Claimant with history of alcohol related falls found fundamentally dishonest and ordered to pay Defendant's costs.

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23 June, 2023

Warren Smethurst
Chartered Legal Executive

In what could have been a straightforward claim arising as a result of a trip on a raised paving flag in the garden of her tenanted properly, a dishonest claimant has found herself with an award of costs against her of £4250.

The claimant brought a claim against our Social Housing client arising out of an alleged trip on a raised paving slab at the end of her garden path, where the path met the garden gate. Breach of duty was conceded as our client had constructive notice of the defect. However, from the outset there were numerous "red flags" that led us and our clients and their insurers to have concerns that the claimant's injuries had not arisen as a result of any fall at that location. The biggest concern was that the claimant was keen to settle on the basis of a GP report only, despite that report suggesting a speciality report. Also, the expert had not been provided with the claimant's GP records. Together these points raised concerns that the claimant had something to hide in her medical history, and this warranted further enquiries about the GP records. Once we had secured disclosure of them it was clear that this claimant had a long history of problems with alcohol, and a propensity for falling and injuring herself as a result. Whilst of interest, this in itself might not have led to a successful defence had she been able to persuade the court of the happening of her alleged fall. Afterall, a defendant owes a duty to a drunken claimant as well as a sober one, (subject to arguments of contributory negligence). So if she proved that her fall did occur on the alleged defect, she could have been successful in her claim. However, there were other areas of doubt too that meant that a decision was made to put her to proof of the happening of the accident, with the aim of undermining her credibility.

Under cross examination, the claimant denied any history of falling under the influence of alcohol despite the many clear references to this in her GP records. This meant that her credibility and honesty came under direct scrutiny. We invited the Judge to make a finding of fundamental dishonesty as a direct result of the claimant's evidence in court and the judge agreed. He found that she had not come anywhere near satisfying him on a balance of probabilities of her claim.

Forbes Comment

The Claimant's barrister argued that there should not be any finding of Fundamental Dishonesty as we had not pleaded it. This was a misunderstanding of the applicable law. We had put the claimant to proof as to the happening of the accident as alleged, or at all, and could not do more, as we could have no direct knowledge of events. The Court of Appeal stated (in Howlett v Davies [2017] EWCA Civ 1696) that there was no requirement to plead fundamental dishonesty, and that it was open to the judge at the conclusion of a trial to consider such a finding. The Court of Appeal said that:

"The key question in such a case would be whether the claimant had been given adequate warning of, and a proper opportunity to deal with, the possibility of such a conclusion and the matters leading the judge to it rather than whether the insurer had positively alleged fraud in its defence."

In that case, the fact that the claimant's honesty was in issue has been made clear in cross examination. And that is what was done in our case too. Until the claimant gave her evidence which denied what was apparent from her GP records, ie that she had a history of drinking and falling as a result, her dishonesty could not be specifically pointed to.

Our anti fraud team are experts at identifying claims that warrant further scrutiny. Not every one ends in a fundamental dishonesty finding, but where there are red flags we support our clients in making sure that the appropriate investigations are undertaken so as to combat fraudulent claims and ensure that such claims are successfully repudiated where possible.

Fraud indicators play a vital role in identifying the right claims to investigate further, and can, in the right cases, put defendants in the best position to seek a fundamental dishonesty finding where the evidence at trial points in that direction.

For more information contact Warren Smethurst in our Insurance department via email. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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