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High Court dismisses £600k+ damages claim brought by ex-employee against council over fundamental dishonesty

A High Court Master has thrown out a £600,000-plus damages claim for personal injury and loss of earnings brought by a former employee of the London Borough of Haringey after she was assaulted by a service user with learning difficulties in a facility operated by the council.

Liability had been agreed on the basis that the claimant would receive 75% of damages to which she was entitled over the incident, which took place in April 2014.

However, in Smith v London Borough of Haringey [2021] EWHC 615 (QB) the defendant council contended that the claimant had been fundamentally dishonest in the presentation of the claim with the result that it should be dismissed in its entirety pursuant to section 57 of the Criminal Justice and Courts Act 2015.

The claimant’s case before Master Cook was that as a result of an injury she suffered to her lower back in the 2014 assault she had gone on to develop chronic pain in her lower back and that as a result of this pain she was suffering from low mood and depression, all of which meant she was unable to work.

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In particular she complained of a pain in her pelvic area described in her schedule of loss as follows:

"The Claimant has experienced pain in her Pelvic. This is something she has never had. Claimant has not experienced limitations or had experienced any back problems prior to accident apart from when she had a whip-lash in her neck, which was very temporary. The Claimant has never had or experienced any limitations lower, pelvis and legs at any time previously. This was caused by the attack."

The claimant claimed general damages and loss of income to her intended date of retirement at the age of 67 in 2036 set out in her schedule of loss at over £624,000.

Haringey accepted the claimant was assaulted by a service user in 2014. However its case was that she suffered a self-limiting soft tissue trauma responsible for lumbar symptoms for three to four months and an injury to her right wrist that fully resolved within two to three months.

The defendant council alleged seven particular features in support of its contention that the claim advanced by the claimant was fundamentally dishonest. These included that the claimant had sought to conceal her pre-accident history of back problems, sought to understate the consequences of a road traffic accident in April 2013, and there were inconsistences between the level of disability reported and the appearance of the claimant on video surveillance.

At the conclusion of the claimant's evidence on the second day of the trial Master Cook pointed out to her that the claim set out in her schedule of loss was "clearly overstated".

He said: “To her credit she recognised that the sum presented for her annual loss was too high as it included some extra payments and was expressed as a gross sum, she blamed this on her former solicitor and on this issue I accept her explanation. She accepted that her annual loss was more properly stated as a net figure of £25,039. She did not however accept the medical evidence she had produced in anyway undermined her claim and was adamant she wished to proceed with her claim for loss of earnings until the date of her retirement which would amount to approximately £241,459 on the amended figures.”

Both the claimant and the defendant had put forward evidence from orthopaedic and psychiatric experts.

Assessing the claimant’s damages, Master Cook said that on the basis of his findings the expert evidence with one minor exception only supported an award of pain suffering and loss of amenity. “I find that the Claimant suffered a self-limiting lumbar soft tissue injury to her wrist and lumbar spine which fully resolved within three months.”

Master Cook assessed a sum of £2500 for the claimant's soft tissue injury, and a sum of £2300 for her wrist injury. Allowing for overlap he would award the total sum of £3,200 general damages.

But he added: “Any pain the Claimant currently experiences cannot have been caused by the 2014 incident and there is absolutely no evidence to suggest that the diagnosis of soft tissue injury made at the time was wrong. It follows she can have no claim for loss of earnings as she continued to work until she was made redundant in July of 2017. There is a small claim for damage to clothing in the sum of £250 which I shall allow.”

Before interest the claimant was entitled to damages of £3,450, Master Cook said. The damages fell to be reduced by 25% in accordance with the agreement on liability, that is £2,587.50.

On the issue of fundamental dishonesty, however, Master Cook said that in his judgement the claimant had been both inconsistent and knowingly misleading in her accounts to the experts and to the court.

“She has demonstrated a willingness to manipulate the facts to suit her arguments. No proper explanation has been provided for the way in which this claim developed from a simple low value personal injury claim into a claim for serious injury worth over £600,000.”

He said he suspected part of the reason might well be because the claimant was in financial difficulty, there being numerous references to this in the records.

“While the Claimant has sought to blame her solicitor for the way in which her claim was initially presented she has adopted, developed and maintained her claim while acting in person,” he added.

“In my judgment she has done so deliberately in order to bolster what she saw as an important element of her claim, the claim for loss of earnings. Given my findings there is simply no room to suggest that unconscious exaggeration may be at work.”

Master Cook said he had no doubt that the claimant now experienced pain in her spine and pelvic area but concluded that this was a result of her degenerative condition which had nothing to do with the 2014 incident giving rise to the claim, “a fact of which I have no doubt she is well aware particularly as it has been very clearly explained by the orthopaedic experts”.

He said it followed that he was satisfied on the balance of probabilities she had deliberately exaggerated her disability to the court and to the experts. “The purpose of the deliberate exaggeration was to support her claim for loss of earnings.”

Master Cook said: “Applying the test in Ivey v Genting Casinos Limited I find the Claimant's deliberate exaggeration to be dishonest. It follows I am satisfied that the Claimant is entitled to damages but that she has been fundamentally dishonest in relation to her claim. In the circumstances I am required to dismiss the claim unless I am satisfied that the claimant would suffer substantial injustice.”

Master Cook said: “I remind myself of the remarks of Julian Knowles J in Sinfield, section 57 of the Criminal Justice Act and Courts 2015 was intended to be punitive in character and ‘substantial injustice’ must mean more than the fact that the Claimant will lose her damages.

“The Claimant has pursued this claim in the face of overwhelming evidence which she has deliberately but ineffectively sought to counter. The fact the Claimant may be in financial difficulty is no excuse. The Defendant has been put to great trouble and expense to rebut the loss of earnings claim and the Claimant's exaggerated assertions of disability.

“Ultimately the Claimant has only herself to blame for this situation and I am not satisfied that she would suffer substantial injustice by a result that Parliament clearly intended when enacting this legislation.”

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