12 June, 2017
Owing to the stark and glaring inconsistencies in the claimant's witness evidence at trial, Forbes on behalf of the defendant took the unusual step of seeking a finding of fundamental dishonesty following the dismissal of this claim for personal injury.
The claimant brought a claim for personal injury against the local authority after he had allegedly fallen backwards one evening whilst walking home sustaining an injury his head, neck and back.
At trial the claimant was subjected to rigorous cross examination. The claimant was asked to explain the mechanics of the accident as the defendant had been unable to fathom how it was possible to stumble backwards when walking forwards or how the claimant had sustained a laceration to the top of his head.
When asked about the laceration, the claimant refused to confirm the location of the scar on his own head as he was not medically qualified, nor could he explain why it was "Y" shaped.
In his evidence the claimant reiterated that he had not been drinking at the time of the accident; although curiously both the ambulance and A&E records confirmed that that the claimant had consumed 7/8 pints. The claimant argued that he was not drunk, and attempted to explain that he had been groggy and suffering from amnesia but seemingly he had been sufficiently coherent to give the ambulance staff his date of birth, address and even the name of his GP. None of the medical records indicated that he was unconscious or concussed at any time. The Court was asked to believe by the claimant that a complete stranger who had called the ambulance to the scene concluded that the claimant was drunk rather than groggy, and had told the ambulance staff (which they took at face value) that the claimant had consumed 7-8 pints.
When the claimant got to the hospital, it was recorded that the accident had occurred in a pub/club. There was no mention of any neck or back pain, nor did the claimant refer to any alleged ongoing neck or back pain during any of his subsequent visits to his GP. The first mention of the alleged ongoing symptoms was to the medico legal expert sometime after the accident.
As a result of his injuries the claimant also sought 14 weeks care and assistance, although it emerged that part of this period had been spent on holiday in Rhodes. By his own admission at trial he had resumed his social life within a couple of days of the accident; indeed the photographs of the injury were taken in a pub. He had also sought a free gym pass from his GP not long after the accident to which the Judge remarked that "there are not many pieces of equipment in a gym which are less onerous than operating a vacuum cleaner".
The Judge took the view that the care claim had not been truthfully presented by the claimant and that his evidence explaining his alcohol consumption and the suggestion that someone else had provided the information to the paramedic staff was unlikely, or at worst a fabrication.
The Judge concluded that the claimant had not been a credible witness in relation to the ambulance and medical records, the care claim or the mechanics and context of the accident. He found that the evidence of the ambulance and hospital staff was to be preferred and the case was dismissed.
The Judge was then invited to make a finding of fundamental dishonesty; although the matter had not been previously raised or pleaded the issue of fundamental dishonesty had arisen out of the cross-examination that had been heard on the day.
The judge agreed and made a finding of fundamental dishonesty awarding the claimant its costs.
In this unusual case, during the cross examination the claimant's case unravelled before the Judge's own eyes and whilst there was not enough evidence prior to the trial to specifically plead fundamental dishonesty, the evidence that materialised during the trial was sufficient to allow the defendant to request that finding.
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