More Dishonesty in Disease Claims
Claims for industrial disease are as prone to dishonesty as other types of claim; in some ways, perhaps more so as they often involve evidence of fact relating to exposures that ceased many years ago in circumstances in which the employer may have ceased trading and been dissolved, witnesses have dispersed and documents have been lost.
Prior cases of fundamental dishonesty have tended to involve ‘binary’ issues - a colleague’s (Mark Bradley’s) article referred to Diamanttek Ltd -v- James in which the Claimant lied about the provision and his use of hearing protection, and Holderness -v- Crossland Plastics in which the Claimant lied about his date of knowledge for limitation purposes, having concealed the fact that he had (long before the date of knowledge to which he admitted in his statements of case) made a prior claim arising from exactly the same exposure. The latter type of dishonest claim is fairly common (do Claimants really believe that the documents from their former claim are destroyed after the claim is discontinued in an age of electronic data retention?). A colleague, Anthony Singh, had exactly such a claim that came to trial 2 weeks or so ago in which the Claimant readily admitted in cross examination that he had withheld information about his prior claim from his current solicitors when he dishonestly sought another ‘bite at the cherry’. I had a similar claim in Newcastle upon Tyne before HHJ Freedman in which, in a conjoined NIHL and HAVS claim, the Defendant applied for a mandate to obtain prior claims records which showed not only the fact that the Claimant had previously (about 20 years beforehand) made similar claims against other employers, but also in his prior claims that he did not pursue my client because he did not use vibrating tools and the use of hearing protection was enforced.
Since fundamental dishonesty requires 3 stages to be proven: namely (1) was the evidence given over a statement of truth ‘wrong’, (2) did the Claimant know that it was untrue when s/he signed his/her statement of truth (or should s/he have done) and (3) is is that untruth fundamental to the claim (sufficient to cause the Defendant to materially alter its position in relation to it), the burden of proof, in particular at stage 2, is easier to discharge with binary (black or white) issues such as the use of hearing protection or prior claims.
However, the ambit of dishonesty does not end there. Three first instance cases in which I was involved (one old, one recent and one in which judgment was given yesterday) show that it is possible to discharge the burden of proof in cases in which the Claimant has exaggerated their purported exposure (in two cases to noise, in one, vibration). In Cobbold -v- Sherratt Farm Supplies Limited (unreported, Stoke on Trent County Court, 8th July 2016), the Claimant described his exposure to noisy tools in graphic terms in his written evidence and through his medical evidence asserted that he was exposed to noise at work for 40 hours per week. The single and jointly instructed expert engineer doubted that there was sufficient tool use (the Claimant installed automatic milking parlours in farms) but set out his contingent conclusions on the basis of both the Claimant’s and the Defendants’ evidence. At trial, during cross examination, the Claimant admitted that what he had set out reflected what he did for the first 2 ½ days of a ten week or so cycle of fitting the milking machines and for the remainder he would merely use hand tools. Breach of duty was proven (based on those 2 ½ days of exposure) but the issue was the extent of the Claimant’s noise exposure (his lifetime noise dose (NIL) for the purpose of causation). HHJ Rawlings held that the Claimant’s account was dishonest and that he had had ample opportunity to correct this prior to service of his misleading witness statement and when the engineer’s report was received by him, which was clearly based on an account of noise exposure which was untrue. The judge found this was fundamental to the claim and he was ordered to pay the Defendants’ costs.
This was a claim based on exaggeration of the extent of the Claimant’s exposure to noise, albeit the particular facts crystallised the issue.
A case heard in London and Essex in December (Compton -v- S&K Groundworks & Others) involved a Claimant who asserted against 3 Defendants extensive use of hand held vibrating tools. His evidence on a range of issues was held to be dishonest and the judge rejected not only the Claimant’s evidence as to exposure, but also that of his colleagues (his father and best friend), preferring the evidence of the Defendants’ witnesses and contemporaneous photographs which showed the Claimant using a range of ‘plant’ and not the hand held tools he alleged. In addition, there were some documents that showed that plant was ordered in for some jobs where the Claimant alleged it was not available. The difference between the exposure alleged by the Claimant and that found by the judge was not reconcilable and against a background of lies about diverse issues, the judge held the Claimant to be fundamentally dishonest and permitted enforcement of costs.
