Action for Brain Injury Week 2022

Written by Mumtaz Hussain

See the Hidden Me

This week is “Action for Brain Injury Week”, an annual campaign led by the national charity Headway, whose key aim is helping those who have suffered from a brain injury. The theme this year is “see the hidden me”, and it seeks to highlight the many unseen challenges faced by those who have suffered a brain injury.

As a team of personal injury and clinical negligence experts, we are passionately focused on providing the best quality of legal advice for our clients who, through no fault of their own, have sustained a brain injury.

Legal Expertise Plus Support

Where we put our considerable expertise towards ensuring our client’s legal battle is hard fought and successful, we also maintain strong ties with organisations such as Headway so that our clients have a support network that runs alongside their legal case, and will continue beyond the life of their case.

Get Involved

For many people who have suffered a brain injury, their predicament is largely unseen. Headway wants the campaign to “raise awareness and understanding of the often misunderstood symptoms of a brain injury, and work to alleviate the challenges, and frustrations, survivors face”.

One of the ways you can get involved is by wearing a hat for their “Hats for Headway” day (May 20th). All you have to do is wear a hat, take a photo, make a donation and help raise awareness of the struggles of those affected by a brain injury. Your photo could even win you a luxury hamper from Fortnum and Mason!

Spinal Cord Injury is an Insult to The Spinal Cord Resulting in a Change

Spinal Cord Injury

Spinal cord injury (SCI) is an insult to the spinal cord resulting in a change, either temporary or permanent, in the cord’s normal motor, sensory, or autonomic function. Such injuries can result in tetraplegia, paraplegia, or death.

It is now understood that approximately 2,500 people sustain or are diagnosed with a life-changing SCI each year in the UK and the total number of those living with a SCI in the UK is estimated at 50,000. SCI is a complex condition that can affect all bodily systems. This blog deals briefly with spinal anatomy and the classification of SCI.

 

Spinal Anatomy

The spinal column consists of 5 regions, as follows:

  1. Seven cervical vertebrae: (C1 to C7). The neck region which has the greatest range of flexibility and supports the full weight of the skull.
  2. Twelve thoracic vertebrae: (T1 to T12). The upper to mid back; its main function is to hold the ribcage, which in turn protect the major organs.
  3. Five lumbar vertebrae: (L1 to L5). The lower back. Its main function is to support the body’s weight.
  4. Sacrum: (S1 to S5). Pelvis region, connecting the spine to the hip bones.
  5. Coccyx: The tailbone, the final segment of the vertebral column with attachments to various muscles, tendons and ligaments.

 

Classification of SCI

Spinal cord injuries can be classified based on function (how much feeling and movement you have) and on where the damage occurred. When a nerve in the spinal cord is injured, the nerve location and number are often used to describe how much damage there is. For example, a C7 injury is associated with the seventh cervical nerve of the neck and its effect on feeling and movement. The higher the damage occurs on the spinal cord, the more of the body is affected.

The American Spinal Injury Association (ASIA) define the International Standards for the Neurological Classification of Spinal Cord Injury. The ASIA Impairment Scale assigns the SCI a grade based on its severity. The ASIA Impairment Scale determines the category of SCI, which typically is complete or incomplete:

  • Complete SCI occurs when there’s a total loss of function (motor) and feeling (sensory) below the injury level.
  • Partial/incomplete SCI: some function and feeling remain below the injury level. Typically, one side of the body has more function or feeling than the other side. There are different types, or syndromes, of incomplete SCI, including central cord syndrome, Brown-Séquard syndrome, anterior cord syndrome, and posterior cord syndrome.

 

Grades range from A to E, with A being the most severe injury and E being the least severe, as follows:

 

Grade A      –          Complete      –      Complete sensory or motor function loss below the level of injury.

 

Grade B       –          Incomplete    –     Sensation is preserved below the level of injury, but motor function is lost.

 

Grade C        –        Incomplete       –    Motor function below the level of injury is preserved, with more than half of the main muscles receiving a less than 3 grade on the    ASIA motor score.

 

Grade D      –          Incomplete     –    Motor function below the level of injury is preserved, with more than half of the main muscles receiving at least a 3 or greater grade      on the ASIA motor score.

 

Grade E        –         Normal          –       Normal sensation and motor function.

The Dangers Of E-Scooters

E-Scooters – Environmentally Friendly Mode Of Transport Or Recipe For Disaster?

