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Hall or Nothing – reflections from a fundamental dishonesty trial

25 July 2022

Acting on behalf of RSA Insurance Limited, Sarah Mir and Wendy Behn, have successfully secured the dismissal of an alleged brain injury claim with a finding of fundamental dishonesty.  Read more about the case.

Summary

Ms Hall, the claimant, sought damages for injuries she suffered following a road traffic accident on 28 November 2013. They included a traumatic brain injury with associated balance and fatigue problems, vertigo, severe migraines and post-traumatic stress disorder.

The claimant reported a multitude of limitations, including memory and concentration deficits, which impacted her ability to read, watch TV, drive alone, carry out domestic activities, play tennis and return to work as a teaching assistant. 

DWF successfully argued that approximately 69% of the claim was dishonest, that the dishonesty was fundamental to the claim, and that pursuant to section 57 of the Criminal Justice and Courts Act 2015, her claim should be dismissed. 

Schedules of Loss

Over the course of the claim, the claimant served a number of schedules of loss which set out costings for her loss of future earnings, future care including the need for a support worker, single level accommodation, deputyship costs, services including gardening and DIY and the cost of care for her mother and youngest child. When the claimant served a third schedule of loss, some key heads of loss were withdrawn; however, she gave no explanation for their exclusion. The judge commented, "It is notable that this change in position from the first and second Schedules took place subsequent to the disclosure of the surveillance evidence".

Surveillance and Social Media Evidence

There is no doubt the claimant was involved in a serious accident, hence RSA's offer to fund rehabilitation from the outset of the case. However, RSA developed concerns regarding the extent of the claimant's alleged limitations and their clinical plausibility as reported to her treating physiotherapist and medico-legal orthopaedic expert. Surveillance was commissioned before and after the Immediate Needs Assessment (INA), and the footage grossly contradicted the claimant's alleged deficits. From there, the claimant reported escalating deficits within the context of her alleged physical, neurological, cognitive, neuro-otological and psychological injuries. Over the following years, the claimant reported such issues to clinicians, therapists, medico-legal reports and her lawyers. She rejected the defendant's costs-protective offers even after the surveillance and social media evidence had been disclosed. After a failed JSM, the parties proceeded to a 9 day trial.

It is accepted that surveillance evidence can sometimes be of limited assistance as it can show an individual behaving in a particular way on a particular occasion and fails to give an accurate image of life on a day to day basis. In this case, the footage spanned 28 days over a period of three years, whilst the social media bundle totalled nearly 250 pages. 

DWF analysed the surveillance findings against each purported deficit. With reference to the key issues, the claimant was captured as follows:

- A trip to Ikea instead of an expert's appointment: On the morning of an assessment scheduled with the defendant's neuropsychology expert, Dr Brooks, the claimant said she could no longer attend. Surveillance footage captured her on the same day travelling to Ikea (a similar distance to that of Dr Brooks' clinic), where she was seen strolling through the store with her daughter and granddaughter, carrying the granddaughter, manoeuvring a large trolley with a number of items on them and placing a 'flat packed' box into the boot. At trial, the claimant accepted HHJ Walden-Smith's suggestion that the box may have contained a bookcase. 

- A meeting with her solicitor: The only occasion on the surveillance footage when the claimant exhibited behaviour which was consistent with her self-reporting was when she met with her solicitor in a hotel. The judge noted, "What is also striking about that footage…is that Mrs Hall's daughter does not remark upon her mother's presentation even though it is so very different to her presentation as captured before."

- Audio-vestibular injury: There were no observable difficulties with balance or movement. She was seen carrying her granddaughter, enjoying a trip to the hilly Peak District and manoeuvring stairs without issue. 

- Driving: She drove without apparent difficulty on country roads, within a built-up area and on busy A-roads. She gave the impression of a confident and competent driver. She could reverse without apparent impediment. 

- Role as a carer: She was seen assisting her mother – driving her to the shops, folding and carrying her mother's walking frame and pushing her around in a wheelchair. 

- Anxiety: She was able to go into busy shops without apparent impediment. There was no evidence of anxiety or nervousness. Her shopping habits were not for purchasing essentials but for leisure.

The surveillance evidence was inconsistent with the claimant's accounts, and her reports to the clinicians, therapists and medico-legal experts were also inconsistent. DWF argued that the claimant had lost track of her lies. Under cross-examination, she was not able to give any justification for her inconsistencies. 

The judge was satisfied that there was a deliberate fabrication or exaggeration of symptoms for the purposes of material gain. 

Credibility

DWF presented additional and substantial evidence which undermined the claimant's credibility. 

