Fundamental dishonesty: recent lessons
Ms Wilma Agnes Cullen – and – Dr Ruth Henniker-Major [2024] EWHC 2809 (KB)
This was a clinical negligence case arising out of a negligently delayed diagnosis of laryngeal cancer, resulting in more extensive treatment for the cancer than would otherwise have been required and, in particular, leading to total laryngectomy. The Claimant now breathes through a stoma in her neck and speaks via a valve located in the wall between her trachea and oesophagus.
Liability was admitted and judgment entered for the Claimant on the specific terms:
“That there was a failure by the Defendant to refer the Claimant for investigation of her symptoms on an urgent basis on 18 January 2016; that if the referral had been made, the Claimant’s cancer would have been diagnosed at an earlier stage; that the Claimant would have been treated with less radiotherapy and that no chemotherapy would have been required; that the total laryngectomy and bilateral neck dissections and severe complications of the chemotherapy would have been avoided.”
The trial before HH Judge Ambrose sitting as a Judge of the High Court related to quantum only but the Defendant made allegations of fundamental dishonesty in respect of the Claimant’s presentation of her needs.
It was alleged that the Claimant’s future care claim was grossly inflated as it was said: “the Claimant has been changing her voice valve herself since December 2022 and, since the Claimant claims to be unable to manage the valve herself, her failure to declare that she is able to do so is dishonest and has resulted in a grossly over-inflated claim for future care.” By the end of the trial the allegation was modified so as to allege: “that the Claimant can perform some, but not all, of the actions required for a valve change and alleging that she has failed to disclose this partial capacity and that amounts to dishonesty.”
In the event the hearing lasted 9 days spread between March and July 2024 and Judgment was handed down on 7 November 2024. The trial bundles were contained in 25 lever arch files. The Defendant relied on surveillance evidence and the Claimant’s social media posts in an attempt to establish fundamental dishonesty.
There was no dispute that the delayed cancer treatment had resulted in the Claimant undergoing a total laryngectomy, bilateral neck dissection, and pectoralis major flap reconstruction in July 2017, following previous treatment with chemo/radiotherapy for T3N0M0 SCC larynx. The treating clinician from Royal London Hospital described how:
“Laryngectomy involves the surgical removal of the larynx (voice box). The trachea (airway) and pharynx (food pipe) are completely separated and the trachea is diverted through a permanent opening in the neck, called the stoma. There is no longer a route for air via the mouth or nose, and the person becomes a neck breather.
Mrs Cullen requires daily care to her voice prosthesis and her stoma in order to maintain her airway, minimise risk of infection or respiratory difficulties and maximise her ability to communicate. This care is essential in order to maintain a safe and healthy airway and will be required on an ongoing basis for the remainder of Mrs Cullen’s life.
Due to difficulties with dexterity and vision, Mrs Cullen is unable to selfcare and therefore needs assistance from a trained care-giver on a daily basis.”
The description of the Claimant’s needs was endorsed by the Claimant’s ENT expert Professor Homer.
In the course of the trial the Judge inspected the Claimant’s stoma and he described this as: “a very useful supplement to the witness evidence and the photographs that accompany Professor Homer’s and Mrs Howison’s reports.”
Basis of allegations of dishonesty:
The Defendant relied on:
- cross-examination of the Claimant herself
- cross examination of other witnesses
- surveillance evidence
- social media evidence
Cross-examination of the Claimant herself
The Claimant was cross-examined by the Defendant for 3 ½ days and the Judge concluded: “Over the course of more than 3 ½ days of cross-examination, she impressed me as an honest witness.” The Defendant relied on the Claimant describing the use of forceps to remove secretions as undermining her case that she needed assistance but the Judge specifically found| of the answers quoted by the Defendant: “It seems to me that these quoted answers have been taken out of context in a way that distorts their meaning”. Further in respect of quoted answers in respect of stoma care that were relied on by the Defendant the Judge found: The quoted exchange has been taken from the transcript, yet it omits what went before and stops in the middle of a sequence of related questions and answers, with the result that it does not properly reflect the Claimant’s evidence.
Overall the effect of cross-examination of the Claimant for 3 and a half days was for the Judge to find her an honest witness.
Cross-examination of other witnesses
One example of cross-examination of other witnesses was a carer was cross-examined as to whether she had travelled on the same plane as the Claimant to Jamaica and she readily accepted this was a mistake in the witness statement, they had gone to Jamaica at the same time but on different planes. The Judge describes how: “.. in closing the Defendant submitted that none of Anna Crowley’s evidence can be relied upon because, the Defendant submitted, she had lied in her witness statement about being present on a flight to Jamaica with the Claimant and providing care to the Claimant during that flight. The Defendant submitted that not only can her evidence not be relied upon, but she and the Claimant must have colluded in this lie and this is a further example of fundamental dishonesty on the part of the Claimant.”
The Judge’s conclusion was:
“Taking the evidence in the round, I do not find that Anna Crowley lied about the trip to Jamaica in her witness statement. I find that the statement was inaccurate and she failed to read it carefully before signing it, but I do not find that she was dishonest. On the contrary, and somewhat ironically, I find that the way in which the inaccuracy in paragraph 19 came to light provided compelling evidence of her honesty.”
