In a claim for cumulative back injury we were able to conduct a successful defence, after a claimant was found to be less than truthful about her working habits..

Background

The claimant’s case was that she had suffered a chronic, degenerative back condition as a result of her employment with the defendant between 2001 and 2013. The claimant was employed in Terminal 3, and later Terminal 5, at Heathrow airport as a ‘face designer’, applying make up to people passing through the airport, as well as offering to spray passers-by with perfume. It was alleged that the claimant had to perform a recurring sequence of movements throughout her employment and her workstation and work equipment were inadequate.

BLM were instructed in September 2014. We repudiated the claim on behalf of the Defendant given the doubts about the likelihood that the works entailed could result in the condition the claimant alleged.

Proceedings were served in September 2015 and the claim was allocated to the multi-track. In my view there was a complete defence to the claim. Therefore breach of duty and causation were both denied throughout the life of the claim. Ergonomic evidence was obtained jointly with the claimant and the expert supported the defendant’s position that the works were not likely to be causative of the claimant’s condition. On receipt of the expert’s views I advised the claimant’s solicitors that the claim would fail and suggested they discontinue. A key point was that the defendant had records of the claimant’s shifts and clock-in times: the claimant worked incomplete shifts from at least 2011 until 2013; on some days working for only one hour.

The claimant’s solicitors took the view that the expert was not impartial and attempted to discredit his evidence, also threatening to report him to the relevant association.

The matter went to a trial listed to take place in the summer 2017.

The claimant’s solicitors produced a trial bundle in which they sought to include ‘expert evidence’ they had obtained from ‘experts’ which had yet to be disclosed. On the afternoon before the first day of trial, a sick note was received from a Polish doctor advising that the claimant was too unwell to attend trial. It transpired that the claimant had not actually booked flights to attend.

Despite the defendant’s protests the trial judge adjourned the trial but at the defendant’s request, the claimant was debarred from raising any further issues with the liability expert’s impartiality.

The trial was re-listed and heard in January 2018. Despite extensive evidence on the part of the claimant and her five witnesses, the Judge preferred the defendant’s evidence, the view of the expert and the documentary evidence over the claimant’s. The court dismissed the claim on the basis that there was no cogent evidence that work had accelerated the claimant’s condition.

Key points

It became apparent during the pre-ligation stages of the claim that the claimant’s solicitors had little experience or understanding of handling specialist disease claims of this nature. By not having the specialist experience, the case drove up the time spent and costs, which given this was a QOCS case we were unable to recover for the defendant.

Given the poor handling and the weak claim, every element of the claimant’s claim had to be challenged, requiring robust defence to deliver the positive outcome. The matter would have been resolved more swiftly and effectively if the claimant’s solicitors had previous knowledge of handling such claims.

What this means for you

When faced with a muscular-skeletal claim such as this, the priority is not to take the evidence for granted. By examining the presumptions within the allegations of the claimant, and with the help of an expert engineer, the claimant’s case was discredited.