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HGV driver found to be dishonest claiming loss of earnings during drink driving disqualification



In Brown v Liverpool University Hospitals NHS Foundation Trust and Mersey and another, Nadia Whittaker instructed by Gill Stoll of Hill Dickinson LLP defends on liability a £2.5 million clinical negligence case and secures a finding of fundamental dishonesty.

On 26 September 2024, His Honour Judge Carter sitting at the County Court at Liverpool handed down judgment in Brown v Liverpool University Hospitals NHS Foundation Trust and Mersey and West Lancashire Teaching Hospitals NHS Trust, a clinical negligence case in which Nadia Whittaker acted for the successful Defendant NHS Trusts. The Court found against the Claimant on the issue of liability and went on to find the Claimant to be fundamentally dishonest such that the provisions of the Qualified One-Way Costs Shifting were disapplied pursuant to CPR rule 44.16(1).

The claim

The Claimant brought a claim in respect of alleged negligence concerning a report on his x-rays completed on 25 June 2008 by a Radiology Registrar employed by the 1st Defendant and the care that he received from a Consultant Orthopaedic Surgeon employed by the 2nd Defendant between August and October 2008. It was the Claimant’s case that the alleged negligence resulted in a 9-year delay in diagnosis of his ankylosing spondylitis (AS). The Claimant’s pleaded case on damages was in a gross sum of £2,506,800 of which around £750,000 was in respect of loss of earnings and pension.

The Claimant’s experts

A stark feature of the approach adopted to the litigation by the Claimant and his legal team was that the allegations against a Consultant Orthopaedic Surgeon appeared to have been pleaded without evidence from an expert in an appropriate discipline. At the time of the exchange of expert evidence, the Claimant served a report from Mr Dyson, Consultant Orthopaedic Surgeon, who expressly stated that he did not support the pleaded allegations, although advanced one criticism of the treating clinician that had not been pleaded. This led to the Claimant seeking belated amendment to the Particulars of Claim, striking through the original allegations against the 2nd Defendant and advancing one single new allegation at the time of the pre-trial review.

In the course of cross-examination of the Claimant’s expert in rheumatology, Dr McKenna, it became apparent that the original allegations against the 2nd Defendant’s Consultant Orthopaedic Surgeon were advanced on the basis of his evidence.

Breach of duty 

The Judge rejected the radiology allegations on the basis that there was a genuine difference of opinion between the experts as to whether the appearances on the x-ray warranted reporting. As both opinions were Bolam and Bolitho compliant, breach of duty could not be established. HHJ Carter concluded:

  1. I accept Professor Graham’s opinion that the assessment of the blurring as not clinically reportable was one which a reasonable body of competent radiologists would have reached. There is no reason to conclude that his view lacked logic or was unsustainable. As both he and Dr Narlawar noted, it is necessary to assess whether the evidence of blurring was such as to warrant highlighting whilst still ensuring that there was no over-diagnosis, and that (at the relevant time) further investigation were not carried out unless clinically indicated. That weighing up required Dr Narlawar to consider not just what the blurring showed, but also whether in the light of the various potential causes, and the limited extent of the loss of clarity in the SIJs, it was necessary to note it. Applying the Bolam test I have concluded he was not in breach of duty in not recording it in his report.

Given the limited scope of the orthopaedic allegations that survived the amendment, the issue turned on a finding of fact as to whether the clinician intended to request a thoracic MRI scan or whether this was done in error and not corrected to a lumbar MRI scan. It was agreed by Mr Dyson that if the clinician intended to request a thoracic MRI scan, there was no breach of duty. HHJ Carter concluded:

  1. It is difficult to see how Mr Ampat would not have raised any concern on receiving the MRI report of the thoracic spine if his intention had been to request a LS scan. That would require a finding not just that Mr Ampat had considered that a LS scan for a condition affecting the thoracic spine was needed, but that having come to that conclusion, he did not realise that he had (wrongly) been sent a report on a thoracic MRI. Despite that, he still addressed and referred to a thoracic MRI scan in the discharge letter. I must approach any dispute of fact on the balance of probabilities, and I bear in mind that the burden of proof lies on the Claimant. I am satisfied that the referral letter to the radiology department requested a thoracic MRI, and that the reference to LS in the GP letter is a dictation error and no more. I accept Mr Ampat’s evidence that he intended to request a thoracic scan and that on the balance of probabilities, the referral letter requested the same.

Causation

The Judge rejected the Claimant’s case on factual causation, which was that a different reporting of the x-ray by the 1st Defendant’s radiologist would have resulted in an MRI scan of the lumbar spine and that such MRI scan would have identified evidence of AS.

