Wilcox v King’s College Hospital NHS Foundation Trust [2020] EWHC 2555 (QB)
Garraway v Holland & Barrett Limited [2020] 3 WLUK 582 (accessible on Lawtel and Westlaw only)
Two recent decisions consider the use of surveillance evidence in the context of fundamental dishonesty.
Wilcox v King’s College Hospital NHS Foundation Trust [2020] EWHC 2555 (QB)
Lambert J upheld the order of Deputy Master Bard refusing the Defendant NHS Trust’s application to rely on surveillance evidence of the Claimant at a trial listed for January 2021.
The facts
The claim arose out of an admitted delay in the diagnosis and treatment of the Claimant’s cauda equina compression in August 2016. However, the Defendant argues that the Claimant would not have avoided the totality of his injuries.
The Claimant alleged that he suffered from a permanent disability with incomplete paraplegia at L3 with reduced lower limb strength and sensation, as well as neuropathic pain affecting both lower limbs. The pain was claimed to be exacerbated by walking and sitting for extended periods, and led the Claimant to require walking sticks, with his mobility being reduced to around 250 metres.
The Claimant served a supportive condition and prognosis report documenting right knee weakness, right foot drop, distal weakness in the left lower limb and chronic neuropathic pain. The report also supported the requirement for a commercial care regime. The outline Schedule of Loss also referred to potential claims for loss of earnings and adapted accommodation, as well as potentially a claim for ‘buddy care’ to assist for 2/3 days a week.
The Deputy Master’s Decision
The Claimant was filmed over several days between July and December 2019. The Deputy Master accepted the submission made on behalf of the Claimant that there was nothing in the footage that particularly contradicted the Claimant’s witness evidence. Sections of the footage in particular (which the Deputy Master viewed) were relied upon by the Defendant. One section showed the Claimant driving on a motorway in heavy traffic and poor weather conditions with poor visibility, suggesting that he remained a confident and competent driver; the second showed the Claimant shopping in a crowded supermarket just before Christmas and mobilising up and down stairs, and the third showed him negotiating (with some difficulty) steps on a bus.
The Deputy Master concluded that the Claimant’s ability to do these things was not inconsistent with the Claimant’s case as put forward in the witness statement, not least because the Claimant had described himself in his statement as someone who tried to the extent possible to remain independent, who preferred to do things for himself if he could and who preferred not to use a wheelchair. The Deputy Master noted that the Claimant did not dispute the accuracy of the footage and observed that: “the material sought to be relied on does not seem to me to be of particular substance; much of it could probably be dealt with by Part 18 questions or notices to admit – for example that the Claimant had driven 140 or 200 miles on the days in question; that he had walked in a crowded Waitrose supermarket before Christmas and so forth and there can be cross examination on those issues of him at trial.”
The Deputy Master refused permission to rely on the footage on the basis that it was of marginal relevance. He also considered that, if the footage were to be admitted, it would impact upon the duration of the trial, adding perhaps a day to the listing and that additional litigation costs were bound to be incurred by the parties.
The sole ground of appeal was that the Deputy Master’s ruling was wrong because there was no evidence concerning the potential value of the claim. There was no challenge to the finding that video footage was evidence without “much substance to it” nor to his conclusion that it was improbable that the footage would impact materially upon a substantial care claim, nor to his conclusion that the video footage did not justify the additional court time or the additional litigation expense.
Judgment
Lambert J held at [13] that it was difficult to see how the Deputy Master could have done anything other than refuse permission in light of his findings as to the marginal relevance of the footage, and the lack of any significant inconsistencies between the footage and what was claimed about the disabilities and their impact, as well as the increased trial length and costs. She held that:
“Whether the care claim was in due course to be valued at £1,000 or over £500,000 would make no difference to the outcome of the application if, having reviewed the footage and cross-referenced it with the Claimant’s own evidence there was no significant inconsistency. That is not to say that there may not be other valid grounds upon which the Defendant may yet, at trial, challenge a very high care claim (or housing or travel claim). But deploying evidence which has not ” much substance ” would be no more than an expensive distraction and wholly inconsistent with the overriding objective… There may be other lines of attack to be deployed by the Defendant at trial if it is faced with an exaggerated Schedule, but a video which does not significantly undermine the Claimant’s own account of what he can or cannot do by reason of his injury is unlikely to assist either the Defendant or the court at trial in resolving the true position of the Claimant’s current and future level of amenity.”
Further, the Defendant had failed to take any steps to give any broad indication to the Deputy Master as to the potential value of a buddy care regime.
