Fundamental dishonesty: Is surveillance always necessary?

In the case of Carol Sammut v The Dudley Group NHS Foundation Trust (2019), Deputy High Court Judge Allen dismissed the claimant’s claim against the…

Overview

In the case of Carol Sammut v The Dudley Group NHS Foundation Trust (2019), Deputy High Court Judge Allen dismissed the claimant’s claim against the NHS Trust as he was unable to reconcile the inconsistencies in the claimant’s evidence, describing them as “untruths designed to augment her case”.

Background

This clinical negligence claim arose as a result of a delay in bowel surgery being performed in February  2014. It was admitted that the duty of care the Dudley Group NHS Foundation Trust owed to Ms Sammut (the claimant) had been breached and that some loss occurred as a result. However, the extent and nature of the injury was disputed, alongside the extent of damages claimed, which included future losses in respect of loss of earnings, pension and care.

At trial Judge Allen marginally preferred the claimant’s case that the breach had caused loss and determined she would normally have been awarded damages. The claimant’s schedule of loss totalled £508,468.14. The claimant had made an assertion in her factual evidence and during cross examination at trial, that she had a job offer lined up, but due to the events giving rise to the claim she was unable to accept the role and therefore suffered loss of earnings and pension. However, no documentary evidence of the proposed job offer was produced. The claimant also made assertions about her inability to have a social life, undertake certain activities and eat certain foods.

Upon assessment by the defendant’s pain expert, concerns surrounding the claimant’s truthfulness about the extent of her losses were raised and investigations were commenced. The claimant’s social media profiles revealed photographs of the claimant visiting pubs, restaurants, social clubs and dance venues, contrary to what she told both her own and the defendant’s medical experts. On this occasion, no surveillance was undertaken but rather the defendant relied upon the significant social media evidence.

As a result the defendant alleged that the claimant was fundamentally dishonest when the claim proceeded to trial. At trial, Judge Allen agreed with defendant’s barrister, Mr David Callow (12 Kings Bench Walk), that there was no evidence to substantiate an earnings and pension claim in excess of £130,000 as the supposed job offer “did not exist”.

Applying case law surrounding the interpretation of section 57 of The Criminal Justice and Courts Act 2015 (London Organising Committee of the Olympic And Paralympic Games (in Liquidation) v Sinfield [2018] EWHC 51 (QB) and Ivey v Genting Casinos Limited (t/a Crockfords Club) supra [2017] 3 WLR 1212]) Judge Allen concluded that, taken together, the generalised picture of dishonesty and the “clearly dishonest” loss of earnings and pension claim, went ‘to the root’ of the claim. Judge Allen was obliged to dismiss the claimant’s claim in its entirety.

The claimant was ordered to pay the defendant’s costs on an indemnity basis. In accordance with the application of Section 57, the defendant can enforce its claim for costs against the claimant over and above the level of damages she would have received, but for the dishonesty, which Judge Allen assessed at £123,540.46.

Comment

This was the first case of its kind taken to trial by NHS Resolution and the defendant NHS Trust where no surveillance evidence had been obtained to prove the claimant’s dishonesty. Therefore, it is reassuring to see the court take a robust approach against a fundamentally dishonest claimant, whose own evidence was so inexplicably untruthful. In taking a robust approach, hundreds of thousands of pounds of public funds have been preserved, rather than being diverted to a fraudulent claimant.

Whilst surveillance evidence is generally seen as the “gold standard” in proving fundamental dishonesty and always obtained where appropriate, this case demonstrates that courts are still prepared to be robust and make findings of fundamental dishonesty where the social media evidence is compelling, especially when there are inconsistencies in the claimant’s own evidence at trial. Of course, the importance of effective discovery of the vital evidence and proper presentation of the same to the court by both Weightmans solicitors and their intelligence team cannot be underestimated.

Rebecca Lawrence is a solicitor with over 15 years’ experience of handling claimant personal injury claims, including disease and deafness work, and defendant clinical negligence claims, working for both the private and public sectors.

Rebecca joined Weightmans’ Healthcare Team in Birmingham in 2016 and defends clinical negligence and personal injury cases on behalf of NHS Resolution and local NHS Trusts.

If you have any questions or would like to know more about our legal update, please contact Rebecca on 0121 616 6622 or rebecca.lawrence@weightmans.com or Sarah Hopwood, Principal Associate/Healthcare Fraud Lead on 0121 200 3484 or sarah.hopwood@weightmans.com

If you have any questions or would like to know more about our legal update, please contact Rebecca Lawrence, Solicitor, on 0121 6166622 email rebecca.lawrence@weightmans.com or Sarah Hopwood, Principal Associate/Healthcare Fraud Lead on 0121 200 3484 email sarah.hopwood@weightmans.com

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