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Omissions during medical assessments do not lead to fundamental dishonesty

In the recent case of Palmer v Mantas & Anor [2022] EWHC 90 (QB), the Defendants paid a hefty price in damages of £1,679,406 for failing in their arguments about fundamental dishonesty. They had alleged that the Claimant had failed to volunteer pertinent information in the course of her medical examinations with the experts in the case about her level of function and that made her dishonest. The Judge rejected that submission outright and found that there was no legal authority for the principle that a Claimant can be dishonest by failing to raise matters not asked about in the medical consultation.

The underlying facts of the case were that the Claimant, a 26-year-old woman, was involved in a high-speed rear end shunt in June 2014 along the M25. Liability was admitted and the trial proceeded in respect of causation and quantum only. The claimant had 22 medico-legal examinations over 5 years and had completed 6 witness statements and 3 schedules of loss. The Defendant’s case was that her true level of function was not revealed to the experts, and she had changed her symptoms over time. It also suggested that she had made omissions in her early witness statements about her true level of function.

The Defendant’s case on dishonesty failed. The Judge found that small differences between the Claimant’s account of symptoms to different doctors suggested she was a credible witness, and that if she had given a perfect identical account every time then that would be very suspicious. He also took into account the effect of her head injury on the presentation of her symptoms and that her personality was not to over volunteer matters.

The Judge held: “…as I have indicated above, I consider that the Claimant, although clearly articulate, intelligent and straightforward had chosen to respond by answering questions from the medical legal experts which I consider to be reasonable and not deceitful in any way. Indeed, acting otherwise by seeking to take charge of those interviews might have been perceived as controlling and tending to dictate the findings that the experts would subsequently make…”

The Judge accepted the fact that the Claimant had not raised all symptoms initially after the accident but found that was also consistent with her focussing on her initial more pressing symptoms. He noted that the context of a witness statements is important when a witness is accused of an omission. For example, if a statement is designed to deal only with physical symptoms and not psychiatric ones, then it’s unfair to critique the claimant for failing to raise such matters and that was not therefore an omission. It may well be useful for solicitors when preparing statements in complex and high value cases to set out at the start what they are intended to cover to avoid Defendant’s later allegations that a Claimant is guilty of making omissions.

The Judge therefore found it reasonable that the Claimant answered the questions asked of her rather than volunteer information with the medical expert. In concluding the Judge held: “I note in conclusion on this issue that a substantial part of the Second Defendant’s case is essentially that the Claimant was dishonest by omission, i.e., chose only to answer questions asked by the medical legal experts and omitted to disclose her true level of function. I have already set out why I do not consider that as a fair approach to expect of the Claimant when being asked about the history and symptoms by all the medical legal experts. I am fortified in my view that that is a particularly difficult submission for the Second Defendant given that I was not provided with any reported authorities where a finding of fundamental dishonesty has been made in a personal injury claim because a Claimant had failed to volunteer information not asked of her during a medical legal assessment.”

Before Claimants celebrate this victory, it should be noted that this is a very fact specific case. Take an extreme situation in which the Claimant has a highly relevant piece of medical history that falls outside a date range asked for by an expert- e.g., have you had any head injuries in the last 3 years? The Claimant says “no” but in fact had an awful and serious head injury 3 years 1 month ago? That wouldn’t be a strict omission as such, but plainly would be highly relevant to the examination and there would be a case that the Claimant ought to have revealed it. The context is everything, and therefore, Claimants shouldn’t rest too easy, as there may well be situations where omissions to experts do lead to dishonesty. However, following Palmer, such an omission would need to be a serious and striking one and such allegations of dishonesty require very careful analysis to avoid the high price tag of failure paid in this case.

Written by Gemma Witherington.

27 January 2022.

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