Zenith Personal Injury Current Awareness

​What effect can exaggeration have on your damages claim: strike out or percentage reduction in damages?

13 November 2017

Vilma Vodanovic

The Court of Appeal considered the point in FLETCHER v KEATLEY (by his LF) [2017] EWCA Civ 1540 (a decision from 12.10.2017) and followed guidance in Summers v Fairclough Homes Ltd [2012] UKSC 26. 

In 2007, Mr Keatley (‘K’), who was only 17 at the time, and Mr Fletcher (F) were in a car which F managed to drive off the road and into a wooden electricity pole, writing off the car. Liability was admitted by F and a claim was presented by K for just over £2 million on the premise of a significant brain injury he had suffered. F put K to proof and asserted significant exaggeration by K and his family of the consequences of the accident.

The expert evidence in the case was agreed between the parties that there was a mild head injury only but there were issues regrading capacity hence the appointment of a Litigation Friend even though the head injury is unlikely to have resulted in any brain injury. The conclusion was that Post Concussional Syndrome (PCS) was present for some 12 to 18 months (so up to end of 2008) with no continuing neurological effects. The neuropsychiatrists and the neuropsychologists engaged on both sides disagreed somewhat as to the continuation of any symptoms thereafter and their effects. F’s experts were reinforcing the assertion that there was exaggeration by K and that there was in fact not a lot wrong with him. K’s experts explained his behaviour based on psychologically recognised disorders, however even they acknowledged that K’s presentation was difficult to diagnose and that there was some deliberate behaviour especially after the initial period of up 18 months of organic symptoms. Thereafter they accepted that there was overlay between functional difficulties and those which arose as a result of deliberate behaviour, meaning there was exaggeration. 

K’s own neuropsychiatrist expert conceded that there was an element of conscious exaggeration in K’s behaviour but he was nevertheless presenting with illness behaviour the underlying cause of which was non-deliberate and unconscious. This expert was not at Court to give evidence for various reasons, but F’s neuropsychiatrist was and gave oral evidence confirming that his views as to a lack of any organic cause for continuation of symptoms were backed up by covert surveillance evidence which had been obtained before trial and which showed K displaying normal behaviours within a social and work environment. F’s neuropsychologist expert however agreed to some extent with K’s own neuropsychiatrist so it was not surprising that the Judge found favour with that conclusion which was in effect that there was a somatic symptom disorder at play with genuine symptoms overlaid with exaggeration.

In addition, there had been a recommendation relatively early on for neuropsychological treatment which K’s parents unreasonably refused to arrange. Had that been arranged, the chances are K’s actual organic symptoms would have improved by the end of 2013, so causation of loss beyond that point was not made out and this was the basis on which the Judge at first instance proceeded. (That part of the decision was not subject of any appeal.)

The Judge made an award of £62,837 for generals, past loss of earnings and some treatment costs. 

On appeal, F argued that of the above mentioned figure only some £5,000 for general damages was in respect of the PCS of up to 18 months about which there was no dispute. Everything else was awarded as a result of significant exaggeration by K and it was on that basis that the appeal was made by F arguing that the claim should be struck out because the exaggeration was deliberate and that nothing should be awarded for losses beyond the end of 2008. 

So how did the Court of Appeal deal with the effect of the exaggeration?

1.The Court of Appeal agreed with the decision of the first instance Judge that there was no reason for strike out and could find no fault with the approach adopted by him which was as follows:

’Taking my lead from the Supreme Court in the case of Summers -v- Fairclough Homes Ltd and the speech of Lord Clarke of Stone-cum-Ebony, I judge that as he was genuinely injured in the accident and has been affected by a significant and genuine organic and then psychiatric presentation, which has interfered with his day to day experiences, causatively until the end of 2013, he should be permitted to recover some damages. That said, it is necessary for me to cut away any alleged loss that flows from his deliberate behaviour and which properly reflects the expert advice and evidence which I find the claimant through his litigation friend and family, should have taken heed of.’

2. A further ground of appeal was that it was difficult to untangle the genuine symptoms/effects from the exaggerated symptoms/effects. The burden was on K to prove his case and because of this difficulty of untangling, it was argued that K could not so prove it and there could not be an approach where a percentage reduction was applied.

The Judge at first instance made a reduction of 50% to the overall claim for pain, suffering and loss of amenity to reflect the fact that there were symptoms which were the result of deliberate behaviour.

The Court of Appeal could find no fault again with this approach either. This was a sensible and pragmatic solution open to the Judge on the basis of the medical evidence that was before him.

3. The past loss of earnings claim was reduced by 40% only (rather than the 50% in respect of the general damages) to reflect the deliberate behaviour, because on the facts it was clear that the exaggeration in relation to the difficulties with working became more prevalent until a certain point in time for which the reduction of 40% was more appropriate.

Again, the Court of Appeal could find no basis for disturbing the original decision and the reasoning adopted.

4. The treatment costs incurred were not reduced at all and it was argued that they should have been rejected in their entirety because they would not have arisen had it not been for the exaggeration. The Court of Appeal however was of the view that one of the treatment costs was necessary in order to get to the bottom of the assessment of K’s condition and it was clearly helpful. The future cost of therapy was advanced by F’s own expert and was properly awarded. So no challenge could be raised there either.

Comment:

The fact of exaggeration in this case was interwoven with the psychiatric/psychological injury for which there were some genuine symptoms, and consequently it was much more difficult to separate than perhaps would have been the case if this had been a physical injury. It should also be borne in mind that K’s presentation in this case baffled all the experts concerned and they all found it difficult to come up with a diagnosis but there was also another factor at play which concerned the exaggeration by K’s parents as to certain aspects of K’s symptoms and their wrongly held belief that K had suffered a severe brain injury. The parents’ behaviour in turn had a negative impact on K’s own presentation to the experts and other medical practitioners involved, which added to the perception of exaggeration by him.

Current Awareness

By the Personal Injury team