Lastly, even if the care claim could amount to £500,000 – “given the unchallenged finding of the Deputy Master concerning the marginal relevance of the evidence, in conjunction with the need to allocate resources fairly across the cohort of all court users, together with the increase of litigation costs, I would have no difficulty in refusing permission. The video evidence is not admissible simply because it is not relevant.”
Garraway v Holland & Barrett Limited [2020] 3 WLUK 582 (accessible on Lawtel and Westlaw only)
The facts
The Claimant was a 63-year-old singer and music teacher who was involved in an accident at the Defendant’s shop in the Arndale Centre, Eastbourne on 30th December 2013. She struck her head on a metal shutter in the doorway of the shop, which had been partly lowered just ahead of closing time. Liability was admitted and the trial was on the issues of causation and quantum only.
HHJ Simpkiss stated that there was a very considerable discrepancy between what the Claimant claimed were her injuries resulting from the accident, and the documentary evidence of her injuries and the medical experts’ view of them. Further, the Defendant had obtained surveillance evidence that contradicted the Claimant’s evidence as to her ability to do things, and her account to each of her experts about her abilities.
Judgment
HHJ Simpkiss reiterated the principles concerning a trial judge’s determination of witness credibility from R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2018] UKSC 3, namely: the importance of (contemporary) documentary evidence in assessing the credibility of oral witnesses; the relevance of the witness’s motives and the overall probabilities where there is a conflict of evidence; and the value of the opportunity afforded by cross examination being to gauge the personality, motivations and working practices of a witness, rather than to elicit recollection of particular conversations and events.
He began by considering the Claimant’s claim that she had suffered a very serious concussion and been knocked out, and she developed pain in her lower back from trying to get up from lying down. He noted that the medical records stated that the Claimant had not been knocked out, and made no reference to any concussion. He concluded that at best the concussion was minor and was overstated.
HHJ Simpkiss then considered the alleged back pain and emphasised how contradictory her evidence in cross examination was in respect of this injury, and further that, despite been seen by 13 different medical professionals on 6 occasions over the first 2 weeks following the incident, there was no mention of back pain or related symptoms in her notes. He held that it was not credible that she would not have told them, or that if she had, they would not have recorded it.
He then went on to consider the surveillance evidence, which was taken on the same day that she was assessed by the Defendant’s orthopaedic expert. She had completed a Disability Index questionnaire to the effect that she was e.g. unable to walk for more than 100 yards, or lift anything, or stand for more than 10 minutes. In cross examination prior to watching the surveillance evidence she was asked if any of her answers to the questionnaire had been true – “Her reply was equivocal: ‘With explanations …there are times when I push myself more. I can do better on some days than on other days.’ This was transparently said in anticipation of watching the footage, which she knew might cause her problems.”
HHJ Simpkiss summarised the surveillance evidence as showing the Claimant demonstrating no difficulty bending, walking, or standing. He further noted that her own expert had concluded that the video showed no abnormal features. He concluded that:
“There is a stark discrepancy between the way the Claimant has described her medical condition in her witness statements and to the medical experts and the video surveillance evidence, and between the medical notes and her own account now of how the back pain developed.
Finally, the Claimant failed to disclose to either medical expert an incident of back pain 13 months before the accident…
I am therefore unable to accept as credible any evidence from the Claimant unless it is clearly supported by cogent documentary or other reliable evidence…
…the Claimant’s back injuries were not caused by the accident.
The Claimant has convinced herself that it did, but that belief is not consistent with the chronological development of the symptoms and the medical evidence. As a result, the Claimant has missed no opportunity to justify her belief and to persuade the court that she has proved her case. This has led her to exaggerate her condition to the experts and to attribute symptoms to the accident which there is no rational reason to do. She has misled the experts. In particular, she is recorded by Mr. Ross on 2nd March 2017 as stating that ” she had not experienced lumbar spinal symptoms or sciatica prior to the material incident…”
As a result, he held that the Claimant had been fundamentally dishonest for the purposes of s.57 of the Criminal Justice and Courts Act 2015 in how she had presented her case, and in her presentation of her condition to both the court and to the experts. What she had done was “objectively dishonest and in doing so, she has misled the experts. Nothing could be more fundamental in a personal injury claim of this nature than to give the experts a false impression of her condition.” Accordingly, he dismissed the claim and awarded the Defendant its costs.
Comment
These two cases are reminders of:
- The importance, when seeking permission to deploy covert surveillance to counter a potentially exaggerated claim, of ensuring that the footage is a sufficiently compelling ‘smoking gun’.
- That while there is a general reluctance on the part of Defendants to incur the expense and complication of seeking surveillance evidence, nevertheless, the right footage, in the right case, can still be compelling evidence, in particular if it supports a potential claim for fundamental dishonesty on the part of a Claimant.
