Background
The Defendant ran an indoor Go Karting Company, where the Claimant was employed as a Track Marshall.
The Claimant was in the safe zone known as 'the pits area' during a go-kart race. A driver mistakenly entered and hit a barrier. While the Claimant assisted the driver, another driver erroneously sped into the area and struck the Claimant. Liability was agreed in the Claimant’s favour on a 65%/35% basis.
This was a genuine accident where it was more likely than not the Claimant would have sustained some injuries but the Defendant argued that the Claimant had exaggerated his injuries for monetary gain.
Allegations of fundamental dishonesty
The Claimant alleged that he sustained soft tissue injuries to his neck and back causing symptoms of pain and muscle spasms. This pain radiated to his shoulder and, to begin with, he experienced some bilateral leg pain as well as pain in his left elbow.
The Claimant also initially claimed 15 months loss of earnings and care/assistance; and that he was disadvantaged in the open labour market. In addition, the Claimant alleged that he was pursuing an acting career at the time of the accident. Within his initial Schedule of Loss the Claimant stated that his acting career had been affected by his injuries as it was anticipated that there would "be a number of roles that the Claimant is no longer suitable to perform, particularly those involving an aspect of stunts or requiring high levels of physical strength". The Claimant claimed that he continued "to suffer a loss in relation to his acting work". The claim was valued up to £50,000.00.
However, the Claimant was seen at a trampoline park owned by the Defendant just over 3 months after the index accident. The trampoline park was within the same premises as the Defendant's indoor Go Karting track. Video footage showed the Claimant doing backflips and swinging on rings over a foam pit. The Claimant accepted, via a letter sent by his solicitors, that it was him at the trampoline park footage just over 3 months post-accident.
The Defendant also argued that there were other inconsistencies in the Claimant's evidence, including his bank statements, which seemed to show that him out and about whilst he was signed off sick from work and was claiming for loss and earnings and care.
Within his updated Schedule of Loss , just over a month before Trial, the Claimant dropped his claim for any future losses, included disadvantage on the open labour market and reduced his care claim to three months.
The Claim proceeded to Trial.
Decision
The claim was dismissed at Trial and the Claimant was found to be fundamentally dishonest. QOCS was therefore disapplied and the Defendant was given permission to enforce a costs order against the Claimant.
The Judge found that although the Claimant was genuinely injured, he had significantly exaggerated his injuries. The Judge stated that the trampoline park footage 'bought the Claimant's house of cards tumbling down'.
The Judge noted that the Claimant stated that he was mostly indoors following the accident and for 15 months he could not work. The Claimant told the expert that he made reasonable recovery but has great difficulty with such things as shopping, DIY, heavy suitcases. This implied that the Claimant was having great difficulty. However entries from bank statements suggested the Claimant undertook various activities, for example the Judge referred to an entry that showed the Claimant undertook a bus trip in the first week, when he alleges he was mainly in bed. There was another entry showing a visit to Thorpe Park and Adventure Island at the time the Claimant was claiming 14 hrs care/assistance per week. During cross-examination the Claimant said that the spending shown on the bank statements were not him and instead it was his friends and partner who he let use his bank card, which the Judge found was a lie.
The Judge noted that there was no evidence within the Claimant's medical records that he had undertaken any physiotherapy treatment, despite alleging that he had attended up to 20 sessions. The records also showed that the Claimant only went to the GP twice, when he alleged he had gone 5/6 times.
In respect of care/assistance, the Judge found the Claimant did not have or need any care/assistance and provided no evidence in support of this head of claim.
Turning to the loss of earnings claim, the Judge found that the Claimant did not work only because he could not find another job or because he was studying.
The Judge said that the Claimant lied and exaggerated his injuries to enhance damages received.
The Judge was also found that the Claimant's medical expert appeared to be advocating for the Claimant in trying to help him cover any issues with his evidence. The Judge preferred the evidence of the Defendant's medical expert, and referred to the section of his report where Mr Ross stated that 'it is almost inconceivable that an individual who has sustained a significant soft tissue injury to the neck and/or lumbar spine and who is complaining of the symptoms reported by the Claimant, would choose to undertake these activities'.
The Judge referred to the Judgment in the case of Molodi v Cambridge Vibration Maintenance Service [2018] EWHC 1288 (QB). In that case, the Claimant's evidence was found to be inconsistent and exaggerated and the court dismissed the claim for being Fundamentally Dishonest under Section 57 of the Criminal Justice and Courts Act 2015, (which allows the Court to dismiss the claims entirely if dishonesty is central to the case, even if part of the claim is genuine).
Comment
The decision is a helpful one for Insurers and Defendants as it demonstrates that, even if there is a genuine claim with genuine injuries, the claim can still fail in its entirety if the Claimant is found to have been dishonest and sought to exaggerate his injuries to increase the claim for damages. When considering running an argument of fundamental dishonesty, it is worth carefully considering:
- The strength of the evidence: the burden of proof is on the Defendant alleging fundamental dishonesty. Merely “having doubts” as to the claimant’s honesty is not enough (Thakkar v Mican [2024] EWCA Civ 552); strong surveillance evidence, CCTV footage (as in this case) or supportive social media footage from the claimant (or others) will all help.
- Whether the dishonesty is central to the claim or merely pertains to a peripheral or unrelated issue.
- Whether it is deliberate (Wye Valley NHS Trust v Murphy 2024 EWHC 1912 (KB)).
- Whether it relates solely to the levels of pain and suffering experienced, or goes further into other areas of loss, as it did here.
If you would like to discuss any element of this case or have an issue concerning possible fundamental dishonesty in another claim, please do not hesitate to get in touch.
