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Clyde & Co and LV=, together with Charlotte Reynolds of 12 Kings Bench Walk, have successfully defended a personal injury claim, which was unlimited in value when issued in July 2019.
The matter was heard before His Honour Judge Harrison at Cardiff County Court from 5 to 11 January 2023, with judgment handed down on 21 March 2023.
On 22 July 2016, the claimant was stationary in her vehicle, when a van being driven by the defendant collided with the rear of the claimant’s vehicle. Liability was not in dispute.
The claimant, Claire Thomas, a qualified but non-practising lawyer, alleged that she sustained soft tissue injuries to her neck, shoulders and back, concussion injury and that she had developed secondary fibromyalgia syndrome with hemiplegic migraines. She is also said to have suffered psychological consequence, including flashbacks, travel anxiety and low mood.
Following disclosure of the surveillance and joints statements from the experts, the claimant’s case was advanced on the basis that a pre-existing Somatic Symptom Disorder (SSD) had been aggravated by the trauma. If the claimant could establish an aggravation of SSD, then she could receive damages based upon her perceived disability, even if not organically inexplicable.
The court found that her case was unusual as despite extensive investigations by the experts, no expert was able to identify any organic cause for the continuing pain, save for an initial few months post-accident.
The question for the court was whether the claimant’s account of her symptoms was reliable, in which case SSD is the most likely explanation or that the claimant has a factitious disorder, or is malingering, in which case the claim must be dismissed.
The claimant was seeking significant damages for past and future loss of earnings, past and future care, and assistance.
The issue for the court was whether the disparities between the DWP evidence, medical reports, social media, and surveillance were of such a degree of variation of the claimant’s presentation that it cannot be explained by SSD - “the greater the variability of symptoms the less likely it is that the claimant’s condition is SSD”.
The claimant alleged that her mobility was severely restricted, and she reported to the claimant’s experts, and the DWP that even on a good day she could walk a maximum of 100 yards before stopping, that her standing was limited to 10-15 minutes, and that she always required a handrail on steps.
This was contrasted by her social media posts and one post in particular showed her standing behind a waterfall. Further investigation revealed that she had completed the Four Falls Trial in the Brecon Beacons, which is a 10k walk which took her four hours to complete. In addition, she took an optional strenuous detour down to Sgwd yr Eira falls, which has 170 steps and a rough, slippery path behind the waterfall, which was where the photograph on social media was taken.
There was also surveillance evidence where she was observed on numerous occasions walking beyond her claimed capacity, attending gym classes, and she was also observed using flights of steps without using a handrail – which include steps covered in snow and ice.
The claimant had also reported to the DWP that she struggled to go anywhere new alone; Dr Stephen Davies, psychiatrist for the claimant, administered the PHQ-9 rating scale for recent symptoms and she scored 22/27 representing a persistent lack of capacity for enjoyment. She also described low mood. She told the defendant’s experts that she avoided noisy places as she could not cope and that she had become socially isolated.
However, social media entries showed that she had attended weddings, various family events and a music concert at the Principality Stadium in Cardiff. There were trips to Copenhagen, Switzerland, Scotland, Venice and Rome (to watch the Six Nations Rugby) and Saundersfoot, Pembrokeshire. She volunteered at Leeds Festival.
It was the defendant’s position that the claimant offered no credible explanation for any of the gross inconsistencies. The claimant contended that the disparities were explicable by a variation in symptoms and good days/bad days.
HHJ Harrison, in his detailed judgment, set out a chronology of the case, cross referencing to the benefits records, social media, medical evidence, witness evidence and surveillance evidence.
Following which he determined, “Having conducted the analysis set out above I am driven to the conclusion that the defendants have established on the balance of probability that the claimant has not presented a truthful account of her symptoms, to the medical experts in this case and/or to those to whom reported the extent of the same following the accident. I am also satisfied that in so doing the Claimant’s untruthfulness went to the heart of the claim, and as such I must conclude that she has been fundamentally dishonest. The law requires me therefore to dismiss her claim.”
As required, the judge went on to assess the value of the claim, that the claimant had established as honest, which was assessed at a total of £9,918.75. This sum will be deducted from the costs payable by the claimant.
As with all cases of fundamental dishonesty, this is a case that hinged on the claimant’s credibility and the specific facts of the case.
In order to reach a conclusion that a claimant has SSD, a court would have to conclude, in general terms that their account is reliable. Without a diagnosis of SSD, in this case the court was left with factitious disorder or malingering as the only available conclusions and each of those involve conscious dishonesty as to require the court to make a finding of fundamental dishonesty.
This case highlights the importance of obtaining all records, (DWP, medical records, social media etc), and conducting a thorough chronological analysis of the entries, cross referencing with the medical and witness evidence. This, together with surveillance evidence, is vital in illustrating any gross disparities between the claimant’s presentation of their symptoms to the medical experts and their actual abilities.
In this case, a photograph of the claimant leaning out from behind an unidentifiable waterfall was one small post within hundreds of pages. Fortunately, further research confirmed the location as “The Four Falls Walk”. Part 18 questions were served on the claimant asking her to confirm that the location of the photograph was Sgwd yr Eira and thereafter details of the nature of walk and maps were obtained from the Brecon Beacons National Park to demonstrate the strenuous nature of the trek. This small post and the “Four Waterfalls Walk” formed an important part of the defendant’s case.
Whilst veracity is a matter for the court, where there are gross disparities between the claimant’s reported symptoms and observed abilities within social media evidence, or surveillance, and no organic cause for the claimant’s symptoms, the medical-legal experts should be asked to consider whether there are any other explanations for the inconsistencies other than SSD, such as Factitious Disorder or Malingering.
It is also vitality important that the experts have all the documents and that they have seen and reviewed everything.
This is an outstanding outcome for LV= and it demonstrates that they do not tolerate dishonesty, or insurance fraud and will protect the interests and premiums of their honest customers. The case was led by Vanessa Brooks, Senior Associate (FILEx).