A claimant who lied about having a minor head injury, which did not feature in his pleaded claim or medical report, was not fundamentally dishonest, the High Court has ruled.
Mr Justice Freedman said Attique Denzil’s alleged head injury was “minor and very short-lived”, and it did not “flow through to or affect” his other injuries “in a significant way or at all”.
The judge said “the combination of the fact that the head injury was not a part of the pleaded claim and the fact that it was minor and very short-lived (three-four days of swelling) in the overall scale of things” rendered the county court’s fundamental dishonesty finding wrong.
The High Court heard that Mr Denzil claimed to have been injured in a road traffic accident in January 2019. The defendant’s insurer did not accept that there had been an accident but His Honour Judge Khan, at Burnley County Court, ruled there was.
He awarded Mr Denzil £47,580 for credit hire costs, just under £3,700 for loss of his Skoda and almost £1,000 for storage and vehicle recovery charges.
It was recorded in Mr Denzil’s medical report that he had suffered injuries to his neck and back and, in his witness statement, that he had suffered a head injury.
However, the head injury was not mentioned in the pleadings or the claim notification form or the medical report, which referred only to the neck and shoulder injuries. At his trial, there was no attempt to claim for a head injury.
Freedman J said HHJ Khan relied on the failure to pursue the head injury claim as evidence that Mr Denzil had not suffered it. There was no appeal against the basic finding of dishonesty.
Freedman J said HHJ Khan’s judgment was “in general a very careful and clearly presented document” but the section on fundamental dishonesty was “relatively light”.
The judge’s view was that “the small or even nominal amount of damages” that the head injury could have delivered “did not affect the fact that making up the head injury went to the root of the claim”.
Counsel for Mr Denzil argued that the dishonesty in this case did not go “to the root of the case”, nor had it “substantially affected the presentation of his case”, either in terms of liability or quantum, in a way which potentially adversely affected him “in a significant way”.
Counsel for the insurer submitted that, since the head injury was invented, a finding of fundamental dishonesty “ought easily to follow”, irrespective of the small amount of its value.
Freedman J said the word “fundamental” should be “given its plain meaning”.
He went on: “The expressions ‘going to the root’ or ‘going to the heart’ of the claim are often sufficient to capture the meaning of the statutory word.
“It will often be appropriate in this holistic exercise to consider the extent to which the alleged dishonesty resulted in an inflated claim, that is the extent to which the dishonesty, if not exposed, would potentially have resulted in a higher quantum of recovery in respect of the claims made.
“This involves consideration of the various losses claimed by a claimant and assessing the potential impact of the alleged dishonesty on the award for those losses.”
Freedman J said there was “no scope to find that such a minor and very short-lived injury, not forming part of the pleaded claim, but referred to in written and oral evidence, could be properly characterised or understood as being fundamental or going to the root of the claim”.
While stressing that “nothing that I have said is intended to make light of the seriousness of making up a part of the evidence”, he set aside the fundamental dishonesty ruling and allowed Mr Denzil’s appeal, meaning the claim was no longer dismissed.