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Personal Injury Claim Against NHS Trust Dismissed and Finding of Fundamental Dishonesty Made

• Dec 27, 2023
• Latest Journal

Article by Cindy Tsang, Partner, London. co-authored by Sydney Copley, Solicitor Apprentice, London - www.kennedyslaw.com

Kennedys acted for a NHS trust in relation to an alleged personal injury claim brought by a nurse against the trust. The claimant’s claim was dismissed and a finding of fundamental dishonesty was made. The court ordered the claimant to pay the defendant’s costs, which were summarily assessed.

Background
The claim concerned an incident in which the claimant alleged they were injured when assisting a healthcare assistant with transferring a patient from a chair to their bed. The claimant alleged she had been called by the healthcare assistant to assist and during the transfer the patient became unsteady and fell towards the claimant.

The healthcare assistant gave a different account of events refuting the circumstances presented by the claimant.

Decision
The Deputy District Judge found it was not credible to suggest that the healthcare assistant’s account of the incident was inaccurate, and pointed to inconsistencies in the claimant’s evidence. The Deputy District Judge observing there were inconsistencies as to the circumstances and alleged injury sustained, with reference in particular to a draft RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations) report, the claimant’s Employment Tribunal Claim Form, their A&E records, written statement and evidence at trial.

Finding that the claimant had fabricated an incident and injury they had somehow sustained in another manner, the claimant’s claim was therefore dismissed and a finding of fundamental dishonesty was made. Given the finding of fundamental dishonesty, Qualified One-Way Costs Shifting was disapplied and the claimant was ordered to pay the defendant’s costs, which were summarily assessed.

Comment
Fundamental dishonesty is not defined. However, case law provides a useful guide for how it has been interpreted.

In (1) Lorna Howlett (2) Justin Howlett v (1) Penelope Davies (2) Ageas Insurance Limited [2017], Lord Justice Newey observed that the dishonesty must go to the root of the claim and not merely ‘a collateral matter’ or ‘minor head of damage’. Lord Justice Newey referred to the judgment in Gosling v Hailo [2014] in which his Honour Judge Maloney KC observed that if the dishonesty:
    … went to the root of either the whole of his claim or a substantial part of his claim, then it appears to me that it would be a fundamentally dishonest claim: a claim which depended as to a substantial
or important part of itself upon dishonesty.

In Nesham v Sunrich Clothing Limited [2016] the claimant and defendant gave differing accounts of the incident. The Judge accepted the defendant’s account of events, thus dismissing the claim. The defendant sought to rely on fundamental dishonesty, suggesting that if the claimant’s account of events was not preferred, he had in some way been dishonest. The claimant was found not to have been fundamentally dishonest and it was held that preferring not to accept the claimant’s account of events did not necessarily mean that a finding of fundamental dishonesty should be made. The defendant appealed without success.

Defendants do not have to plead fundamental dishonesty in order for such finding to be made. In the index case, fundamental dishonesty was not pleaded.

As the Deputy District Judge found the claimant had fabricated the incident on which they had based their entire claim, it must follow that such claim is a fundamentally dishonest one.