Exaggeration in personal injury claims: does Smith v Ashwell Maintenance indicate that the landscape is changing for Defendants?

May 3, 2019

By Alice Dobbie

Introduction

The judgment in Smith v Ashwell Maintenance Ltd [2019] 1 WLUK 541 (23/1/19) may only be a County Court judgment. But it should catch the attention of PI practitioners: it appears to suggest that there is a type of dishonest exaggeration which need not fatally damage a claim.

The judgment is all the more striking for the fact that it comes at a time when judicial and political approaches to PI fraud have been stiffening up: first Summers v Fairclough [2012] UKSC 26 gave guidance on striking out a claim for abuse of process where there had been fraudulent exaggeration; then the enactment of s.57 of the Criminal Justice and Courts Act 2015 provided a statutory framework for the dismissal of a claim where there had been fundamental dishonesty. The concomitant stream of successful High Court committal applications over the last 2 years indicates that the courts share insurers’ concerns about dishonesty within the industry. Until the judgment in Smith, the trajectory of PI fraud law seemed clear.

The facts of Smith

Mr Smith, a gas engineer, injured his ankle in a fall at work. Liability was eventually conceded by the Defendant. Mr Smith contended that his ankle injury was permanent and debilitating and his claim included significant future losses. The Defendant alleged that it was a short-lived injury and that the Claimant had exaggerated it both to medical experts and in his presentation of the claim. The Defendant sought dismissal of the claim pursuant to Summers v Fairclough, or alternatively under s.57 of the Criminal Justice and Courts Act 2015.

Evidence in support of the Defendant’s allegation included:

• Covert surveillance evidence showing the Claimant driving, walking without difficulty and engaging in work activities, all of which the Claimant had separately suggested were impossible for him to do.
• The Claimant’s appearance in a Channel 4 programme which showed him performing DIY and negotiating stairs without difficulty, despite the fact that during this period he had attended a medico-legal appointment at which he described significant restrictions on movement and stated that he struggled with stairs.
• The Claimant’s bank statements, which suggested that the Claimant had been working for financial reward during the period that he claimed to be unable to work.
• The Gas Safe Register, which suggested that the Claimant had certified gas installations during the period that he claimed to be unable to work.
• The Claimant’s statement that he had almost completely had to cease taking long-haul flights, whereas his bank statements indicated three such trips in only a few years.
• The Claimant’s attendance at medico-legal examinations with a walking aids, whereas such aids were not taken to physiotherapy appointments or seen on the covert surveillance.

In her judgment, the Judge noted that she was “troubled” by the “obvious contradictions” in Mr Smith’s evidence, which put his credibility in issue. She found some of the Claimant’s explanations for the contradictions “unconvincing”, whilst others she found to range from “acceptable” to “convincing” and “entirely genuine”.

The decision in Smith

The judge concluded that there had been “a degree of embellishment” which affected the Claimant’s reliability but was not dishonest. She stated: “I find that the Claimant has been capable not only of putting on a show for the camera as seen in the [Channel 4 programme], but also putting on a show for the medical experts”. However, she explained this embellishment as exaggeration in order to convince, rather than deceive, the clinicians. She also noted that the forceful way in which the Defendant had sought to resist the claim was likely to have increased the Claimant’s perceived need to exaggerate. The judge distinguished between faking pain and exaggeration: “Faking pain.. would almost undoubtedly amount to fundamental dishonesty. Exaggeration, with mixed motives of attempting to convince or deceive, is not”.

Analysis

It is not unusual for a judge to give a Claimant some leeway where factual inaccuracies are discovered, and even to give them the benefit of the doubt where explanations for inaccuracies are rather thin. Nor is it the first time that a judge has distinguished between the possible motivations for a Claimant’s exaggeration, and concluded that the exaggeration is therefore not borne of deceit. There is a range of exaggeration case law and mainstream decisions that include both those where mild exaggeration led to a dishonesty finding (eg the pre-s.57 case of Gosling v Hailo and Screwfix Direct (29/4/14, HHJ Moloney QC, Cambridge County Court)), and those where more substantial exaggeration was accommodated by the court. But in Smith the judge crossed a rubicon when she stated in passing that exaggeration with mixed motives of attempting to convince or deceive could not be fundamentally dishonest. Here, Smith diverges from established case law in that it leaves open the door for a Claimant deliberately to deceive (however slightly) with impunity.

Last month, just three months after Smith was decided, George Eliot Hospital NHS Trust v Elder was heard (5/4/19, QBD, Judge Walden-Smith). Here, the NHS Trust successfully applied for Ms Elder’s committal to prison for exaggerating her clinical negligence claim. Whilst Ms Elder’s exaggeration was described as “gross” (a degree of exaggeration that was not explicitly found in Smith), the correspondence between the two cases is uncanny. Ms Elder claimed that as a result of unnecessary surgery she had become restricted in movement, unable to complete everyday tasks and socially isolated. However, her Facebook page showed her at a hen party in Ibiza and covert surveillance suggested that she was much more mobile than she had claimed, including being able to drive herself, shop without assistance and carry her grandson. The trial judge awarded damages of £120,000 (as against a claim for £2.5m), concluding that her accounts to medical professionals had been intended to advance her financial interest rather than reflect her medical conditions. Following this decision, the NHS Trust applied for her committal; last month, she received an immediate 5 month sentence.

Additionally, AXA Insurance v Masud [2019] EWHC 497 (QB), also seems to cut against the grain of Smith. Judgment in this committal application was given on 12/2/19, and Mr Masud was sentenced to 16 months’ imprisonment for exaggerating his personal injury claim. The exaggeration principally related to his future working prospects and his restrictions to daily living: he claimed that he had not worked since the accident but covert surveillance showed him working in a fast-food shop after the accident; he claimed that he could no longer drive, but covert surveillance showed him driving regularly. Overall, the Judge was satisfied that he had grossly exaggerated his genuine injury and its effects.

The recent case of Liverpool Victoria Insurance Company v Zafar [2019] EWCA Civ 392 (decided 19/3/19) also confirms that even recklessly making a false statement in a document verified by a statement of truth is “so inherently serious that nothing other than an order for committal to prison will be sufficient”. The judgment acknowledged that “a contemnor who acts recklessly is less culpable than one who acts intentionally”, but even reckless misinformation is serious.

The line between Smith’s conscious exaggeration for an ‘honest’ purpose, and Zafar’s reckless false statement is, if not arbitrary, certainly blurred. Moreover, the Zafar approach is consistent with the purpose of s.57 of the CJCA, which was never intended to accommodate an escape route for reckless deceit.

Conclusion

The dicta in Smith about exaggeration should be evaluated within a wider case law context. These other recent judgments from 2019 indicate that Smith is an outlying decision and, because it turns so closely on its facts, Smith will be a problematic decision for Claimants to rely on in future cases. Inevitably, the proliferation of County Court decisions mean that splintered judgments emerge. But the broader thrust of the most recent case law is clear: exaggeration of personal injury claims is a serious matter, whatever the motivation.