You will no doubt have noticed a significant increase in the use of electric scooters, more commonly known as e-scooters, in recent years. A concept initially concocted as a more environmentally friendly way to get around, it is evident that more and more people are using them for fun and many who do use them for legitimate transport purposes seem to do so with little concern for their safety. Of the many people I have seen using these e-scooters, it is very rare that I see someone wearing a helmet, but very common to see them riding recklessly and at a fairly high speed.

The introduction of e-scooters has, as one might expect, brought with it an added element of danger to the roads and a significant number of accidents, many of which are very serious collisions and some of which have even resulted in deaths. According to the Department for Transport, there were 882 accidents involving e-scooters in the year to June 2021 which resulted in 931 reported casualties; three of whom, all e-scooter riders, were killed. In addition, the Department for Transport estimates that 253 people involved in these accidents suffered serious injuries.

When Transport for London introduced its e-scooter trial, with approval from the Department of Transport, it was limited at that time to only a handful of boroughs in London. E-scooters can only be ridden on roads, not on pavements and are limited to a maximum speed of 12.5mph. Whilst this might not seem like a high speed at all, in reality, for those of us who have been whizzed past by one of these e-scooters, you will know that this is a sufficiently high speed to cause serious injury to a pedestrian, the e-scooter rider, cyclists and many other road users.

 

Serious Injury Risks

To this end, I have dealt with many claims for clients who have been badly injured in what at first appear to be relatively low-speed collisions, but which have caused much more serious injuries than might be expected. There can be many reasons for this, but in the case of a brain injury, being knocked off an e-scooter travelling at 12.5mph and being thrown to the floor, striking your head on the hard ground or on a car for example, particularly if not wearing a helmet, will very likely cause a traumatic brain injury.

By the same token, a pedestrian struck by an e-scooter travelling at its top speed of 12.5mph will also face a very significant risk of suffering serious injury. In fact, research carried out by the Department for Transport confirms that, of the 253 people who were seriously injured in e-scooter accidents in the year to 2021, except for the estimated 199 e-scooter users themselves and only two motorcyclists, all other injured parties involved in these accidents were either pedestrians (estimated at 37) or cyclists (estimated at 14).

 

Another Threat On Our Streets

These very worrying statistics reinforce the fact that, whilst introduced with the best of intentions, e-scooters have in fact introduced yet another threat to the streets of London and something else that all road users, particularly pedestrians and cyclists (already the most vulnerable road users) must now be aware of. It cannot go unnoticed that there is also a large faction of people who see e-scooters as a fun way to get around, as opposed to a necessity, and who use them with reckless abandon and little concern for other road users. I have also witnessed people riding e-scooters on pavements, through parks and in many other areas where they are not permitted. This would appear to be supported by further research conducted by the Department of Transport which has determined that by far the largest demographic of e-scooter user casualties over the year to June 2021 are aged between 10 and 19 (207 male and 50 female). Given that riders are meant to be at least 18 years of age to use an e-scooter, this statistic is particularly worrying and suggests that the legal use of e-scooters is not being very well regulated.

With helmets not being provided with each e-scooter and the logistics of doing so no doubt insurmountable, just as is the case with “Boris bikes”, they can be easily used without helmets if the rider either does not have their own or chooses to use the e-scooter without one.

 

Here To Stay?

The initial trial period for e-scooters, which is being run by TFL, is due to come to an end next month and a decision will then be made as to whether to continue with or discontinue the scheme. No doubt the Department of Transport’s research on accidents involving e-scooters which will be updated to the year ending June 2021 will be taken into consideration when making this decision, but as with any new scheme, there have undoubtedly been some major teething problems and the high number of accidents and serious injuries suffered in these accidents must be a cause for major concern.

How safe is the emergency department?

NHS Resolution reviews Emergency department claims

As part of their ongoing reviews, NHS Resolution- NHSR (in essence the department in the NHS dealing with litigation claims) has published a series of new reports detailing cases and events that occur in emergency departments.

Their hope is that they can identify common issues with a view to reducing incidents of negligence.

Clinical negligence claims associated with emergency departments in 2020 and 2021 accounted for 11% of the total number of claims that were notified. They also account for 5% of the total estimated value of all claims, the third largest group of claims.

NHSR looked at three categories of claims: (a) high-value claims, those in excess of £1 million, and fatality claims; (b) missed fractures; and (c) hospital-acquired ulcers and falls. The valuations of the claims varied significantly but these were the most common incidents.

