Fundamental dishonesty and the litigant in person

Tess Garraway v Holland & Barrett Ltd [01.04.20]

Date published

26/08/2020

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The County Court at Brighton recently hosted the final chapter in the saga of Tess Garraway v Holland & Barrett Ltd, a public liability personal injury claim arising out of an accident in December 2013, with the judgment providing a useful reminder of the test to be applied when assessing fundamental dishonesty.

Background

The claimant was, at the time of the accident, a 63 year old singer and self-employed music teacher who had walked into and hit her face on a partially lowered shutter in one of two doorways to the defendant’s shop in the Arndale Centre, Eastbourne on 30 December 2013.

The claimant alleged negligence and breach of the Occupiers’ Liability Act 1957. Breach of duty was admitted by the defendant. The particulars of claim referenced a range of injuries including those to the head and back (concussion, loss of a left molar tooth, herniated disc at L5/S1 level, bulging discs at L2/L3, spondylosis, spondylolisthesis, PTSD and depression). Issues to be determined at trial were causation, contributory negligence and quantum of general damages for pain, suffering and loss of amenity only.

The claimant chose not to comply with an Unless Order made against her in relation to submitting a claim for special damages, and also failed to comply with a separate Unless Order in relation to joint psychiatric evidence and was limited to claiming for orthopaedic injury only.

The claimant, for the most part, acted in person (including at trial) although she was represented by solicitors pre-action, and instructed direct access counsel for the first CMC. This claim was challenging for the defendant to litigate, not only due to the complexities of medical causation, but also because the claimant issued plenty of (broadly baseless) interim applications which resulted in a limited Civil Restraint Order being imposed against her.

Establishing a successful defence – despite admitting a breach of duty

The successful defence of the claim, despite the admission of breach of duty, was achieved by developing a chronological timeline consisting of very detailed, forensic analysis and cross-referencing of the claimant’s lay witness statements, medical records, how she described her functional incapacity to the experts, and overlaying with the surveillance footage which was taken over two non-consecutive days, one of which was taken on the day of her appointment with the defendant’s orthopaedic expert.

In addition, the medical records were useful evidence both for what they did and what they did not contain. Here, the trial judge accepted that the likely reason why no back pain or any relevant symptoms were recorded in those crucial first two weeks, and no back pain at all until four weeks post-accident, was because the claimant was not suffering from any back pain or symptoms at that time. The overwhelming and repetitive absence of mention of back problems, while the claimant was actively and regularly seeking treatment for her other symptoms, wholly undermined her account and was a valuable guide to the truth.

‘Objectively dishonest’

The trial judge, in his judgment stated that “[the claimant] may not have recognised that she was being dishonest because she has become obsessed with this case, and with attributing her current medical condition to the accident. There is a considerable psychiatric element to this. Nevertheless what she has done was objectively dishonest, and in doing so, she has misled the experts. Nothing could be more fundamental in a personal injury claim of this nature than to give the experts a false impression of her condition.” The Judge went on to say that this “goes to the root of her case”.

This paragraph is a very important part of the judgment, because it recognises and affirms that subjectivity, in the sense of any claimant realising that what he/she was doing was dishonest by the standards of ordinary reasonable and honest people, is not the correct test (Ivey v Genting Casinos (UK) Ltd [2017]). Applying subjectivity to objective standards had the potential to produce the unhappy outcome that a claimant, who subjectively thought that their conduct was honest but who behaved in an objectively dishonest way, would effectively be judged by their own standards and not by the standards of the reasonably honest person.

Comment

Garraway is an important reminder of the proper test to be applied when assessing whether a claimant has been fundamentally dishonest; namely if what the claimant has said and done is objectively dishonest - and misrepresentation and exaggeration can be part of that definition – then the claim is fundamentally dishonest.

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