1. Brain injury – The claimant alleged that she had suffered a traumatic brain injury. As the years went by, she suggested she may have lost consciousness in the immediate aftermath. DWF's analysis of the paramedic and ambulance records confirmed positive prognostic factors – her Glasgow Coma Score was 15/15 and CT scans confirmed no organic damage whilst she was alert and orientated enough to inform the paramedics that she was allergic to penicillin. 

2. Neuro-otological injury – In support of the claimant suffering an audio-vestibular injury, and in the absence of supporting evidence within the contemporaneous records, the claimant sought to rely upon the symptoms documented in two 'Head Injury Questionnaires'. The questionnaires were compiled by the claimant's solicitors and were purportedly completed by the claimant. DWF challenged the provenance of the replies within the questionnaire, including the signatures, and argued that they were an inappropriate means of obtaining a medical history in any event, particularly as the questions were leading in nature. 

According to the judge, the questionnaires were of great significance as they raised concerns about the symptoms she was suffering and what she could and couldn't do, yet it was found that both of the questionnaires had been completed by the claimant's father and did not accord with the contemporaneous evidence of the paramedics who attended the claimant at the accident scene. The judge said, "It appears that the head injury questionnaires do not provide an accurate record of what Mrs Hall was/was not able to do and was an exaggeration to the effect of the accident upon Mrs Hall's ability to undertake normal day to day activities."

In light of this and taking account of the surveillance and social media evidence, the judge concluded that the claimant had failed to demonstrate causation of audio-vestibular disturbance. 

3. Pre-accident migraines - DWF scrutinised 30 years of pre-accident medical records and identified a history of migraines with light and sound sensitivity, contrary to the claimant's evidence that sought to dismiss the impact and/or relevance of her pre-accident migraines. At trial, she accepted that pre-accident she was taking amitriptyline, which is not a mild analgesic, to manage her debilitating migraines. HHJ Walden-Smith accepted that the migraines were not attributable to the injuries sustained in the accident. 

4. Capacity - The claimant appointed her daughter as a Litigation Friend on the basis that she had allegedly lost capacity to manage her financial affairs and conduct litigation. Following disclosure of the surveillance evidence, the claimant 'regained' capacity and no longer needed a Litigation Friend. It was accepted there was no formal appointment of her daughter as a Litigation Friend – the Court of Protection was not engaged at any point. For reference, if the capacity point had been unchallenged, adopting a multiplier of 33.53 against a multiplicand of, say, £15,000 p.a. would result in a capitalised loss of over £500,000 for deputyship costs alone.

Reflection

Some of the key lessons can be summarised as follows:

1. The step of striking out a claim is a draconian one. A balance is to be sought between deterring fraudulent and dishonest claims whilst also ensuring that genuine claims can be heard fairly and for judgment to be given in the ordinary way. 

2. Truth is an absolute concept. During the course of giving evidence, the claimant sought to justify her inconsistent reporting by saying it was "slightly true", which was not accepted. The claimant's neuropsychologist noted there was an interaction between the claimant's family which amounted to controlling behaviour; however, the responsibility for exaggeration and misrepresentation firmly rested with the claimant in her pursuit of the claim. 

3. It is important not to overlook and/or dismiss the reliability of contemporaneous records; to suggest that the human memory is an entirely safe repository for events is flawed. 

4. Experts are respected for their specialist and opinion evidence
. All the experts in reaching their opinion have to be able to rely upon the truthfulness of what is being said – the neuropsychologists and neuropsychiatrists in particular need to rely on an honest presentation. HHJ Walden-Smith found it striking that "Dr Savundra had to accept, when cross-examined, that the surveillance evidence supported normal vestibular function."

5. Trial preparation is a significant and time-consuming exercise. It is immensely important that the bundles are organised and correctly paginated. The parties should take care to ensure no documents are missing – in this case, DWF identified that the INA, one of the schedules of loss, and some of the GP records were missing from the first draft of the trial bundle index. 

Louis Browne QC represented the defendant. He commented, "This was an outstanding result for the defence team and I am really pleased with it. From the outset, the case was meticulously prepared by Sarah's team. The input of RSA's Sharon Monk at each stage was invaluable. The close collaboration between all concerned meant that, well in advance of trial, we had a clear and coherent strategy for how we would approach the hearing and the cross-examination of the claimant and her witnesses, both lay and expert. The judgment demonstrates that we were able to fully deliver that strategy."

The judgment of HHJ Walden-Smith should send a strong message to claimants and their instructing solicitors. Insurers, such as RSA, take fundamental dishonesty seriously and are not averse to running cases to trial, referring claimants to the IFED and/or issuing committal proceedings for contempt of court.

 

For further information please contact Sarah Mir

Further Reading