Adrian Neale considers the question of when a claimant’s exaggeration of injury can be said to be deliberate and dishonest, following a recent appeal brought by a local authority.
Where a claimant has been fundamentally dishonest in their personal injury claim, the court must dismiss the entire claim, unless it is satisfied that the claimant would suffer substantial injustice (Section 57 Criminal Justice and Courts Act 2015).
The case of Elgamal v Westminster City Council  EWHC 2510 (QB) provides useful insight to the court’s approach when considering whether it must dismiss a valid claim, where the claimant has exaggerated the extent of a genuine injury.
The basis of the appeal
The claimant sustained a serious left knee injury in the defendant local authority’s gym, which led to five surgical procedures. Liability had been compromised between the parties (65% in the claimant’s favour, with 35% contributory negligence).
The claimant walked into an appointment with the defendant’s orthopaedic expert with a noticeable limp, claiming it was accident-related. However the defendant’s surveillance evidence, taken on the same day as the appointment, showed the claimant walking in public without mobility restriction.
The defendant appealed the £125,321.33 damages and adverse costs awarded to the claimant, on the basis that the trial judge should have found that the claimant was fundamentally dishonest and therefore dismissed the claim.
What did the High Court decide in dismissing the defendant’s appeal?
In assessing whether the claimant had been dishonest, the High Court considered it could not reject the view of the trial judge that the claimant believed he was disabled to a greater extent than he was. He had not subjectively lied in the witness box or in statements to doctors. Applying the principle in the lead Supreme Court case of Ivey v Genting Casinos Limited , if an individual believes the facts are as he represents them to be, then there can be no question of dishonesty. The claimant’s mistaken belief as to the extent of his injuries was not dishonest.
The Court went on to consider whether, had the claimant been dishonest, the exaggeration identified would have been serious enough to be assessed as fundamentally dishonest (such that the claim should be dismissed in its entirety). This is a question of fact and degree, which goes to the root or heart of the claim. The defendant asserted that the disclosed surveillance evidence could have thwarted a much larger dishonest claim that could have been advanced. The Court found it difficult to see how a claim not actually advanced, could be relevant.
It was common ground between the medical experts, and the finding of the Court, that the Claimant had suffered a serious base injury. The exaggeration of reduced mobility was of some relevance to the level of pain, suffering and loss of amenity award, but was not central to the special damages claimed.
The claimant’s loss of earnings claim failed due to a lack of supporting evidence, and the significant Smith v Manchester award of £54,000 which was made was unaffected by the exaggeration of the way the claimant moved about on a day‑to‑day basis.
A £15,000 claim for an electric car, on the basis the claimant could not drive a manual car, was not pursued at trial after a joint experts’ statement found that the claimant should be able to drive a manual vehicle.
Reductions to a care claim were made due to a lack of supportive evidence, rather than due to any exaggeration of the claimant’s disability.
The Court refused to overturn the trial judge’s decision that the claimant was not fundamentally dishonest, and therefore upheld the significant awards for damages and costs on the indemnity basis.