Matthew Hooper secures finding of Fundamental Dishonesty: Rhodes v Drainage Consultants Limited

The Claimant brought a claim for damages arising from an alleged accident at work in July 2017. He was employed by the Defendant as a drain engineer. He alleged that whilst at work he was required to lift and move a manhole cover and suffered a prolapsed lumbar intervertebral disc as a result. There was no dispute that the Claimant had in fact suffered this serious injury, however, the Defendant denied liability on the principal basis that the alleged accident simply did not occur.

In evidence, the Claimant said he was required to lift a manhole cover which was approximately 1m x 1m, approximately 12 inches thick and weighed in excess of 80kgs. His evidence was that he and a more senior colleague attempted to lift the manhole cover together using two manhole keys, but these attempts were unsuccessful. The Claimant said he asked his senior colleague to use a hydraulic lift but his colleague advised that no such lift was available and so the more senior employee took the decision to insert a metal pole between the handles of the manhole keys and instructed the Claimant to lift one end of the pole while he lifted the other. The Claimant alleged that as they were lifting the manhole cover in that manner, the more senior employee let go of the pole which caused the Claimant to be suddenly pulled downwards and at that point he suffered injury to his back. The Claimant also said that as a result of this failed attempt, the senior employee arranged for a forklift truck to be used to lift the manhole cover.

The more senior colleague allegedly involved in this operation gave evidence on behalf of the Defendant. He maintained that this accident simply did not occur. He said he had never in his long career ever seen a manhole of the dimensions and weight described by the Claimant. He denied that he had inserted a metal pole through the handles of the manhole cover keys and gave evidence to explain why such a system simply would not work. He denied that a hydraulic lift was unavailable. He denied that a forklift truck was used to lift the manhole cover.

There was, therefore, a profound conflict between the evidence of the Claimant and the evidence of his more senior colleague on behalf of the Defendant. His Honour Judge Bird described these differences as fundamental and incapable of being explained by slips or lapses in memory. He considered there were four particulars matters that were worthy of note, each of which was a fundamental and important aspect of the claim.

1. The Claimant’s evidence as to the date of the alleged accident. He had throughout the course of the claim advanced a number of alternative dates as to when the alleged accident occurred. His Honour Judge Bird was of the view that the Claimant had been entirely inconsistent on this issue, having moved from a specific date at the intimation of the claim, to a different date within the pleadings, to a potential range of dates during the trial.
2. The Claimant’s evidence as to the accident circumstances. The Claimant had described the accident within his medical records, Claim Notification Form, medico-legal report, Particulars of Claim, witness statement and oral evidence at Court. His Honour Judge Bird found there to be no threads of consistency running through those various descriptions. The Claimant’s account had evolved from what appeared to be a simple allegation that he was lifting a manhole cover on his own and suffered injury, to the elaborate version of events put forward in evidence at Court.
3. The Claimant’s evidence regarding the time he took off work after the accident. Initially during his oral evidence, the Claimant was quite clear his injury was of such severity that he was immediately unable to work and remained off work from the date of the accident for a number of weeks. He then said he had perhaps attempted to work for one day after the accident but was unable to. It was plain from considering the Claimant’s attendance records over the relevant period that, if the accident had in fact occurred on the day he claimed, he had worked for at least four days thereafter before seeking medical attention and taking a sustained period of absence.
4. The Claimant’s evidence regarding the severity of pain he experienced in the immediate aftermath of the alleged accident. In evidence at trial the Claimant said his pain was immediately immense and nearly impossible to bear. In his witness statement the Claimant described the pain as initially not being too serious but gradually worsening over time.

His Honour Judge Bird considered that in each of these four important aspects, the Claimant had given profoundly different versions of events. He expressed the view that the Court was entitled to expect an honest witness to be consistent.

The Judge also considered the manner in which the Claimant had reacted when challenged on those issues during cross-examination. The first way he responded was to say he had no explanation. The second way he responded was to blame other people and to make unsubstantiated allegations of dishonesty of others.

Furthermore, the Judge considered the more senior colleague who was alleged to have been involved in the Claimant’s accident to have been an impressive and honest witness. He preferred the evidence of the Defendant’s witnesses in each and every respect.

The claim was accordingly dismissed.

A finding of fundamental dishonesty was sought given the nature of the Judge’s findings. His Honour Judge Bird concluded that the Claimant had deliberately set out to create a claim when he knew there was not one. He considered the Claimant’s dishonesty had infected every respect of the claim, and had no hesitation in finding the claim to be fundamentally dishonest.

The Claimant accordingly lost his QOCS protection and was ordered to pay the Defendant’s costs in the sum of £6,482.30.