The Claimant’s case on medical causation was also rejected. He contended that an earlier diagnosis of AS would have enabled him to avoid fibromyalgia (FM). This was primarily based on the evidence of Dr McKenna. The Claimant pursued the case on ‘but for’ principles and also on the basis of material contribution, relying on the case of Holmes v Poeton Holdings Ltd [2023] EXCA Civ 1377. HHJ Carter held:

  1. To be satisfied that the C had established medical causation I would have to find that there were sufficient diagnostic signs in 2008 that would have resulted in Claimant receiving TNF treatment sufficient to mitigate his symptoms so that his FM would not have been triggered and diagnosed in 2017. There are several issues with the Claimant’s case:
    • Professor Watts did not accept that the Claimant would have received TNFs in 2008 in the light of the agreed radiological evidence that even with an MRI at that point (and assuming it was an axial block scan) the evidence would not have shown anything above grade 1 on the New York scale. Dr McKenna did not agree with that, although he conceded that the radiological evidence would have been grade 1. He considered there would have been other relevant symptoms. However, I have already noted the limited contemporaneous evidence of relevant symptomology in 2008.
    • The Claimant had clear psychological symptoms throughout the relevant period that would have been a factor in the development of his FM. Although the Claimant maintained that he had not suffered depression, the contemporaneous evidence is that he was being medicated with anti-depressants and (whether he accepts it or not) there was a strong psychological element to his condition during the onset of his FM. Professor Watts considered that even with the limited relief in his pain if he had been proscribed TNFs, he would still have had the same factors in play.
    • Dr McKenna relied on the Claimant’s evidence about his work history when dating the onset of his FM. Although he considered that the bereavement and time off work may have been the straw that broke the camel’s back at the end of 2013, he was reliant on the Claimant’s case that he had ceased to work as an HGV driver in 2014 (see joint statement at §9). However, the Claimant’s evidence was that he had in fact worked until 2018 albeit not doing physical work.
    • There remains a problem with the medical literature. The Rheumatology International Systemic Review in 2020 revealed that approx. 1 in 6 of AS patients also met the criteria for FM (2.2 in the Literature Bundle). The Macfarlane Report at paper 2 of Dr Mckenna’s literature bundle suggested 1 in 5 patients with axial SpA met the criteria. The Kindler Report concluded that: “Logistic regression indicated that seven factors were associated with the transition to CWP: moderate or severe pain intensity, female gender, history of abuse, family history of CWP, severe interference with general activity, having one or more central sensitivity syndromes, and using more pain management strategies”. However, there was nothing in the literature which establishes that AS is causative of FM instead identifying chronic pain as a risk factor.
    • Ms Whittaker referred to Holmes v Poeton [2023] EWCA Civ 1377 where on “Issue 3 – Generic Causation” Stuart-Smith LJ stated:

In my judgment, the propositions and evidence on which he relied did no more than to establish that TCE was a risk factor for Parkinson’s disease and that there is a plausible mechanism based on the rodent studies for a finding that TCE may cause or materially contribute to the development of Parkinson’s disease. Although TCE has long been identified as a compound of interest, the evidence to prove generic causation is lacking whether one is applying the legal or a scientific standard of proof.

For that reason, she submits that there is no evidence that the AS materially contributed to the FM.

    • Dr McKenna in his replies to supplemental Part 35 questions states that: “In my opinion had the Claimant been treated for ankylosing spondylitis in 2008/9, on balance he would have had less pain, less sleep disturbance and depression. In my opinion these factors were a material contribution to the development of fibromyalgia.” However when asked about the literature showing a causative link he asserted that: “There is an association of fibromyalgia in approximately 15% of those with ankylosing spondylitis. In my opinion, the ‘cause’ is the persistence of pain and stiffness causing disturbed sleep in those with psychological vulnerability.
  1. I do not find that the Claimant has established that the AS was causative of the FM. Although there is no doubt that the Claimant has suffered pain in his spine (and had done since he was a teenager) and that pain can be a risk factor for developing FM, Dr McKenna’s conclusion that the pain suffered by him due to his (alleged) undiagnosed and untreated AS is to confuse association with cause. In the light of the absence of any supporting literature and bearing in mind my earlier criticisms of his evidence I do not accept his conclusion in the supplementary Part 35 questions. There is a lack of certainty about the onset of the Claimant’s AS and his diagnosis of FM, particularly in the light of his changed evidence about his ability to work complicating that assessment.

Fundamental dishonesty

Fundamental dishonesty had not been pleaded by the Defendants: however, the Court was invited to make a finding to this effect at the conclusion of the evidence. HHJ Carter summarised the Defendants’ arguments as follows:

  1. Ms Whittaker invites the Court to find the Claimant has been fundamentally dishonest. In her written submissions she identified several areas of the Claimant’s claim where he had been dishonest:
    • His conviction for drink driving in October 2008. This was relevant to his claim for loss of earnings as it covered the period over when he was disqualified from driving and to his assertion that he was unable to work as an HGV driver due to his physical symptoms (see 1/97) “The Claimant was employed as an HGV in 2008. The Claimant was forced to retire from his role as an HGV driver due to the severity of his symptoms, particularly the reduced range of movement in his spine. The Claimant retired at the end of 2008.” He claimed loss of earnings in his original and revised Schedule of Loss from 1 April 2009. It was only removed in the Schedule of Loss served at the start of the Trial and the explanation was only that “…This was revised in the light of new evidence that came into the Claimant’s possession after the original Schedule of Loss was signed.” There was only at that point a reference to the conviction.
    • The Claimant accepted that he had returned to working as an HGV driver full time with MJ Griffiths in 2010 (consistent with the pay slips provided) but then conceded he had worked for Davenport Transport until 2014. He conceded that the Schedule of Loss had been wrong and that he had signed the statement of truth without ensuring that the claims were accurate. Although he sought to blame his former partner for the details, there was no evidence to suggest that she was solely responsible for the calculation of loss of earnings.
    • He gave a false figure for the income in the y/e 2018 undervaluing it by some £12,000. Ms Whittaker said this was to bolster his case on the date of the onset of his FM which Dr McKenna tied into his loss of employment.