High-Value Claims

In the high-value claims, missed diagnosis was a key theme common to all of the incidents and was particularly pertinent for spinal and cerebral injuries. With the fatality claims, there tended to be a misdiagnosis. These would certainly be areas of practice in which claimant clinical negligence lawyers are commonly consulted.

Interestingly in about half of the high-value claims, there was evidence of an incident report and a complaint but only 12.5% of the cases had actually been reviewed in line with the recommended serious incident process. In short, the opportunity to learn from them had been lost somewhat.  Despite the assurances of the NHS that they will review serious incidents, this clearly had not occurred.

The other issue was that there seemed to be a lack of documented complete examinations (particularly neurological) and in some cases a failure to perform the right diagnostic test. There are also of course several cases where the diagnosis was delayed. Those delays then had serious consequences as many critical conditions are time-sensitive, needing a senior review and referral to appropriate specialists.

These were claims that arose pre-Covid although their ultimate settlement may have been recent. Therefore, although the assumption might be that Covid and resulting staff absence might be a pertinent factor, it is not relevant here.

Common Themes

The number of cases examined was relatively small in terms of statistical analysis but nevertheless, there were some common themes, and these would be reflected in the everyday practice of clinical negligence lawyers working on behalf of claimants. History taking, recording examinations, negative findings and missing documentation are the common factors. Following on from that, there are failures in communication and referral delays.

The NHS has taken some time to look at how they can deal with these matters and what individual factors may impact on decisions made such as fatigue, distraction, poor communication and so on. They have also argued that there should be proper facilities for imaging within the emergency departments throughout the country and some more multidisciplinary training.

Sadly however, one of the conclusions of their report is that over the last three years NHS Resolution have undertaken a number of these reviews over various specialities but the themes identified highlighted a very similar range of contributing factors. In short, they are not quite reinventing the wheel, but the cynics might argue that if these issues had been raised before they had an opportunity to correct them.

There is nothing in the NHSR report that comes as any surprise to any claimant clinical negligence lawyer. I have several cases dealing with a clinical negligence in the emergency department (ED) and quite often it is delay, poor documentation and failing to communicate that causes the difficulties. Unless the NHS sets in place the protocols and complies with them, and indeed gets the proper funding to do so, there will always be these issues arising. It is not clear how many NHS ED staff not only have access to this report, which is in the public domain, but will have the opportunity to review it and apply some of its points and conclusions to the work that they do. It is one thing to produce the work, it is quite another to have an effect with it. It is to be hoped that the NHS Resolution gets the opportunity to discuss these issues with practitioners in the field.

Education

For claimant lawyers, the reports confirm that the issues about which we have been complaining for many years and how little progress appears to have been made. Negligence claims and complaints are an obvious source of material for educational purposes. Most claimant clinical negligence lawyers would hope that these reviews actually start to achieve a reduction by being are utilised properly by practitioners in the various departments.

Until such time as these depressingly repetitive problems are considered and protocols are put in place to ensure issues are reviewed properly, claimant clinical negligence lawyers will continue to see clients who have suffered as a result. The tragedy is that the educational material is available, but the will and resources needs to be there to make changes. It is in everyone’s interests that the NHS does so.

Tech client receives damages of over half a million

I recently concluded High Court proceedings for a client who was formerly a top executive at a one of the world’s biggest internet companies.

Following injury in a road traffic accident in 2017 my client underwent major surgery to his leg. He had a top legal career before this, working at leading law firms. In recent years he had worked in-house at some of the world’s biggest telecommunications and web-based companies.

Lost Earnings

My client’s previous solicitors had not instructed rehabilitation providers; his return to work was rushed and his employer offered limited assistance. After little progress had been made with the claim, my client grew unhappy with his legal advisors and instructed Anthony Gold. I have considerable experience in handling cases taken over by other firms. Despite it being some years since his injury, I was able to secure interim payments on account of his damages to pay for the further treatment needed and reimburse to my client some of his considerable lost earnings.

It is possible to consider a claim under employment law should an individual be treated unfairly in their return to work following serious injury. In this instance my client had taken advice and left his employment for a new job, having entered into a compromise agreement, prior to my involvement. The question was, to what extent was he entitled to future loss of earnings on account of his injury.