The Surveillance Evidence
The judge described how the use of surveillance evidence in this case was unusual
“Surveillance evidence is typically adduced to demonstrate that a Claimant has greater physical capabilities than he or she has asserted. That is not this case. In this case the Claimant says that she needs and has 24-hour care. The surveillance evidence is adduced in support of the Defendant’s allegation that the Claimant has been dishonest about the care that she receives and she has not been receiving 24 hour care. The Defendant says that the surveillance evidence shows that carers are not coming and going from the Claimant’s home address. In that sense, it seeks to prove a negative. That being so, there are a number of very unsatisfactory aspects to the surveillance evidence: –
i) The surveillance footage itself is not continuous throughout each period of surveillance such that it would, as a stand-alone piece of evidence, demonstrate who did and did not come and go at the Claimant’s home. The surveillance footage that we do have, and I am told that it is the entirety of the footage that was taken, is minimal.
ii) There is no evidence from the surveillance operatives to the effect that they kept the Claimant’s house under constant surveillance during their shift and captured everything that happened and that if it is not on the footage, it did not happen.
iii) Although there is a proforma statement from each of the operatives stating “I obtained video evidence, where possible, of the events that occurred”, this is not supported by the evidence. By way of example, there are events recorded in the surveillance logs that the operative purports to have seen, but has not filmed. By way of further example, there are numerous occasions of the operative filming something, but only filming the last few seconds of what was obviously a much longer episode, often in a way that makes it impossible to identify the person being filmed and without any explanation as to why the longer episode had not been filmed. These omissions reinforce concerns about the incomplete nature of this evidence as a whole.
iv) It appears as though, on occasions, the surveillance was being conducted from a significant distance and that, on occasions, the surveillance operative moved to a different location during the period of surveillance, with the obvious risk that the surveillance was not continuous.
v) Whilst there is some footage of cars parked outside the Claimant’s home, it is haphazard and often appears to be incidental. There was no attempt on any of the days to take a comprehensive inventory of the vehicles parked in the road at various times, such as would have been valuable in identifying whose vehicles were present at what time.
vi) The period of surveillance often starts either close to, or well after, the start of the carer’s day and ends either well before, or close to the end of the carer’s day, with the inevitable risk that handovers have occurred outside the period of surveillance.”
Overall the Judge emphasised: “ that if something is shown on the footage, that is determinative of it happening. However I do not accept that the absence of something on the footage is determinative of it not happening.”
Social Media Evidence
The Defendant alleged that the Claimant was seen dancing in the rain whilst on holiday with friends. In respect of this social media evidence the Judge explained that;
“There was a thumbnail of a video that accompanied the Facebook post. The Claimant said that she was not sure that the person in the thumbnail was her. The video was not in evidence. The Claimant was asked to look for the video during the trial and said that she could not find it. The Defendant made much of her failure to produce the video, accusing her of dishonesty in cross-examination and again in written closing submissions. That being so, it was very surprising to be told in the course of oral closing submissions that the Defendant’s solicitors had in fact had the video in their possession during the trial. They had not previously mentioned this to counsel or the court, and it has not been disclosed or relied upon, despite the fact that the Defendant bears the burden of proof in relation to fundamental dishonesty. In all these circumstances, I conclude that this post does not support an allegation of dishonesty.”
Lessons for both Claimants and Defendants
Against the background of an increasing number of cases where an issue of fundamental dishonesty is raised this case illustrates the importance of the following points:
For Claimants:
- Claimants need to be advised that allegations of fundamental dishonesty are not unusual even for seriously injured Claimants.
- Claimants need to be advised that social media accounts are frequently scrutinised by Defendants. The Claimant needs to be prepared to explain what can be seen on social media accounts and identify the pictures that relate to them and those that do not.
- It is important to check witness statements very carefully, it was the mistake in the carer’s witness statement as to whether she travelled on the same plane as the Claimant to Jamaica that opened up extensive cross examination and allegations.
Obviously the witness statements need to be carefully checked before they are served and need to be compared with earlier witness statements. Often the first draft of any witness statement is the most reliable and any later changes need to be carefully considered and justified.
Before a witness gives oral evidence it is vital to go through the witness statement and if there are errors in it give the witness the opportunity to correct errors before the witness is cross-examined.
- It is necessary to warn Claimants that Defendants frequently carry out surveillance. Once surveillance evidence is served details of the gaps in the evidence need to be identified and evidence served to meet the implications that the Defendant is attempting to draw from the surveillance evidence.
For Defendants
- Whilst it is necessary to raise issues of fundamental dishonesty where they are well supported by the evidence, there is a risk that when they are not well supported the Judge will be critical of the way in which the issues are raised.
- Whilst surveillance evidence may be appropriate to prove what a Claimant can in fact do contrary to the Claimant’s own case, surveillance evidence is unlikely to be appropriate to prove a negative. Using surveillance evidence to show something is not happening is obviously unsatisfactory unless it is 24 hour surveillance over a protracted period which will usually be impractical and uneconomic.
- Social media interrogation can be a valuable source of evidence to undermine the Claimant’s case but it needs to be complete and comprehensive and form part of the Defendant’s disclosure.
