Esther Odewale v London Borough of Tower Hamlets, HHJ Baucher, 10/10/19
The Claimant (C) alleged she had suffered serious injuries after tripping on a defective pavement in February 2014. The claim had a pleaded value of up to £200,000 and C sought to recover in excess of £140,000 in costs. Primary liability had been admitted.
In her judgment HHJ Baucher concluded that C’s claim was fundamentally dishonest for the purposes of both s.57 of the Criminal Justice and Courts Act 2015 (CJCA 2015) and CPR 44.16. Further, HHJ Baucher ordered that covert surveillance footage obtained by D and relied upon at trial must be served upon the Department for Work and Pensions (DWP). But for the dismissal of the claim, C would have been awarded the sum of £71,096.35, reduced to £53,322.26 after a finding of 25% contributory negligence.
The evidence upon which HHJ Baucher relied when finding that C had been fundamentally dishonest emphasises: the importance of ensuring comprehensive disclosure; and, the impact covert surveillance can have in undermining claims where it is suspected that exaggerated restrictions in mobility are being reported to medico-legal experts. Most notably, the case also demonstrates the potential evidential potency of reporting medical experts, where appropriate, recording their examinations of claimants.
Extent of Reported Symptoms
C relied upon having developed fibromyalgia/myofascial pain syndrome as a result of her injuries and claimed for losses including loss of earnings and care and assistance. At points during the litigation C had reported to experts that her symptoms were so severe that she struggled to open her refrigerator door and did not even have sufficient grip strength to hold a china cup.
On 20/08/16 C attended an examination with her reporting Pain Consultant, Dr Hanu-Cernat, and presented with such ‘high levels of pain grimacing and vocalising’ that Dr Hanu-Cernat could not clinically rely upon a number of the tests she carried out during her examination.
Disclosure – DWP Records
Disclosure of C’s DWP records had been obtained which documented that following her injury in February 2014 she had deemed it necessary to apply to the DWP for Personal Independence Payment (PIP). However, C’s first two PIP applications had been rejected. The third was also rejected initially but was granted following an appeal.
Analysing and contrasting C’s PIP applications revealed that within each subsequent application she had reported both an increasing number of different chronic health conditions and increasingly severe symptoms in respect of each condition. At one stage C had reported that she had to be accompanied when at home because she could fall over at any time, and, she even struggled to turn the pages of a book. Pivotally, within the applications C repeatedly reported that she was incapable of walking a distance of 200m.
Importantly, each of C’s PIP applications contained a declaration that C was obliged to inform the DWP should her symptoms improve, and, each application was supported by a signed statement of truth.
Footage of Medico-Legal Examination – Dr Peter Evans, Consultant Anaesthetist
Dr Peter Evans was instructed to report in respect of C’s alleged chronic pain. On 19/12//17 C attended his examination. Dr Evans, with C’s consent, recorded the component of his examination during which C was asked to demonstrate her range of movement and physical capabilities generally. The footage documented, amongst other things, C exhibiting grimacing when getting out of her chair and, pivotally, her struggling to walk the very short distance from one side of Dr Evan’s examination room to the other.
Covert Surveillance Footage
Surveillance operatives were instructed to obtain covert surveillance footage of C, deliberately timed so as to include C leaving her examination with Dr Evans. The footage documented C walking entirely normally from the examination to Hammersmith Station, a distance of approximately half a mile, in around 10 minutes without stopping, only a short time after she had struggled to walk across Dr Evan’s examination room.
The four days trial involved oral evidence from experts in pain management and psychiatry. In summary C’s case included arguments that many of the inconsistencies in her reported symptoms were due to her having “good days and bad days”. This is, of course, an explanation which is all-to-often relied upon by claimants alleging chronic pain when they are presented with inconsistencies in their reporting and/or surveillance footage which undermines the restricted mobility upon which they rely. However, in respect of the surveillance footage obtained on 19/12/17, C could not rely upon a “good days and bad days” argument because D had the benefit of the examination footage obtained by Dr Evans prior to C walking the half a mile from Charing Cross Hospital to Hammersmith Station with apparent ease.
Under cross-examination C attempted to rely upon having taken a large dose of Tramadol immediately following her examination by Dr Evans and it having afforded her sufficient pain relief to walk as shown in the surveillance footage. Whilst giving evidence Dr Evans very easily debunked C’s explanation by explaining that, on a pharmacological basis, it was not possible for Tramadol to have had such an effect within the relevant timeframe.
Not only did the contrasting examination and surveillance footage undermine C’s claim per se, it also undermined the veracity of what C had been reporting to the DWP in order to obtain PIP payments over the last five years, including that she was unable to walk more than 200m. As above, HHJ Baucher ordered that the covert surveillance evidence in the case be served upon the DWP.
Fibromyalgia and myofascial pain syndrome are, by their very nature, diagnoses which depend almost entirely on the symptom’s claimants report to experts. In this case C’s DWP records were pivotal because they documented her painting a very different picture to the DWP in respect of the nature, cause and extent of her symptoms when compared to what was being reported to the medical experts in the case. Ensuring claimants disclose all relevant documents and reviewing them forensically is, of course, the cornerstone of properly defending personal injury claims.
This case also, once again, demonstrates the potential potency of covert surveillance evidence, especially in cases where claimants rely upon severe restrictions in mobility. In this case the surveillance evidence was fatal to C’s claim and resulted in D obtaining a declaration of fundamental dishonesty and, as follows, an order that Qualified One-Way Costs Shifting (QOCS) be disapplied, and, D obtaining an enforceable order that C pay its costs (subject to s.57(5) of the CJCA 2015). However, the novel aspect of this case is undoubtedly the examination footage obtained by Dr Evans. Without it the Court would have had to have heard from both C and Dr Evans in respect of C’s behaviour during her examination on 19th December 2017 and reached its own conclusions. The examination footage meant C’s exaggerated pain behaviours during examination could actually be observed and contrasted with the surveillance footage.
There are, of course, certain areas of medical expertise, such as psychiatry, in which medico-legal experts would consider the filming of an examination to be inappropriate. However, in cases such as this which involve assertions of severe restrictions in mobility, defendants should consider enquiring if their preferred orthopaedic and/or pain management experts are willing to record appropriate parts of their examinations as they may later find the footage provides an invaluable contrast to any covert surveillance footage obtained.
To view/download as a PDF please click here.
If you would like to know more about this matter, please speak to your contact at Plexus Law:
Mark Dyson, Partner
T: 020 8774 0758 | M: 07879 400 511 | E: firstname.lastname@example.org