07 November, 2017
O'Brien v Conwy County Borough Council
You may recall that we reported on this case earlier in the year. An audacious teaching assistant fabricated an injury at work so that that she could go on a family holiday to Disney World in Florida during school term time. After the claimant realised that she had been rumbled she sought to discontinue her claim shortly before the trial. Unfortunately, there was no fairy tale ending for the claimant. The defendant made a successful application to the Court seeking a finding of fundamental dishonesty and the claimant has been ordered to pay the defendant's costs in full.
The claimant alleged that she had slipped on a piece of discarded fruit sustaining a soft tissue injury to her neck, back and head.
Following the alleged accident, suspicions regarding the legitimacy of the claim emerged. Speculation at the school suggested that the claimant had faked her injury so that she could go on a family holiday to Florida during term time.
Initially the claimant had told work colleagues that she had gone on to Florida during the summer school holidays, although in her witness statement she admitted that she had visited Florida during term time. She also conceded that the holiday was pre-booked but she alleged that it had been booked and paid for by a family member as a surprise. She maintained that the first she knew of the holiday was in early September (the accident was 11 September) and apparently she had told the family member that she wouldn't be able to go due to work commitments (although presumably her place was never cancelled because she subsequently decided to go on the holiday when she was signed off sick).
The defendant deemed that it would have been a remarkable chain of events if it were true that the claimant was supposed to be going on holiday during summer 2015 but was unable to do so because they couldn't afford it; that a family member then booked (and paid for) the whole family to go on holiday to Florida without telling them; that the holiday was booked during term time when the family member would know that the claimant worked in a school and that fortuitously the claimant was able to attend the holiday after all due to an unforeseen period of sickness caused by this alleged incident. Notably the claimant failed to provide any corroborative evidence whatsoever relating to the holiday.
In any event, liability was also firmly denied by the defendant. The school operated a robust system to ensure spillages and other hazards were removed and a number of risk assessments were in place. Staff had been trained to ensure that all obstructions on the floor were removed and required all spills to be mopped up. The claimant was a health and safety co-ordinator for the school and as such was responsible for ensuring compliance with the school's wide ranging health and safety procedures.
The defendant obtained detailed witness statements attesting to the school's health and safety procedures, evidence that the offending piece of fruit did not appear to have been squashed or trodden on, accounts relating to the claimant's unconvincing performance following the incident and surrounding the circumstances relating to the holiday to Florida. A series of probing Part 18 questions were employed to pin point the claimant's version of event and ultimately an application by the defendant to amend the defence to plead fundamental dishonesty prompted the claimant to discontinue her claim.
We advised against simply accepting the discontinuance given that significant costs had been incurred in the defence of a claim considered to be bogus. We applied successfully for a finding of Fundamental Dishonesty to disapply QOCS pursuant to CPR r44.16.
We are delighted by the outcome of this case. The Council's suspicions that the claim had been contrived has been vindicated by the recent judgement. The claimant has also lost her QOCS protection and has been ordered to pay the defendant's costs in full on an indemnity basis.
This is the latest in a long series of Fundamental Dishonesty findings obtained by Forbes' Anti Fraud team. It is hoped that this latest finding will reinforce the message that claims of this type will not be tolerated by local authorities.
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