The day after the conclusion of submissions, the judgment of HHJ Sephton KC in Shaw v Wilde [2024] EWHC 1660 (KB) was handed down and the parties were permitted to prepare further written submissions in light of that judgment.

HHJ Carter summarised the parties’ final positions:

  1. The Claimant confirmed in cross-examination that he understood the importance of the statement of truth. He was unable to explain why erroneous claims were included and signed off other than to lay the blame solely at the door of his ex-partner. No evidence was adduced from her, or indeed from the Claimant’s Solicitors either about the basis for the initial Schedule of Loss or about the changes made in the most recent Schedule.
  2. Ms Whittaker also noted that in some of the questioning of the experts it was suggested that “fibrofog” was a common problem suffered by those with FM and it might have impacted the Claimant’s evidence (or presumably his signing of documents). That was not something which was referred to in any of the medical reports on the Claimant nor in his own witness evidence, and there was nothing she submitted in his presentation in the witness box to suggest that he had any issues with competence.
  3. Mr Austin pointed to the Claimant’s explanation for the incorrect claims for his loss of earnings. He noted that the burden of proving fundamental dishonesty lies on the Defendant and that the mistakes were honest mistakes made by the Claimant. It is unclear whether that honest mistake was in relying on his former partner rather than misunderstanding what he was claiming for. He referred to the Claimant’s “fibrofog” and a reference in the DWP records to his former partner being “completely in charge of finances” [3][355]. That document dates from 2017.
  4. He submits that the Claimant was not dishonest about the extent he worked since his evidence was that he could not work full time as an HGV driver and his pay slips show that he worked only part time. The additional earnings to be off-set came about only after receipt of information from the HMRC and his accountant.

The Judge concluded that the Claimant was fundamentally dishonest in advancing the claim for loss of earnings for the period when he knew he was disqualified from driving and also in respect of subsequent periods when he failed to mention that he was in fact working as an HGV driver:

  1. The failure to provide evidence about his conviction and disqualification from driving at a time when he claimed for lost income as an HGV driver cannot be explained either by blaming his former partner, or any late disclosure by his accountant or HMRC. The Claimant must have known that he was not able to claim for loss of earnings for the first period when he signed the original Schedule of Loss in 2023 and the revised Schedule of Loss in 2024. The fact that he referred to this only in the final Schedule of Loss and removed the claim for 2009 is wholly unexplained. The obvious conclusion is that he knew he had not been able to work as an HGV driver for the 12 months from October 2008 and that his claim was not true.
  2. His evidence in cross examination was as follows:

It was a genuine mistake. My partner used to do my books. I apologise…

What was the mistake?

How were you able to put a claim for 19k for a period of time when banned from driving?

It was just an error

By whom?

Me and my partner

How were you able to make the mistake when you knew you were driving

I have memory problems

  1. On balance I find that the Claimant did not believe he was entitled to make a claim for lost income for the y/e 2010 as he knew that he had been disqualified from driving. He may well have failed to take any proper steps to satisfy himself that he had lost income because of his injuries, but that does not assist him. Had he turned his mind to the question of whether he had lost work for that period, he would have known that he had not during the period he was banned. The key element contained in the test in Ivey is what was the Claimant’s knowledge at the time – he knew he had been disqualified and he knew that he had not been able to work. The fact that he may have chosen to accept what others had included does not mean that by signing the statement of truth he was not being dishonest.
  2. I am satisfied that he did not genuinely believe that he was entitled to claim for that whole year. To that extent I am satisfied that his behaviour was objectively dishonest. I do not find that he was dishonest in relation to the pay he had received because that was dependant on the payslips and it is clear that efforts were being made to track those down and provide some account of monies received late in the day.
  3. However, I find that he did not believe that he was entitled to claim for loss of earnings during the period over which he worked for Davenport Transport. He must have known when he had worked, and his decision to sign the Schedule of Loss without disclosing the true extent of his work was in my view dishonest. He cannot seek to shift the blame to his former partner when he signed the statement of truth and understood its meaning. I do not accept the suggestion that he was in any way incapacitated and unable to sign off his own claims. There is no evidence from any of the experts that would support that line of argument.

Conclusion

The judgment highlights the critical importance of ensuring that appropriate supportive expert evidence is obtained before the case is pleaded and the need to test one’s own expert and factual evidence robustly before making the decision to proceed to trial.

 


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Author


Andrew Rigney KC
Year of Call: 1992

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