Update from the courts

Date: 09 October 2008
Issue: Vol 158, Issue 7340
Categories: Features, Personal injury

Christopher Russell discusses nervous shock and fraudulent claims

In Monk v Harrington [2008] EWHC 1879, [2008] All ER (D) 20 (Aug), George Leggatt QC, sitting in the Queen's Bench Division, concluded that Monk, who suffered psychiatric injury having rendered assistance to the victim of a construction accident, was not entitled to damages.

In January 2004, during the building of the new Wembley Stadium, a working platform fell 60 feet, killing one man and seriously injuring another. Monk went to the scene and tried to help both men. He subsequently developed symptoms of Post Traumatic Stress Disorder and depression and was unable to work.

The issue at trial was whether or not Monk's claim fell within the claims of the class of persons entitled to damages for psychiatric injury caused by the admitted negligence of Harrington, Monk's employer.

Monk's claim was on two bases: first his involvement was such that he fulfilled the criteria to recover compensation as a rescuer and as such was a primary victim. Further, there was sufficient proximity to the accident for him to qualify as a primary victim because he asserted that he thought he had the accident and so was an “unwilling participant”.

It was accepted that Monk provided significant help in comforting the man until the emergency services arrived. Accordingly he was “a rescuer”. However, it was improbable that he was, or believed himself to be, in danger by so doing or if he did have such a belief that it was a reasonably held one.

The claim that he was an unwilling participant also failed. It was accepted that the traumatic effects of the accident upon Monk's health were augmented by a belief that he might have caused it, whether or not such a belief was irrational. By analogy with the reasoning expressed in McFarlane v Wilkinson [1997] 2 Ll Rep 259: “The law does not…accommodate people who are not directly threatened but who genuinely and irrationally believe that they are, because their dilemma is not reasonably foreseeable.” (Lord Justice Brooke at p 271.)

The judge was cautious about reasoning by analogy in an area of the law so moulded by policy (such that Lord Hoffmann has famously observed that the hunt for principle was called off long ago) but he said: “It would…be wholly illogical if a person who genuinely but irrationally believes that he has caused an accident could recover as a primary victim when a person present at the scene who genuinely but irrationally believes that he is in danger of death or injury cannot do so.”

In addition, and by extension, such a claim failed for want of foreseeability. As the judge said: “Monk's belief that he might have somehow caused the accident in which his fellow workmen suffered injury was unreasonable in the circumstances. It was therefore not reasonably foreseeable that someone in his position would suffer psychiatric injury as a result of such a belief.”

“Fraudulent” claims

Two cases have illustrated how far the courts are prepared to go when a whiff of fraud flavours proceedings for personal injury.

In Kirk v Walton [2008] EWHC 1780, [2008] All ER (D) 323 (Jul) Mrs Justice Cox permitted a defendant to bring proceedings for contempt of court when there was material difference between statements verified by Kirk's declaration of truth and covert observation evidence.

The original proceedings stemmed from a rear end shunt in 2001. At the time of the accident Kirk, then aged 41, was working as a university administrator but had a history of upper back and shoulder problems. The whiplash injury and its consequences were alleged to be so significant that she gave up her job. Her schedule of loss served in January 2005 alleged pecuniary loss and expense of more than £800,000. She claimed substantial sums for past and future loss of earnings and care and assistance.

The medical explanation advanced on her behalf was fibromyalgia. The extent of her disabilities was explained and illustrated in her witness statement and her various applications for social security benefits. She had problems washing, was reliant upon elbow crutches or a wheelchair, was unable to go shopping, garden, look after her children or do her job.

Video evidence obtained revealed, to the satisfaction of one of the defendant's doctors that she was a person who did not appear to have any particular musculoskeletal problems. To another Kirk displayed “normal posture, normal gait, normal pace, normal neck movements and normal use of the limbs without evidence of pain fatigue or hesitation”.

Prior to obtaining any evidence of observation, the defendant, in February 2005, paid into court £25,000 and undertook to pay £9,000 to the Compensation Recovery Unit. In June 2007 the claim settled with Kirk accepting the sum in court but being required to pay her own and the defendant's costs from 21 days after the payment in.

Permission

Relying on CPR Pt 32.14, which permits proceedings for contempt of court to be commenced with the court's permission against a person who makes a false statement in a document verified by a statement of truth without an honest belief in its truth, the defendant sought such permission. Cox J reminded herself of the principles to be applied as set out in Malgar v Leach [2000] FSR 393, and Sony v Ball [2004] All ER (D) 51 (Aug). She granted permission despite opposition on behalf of Kirk on the grounds that:

(i) Proceedings for contempt were inappropriate after an action had been settled by consent.

(ii) The claimant's explanation for the contents of the video footage was inconsistent with a fraudulent claim.

(iii) Disclosure of the material had been both incomplete and delayed.

(iv) There was no plea of fraud by the defendants in the action.

(v) There was a delay in making the application.

Cox J said: “Without venturing further into the merits at this stage, the contrast between the claimant's verified statements, persisted in and over a prolonged period of time, and what is shown on the DVD footage, taken together with the comments of the defendant's medical experts, is such as to raise a strong prima facie case against this claimant; and the defendant's allegations cannot be regarded as either tenuous or argumentative. The DVDs are of sufficient length and are sufficiently contemporaneous, representative, and consistent, to merit a full investigation of the matter.

“Further the context for this application is a particularised schedule of damages in which, before disclosure of the DVD recordings, this claimant was seeking to recover over £800,000 in damages from the defendant's insurers. The allegations are, in my view, sufficiently serious as to merit such proceedings being brought in the public interest and, having regard to the overriding objective, are proportionate in the circumstances. There is, in my judgment, a strong public interest in personal injury claimants pursuing honest claims before the courts.”

Road traffic case

In Wassim Ul-haq, Khatoon and Parveen v Shah [2008] EWHC 1896, [2008] All ER (D) 03 (Aug), Shah was sued by three claimants following a road traffic accident. Shah drove into the back of a car driven by Ul-haq in which, it was claimed, his wife, Parveen and his mother, Khatoon, were passengers. Shah counterclaimed seeking a declaration that Khatoon was not in the car, damages against the three claimants for deceit, and an order that the claim of Ul-haq and Parveen should be struck out because they were complicit in the fraudulent assertion that Khatoon was a passenger.

The judge accepted that Khatoon was not in the car; he addressed the “justice” of the case by awarding damages to Ul-haq and Parveen but making a costs order (to be off set against damages) that left a balance of money to be paid to Shah.

Shah appealed against the refusal to strike out the claim altogether. Mr Justice Walker reached the same conclusion as the trial judge albeit by a different route: “I consider that this is a case where the lies about Mrs Khatoon had no substantial impact on the court's ability to resolve the case fairly. There was an impact on the individual claims of Ul-haq and Parveen in this sense: if they had not lied about Khatoon their claims would have been settled without a trial. I do not accept that there is any reason to think that their lies about Khatoon made it impossible for the court to consider their claims fairly.

“Their lies were extremely serious. For the reasons I have given, however, they did not involve conduct falling squarely within a category which could be described as of the worst kind. It is important that outside the special class of insurance claims, other fraudulent claims are not routinely treated in the exceptional way which the common law recognises is appropriate in the context of insurance. Exercise of the court's power to award indemnity costs against Ul-haq and Parveen in the manner adopted by the judge deprives them of any practical benefit from the bringing of proceedings and thus effectively forfeits their genuine claims to damages. Moreover it exposes them to a significant net liability to pay costs. In my view this outcome justly reflects the seriousness of their breaches of the overriding objective, and there is no additional need to strike out their claims.”

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