Fundamental dishonesty decision despite a finding of duty of care breach
Fern v TP Transport Ltd & Huws Gray Ltd [17.04.19]
In this case, the claimant’s personal injury claim for damages in excess of £100,000 was dismissed as the judge did not believe the claimant’s version of events. Following further submissions a finding of fundamental dishonesty was made and the claimant was ordered to pay 75% of the first defendant’s costs despite the claimant establishing that they had breached their duty of care.
Mr Fern (the claimant), was employed as a HGV driver by our client, TP Transport Ltd (the first defendant). On the 27 April 2015, the claimant was delivering large bags of plaster on pallets to Huws Gray Ltd (the second defendant). In the course of the pallets being unloaded, the claimant was injured when he fell from the lorry trailer.
It was the claimant’s case that one of the securing straps had become trapped under one of the bags of plaster. The claimant said that he had to climb onto the lorry bed and on to the load in order to release the strap. The claimant also asserted that the second defendant’s fork lift truck driver specifically confirmed that the claimant could climb upon the lorry.
On behalf of the first defendant, we challenged the claimant’s version of how the accident occurred and denied that there were deficiencies in the training provided to him. We contended that a pole had been provided to use in such circumstances removing the need to climb onto the lorry.
At trial, the court determined that the first defendant had breached their duty of care to the claimant by not providing proper training or preparing an adequate risk assessment. However the court went on to find that the these breaches were not causative, as the claimant knew that he ought not to have climbed on the back of the trailer but did so anyway. Furthermore, the court rejected the claimant’s explanation as to why he climbed on the load and also rejected the claimant’s contention that the second defendant’s fork lift truck driver agreed that the claimant should climb up.
Following the preliminary findings of fact the parties made further submissions in respect of fundamental dishonesty and costs. The court agreed with the defendants’ assertions that the claimant had been fundamentally dishonest. As such, the claimant lost his QOCS protection and was ordered to pay the first defendant’s costs, which were limited to 75% to reflect the fact that the claimant had proved breach of duty of care against them.
This case highlights that a breach of duty is not the end of the matter, the breach has to be causative. Also, although allegations of fundamental dishonesty were not pleaded (as there was insufficient evidence to so), the claimant’s veracity was challenged and he made a very poor witness, therefore leaving the door open. As such, once findings of fact were made, including the finding that the claimant had not been honest about how the accident happened, the judge accepted further submissions from the representatives of the parties as to fundamental dishonesty and costs.
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