I took advice which confirmed that my client’s claim was not prevented by the compromise agreement he has entered into. Following this it was necessary to understand my client’s remuneration package which was made up of income from his salary but also bonuses and share options based on company performance. I instructed a forensic accountancy expert to establish my client’s likely earnings but for his accident, which were considerable. It can be difficult to get the Court’s permission for such evidence on account of the cost, but it was secured on this occasion.

The difficulty is that the Court would not award my client’s lost earnings unless it could be established through evidence that absent the accident he would have stayed in his previous role, or a similar one. My client had already left and secured an insurance position earning considerably less money. It was therefore necessary to secure evidence from his former employer in support of the claim that he would have remained in their employment but for the accident.

Obtaining Evidence

I obtained my client’s personnel and occupational health files as part of my investigations. I also obtained witness statements from several of his former colleagues including those working alongside my client, in the most senior positions in the company at the time.

Some of the evidence was favourable to my client and some not, as it concerned his likely longevity in his role. That was, to some extent, expected, given that his employer was one of the world’s fastest growing companies with a high turnover of talent, as people tended to remain in their roles for a limited number of years before moving on.

Counsel had advised throughout. As part of my pre-trial strategy I considered it important to instruct Leading Counsel to advise on the likely outcome at Court. After the evidence was tested in conference it was acknowledged that the Court would likely consider the picture complex and could have decided the important issues either way.

As is usual in high value litigation claims the parties sought to discuss matters on a without prejudice basis before incurring the considerable costs of trial. Several of the insurers’ offers were refused until a compromise was reached which was to my client’s satisfaction. Aside from the issue of having to change jobs my client thankfully went on to make a reasonable recovery from his injuries with only minor issues ongoing.

Changes affecting personal injury claims from April 2022

April is typically a month for changes in the legal landscape, including amendments and updates of the Civil Procedure Rules (CPR) and April 2022 is no exception.

There are quite a few changes taking place, including but not limited to the following:-

1.New claims to be issued in the county court usually up to the value of £50,000 on or after 4 April 2022 need to be issued online rather than on paper using the “damages claims portal”. This is following amendments to Practice Direction 51ZB, effective from 4 April 2022. Users are required to register themselves to the MyHMCTS platform in order to use the portal.

Whilst it is expected that solicitors instructed by insurers will be aware of the changes, notice of claims being issued online are required to be given so that defences may also be filed online.

Failure to issue online may result in sanctions, which will be at the court’s discretion. There will no doubt be all the teething issues that come such technological changes.

2. The Civil Procedure (Amendment) Rules 2022 are effective from 6 April 2022 and include changes to:

a) The small claims track, with the “small claims limit” for non-road traffic claims increasing from £1,000 to £1,500 for accidents which occur on or after that date or where the date of knowledge is on or after 6 April 2022. However, this will not apply to “vulnerable” road-users such as pedestrians, cyclists, motorcyclists and horse riders. The changes also do not apply to claims involving children. In practice, this change may not affect vast majority of cases. Procedurally, in view of the changes which have affected the personal injury claims industry over the last few years, for most practitioners it may mean taking extra care, for instance when drafting a claim form for instance to specify that the value of the claim exceeds £1,500 to avoid any technical challenges.

b) CPR Part 10 in relation to Acknowledgement of Service, removing the Practice Direction but consolidating some of the text in the substantive rules.

c) CPR Part 12 related to Default Judgment, also removing the practice direction and incorporating some of the text in the substantive rules.

d) CPR Part 39 to widen the application of granting anonymity to a “person” rather than the current “party or witness” (rule 39.2 (4) if the court thinks this is fit for securing a “proper” administration of justice following the case of Brearley v Higgs & Sons (a Firm) [2021] EWHC 1342 (Ch).

e) Part 47 with regard to the powers of an authorised costs officer, for purposes of clarification following issues highlighted in the case of PME v Scouts [2019] EWHC 3421 QB and PME v Scouts [2019] EWHC B10 where it was concluded that an authorised court officer has no jurisdiction to undertake a provisional assessment of legal costs.

As can be expected there are other changes being proposed to try and simply the CPR and which are currently under consultation.

Simplification of any rules that help further the proper administration of justice can only be a good thing.

Personal injury claims and adverse weather conditions

As a result of Storm Eunice, on Friday 18th February 2022, most of the UK was placed on a Red Weather Warning, indicating a significant danger to life as extremely strong winds provided the potential for, amongst other things, damage to structures and flying debris.

