David Boyle defeats pleaded allegation of Fundamental Dishonesty and secures both Smith v Manchester and Loss of Leisure Time awards.

The Claimant, a keen cyclist with a psychological history, was knocked off his bike and broke both wrists, the right wrist requiring plating whilst the left wrist fracture was undisplaced and improved quickly. Within 10 days of the cast coming off the right wrist, the Claimant was back on his bike, trying to return to his normal routine, but found road-riding hard, both physically and psychologically.  Whilst he was able to increase his distances to his pre-accident levels, he found it harder and harder to cope and moved to track-riding instead, before eventually giving up.  He took voluntary redundancy rather than redeploy to a role which would require long-distance driving, bilateral lifting and administrative duties, and took work as a postman instead.

Cycling was the Claimant’s passion and primary way of dealing with the stresses of life, and he was increasingly angry, leading to friction with those around him. 

The Claimant was examined by an Orthopaedic surgeon at 20 months post-accident and a Psychologist at 24 months post-accident. His history to the Orthopaedic Surgeon focused on the right wrist, and he neglected to mention an undisplaced fracture of the left wrist some 14 years previously.  The conclusion was that the ongoing right wrist problems would be permanent, albeit that there was no specific analysis of what the Claimant could or couldn’t do either at home or at work. 

The Psychologist recorded that the Claimant had not returned to cycling until the November (some 10 months post-accident), and had struggled on his first two rides.  The Psychologist wrote:  “Since then, because of increased awareness of the dangers of road cycling and of him having developed an increased sense of his vulnerability, (he) has taken to only cycling at a local cycling dome, which he has no issue with from a psychological point of view.” 

On receipt of the medical evidence, the Defendant indicated that it had no offers to make, and the Claimant revisited the evidence, realising that the reference to November was incorrect and that he had, in fact, been cycling since April.  He disclosed his Strava account showing his full road-riding and walking activities post-accident, answered CPR18 questions, and made a Part 36 offer at about 2/3rds of the pleaded Schedule (which included a figure for PSLA, and claims for bike damage, CBT, a Smith v Manchester award and a claim for Loss of Congenial Employment, the last on the basis that his management role had given him the sense of purpose and achievement which he strived for to overcome his underlying depression). 

In response, the Defendant amended its Defence to plead that the claim was Fundamentally Dishonest and the matter was allocated to the Multi Track.  It was repeatedly asserted in court that the Claimant had told the Psychologist that he hadn’t ridden his bike on the road since those first two attempts.  The Claimant said that the Psychologist had recorded the initial return to cycling and the current situation, that his Strava only applied to his road cycling, not his track cycling, and that he had, in any event, given up on track cycling too. 

The Claimant could not recall the precise words used to the Psychologist (who said that he had typed his notes directly into the report at the time of examination and had no recollection of the specific consultation), but said that by the time of the appointment, his wife was in the middle of a health scare, and that he had been taken by surprise by the questions about his pre-accident condition, which had left him particularly distressed.  He hadn’t read either of the reports particularly carefully - he’d considered the conclusions and just wanted to resolve the litigation to focus on his wife’s health.  He maintained his claim, although over time he came to the conclusion that he was actually enjoying the postman role more than his previous work, and that although it was not as well paid, he could make up his earnings by taking a secondary postal role for an additional 11 hours a week, together with overtime if available.  Whilst he was now working a basic 48 hours a week rather than 36, he was earning the same sort of money, he was getting plenty of exercise, and was not having to work away from home.  The loss of congenial employment was abandoned, but a claim for loss of leisure time was substituted in the same amount. 

The trial was heard by HHJ Duddridge in Chelmsford County Court.  The Claimant and his wife were cross-examined at some length. The Defendant did not call evidence.  Submissions were heard on the day, although judgment was reserved.  In addition to the points on Fundamental Dishonesty, the Defendant contended that the claim for Loss of Leisure Time was not known to law. The old authority of Hearnshaw v English Steel Corporation Limited (1971) XI K.I.R. 306, CA was cited on behalf of the Claimant.

Held: 

Whilst there had been inaccuracies in the history given, the Claimant had not been dishonest, nor did the matters complained of go to the heart of the claim.  The Claimant and his wife were clearly honest, and the Defendant’s attempts to avoid their liability were opportunistic.  The overall award for PSLA would be the £25,000 sought by the Claimant on the face of the Schedule, and whilst there was no current evidence that the Claimant required CBT such that that sum was not awarded, the sums claimed for bike repairs (£100), Smith v Manchester (£6,000) and Loss of Leisure time (£5,000) were all appropriate and reasonable.  The total judgment was therefore £36,100 plus interest, such that the Claimant beat his Part 36 offer of £25,000.  A CPR36 interest rate of 7%pa above base rate was appropriate given the circumstances of the case, the timing of the offer (after making the Claimant making clear his position re his cycling and the medical evidence), and the allegations of dishonesty against a professional man of good character. 

Analysis: 

1. Pleading (or running) Fundamental Dishonesty arguments is now common place, despite the reasons behind the rules originally being adopted.  That does not mean that they are always justified, and the Court should recognise that they are attempts to impugn a claimant’s character and potentially drive them from litigation which is entirely legitimate; 

2. Errors in medical reports are not necessarily evidence of Fundamental Dishonesty, even if they might suggest a different award for general damages might be appropriate;

3. The errors in these medical reports could be explained, and the Defendant’s assertion that the Claimant’s reading of the Psychologist’s report was sophistry was incorrect: there were two readings, one of which was that the Dr had simply asked about the original return to cycling and the current state of play at the time of examination;

4. The Orthopaedic evidence sufficed to prove the extent of the Claimant’s restriction (supported by the Claimant demonstrating his range of movement in court) and the Court could listen to the Claimant’s explanation of what he could and couldn’t do at work such that certain jobs were no longer available to him and a Smith award was appropriate;

5. The sum claimed for the Smith award (£6,000) represented about 3 months’ salary, which was appropriate in this case;

6. The claim for Loss of Leisure Time was legitimate as a matter of law, and entirely appropriate on the current facts.  The Claimant was now working an additional 11 hours basic time a week and that sounded in a lump sum award.  From trial to retirement the Claimant might have to work an additional 6,000 hours, so the sum claimed (£5,000) was entirely reasonable. 

7. It was important to note, and record on the face of the order, that the Defendant had impugned the Claimant by pleading Fundamental Dishonesty, and that the allegation had been wholly rejected by the Court. 

David was instructed by Christian Potter of Pabla & Pabla Solicitors