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Claimant who trips up over her own evidence in injury claim forced to pay insurer's costs

Yvette Thomas v Southwick Car Centre,
County Court at Bath
Before: DJ Goddard
Judgment: 31 May 2017

A claimant who had suggested that she had tripped over a hosepipe on a forecourt, causing her injury, saw her claim for damages dismissed after a Judge concluded he did not find her story in any way believable. The claimant had attempted to present a claim for over £200,000 and roped in a group of family members to provide evidence which, the Judge said, had been tailored and shaped to fit her claim.

Tim Marshall, who acted on behalf of the defendant in this pre-QOCS case upon the instructions of their insurers, NIG, provides an overview of the case, where the surveillance evidence had an impact on the case in respect of liability as well as quantum. The claimant was ordered to pay the defendant's costs and make an immediate interim payment in the sum of £20,000.

Background

The claim arose out of an alleged tripping accident in May 2012. As the claimant was crossing a forecourt at the defendant's premises she had cause to step over a hose and as she did so, she suggested, one of the defendant's employees lifted the hose, causing the claimant to trip over and injured herself.

From the defendant's standpoint, their version was that the claimant reported to them that one of the defendant's employees, Mr Slow, had caused the hose to brush against her leg and that the way that Mr Slow was using the hosepipe "was an accident waiting to happen". Having apologised to the claimant, she then went on her way.

Two months after the incident, the defendant received a letter of claim from solicitors alleging that the claimant was deliberately tripped over with the hosepipe by Mr Slow and then, whilst she was on the floor, she was ignored by the staff and simply left there. It was alleged that this fall was a serious one, involving ripped jeans, a torn cardigan, broken shoes and a broken watch and leading to the claimant suffering severe orthopaedic and psychiatric injuries as a result.

Procedure

Statements were taken from the two brothers who owned the business, Matthew and Andrew Gregory and from Mr Slow. Their evidence was simply that the claimant had visited the garage and that whilst she was there, she had complained to them that a hosepipe had brushed against her leg.

The claimant served witness statements from five individuals; one of the witnesses was the claimant's son (who gave evidence about events post accident) and a cousin, who was a witness in respect of quantum and whom it was said administered care to the claimant post accident.

Another witness, Freya Jones, was a friend of the claimant's daughter, Charmaine. Jones, and claimed to have witnessed the incident.

Expert evidence and Quantum

The claimant claimed that her physical and psychiatric injuries were severe, and the picture that she painted was that of a severely disabled woman. She said that she had lost her job, could not leave the house without a walking stick, could not hold a cup of tea without dropping it, and needed to take painkillers constantly throughout the day. She also alleged that she needed six hours of care per day for over a year, which included help washing, dressing and brushing her teeth.

The claimant and her solicitors valued her claim at £200,000.

Both parties were given permission to rely upon medical evidence from orthopaedic experts and psychiatrists.

The defendant raised extensive Part 18 questions with the claimant about her case in respect of liability and quantum and the claimant did not step back from her pleaded case. Indeed, in her response the claimant firmly asserted that the accounts put forward by Messrs Gregory, Gregory and Slow (that the claimant did not trip) came about as a result of them colluding together.

Thereafter, and having regard to the defendant's case in respect of liability and concerns about the claim in respect of quantum and having regard to the overall value of the claim, the defendant then took the decision to place the claimant under covert surveillance.

The claimant was filmed over five days, with one of those days being the day that the claimant was examined by the defendant's orthopaedic expert, Mr Foy. On the four other days, the claimant walked normally and without any sign of pain, physical impairment or loss of function. Even on the morning of the appointment with Mr Foy, the claimant drove to a location around a mile away from where the appointment was to take place and strolled around, drinking coffee and window shopping. Then, shortly before the appointment, she produced a walking stick and hobbled in and out of Mr Foy's appointment room, seeming to struggle to get in and out of her car unaided.

When the orthopaedic experts saw the surveillance footage, they both agreed that the claimant had significantly exaggerated her level of functional disability. They agreed that if the claimant was injured at all, then any physical symptoms would have been exhausted after a maximum of 12 weeks. The only area of disagreement related to the MRI scan taken shortly after the accident; the claimant's expert (Mr Barton) opined that a meniscus tear was present. Mr Foy's opinion was that there was no such tear visible on the scan.

