The Claimant, Richard Allen, was a passenger in a road traffic accident in Preston on 3 January 2017. Breach of duty was admitted. The matter proceeded in relation to quantum only.
Allen was a semi-professional footballer at the time of the accident and played more than thirty times during his injury prognosis period. The Salford City Football Club website confirmed the various matches in which Allen had played during this prognosis period. Despite this, Allen told the medico-legal expert that he had difficulty lifting items and his shopping activity was severely restricted. He also informed the medico-legal expert that he was unemployed at the time of the accident and made no mention of the fact he had played semi-professional football on numerous occasions from the accident date to the date of his examination. Allen continued to play semi-professional football until June 2018.
Allen provided evidence that he self-administered steroids and painkillers and continued playing semi-professional football despite the pain in his neck, shoulder and back because he had no other option. This was his source of income so he could not stop playing football. Allen played more than 30 football matches during his prognosis period of eleven months.
At a trial at Preston County Court, Recorder McLoughlin observed that:
- There was no argument by the Defendant that there was anything other than a straightforward accident.
- Breach of duty had been admitted.
- Prior to the date of the Defence, Allen had been examined on 17/9/17 by a medical expert.
- Allen wanted to rely on the report and said it was accurate.
- The Defendant served a Defence which set out in plain terms their position.
- Allen’s witness statement was prepared after service of the Defence and stated he was playing football rather than being unemployed.
- Payments made to Allen by Salford Football Club were provided and they showed a regular pattern of payment including payments in the off-season.
- The Court found it remarkably unconvincing how Allen explained his role at Salford Football Club and concluded he had downplayed his role.
- Video footage was obtained of the matches taking place.
- The Court did not consider it acceptable that Allen considered himself to be unemployed. A and E notes noted his occupation at that stage as a professional footballer. This was a contradiction. He was being paid 52 weeks per year. There were inconsistencies as to whether he told the club about the accident. Allen had been caught out. He had represented unemployment to a doctor.
- The Court considered it flew in the face of common sense and beggared belief that there were no restrictions when attending semi professional football and yet there were significant restrictions with lifting and shopping.
- There was video footage from 25 February 2017 with Allen shooting, scoring, and celebrating without restriction, but yet he was having difficulties with shopping.
- The medical records were considered. The Judge considered there was inconsistency in the reporting of symptoms. There was a detailed A and E note in which Allen presented with neck, lower back and left scapula pain – a further inconsistency. Of more significance, the pain score in the A and E notes was 2 (mild). In contrast, the medical report at 8.5 months post-accident referred to severe pain.
- The Court concluded that Allen had consciously and deliberately exaggerated his symptoms and fundamentally misled the medico-legal expert.
As to fundamental dishonesty:
- The Judge considered section 57 of the Criminal Justice and Courts Act 2015 and London Organising Committee of the Olympic and Paralympic Games v Sinfield  EWHC 51 (QB).
- The Judge made clear he was unimpressed by Allen’s evidence. Allen did not disclose his taking of steroids to the doctor at the medical examination.
- It was found that there had been ‘a lack of candidness by Allen and the contrary nature of the restrictions was significant’.
- The Judge concluded that the doctor had been misled regarding employment, treatment and the nature and extent of the injuries.
- The Judge found the Claimant was unreliable and had not been prepared to be open and honest with medico-legal professionals.
- Applying the test in section 57 and the guidance in Sinfield, the Judge was satisfied on the balance of probabilities that Allen had acted dishonestly regarding his primary claim. The Judge accepted that Allen had suffered some injury of a very modest level, transitory in nature, with mild pain such that he was on the substitute bench on 7 January 2017 and played on 21 January 2017. The Judge valued PSLA at £1000. There was no award for special damages.
- Accordingly the entire claim was dismissed and Allen was ordered to pay £6000 for the Defendant’s costs after set off of £1000 damages.
- Judges are not afraid to use Section 57.
- Identification of the right cases for the Defendant to run is crucial.
- Never underestimate the power of video / social media in dishonesty cases.
- In Section 57 cases, the Court is looking for incontrovertible evidence that the Claimant had lied.