Claimant's "Performance" in the Box Fails to Convince Judge who is Persuaded by Social Media Posts to make a Finding of Fundamental Dishonesty

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23 August, 2018

Pinkus v Direct Line [2018] EWHC 1671 (QB)

In this RTA case, the judge made a finding of fundamental dishonesty when confronted by Facebook posts which revealed a very different view of the claimant's lifestyle and mental capacity to the one proffered by the claimant to the Court.

The facts

The claimant was involved in a motorway RTA in 2012, liability for the accident was admitted in full. The claimant alleged that he suffered psychological/ psychiatric symptoms as well as minor physical injury. He claimed that the terrifying nature of the accident triggered PTSD and as a result he lost his job a few weeks later. His claim for past and future loss amounted to in excess of £850,000.

The defendant contended that the claimant had sustained minor physical injuries and short lived travel anxiety/ adjustment disorder. They disputed that the accident was of such severity as to cause PTSD and argued that that the claim was exaggerated and/ or fabricated.

At the trial, the Court heard evidence relating to the accident. The Judge found that the damage to the two vehicles involved was negligible. The airbags did not deploy and the claimant carried on to work following the accident.

Throughout the trial there was discussion and argument over the extent of the claimant's symptoms and his credibility. The defence provided evidence from the claimant's Facebook account to demonstrate that the claimant and his family continued to live normally and to enjoy everyday activities. The Facebook posts included jokey references to his birthday, trips to the cinema, and a 700-mile road trip in America when he described the 1.15 Highway being like NASCAR. The claimant's Facebook page stood in stark contrast to the accounts given to the experts by the claimant and his written and oral evidence at trial of a broken shell of a man unable to do almost anything. The Judge described his "performance" in the witness box so extreme that he raised an issue as to his capacity to litigate. Whilst giving evidence he was angry and loud. There were occasions when he said he couldn't remember either the question he was being asked or the answers already given. His memory failed him when asked challenging questions about his credibility or an inconsistency but clear and articulate when he wished to make a point about the extent of his difficulties. He 'lost' simple words but could explain complex concepts well when it suited him to do so.

The judgment

The Judge specifically found that the claimant had consciously and deliberately exaggerated his symptoms. He gave inconsistent accounts of his PTSD and exaggerated his memory difficulties. He had given inconsistent accounts and had been dishonest about his ability to drive following the accident. He had tried to hide his earnings until he was forced to fill out a tax return. He put on a show of struggling to retain information from a few minutes earlier which was not consistent with his activities as evidenced by some of the Facebook posts.

The claimant was awarded £4250 for general damages in respect of minor physical/ psychological injuries.

The Judge then considered s.57 CJCA 2015, he found that the claimant had not been honest and had deliberately exaggerated symptoms in order to the inflate the claim. The dishonesty was "close to the heart" of his claim and a finding of fundamental dishonesty was made.

Furthermore, the Judge was also satisfied to the criminal standard of proof in respect of his findings of deliberate exaggeration and dishonesty.

Forbes comment

The extraordinary judgment demonstrates how social media and in particular the posts from the claimant's Facebook account proved crucial to the demise of the claimant's claim. For instance, the claimant had told the judge that he could not follow a newspaper or book yet numerous posts on Facebook provided irrefutable evidence that he was able to read and absorb long articles, retain and then comment on the information. Not only did this undermine his credibility but provided further evidence that his problems were exaggerated.

Despite being awarded much reduced costs of just £4250, as a result of the fundamental dishonesty finding the claimant will not receive any damages and is likely to receive a custodial sentence as a result of the criminal finding.

For more information contact Sarah Wilkinson in our Insurance department via email or phone on 01254 662831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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