Court of Appeal considered the point in FLETCHER v KEATLEY (by his LF) 
EWCA Civ 1540 (a decision from 12.10.2017) and followed guidance in Summers v
Fairclough Homes Ltd  UKSC 26.
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.
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.
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.
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
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.)
Judge made an award of £62,837
for generals, past loss of earnings and some treatment costs.
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
how did the Court of Appeal deal with the effect of the exaggeration?
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:
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.’
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.
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.
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.
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.
the Court of Appeal could find no basis for disturbing the original decision
and the reasoning adopted.
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
own expert and was properly awarded. So no challenge could be raised there
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.