There is a common misconception that if you are injured as a result of bad weather conditions, then it is an “Act of God” and you are unable to pursue a claim for damages. This is not always the case, but of course, this depends on the individual circumstances.

The law is clear that, if you’ve been hurt because someone else was negligent then you are entitled to damages and to recover your losses.

To establish negligence for personal injury sustained as a result of bad weather conditions, the main things to consider are:

  • Did all those involved act appropriately?
  • Were precautions taken in a timely manner?
  • Did the person or organisation against whom a claim is contemplated fulfil their legal obligations?

There are of course many causes of personal injury resulting from adverse weather conditions, but three of the main ones are considered below.

Being hit by flying debris

During high winds there is a risk of flying debris causing injury. If there is an advanced warning of serious weather threats, then individuals and/or local authorities will have a duty to ensure that all items on their property are secured, especially if bad weather conditions are expected. If they have a “reasonable time to act” and fail to do so, and this results in personal injury, they may be negligent. If they can show that they took reasonable steps to secure items on their property, then they are likely to have a defence to any action brought against them.

Working in unsuitable weather conditions

Employers have a general duty to take reasonable care for the safety of their employees and to carry out a suitable and sufficient assessment of the risks. For example, an employee should not be required to climb a ladder outdoors if there are high winds. If you are made to work in unsafe weather conditions and you suffer an accident as a result, then there is a potential to claim for damages.

Road traffic accidents

Road traffic accidents can be caused by several reasons. Factors that can contribute to road traffic accidents in bad weather conditions are:

  • Visibility
  • Poor road conditions
  • Snow/ice
  • Other motorists’ behaviour
  • Roadside debris

Under Section 41 of the Highways Act 1980, there is a duty on the highways authority to ensure, as far is reasonably practicable, that safe passage along the highway is not endangered by snow or ice. If there are advanced weather warnings of snow and/or ice, then the highways authority may be negligent if they fail to properly grit a road to ensure safe passage.

Motorists have a duty of care to all other road users. This means that you are obliged to take reasonable care to ensure any action you take, or any action you fail to take, does not cause injury to another road user. For example, in adverse weather conditions, if visibility is poor, or a road is badly flooded, then a sensible driver would either avoid the area if possible or proceed with extra care. Those who simply proceed at normal speeds, causing accident and injury, would have limited scope to claim that the weather was responsible.

When establishing whether you will be successful in bringing a claim for personal injury caused by bad weather conditions, you will also need to consider contributory negligence if you have knowingly put yourself at risk. If you are aware of adverse weather conditions, especially if the Government has issued a bad weather warning, then those who venture out may do so at their own risk. You may therefore struggle to prove full liability for any injury sustained.

Early Settlement Offers – Can They Ever Be Advantageous?

One of my primary objectives when acting for clients is to ensure that they are compensated properly for the injuries they sustain.

For this reason, it is not ideal when insurers make very early offers of settlement, especially in cases of substantial value. If an offer is made before medical evidence is complete, a solicitor must advise a client on a “best guess” scenario – will the compensation that is offered be enough to compensate that client for any ongoing pain or lasting complications from their injuries, and will it cover all necessary treatment and care costs going forward?

However, in some limited circumstances, an early offer of settlement can be of benefit to a claimant.

My client Mrs M was a passenger in a car being driven by her husband on a country road. Another driver tried to overtake the car on approaching a hill. There was no clear line of vision. An oncoming horsebox came into sight and, to avoid colliding with the horsebox, the other vehicle drove into the side of Mrs M’s car. The force of the action sheared off the back wheel and axle and the car careered into the bank. Very sadly the other driver was killed in the collision.

My client who was 90 at the time suffered significant injuries including a fractured skull and spinal fractures throughout her upper and mid spine. She was in hospital for 3 weeks. She developed BVVP (a form of vertigo).

The insurers agreed to fund an Immediate Needs Assessment (INA) under the Rehabilitation Code 2015. This enabled me to instruct an independent case manager to visit my client and prepare a report making recommendations for rehabilitation to support my client in her recovery.

The INA report gave some costings for the initial recommended rehabilitation, (so for example it recommended initial assessments with a pain management specialist, neurologist, neuro-physiotherapist and psychologist). It also gave some recommendations for the initial care support my client would require in her recovery.

On disclosure of the report, the insurers made an early offer to settle the claim for £75,000.

