Karapetianas v Kent and Sussex Loft Conversions Ltd [2017] EWHC 859 (QB)

This is an interesting case where the High Court considered surveillance evidence that had been obtained by the defendant against how the claimant had presented their injuries to the medical experts.

The facts

The claimant worked for the defendant as a dry liner. At the time of the accident he was working in a loft room when the flooring collapsed causing him to sustain injury to his pelvis. The claimant required pelvic reconstruction surgery and was in hospital for two months.

At trial, the issue in dispute between the parties was to what extent the claimant had recovered from his injuries. The defendant obtained surveillance evidence showing the claimant walking, almost normally, and not using a stick or a crutch. The surveillance evidence also showed the claimant moving freely and carrying out ordinary tasks without assistance, such as taking out the rubbish, carrying shopping bags and loading/unloading his car etc.

There were stark disparities with the surveillance evidence and the way the claimant had presented his ongoing symptoms to medical experts. The claimant’s reported ongoing symptoms indicated that he was severely disabled and continued to experience severe and constant pain, which had a significant impact on his daily life.

The defendant submitted that the claimant was exaggerating their symptoms and the video surveillance evidence showed that he had reached relatively normally functionality by mid- 2014, which was when the surveillance footage was obtained. It was argued that this was inconsistent with the claimant’s version of events, although specific allegations of fraud were not pleaded.

The claimant stated that he had been getting better, up until the end of 2013/ beginning of 2014, but after this period his condition had deteriorated to the point where he was in constant pain, could not drive, and could only walk with crutches.

The court heard evidence indicating that the claimant’s ongoing pain could be as a result of psychological causes rather than any organic reason.

Findings

The court concluded that by mid-2014 the claimant had recovered to the extent that there was relatively normal functionality. As a result, it was held that the defendant should not be responsible for any significant symptoms suffered by the claimant beyond this period.

It was held that the video footage could not be explained by the claimant having good and bad days and could not be explained by the use of painkillers.

The court concluded that some weight had to be attached to there being a possible psychological explanation for the claimant’s ongoing symptoms. It was held that the claimant was not fabricating or exaggerating any residual effects of the accident and the court stated that his evidence at trial had been sincere and he had not been dishonest.

The court stated that it was implausible that the claimant could be faking his injuries and the presentation of ongoing symptoms and this was not a case where there was any evidence to justify striking out the claim.

The court noted the judgment in the Supreme Court case of Summers v Fairclough Homes Ltd [2012] UKSC 26, in respect of the test being what is just and proportionate and that it was only in very exceptional cases that the court could strike out an action before trial. As a result, the defendant was found liable to compensate the claimant for the injuries sustained but it was made clear that this was to the extent that they had largely recovered by mid-2014.

What this means for you

In this case, the court was not prepared to find that the claimant had exaggerated and/or faked their injuries, despite the fact that the stark differences between the claimant’s presentation of their injuries and the surveillance evidence could not be explained.

It should be noted that the courts will look at the facts of each case and there will need to be strong evidence showing that the claimant had clearly been dishonest, and that this dishonesty had not been trivial and impacted upon the whole of the claim.

It is interesting that the defendant did not go so far as to specifically allege fraud but instead, submitted that the claimant was grossly exaggerating the impact of their injuries. Further, this case highlights that the courts will not be prepared to strike out a claim where there has been alleged dishonesty on the part of the claimant, unless it can be shown that the dishonesty in respect of quantum goes to the heart of the claim.

This case could have been decided differently if the claimant had not come across well at court. The court specifically stated that the claimant appeared deeply distressed, worn down and, on the face of it, sincere when he gave his evidence. Also it was concluded that the claimant was not “…sufficiently sophisticated to be capable of such a deception conducted over a period of time”.

This case serves as a reminder that the courts continue to err on the side of caution when considering whether it is appropriate to strike out a claim on the grounds that parts of it had been improperly or even fraudulently exaggerated.