This week’s case (Cope -v- William Radford Transport Limited) involved a Defendant that had ceased trading (and been dissolved) but the alleged exposure to noise was from 2001-2 to 2015 or so. The Claimant admitted that when he worked for the Defendant as a driver, this was not noisy, which he said was for 2 years (Part 18 Replies, over a Statement of Truth signed by him), then 4 years (witness statement) and at trial, this became “7 or 8 or 9 years”. He alleged in his Part 18s that when he was not working as a driver, he worked as a mechanic maintaining and servicing the Defendant’s fleet of (10) vehicles. At trial, he admitted that in fact he undertook other work as a labourer, doing sundry work which did not involve exposure to noise (although he maintained that he worked as a mechanic for over 50% of his non-driving time). However, having asserted that his use of noisy tools was “continuous” in his Part 18s, and his exposure to noise was “continuous”, he admitted in cross examination that this was untrue and his use of the tools was “intermittent” (which, given the nature of the work, it clearly was). He was then taken to the detail of his assertions of fact and (in summary) on analysis, his alleged use of a grinder (for up to an hour per shift) became 25 minutes per week, and his alleged use of a ratchet gun (again, for up to an hour per shift) became “seconds” each day. He admitted that he did not use a disc saw as alleged in his witness statement and made similar concessions on other tools when challenged. He accepted in cross examination that his witness statement was “wrong” but sought to argue that (i) he did not understand the questions or the written evidence contending that he was dyslexic, although this was not consistent with the fact that he had made minor (and trivial) amendments to his witness statement prior to giving evidence at court, and (ii) that no-one had asked him the questions that he faced at trial when his evidence was prepared (although that did not excuse the fact that he had the opportunity on at least 4 occasions to correct that evidence).
Evidence as to the extent of noise exposure was clearly ‘fundamental’ to the claim (not a collateral issue but one going to the root of the claim). The Claimant accepted that in 10 respects his evidence was ‘wrong’. The principal argument in submissions was whether being ‘wrong’ about material assertions in his evidence was dishonest, or innocent.
Given the wide ambit of the Claimant’s dishonesty, the judge held that the Claimant was dishonest citing some of the examples given above and the Defendant’s costs can be enforced (on the indemnity basis). The Claimant had discontinued 2 days before the trial last year, and his solicitors had tried to come off the record for him (refused by the court) but Allianz Insurance (via DWF) pursued the claim to a trial of fundamental dishonesty.
The Claimant’s evidence at trial that he had not been asked the right questions by his solicitor (no doubt by way of telephone interview) when his witness statement and Part 18 Replies were prepared has the ring of truth to it; cynics amongst us may agree that particular questions are put to Claimants to elicit the answers that the Claimant’s Solicitor wants to obtain. (For example, in Cobbold the witness statement contained an assertion that he had to raise his voice to speak to the person next to him, but at trial the Claimant admitted he worked alone and the person ‘next to him’ would be the farmer, probably a few fields away!) However, there are 2 observations to make about this manner of preparing evidence based on the Claimant’s best (and untested) case: the Claimant had ample opportunity to correct the misleading evidence before he signed the statements of truth which he failed to use and, secondly, if the Claimant’s Solicitor used ‘leading questions’ to elicit the evidence that he wanted, then doing so (rather than evaluating the claim on its merits) will have cost his firm a significant amount of costs and effort.
In summary, manifest exaggeration, in addition to binary issues such as hearing protection and prior claims, can be a sufficient basis for asserting fundamental dishonesty where the difference between that asserted and the actual exposure is significant/material. It is well known that users of power tools over-estimate the extent of their use, so there is some room for the argument that the exaggeration is ‘innocent’ but where, as here, the extent of exposure as admitted at court bore little resemblance to the pleaded case, there is ample scope for Defendants to pursue and enforce costs against dishonest Claimants.