Summary
This case concerns a fundamentally dishonest claimant. The judge held that the experts in the case were reliant on self-reporting by the claimant, who the judge found to be wholly unreliable, as to the extent to which the alleged injuries suffered had impacted her life.
Learning points
Learning points for experts:
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The medical and psychological experts in a personal injury case will often need to rely largely on the self-report of the claimant,
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If an expert’s report is built on a false factual basis (e.g. the client is found to be wholly unreliable), the expert evidence can be rejected
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Consequently, the credibility of the injured person is of central importance.
Learning points for instructing parties:
The case
The claimant was seeking damages for soft tissue and psychological injuries she claimed to have suffered while a passenger in 3 separate car accidents between 2015 and 2016. She also claimed to have suffered tinnitus as a result of the second and third accidents.
Expert evidence in general
The judge noted that these types of soft tissue and psychological injuries are rarely susceptible to objective proof, and that a medical expert must instead rely almost exclusively on examination and the history provided by the apparently injured party. As Mr Justice Martin Spenser had noted in Molodi v CVMS [2018] EWHC 1288 (QB) if the history is not materially accurate, then the medical opinion expressed must be unreliable.
Key to any history is the impact of the injury on the person’s life, with an injury that prevents or limits pursuit of a loved pastime likely to be seen as more serious that one that does not. Therefore, the judge noted, the credibility of the apparently injured person is of central importance. The judge noted that the factors referred to by Mr Justice Spenser in Molodi as likely to be present in a genuine claim, concern credibility, including: seeking medical assistance and acting in accordance with medical advice.
The expert evidence in the case
The claimant instructed Mr Farhan, who dealt with shoulder and back issues, and Dr Whittington, who dealt with the psychological injury. She also saw experts in tinnitus and rheumatology, and a pain consultant.
Mr Farham found some generalised restriction of the claimant’s cervical spine and, based on the claimant’s accounts of the psychological impact, referred to her a psychologist after concluding that the psychological reactions to the accident overshadowed her physical injuries.
Dr Whittington diagnosed mixed anxiety and depressive disorder (‘MADD’), body dysmorphic disorder (‘BDD) and bulimia, attributing them to the accident. He relied on the claimant’s account that before the accident she had “attended the gym 6 times per week, twice daily and regularly competed in fitness events” but after the accident “she was unable to exercise”.
The experts did not provide oral evidence.
The claimant’s evidence
The claimant had held a number of roles in legal firms. In cross-examination, the claimant accepted that in her Linkedin profile and CV she held herself out to be far more qualified than she actually was, leading her, the judge determined, to pre-emptively resign from a role ahead of a disciplinary meeting about her qualifications.
The judge determined that the claimant was “a wholly unreliable witness who gave evidence without any regard for the truth guided only by what she perceived to be her own interests. She made things up when asked difficult questions and on occasion gave patently false answers.”
Documentary evidence
The court considered documentary evidence on the number of times the claimant accessed the gym after the accidents and Facebook posts showing that she had competed in several strenuous runs and hikes in 2017 and 2018, which were inconsistent with the self-reporting of the impact of her life.
Findings of fact
The judge made several findings of fact including:
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The Claimant deliberately lied about her academic achievements on her CV and Linkedin profile.
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She deliberately lied about her professional status.
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She made up a story about being effectively blackmailed by a witness in the case who she maintained had threatened to share an intimate video of the 2 of them with the Claimant’s long-term boyfriend.
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She deliberately failed to give Dr Whittington the full story of her recovery from any injury sustained in the accidents by failing to mention the fact that she had completed an ascent of Ben Nevis and the Yorkshire 3 Peaks.
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The claimant is a generally dishonest person.
Tui v Griffiths
Counsel for the claimant submitted that the defendant’s had to “undermine the factual substratum of the claimant’s uncontroverted evidence” and that the points ought to have been raised in questions to experts.
The Supreme Court held in Tui v Griffiths [2023] UKSC 48 that generally, if a conclusion expressed in an expert report was to be challenged , the expert should be given an opportunity to respond to the challenge. However, this rule would not apply in certain circumstances including where the report is founded on a false basis.
The judge found that he was entitled to reject the expert evidence in this case because it was built on a false factual basis, i.e. the claimant’s untrue history.
Findings in respect of injuries suffered
The judge dismissed all parts of each claim, rejecting the claimants account of the injuries in its entirety as the entire case was based on her credibility.