as the “remarkable level of inconsistency” as to the time, date and circumstances of the accident with no explanation having been offered by the Claimant. The Judge said it was certain that the Claimant had attended hospital on 11 March 2017 but did not know why and it was unclear why he waited until 19 March 2017 to report the accident. He cited further inconsistencies as to whether the Claimant fell over, how he landed, the onset and description of pain and what had caused him to slip. The Judge concluded “the only natural explanation is that the Claimant has not been truthful and has sought to deceive the Court on a number of issues”. He found that the Claimant had been dishonest and that this dishonesty had substantially affected the presentation of the claim.

 

The Judge ordered that qualified one-way costs shifting (QOCS) be disapplied with the Claimant to pay the Defendant’s costs, summarily assessed at almost £6,500.00, within 21 days. The Defendant has not received payment and is now seeking to enforce the costs order.

 

Comment

 

This was a very pleasing result for our client. The claim had been defended robustly from the outset and our concerns regarding the veracity of the claim proved to be correct. Although we invited the Judge to find that the Claimant had suffered two accidents, as the papers seemed to indicate, he did not feel that he needed to decide that issue specifically in order to find that the claim was fundamentally dishonest. The Judge was satisfied that the significant inconsistency in the Claimant’s evidence was sufficient to make such a finding.

 

It is also noteworthy that the allegation of fundamental dishonesty had not been pleaded in the Defence and was raised, essentially for the first time, after the Claimant had given evidence. The Court of Appeal found in Howlett v Davies & Anor [2017] that insurers did not have to plead fundamental dishonesty to deprive a party of QOCS protection but in that case the insurer had stated they did not believe the accident had taken place. We had not gone quite that far but the Judge noted that we had denied causation in the Defence, sought to address the inconsistencies in a Part 18 request (which the Claimant refused to answer) and made the inconsistencies known in witness evidence. The Claimant had therefore been given ‘adequate warning’ that his credibility was being called into question.

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