Mr Derick Sage v Ms Cathryn Stringer
Bristol County Court
8th October 2015
A claimant who intimated a personal injury claim over 10 months after a road traffic accident, failed in his attempt to claim damages for personal injuries and prejudice on the open labour market and his claim was found to be fundamentally dishonest. Although Derick Sage had an extensive medical history, there was no mention of the accident in his GP records, although those records did reveal that his inability to work arose out of a whole raft of other issues, unconnected to the accident.
Sage was ordered to pay the defendant’s costs, assessed in excess of over £5,500 and, although the claim was pursued under the auspices of the Qualified One-Way Costs Shifting regime, that protection was lost due to Sage’s dishonesty being at the very heart of the claim. DWF Director Jewels Chamberlain looks at the outcome in this late notified case, which saw Clare Tolson of DWF act on behalf of Markerstudy, where the court made a finding of fundamental dishonesty and which further highlights the benefits of having a strategy in place for dealing with late notified claims.
The Claimant, Derick Sage was the driver of a vehicle involved in a road traffic accident on the 10thDecember 2012, when the Defendant, Ms Stringer, reversed her vehicle into Sage’s vehicle. Breach of duty was admitted.
The Claimant brought his claim over 10 months after the accident had taken place, although he claimed to have been injured in the accident and had experienced symptoms straight away. When the Claimant attended upon his medico-legal expert, he told them that he had sustained injuries to his neck, back, elbow and knee. He also told his expert that he was unable to work as a result of the accident.
After proceedings were issued making a claim for personal injury, a defence was filed, admitting breach of duty, but putting the Claimant to strict proof in respect of quantum and causation.
The Claimant relied upon a medico-legal report prepared by Dr Michaela Corman, who examined the claimant some 11 months post accident. The claimant’s evidence was that he suffered severe neck pain, accompanied by pain in his right elbow and right knee immediately after the accident, which was still intermittent at the time of the examination. Notwithstanding that ongoing pain, no treatment had been sought.
The Claims Notification Form completed by the Claimant recorded that he had been absent from work for one day in his job as a courier. No claim for loss of earnings was brought. Whilst there were attendances upon the GP during the prognosis period, no record of any accident related injuries was ever made. There were entries in the GP records that suggested that the Claimant was suffering from depression during the prognosis period.
The case came before District Judge Watson for trial on the 8th of October, when an application was also made to amend the claim so as to include a claim for a Smith v Manchester award on the basis that the injuries that the Claimant had sustained had left him prejudiced on the open labour market. If allowed, the overall value of the claim would have been around £15,000. The Claimant also applied to adduce further evidence to support that contention.
Sitting at Bristol County Court, the District Judge refused the application to amend the claim and for leave to adduce further evidence. Having heard all the evidence, the DJ then went on to find that the claimant was lying:
- Had he been injured in the way he suggested, he would have mentioned that to his GP.
- He didn’t mention the injuries because he didn’t suffer the injuries that he claimed of.
- His inability to work was due to his depression and he lied to the medical expert when he told her otherwise.
- The treatment wasn’t received because the Claimant wasn’t suffering from the symptoms he complained of.
- The claim was dismissed.
The Defendant then applied to enforce any costs order, on the basis that the Claimant had been fundamentally dishonest for the purpose of CPR r.44.16. Having heard submissions, the court found that the only reason the Defendant was at trial was because the Claimant had lied about his injuries, which was his only head of claim and which the Defendant had been put to the expense of defending. This was the heart of the claim and it was fundamental. Fundamental dishonesty was established.
Costs were awarded in full as claimed, in the sum of around £5,600.
This claim was slightly different from the usual late notified claim, in that there was a suggestion that the Claimant had been away from work for a day and that he had sustained injuries, beyond just whiplash.
Had Markerstudy not had a good process in place for tackling these claims, it is possible that Mr Sage’s claim might have slipped through the net and he may have been compensated. Instead we see the dismissal of a claim that might been worth more than £20,000 (assuming that the Claimant has been permitted to claim for prejudice on the open labour market), especially after costs had been taken into account
Although the claim had been brought under the QOCS regime, the Defendant was able to prove that the Claimant had been fundamentally dishonest and he was rightly ordered to pay the costs of defending the claim.