Facts:
In July 2018, Ms. Williams-Henry suffered a moderately severe traumatic brain injury and other multiple injuries in a nasty fall off Aberavon Pier which was insufficiently guarded by railings. The claimant had been drinking and either tripped or stumbled and fell off the edge some 4.5 metres to the rocks and sand below.
The defendant was the owner or occupier of the pier and admitted liability which later settled at 2/3rds of the claim.
She had made some recovery and returned to work for an insurance company before the instruction of a case manager and neuropsychologist recommended that she cease work for the purposes of rehabilitation.
Decision:
Ritchie J found that the reported problems, which were extensive by March 2022, were largely fabricated and that the case manager took the claimant’s assertions at face value. The Court found that the advice to give up her work was catastrophic for her state of mind. She misled the Court and experts by exaggerating the effects of the injuries and other aspects such as noise intolerance while subsequently attending a concert and claiming that she could not drink alcohol while drinking on social media posts. The Court mentioned that she had “provided the breathtakingly dishonest answer in cross-examination that there is nothing she would take back which was written in the DWP forms” which led the Judge to conclude “Overall, I regret to say that I found the claimant to be dishonest and manipulative both in Court and in what she said to the medico-legal experts”.
Having concluded that the claimant had been fundamentally dishonest, Ritchie J analysed the meaning of ‘substantial injustice’ (SI). His starting point was that a dishonest claimant is not suffering an injustice per se by being deprived of genuine damages. He set out a non-exhaustive list of factors that courts should consider when deciding whether dismissing such a claim would cause substantial injustice:
- Amount claimed versus the amount of assessed genuine damages: “If the dishonest damages claimed were small or moderate compared to the size of the assessed genuine damages which were substantial or very substantial this will weigh more heavily in favour of an SI ruling”.
- The scope and depth of that dishonesty, “Widespread and gross dishonesty being more weighty against SI than moderate or minor dishonesty”.
- The effect of the dishonesty on the claim.
- The scope and level of the claimant's assessed genuine disability caused by the defendant. On this point, Ritchie J focused more on the cost for the taxpayers rather than the long-term suffering of the claimant.
- The nature and culpability of the defendant's tort.
- The consequence of a non-dismissal. “If the genuine damages to be received by the claimant will be substantially reduced or eradicated by the adverse costs awards, then it is less likely that SI will be caused by the dismissal”.
- Interim payment and whether the claimant could afford to pay them back.
- The effect which dismissing the claim has on the claimant’s life.
Having applied those factors, Ritchie J assessed the genuine element of her damages claim as £895,000 on a full liability basis but then deprived her of all of her damages received due to her fundamental dishonesty. She was nonetheless not requested to repay interim payments of £75,000 as it would have led to an injustice. He noted: “I know it looks like a large sum of money to deprive a genuinely injured person of, but by drafting and passing S.57 Parliament sought to stamp out dishonesty which is fundamental in personal injury claims and the Claimant has breached this law”.
The consequences of that dismissal did need to form part of the analysis: “In my judgement, it is the dismissal of the claim for damages that is the trigger for the analysis of whether a substantial injustice will occur if no damages are awarded. One cannot ignore the very thing which S.57(3) takes away when considering the injustice of the taking away”.
Implications:
This case gives guidance on how the courts will apply the “substantial injustice” exception to the statutory rules on fundamental dishonesty. It also highlights that companies must be careful when facing claims of serious injury. It is important to ensure that the case manager does not take assertions at face value, especially self-assertion.
For practitioners, it should not be assumed that because a claimant suffered serious injury there cannot be serious dishonesty. As social media is disclosable, in the event of reasonable doubt, defendants should also make an application for disclosure.