An INA is designed to support a claimant in their recovery, not to enable the claim to be valued. The usual progression of a personal injury claim is that, when a client has made some recovery from their injuries (hopefully with some extensive rehabilitation funded by the insurers), they are seen by various independent medical experts who prepare reports which give an opinion and prognosis for the injuries sustained. Those reports enable a solicitor to value the claim.

At such an early stage in Mrs M’s claim, I was unable to advise her with any certainty that the offer would be enough to compensate her fully. We simply didn’t know how fully she would recover from her injuries and what investigations, treatment and support she may require long term.

However, Mrs M was 90 at the time of the accident, and sadly her husband had recently been diagnosed with terminal cancer. Whilst there was a risk that she would be undercompensated for her injuries by accepting this offer, given that it would bring her claim to a swift conclusion (and we had the INA for her to follow up with any recommendations made for her treatment using the compensation she received), she was keen to explore early settlement.

Following negotiations with the insurers, I was able to secure a six-figure settlement for my client which she was happy to accept.

Serious Injury Claims – What You Should Consider

If you or your loved one have suffered a serious injury (also sometimes referred to as a “catastrophic injury”), not only would that have been devastating, but it will also be life changing. From an accident at work, to a road traffic collision, there is no way of planning ahead for a serious injury. Whilst compensation cannot change what has happened, it can be vital in helping you get on with your life and in helping you obtain the care and assistance, and rehabilitation that you may require.

These serious injuries will have an immediate and enduring effect on you. We understand the short, and long term impact a major injury can have on an individual and their family, and therefore, we work with specialists to establish quickly how the injury has affected you and use our experience and expertise to win serious injury claims on behalf of our clients.

Our expertise and understanding of the complex legal system means that we can identify very early on in a claim what is going to be involved in a serious injury compensation claim. Importantly, we also understand and the significance that bringing a claim has for the injured party and their family.

Therefore, not only do we consider the monetary compensation but also other factors such as short to long term physical, social and financial impact. Our objective is to build a case for compensation that considers the long-term picture, and other factors such as potential home adaptations, private medical care, immediate care needs, and rehabilitation support.

 

There are other important factors we keep in mind such as:

A personal approach: We focus on giving a personal approach from the outset. We will visit you at the hospital, home or even at a rehabilitation centre. We prefer seeing our clients face to face which we appreciate enables a relationship to be built, especially when you are going through a traumatic time.

The claims process: We assess your claim from the outset to identify who is responsible for your accident and we will ensure all the relevant evidence is gathered in support of your claim. When handling a serious injury claim, we always work hard to ensure a dedicated and experienced case manager is appointed. This case manager will assess your rehabilitation needs up to the conclusion of your legal claim, and beyond where necessary.

Expertise: We have acted successfully to secure compensation involving (but are not limited) to:

  • Serious neurological conditions leaving injured clients with disability, paralysis;
  • Amputations;
  • Loss of limbs;
  • Severe head or brain injuries;
  • Spinal cord injury.

Interim payments: We aim to secure an initial interim payment as soon as possible after the start of your claim, and then at intervals throughout the claim before the full and final settlement payment is made. We know and appreciate these payments help to alleviate the financial burden especially when you are unable to work, or in circumstances where private treatment may be necessary.

When making a serious injury claim, it is important that you find a solicitor with extensive experience and knowledge of the complex process involved in this type of claim. This includes a sound understanding of the Rehabilitation Code, the importance of assessing the current, and potential future needs, and dealing with other experts when running a successful claim.

If you have been injured in a way which was not your fault, and your injuries are extreme, please contact our Personal Injury Team. Our Team is made up of specialist Personal Injury Lawyers who have many years of specialist experience in dealing with such cases.

How does honesty (or lack of it) affect an injury claim?

The issue of fundamental dishonesty continues to be raised in personal injury and clinical negligence claims.  Increasingly we see defendant insurers and the NHS seeking to try to establish some dishonesty to either achieve the dismissal of the claim altogether or to secure the recovery of some costs.  This provision is known as section 57 of the Criminal Justice and Courts Act 2015 (“S57”).

Although an explanation of fundamental dishonesty is set out in the statute it is a movable feast in case law.  As more defendants seek to raise the issue, so cases become more varied.  Each case is very much decided on its own merits but there are some common themes. The consequences can vary from costs and compensation penalties to imprisonment.

