Manchester County Court 6th Oct 2017 (Judgement delivered 10th Oct 2017)
The Claimant brought a claim for personal injury arising from an accident at work on 26/04/12 when the crane he was working in began to shake violently, causing the Claimant to bang his head on the window and injuring his left shoulder. Liability was conceded pre-litigation.
It was accepted that the Claimant suffered an injury to his left shoulder caused by the index accident. However, the medical position was complicated. The Claimant was predisposed to venous thoracic outlet syndrome due to his muscular physique (having been an ice hockey player). The Claimant underwent a rib resection surgery in November 2014.
However, following the surgery the Claimant did not recover as expected and continued to complain of pain and restriction such that he could not work and was more or less housebound.
Unsurprisingly the Claimant had been placed under periods of surveillance. These, whilst showing the Claimant carrying moderately heavy items and moving fluidly, did not capture the Claimant undertaking heavy manual activity or working.
On 23/04/15 the Claimant issued a claim on the basis that he had not worked since the accident and was unlikely to be able to return to heavy manual work in the future.
The Defendants medical expert was of the view that the Claimant’s ongoing symptoms could only be medically explained by residual stenosis of the left subclavian vein. The opinion of an Interventional Radiologist was obtained which concluded there was no such residual stenosis.
On 31/01/17 the Claimant signed a schedule of loss asserting that his symptoms would not allow him to engage in full-time employment involving heavy manual work and claiming future loss of earnings in the sum of £140,000. Further, in his witness statement, also signed 31/01/17 he stated that he had “no employment prospects at the present time”.
It was therefore a surprise to the Defendant when two weeks later it received a request for a reference from a Manchester Airport where the Claimant had successfully applied for a role as a baggage handler.
After further specific disclosure it transpired that the application to the airport had been made only 6 days after he signed his witness statement and schedule of loss. Within the application and CV the Claimant claimed he had been working for a company called ‘Frostbite Refrigeration’ since leaving the Defendant’s employ.
The Claimant sought to explain this by admitting that he had lied on the application to Manchester Airport and that he had not, in fact, worked for Frostbite Refrigeration. The Claimant said he was desperate for work and needed to show a 5 year working history in order to satisfy rigorous security requirements for employees. Frostbite Refrigeration confirmed that the Claimant had not worked for them, although it was noted that the owner of that business was a close friend of the Claimant.
The Claimant had named his fiancé on the application as a reference, stating she was a business friend, rather than divulging the true nature of their relationship.
Ultimately the Claimant did not proceed with the role at Manchester Airport. According to him, he felt he would not be able to manage the physical demands of the role.
The Claimant’s position was that, whilst the mistruths on his CV and application form were dishonest, this dishonesty was collateral to his claim. He maintained he was suffering the symptoms complained of and that he remained unable to undertake heavy manual employment.
The Defendant accepted accident related symptoms up to March 2015 (following the rib resection surgery and recovery) but asserted at trial that the claim should be dismissed pursuant to section 57 of the Courts and Criminal Justice Act 2015 as the Claimant had been fundamentally dishonest.
The Judgment
The judge found that the Claimant’s accident related symptoms resolved within a short period of the rib resection surgery, and at least by the end of February 2015.
Regarding the baggage handler application, the judge found that the Claimant must have known, prior to applying, that the role involved heavy manual labour and that he would not have applied if he did not consider himself fit to do the job. Further, in respect of the Claimant not taking up the role, the judge noted that the Claimant had gone to the trouble of ‘creating’ a CV and attending the interview; he had intended to get the job and had the Defendant not intervened he would have started the job.
Regarding the admitted dishonesty within the Manchester Airport application, she found such activity was criminal and was astonished by the Claimant’s behaviour in times of heightened security. Moreover, the attitudes of the Claimant and his fiancé, that their actions were reasonable in order to secure employment was disconcerting; both the Claimant and his fiancé were found to exhibit serious and persistent dishonesty.
The judge did not accept that the Claimant had been suffering restriction since 2015 or that he had believed himself to be suffering such restriction. The claim for loss of earnings was therefore fabricated and this amounted to fundamental dishonesty which went directly to the heart of the claim. On the point of substantial injustice, which the court was obliged to consider the judge acknowledged that the consequences of her finding were significant but that was the purpose of the legislation.
The claim was dismissed in its entirety and the amount which would have been awarded but for dismissal was recorded as £46,160.07. As the Claimant had already received £18,000 in interim payments, these were ordered to be repaid with 21 days. The Claimant was ordered to pay the Defendant’s costs on an indemnity basis, to be assessed if not agreed.
The case was handled by Andrew Steel, Partner, Plexus Law, Manchester in collaboration with the Plexus Law fraud team. Counsel for the Defendant was Matthew Mawdsley of St Johns Buildings.
For further information on this case please contact:
Andrew Steel, Partner
T: 0344 245 1065 | E: andrew.steel@plexuslaw.co.uk
