Personal injury: concealing previous medical history can amount to fundamental dishonesty

A litigant in person has had her claim dismissed after concealing a lengthy previous medical history and was found to have been fundamentally dishonest.

Background

In Smith v Haringey London Borough Council [2021] EWHC 615 (QB), the claimant had sought to recover damages for personal injury arising from a workplace incident in which she was assaulted by a service user with learning difficulties in a facility operated by the defendant. The case before the judge was that as a result of the assault, she had gone on to develop chronic pain in her lower back, which in turn caused low mood and depression, all of which meant she was unable to work.

It was accepted that the claimant had been assaulted. The question was the severity and duration of the injury suffered. The defendant had argued that the claimant had a soft tissue trauma responsible for lumbar symptoms for three to four months and an injury to her right wrist that fully resolved within two to three months. The defendant relied upon seven particular features in support of its contention that the claim advanced by the claimant was fundamentally dishonest:

1. she had sought to conceal her pre-accident history of back problems;
2. she had understated the consequences of a road traffic accident in April 2013;
3. a consultant orthopaedic surgeon had noted inappropriate clinical signs during his examination;
4. a consultant psychiatrist had noted the potential for “deliberate exaggeration” and “substantial reasons to be concerned” about the claimant's reliability;
5. there were inconsistencies between the level of disability reported and the appearance of the claimant on video surveillance;
6. the medical records were inconsistent as to the history of the injury allegedly sustained; and
7. the claim appeared to have significantly grown in value without any explanation having been provided.

Decision

The court found that the claimant had failed to confirm that she had a pre-existing back condition. She had denied the condition in her schedule of loss, replies and witness statement, all of which were signed with statements of truth. The claimant’s medical records had shown she had already been complaining of lower back pain eleven years before the assault.

The judge considered section 57 of the Criminal Justice Act and Courts 2015 and applied the test in Ivey v Genting Casinos Limited [2017] UKSC 67. The judge found that there had been sufficient deliberate exaggeration by the claimant so as to be dishonest. It followed that although the claimant would have been entitled to damages if she had presented the true facts, because she had been fundamentally dishonest, the claim was dismissed in its entirety.

Comment

This case is a reminder to defendants and insurers that the courts will not tolerate exaggerated claims, brought by claimants, especially when there is a large expense for defendants in defending such claims.

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