Both psychiatric experts essentially agreed that given the interrelationship between the claimant's physical injuries and psychiatric injuries, if it was accepted that the claimant's accident related physical injuries resolved after 12 weeks then her accident related psychiatric injuries must also have resolved within a similar timeframe.

Due to the level of agreement between the experts, neither party sought permission for oral expert evidence.

After disclosure of the surveillance evidence and the preparation of the joint reports, shortly before trial the claimant's schedule of loss was reduced from £135,000 to £17,000, with the majority of the claimant's losses abandoned.

Trial

At the two day trial before District Judge Goddard, sitting at the County Court in Bath on the 16th and 17th of May, both parties essentially accused the other of lying. The question for the Judge was who was more likely to be telling the truth and was the claimant able to discharge the burden of proof.

The claimant's case was that she had looked carefully at the defendant's employee (Mr Slow) who was using the hose to check that he had seen her and then, knowing that Slow had seen her she went to step over the hose, only for Slow to lift the hose, causing her to trip and injure herself. She went on to allege that, having fallen, Slow simply carried on doing what he was doing. She alleged that the three defence witnesses had colluded together.

Freya Jones gave evidence that she was standing on the pavement, when she saw the hose being used by Mr Slow moving and being lifted off the ground. As the claimant went to step over the hose it was pulled up off the ground, causing the claimant to fall. Her evidence was that the claimant had told her that she had injured her knee and ankle. Having established that and with the claimant seemingly in pain, Jones then went off to feed her son.

Joel Thomas gave evidence that he collected his mother from the garage and that she was upset and visibly in pain. He drove his mother to the minor injuries unit and then left her there as he had some personal matters to attend to.

Although Charmaine Thomas did not attend court to give evidence, it was said that whilst she had been with the claimant at the garage, she did not accompany the claimant to the hospital either. The claimant's cousin, Katherine Daley also did not attend court to give evidence, despite signing a statement to the effect that she had provided the claimant with significant care and assistance.

Findings

Dismissing the claim and giving a reserved judgment on 9 June, District Judge Goddard held that:

• The claimant did not fall at any stage

• The claimant was untruthful in respect of her claim for loss of earnings, which at its highest was claimed at over £100,000

• Jones' evidence could not be believed and her evidence was untruthful. It was highly improbable that as a good friend of the claimant's daughter she would have simply walked away from the scene to feed her son, leaving the claimant in pain on the floor

• Jones' evidence came about by the claimant and Jones "getting their heads together"

• The surveillance evidence led the claimant's own experts to question her veracity and led to the conclusion that the claimant exaggerated matters

• The claim for care and assistance was not credible and the court did not believe anything Daley had said in her witness statement. The attempt to claim care in the sum of over £11,000 reflected badly on the claimant

The claimant's claim was dismissed and she was ordered to pay the defendant's costs (this was not a QOCS case), with an interim payment on account of costs of £20,000 within 14 days.

Comment

It was clear from the off that one party wasn't telling the truth. As this was a pre-QOCS case, the client stood to pay out substantial sums by way of costs had they the defendant lost, but the evidence that had been assembled against the claimant suggested her claim lacked credibility.

To ensure that the claimant was left with no 'wriggle room' the claimant was served with an extensive list of Part 18 questions, both in respect of liability and quantum and the claimant responded to those questions, which left no room for doubt in what her case was: the defendant's witnesses had all colluded together and her injuries had led to her being severely injured.

The surveillance evidence was such that there was clear evidence that the claimant was deliberately exaggerating the level of her symptoms and the lack of credibility in the claimant's case in respect of quantum permeated the claimant's case in respect of liability. Once it was served, it highlighted the stark contrast between what the claimant had said in her witness statement and in her answers to the Part 18 questions.

If this was a case to which QOCS applied, then in my view the defendant would have had no difficulty at all in invoking CPR r.44.16, so that protection would have been lost. Similarly, had the court made an award to the claimant, then as the claimant had issued after 13 April 2015, section 57 of the Criminal Justice and Courts Act would have also come in to play.

However given that this case fell within the "old rules", the claimant must meet the defendant's costs out of her own pocket. Had the claimant succeeded, then NIG potentially stood to pay over £300,000, in damages and costs.

Contact

For further information about this case, then please contact Tim Marshall on 0207 645 9571, or by email tim.marshall@dwf.law

By Tim Marshall

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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