Judgment has been handed down in the matter of Claire Thomas v Alan Owen T/A Alan’s Tyre Shop, following a 5-day trial in Cardiff County Court before His Honour Judge Harrison.
Charlotte Reynolds of 12KBW represented the successful Defendant, instructed by Vanessa Brooks of Clyde & Co LLP on behalf of LV, the Defendant’s insurer. The claim was dismissed in its entirety pursuant to s.57 of the Criminal Justice and Courts Act 2015 on the basis that the Claimant had not presented a truthful account of her symptoms, in the context of a possible factitious/somatic symptom disorder and in a manner which was fundamentally dishonest.
The Claimant sought damages for a fibromyalgia syndrome which was said to have developed secondary to a soft tissue injury to her neck, shoulders and back and a minor concussion sustained in a road traffic accident on 22 July 2016. The primary physical injury had lasted no more than 6 months (with travel anxiety to 12 months), however the Claimant thereafter reported continuing symptoms of fibromyalgia including widespread pain, extreme fatigue, dizziness, hemiplegic migraines causing paralysis, reduced mobility, abnormal gait and breathlessness over a period of more than 5 years between the index accident and trial.
The medical experts in all disciplines produced joint statements which were largely agreed. No expert had been able to identify an organic cause for the symptoms complained of and each expert accordingly deferred to the psychiatry experts, who initially identified a diagnosis of Somatic Symptom Disorder (“SSD”) (a psychiatric condition involving excessive thoughts, feelings and behaviours relating to symptoms unrelated to any identifiable medical cause).
However, following disclosure of surveillance video evidence and a successful application for disclosure of social media posts, the Defendant advanced a case that the Claimant was not suffering from SSD but rather a factitious disorder or that she was malingering. The judgment sets out in considerable detail over 45 paragraphs a chronology of the surveillance and social media evidence, which showed the Claimant attending exercise classes, undertaking long walks, working at a music festival, watching music concerts and rugby matches at stadiums and travelling abroad on holidays. These activities are contrasted with the reports given to the DWP and to medicolegal experts in which the Claimant stated that she could not walk more than 100yds even on a good day, could not negotiate stairs, was limited to 10-15 minutes standing and could not travel long distances in a car. Of particular interest was a walk undertaken in the Brecon Beacons known as ‘The Four Waterfalls Walk’ which was said to be a ‘hard’ 5.5mile circuitous walk with optional ‘strenuous’ detours down to the waterfalls which give the walk its name. The Claimant accepted, in the face of a social media photograph of her standing behind one of the waterfalls, that she had elected to take on the optional detour to that waterfall, which involved a vertical descent and then re-ascent of 100m over 170 steep, rough and slippery steps.
The effect of the social media and surveillance evidence on the expert psychiatry evidence was that the diagnosis shifted from a likely diagnosis of SSD to a possible diagnosis of Factitious Disorder (a psychiatric disorder whereby a patient deceives others, by inventing symptoms or influencing medical testing so as to create an appearance of being unwell).
The psychiatry experts placed the Claimant’s reliability at the forefront of determining the correct diagnosis. The Claimant’s expert, Dr Stephen Davies, observed in the joint statement that, if the court regarded the Claimant as giving a reliable history of her symptoms, then the most likely diagnosis was SSD. However, he accepted that the diagnosis of SSD was “not intended to apply to situations in which a person deliberately exaggerates or invents symptoms” and that, if the court considered that the Claimant had been misleading, then a diagnosis of SSD would not apply. The Defendant’s expert, Dr Leigh Neal, noted in the joint statement that any significant disparity between what is observed on surveillance and the Claimant’s self-reported level of disability could not be explained by SSD or any other similar psychiatric condition.
If SSD was excluded, this would leave only Factitious Disorder or malingering, each of which would involve sufficient dishonest intent to support a finding of fundamental dishonesty.
In determining what was therefore the central question in the claim, whether the analysis of all the evidence was consistent with the Claimant giving a reliable account of her symptoms, His Honour Judge Harrison was driven to the conclusion that it was not. The Claimant’s account of her symptoms to the DWP, to the medico-legal experts and to the court was significantly different to the Claimant’s presentation as shown in the other evidence. Accordingly, the Claimant’s account of her symptoms was not reliable and SSD was thereby excluded.
The judgment goes on to make a finding of fundamental dishonesty. Given the importance of the Claimant’s reliability to the diagnosis of her primary condition, it could not sensibly be argued that the dishonesty was not fundamental. The judgment assesses the honest quantum of damages at £9,918 as against a claim pleaded in excess of £200,000.
Charlotte Reynolds appeared for the successful Defendant at trial and throughout proceedings, instructed by Vanessa Brooks of Clyde & Co LLP on behalf of LV, the Defendant’s insurer. To instruct Charlotte, please contact her clerks: Chambers@12kbw.co.uk
This note was prepared by Peter Hale, Barrister at 12KBW.
