Wed, 25 Jan 2023
Factual Background
In Muyepa v Ministry of Defence [2022] EWHC 2648 (KB), the Claimant sought damages worth over £3,000,000 for personal injury (PI) and consequential losses sustained as a result of a ‘Non Freezing Cold Injury’ (NFCI). The Claimant’s case was that, as a result of the Defendant’s breach of their statutory and common law duties, he sustained an NFCI to his hands and feet in February/March 2016 and that the persisting symptoms left him severely disabled. He was medically discharged from the Army in January 2018 and claimed that he would have remained for his full term had he not sustained the injury. The Defendant’s case was that, if the claim was genuine, then there would have been a breach of duty. However, if the Claimant had deliberately engineered an NFCI in order to advance a fraudulent claim for personal injury, there would be no breach as no reasonable steps could have been taken to prevent the injury.
Mr Justice Cotter found that the Claimant had sustained a minor NFCI. However, the claim advanced was exaggerated and fundamentally dishonest.
Issues
The Court had to consider the issue of whether the Claimant had been fundamentally dishonest.
The Claimant’s Evidence
The Claimant had told the medical experts that he could only walk a few metres before experiencing severe pain. He reported that, since April 2017, he relied on a walking stick to mobilise. The impression given to the experts was that he always used the walking stick.
Contrastingly, the Claimant caveated the extent of his symptoms when in Court. He told the Court that he could only mobilise with the assistance of a walking stick and his wife on a “bad day”. The extent of the Claimant’s reported symptoms was undermined by surveillance evidence, which showed him walking and dancing without a walking stick. Further surveillance evidence recorded in September 2020, showed the Claimant exiting his vehicle without any assistance.
In response, the Claimant explained that his injury fluctuated. The Defendant’s Evidence
The Defendant relied upon the evidence of a former soldier, who had successfully claimed over
£270,000 for his own NFCI. He stated that the Claimant had concocted his injury and would ask him detailed questions about his symptoms, how it was reported to the doctor and testing.
This witness also claimed to have overheard the Claimant telling another soldier that he did not want to leave the Army empty-handed and had seen the Claimant carrying out daily activities without any difficulty. Another witness claimed to have seen the Claimant at a wedding in June 2019, walking and dancing without any limp or pain. All of which was consistent with the surveillance evidence played in Court and inconsistent with the Claimant’s evidence.
Expert Evidence
A joint report prepared by two NFCI experts stated that:
- There was a significant psychological element in the Claimant’s presentation, which casted doubt over the security of the diagnosis.
- The symptoms complained of at the time were less typical of an NFCI; and
- There was a realistic possibility of exaggeration.
The pain experts agreed that the Claimant’s reported level of pain and disability was disproportionate to any underlying condition.
Fundamental Dishonesty
Cotter J was satisfied that the Claimant had consciously and dishonestly exaggerated his symptoms. The Claimant was looking to leave the Army but did not want to leave “empty- handed” [325-338].
Effect of dishonesty on the breach of duty
Whilst the Court accepted the Defendant’s evidence that the Claimant had discussed making a claim in relation to an NFCI and was waiting for training in the cold to do so, the Court also accepted the medical evidence that the Claimant had developed a mild NFCI after the training course in 2016. Therefore, Cotter J was satisfied that there had been a breach of duty.
Effect of dishonesty on the value of the claim
Notwithstanding the Claimant’s exaggeration, the Court found that the true value of the claim was £97,595.33. The assessment of damages included:
- £15,000 in general damages, as per paragraph 8(C)(a) (less serious cold injuries) of the 16th Edition of the Judicial College Guidelines for the Assessment of General Damages, plus interest.
- An additional award of £250 for the loss of congenial employment.
- A lump sum award of £30,265 for past employment-related losses, plus interest.
- An award of £50,000 to reflect the loss of earning capacity and pension loss.
- A small sum of £625 for miscellaneous losses.
Legal Principles
Section 57 of the Criminal Justice and Courts Act 2015 applies to PI claims where the Court finds that a claimant is entitled to damages but where, on application by the defendant to dismiss the claim, it is satisfied that the claim is fundamentally dishonest. The Court must dismiss the claim unless the Claimant would suffer substantial injustice.
In Ivey v Genting Casinos UK Limited [2018] AC 391, the Supreme Court laid out the test for dishonesty. The Court must first ascertain the subjective state of an individual’s knowledge or belief as to the facts and secondly, determine whether the conduct is honest or dishonest objectively.
The dishonesty is fundamental if it “substantially affects” the presentation of the case in that it goes to the root or heart of the claim, as per Knowles J in London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018] EWHC 51. Knowles J also defined ‘substantial injustice’ as meaning more than the mere fact that the Claimant will lose his damages for the heads of claim that are not tainted.
In paragraph 388 of the Muyepa judgment, Cotter J set out three useful questions to consider when deciding the issue of fundamental dishonesty:
- At what stage and in what circumstances did the dishonest conduct start?
The Claimant’s dishonesty and exaggeration began at an early stage in March/April 2017. - Does the dishonesty taint the whole claim, or is it limited to a divisible element? Given that the diagnosis of an NFCI was heavily reliant upon the Claimant’s self-reporting of the history of his symptoms, the dishonest exaggeration of this meant that the whole claim was considered to be tainted.
- How does the value of the underlying claim compare with that of the dishonestly inflated claim?
The Court assessed the true value of the claim to be £97,595.33, which was just over 3% of the claim advanced at its highest and 5.5% of the claim as advanced at the end of the trial. Thus, the true value of the claim paled in comparison to that of the dishonest claim.
Conclusion
Although the Claimant suffered a minor NFCI, he fundamentally, persistently, and dishonestly exaggerated the claim to the effect that the whole claim had been tainted and thus the claim was dismissed pursuant to s57(2) of the 2015 Act. The mere fact that the Claimant would lose the damages for the honest aspect of his claim did not amount to substantial injustice. Cotter J gave useful further guidance as to questions that the Court should ask itself when issues of
fundamental dishonesty arise. This case once again serves as a reminder of the risks associated with claimants exaggerating their claims.
Melanie Mills is a first six pupil in the Personal Injury and Clinical Negligence Groups. She will be accepting instructions from April 2023.