It is well known now that claimants’ solicitors should always advise clients of the possibility that the defendants may review or seek access to their social media posts, particularly where there are allegations of illnesses on holiday.  In the case of Lactatemia Shipping Company Limited v Sue & Others, the claimant allegedly fell ill on holiday due to food and/or drink consumed at a hotel.  This illness apparently was so severe as to ruin their holiday.  Once home, a claim was commenced.  The defence was supported by social media posts which included favourable comments about the hotel and the overall experience. It seemed to undermine the entire case. The claimants therefore discontinued the claim. The claimants were found to be fundamentally dishonest.  The claim of course had been discontinued but there was an application for costs.  There were some issues as to the solicitor’s role. It didn’t appear that checks on the client’s social media (which is a particular feature of travel sickness claims) had been undertaken and some documents appear to have been hidden or deleted.  An application for costs ultimately cost £37,000.

A recently reported case in the national newspapers of N K  v Hull NHS Trust indicated  problems in  a claim valued at £7.3 million. The claimant alleged significant mobility issues. The defendant relied on the fact that the claimant was taking a performing arts degree and there were surveillance video and social media posts on her feed indicating that she was moving without difficulty.

In the case of A P recently the claimant alleged mobility issues whilst his Twitter account presented an overall impression of his running fitness and timings.  He was subject to surveillance evidence, and he was found to be fundamentally dishonest.  All damages to which he was entitled were set off against the liability to pay the defendant’s costs.

However not all dishonesty is equally important in determining whether a claimant is deemed to be fundamentally dishonest, a fact which is not always considered by defendants who seek to extend the ways in which this can be relied upon.

S 57 indicates that the claim is deemed to be fundamentally dishonest if the dishonesty goes to the root of either the whole claim or a substantial part of it.  The court considers there is a public interest in identifying false claims and a claimant can be found to be fundamentally dishonest if they have acted dishonestly and this has substantially affected the presentation of the case.   It does, however, have to be relevant to the issues in the case.

In a case that bucks the trend to find claimants fundamentally dishonest, in Cojanu v Essex Partnership University NHS Trust [2022] the trial judge’s findings of fundamental dishonesty were overturned on appeal.  The claimant had been the perpetrator of a crime which resulted in an injury which was negligently managed. He lied about the cause of his injuries and denied the crime. It appeared that the claimant had not been honest about how the injuries had arisen.

However, the appeal judge considered that the mechanism by which he received the injuries was irrelevant to the success in the clinical negligence claim.   He did not need to prove how he had become injured.

It was accepted that initially the claimant did not say anything about how the injuries arose and at a later time he lied about it to the court.  He was certainly being dishonest in relation to his crime.  However, the mechanism by which his finger was injured was not relevant to the negligence.

It was not the case that the claimant’s credibility was irrelevant – it most certainly was.  However, his dishonesty on that specific issue was not relevant to the evidence in a civil claim.  It did not affect the liability part of the trial because liability had been determined on expert evidence and no criticism could be made of that.

In overturning the judgement the judge made the following comments:-

“First all citizens are equally entitled to come before the court in civil claims.  Those with a long list of previous convictions and those without.  Some will have better creditability than others but this is not a credibility barrier… barring those with previous convictions from bringing civil actions.  ….. negligent defendants must take their victims as they find them and not all victims are angels. … the primary rationale for Section 57 is to stamp out fraudulent and dishonest claims not to bar unrepentant criminals from civil law.”

In short, this case confirms that the fundamental dishonesty has to be pertinent to the issues in the case, the presentation of the case and the value of the claim.  If it is not, the credibility of the claimant may still be affected.  It does not necessarily mean however that they have been fundamentally dishonest in relation to their civil claims.

The reality is that all claims where fundamental dishonesty is finally alleged, will be judged on their own merits, being the circumstances of the case and the claimant’s account.  Solicitors can be held liable if they have not completed proper checks on their clients but ultimately for claimants this can be a very costly exercise if they are found to be fundamentally dishonest.  The increase in allegations of fundamental dishonesty is significant anecdotally.  Certainly, as a clinical negligence practitioner I am more aware of the possibility than previously.

All claimants should be advised of these issues at the start of a claim and on an ongoing basis.   In truth it is a tiny number of claimants who knowingly do not present an accurate view. However, there is a continued attempt by defendants to aggressively pursue these issues and to extend the number of cases and circumstances by which people can be deemed to be fundamentally dishonest.  Claimants and their lawyers have been warned.