EWJ Dec 2023 - Journal - Page 52
Personal Injury Claim Against NHS Trust
Dismissed and Finding of Fundamental
Dishonesty Made
Article by Cindy Tsang, Partner, London. co-authored by Sydney Copley, Solicitor Apprentice,
London - www.kennedyslaw.com
Kennedys acted for a NHS trust in relation to an
alleged personal injury claim brought by a nurse
against the trust. The claimant’s claim was dismissed
and a finding of fundamental dishonesty was made.
The court ordered the claimant to pay the defendant’s
costs, which were summarily assessed.
which depended as to a substantial or important part of itself
upon dishonesty.
In Nesham v Sunrich Clothing Limited [2016] the
claimant and defendant gave differing accounts of the
incident. The Judge accepted the defendant’s account
of events, thus dismissing the claim. The defendant
sought to rely on fundamental dishonesty, suggesting
that if the claimant’s account of events was not preferred, he had in some way been dishonest. The
claimant was found not to have been fundamentally
dishonest and it was held that preferring not to accept
the claimant’s account of events did not necessarily
mean that a finding of fundamental dishonesty should
be made. The defendant appealed without success.
Background
The claim concerned an incident in which the
claimant alleged they were injured when assisting a
healthcare assistant with transferring a patient from a
chair to their bed. The claimant alleged she had been
called by the healthcare assistant to assist and during
the transfer the patient became unsteady and fell
towards the claimant. The healthcare assistant gave a
different account of events refuting the circumstances
presented by the claimant.
Defendants do not have to plead fundamental
dishonesty in order for such finding to be made. In
the index case, fundamental dishonesty was not
pleaded. As the Deputy District Judge found the
claimant had fabricated the incident on which they
had based their entire claim, it must follow that such
claim is a fundamentally dishonest one.
Decision
The Deputy District Judge found it was not credible to
suggest that the healthcare assistant’s account of the
incident was inaccurate, and pointed to inconsistencies in the claimant’s evidence. The Deputy District
Judge observing there were inconsistencies as to the
circumstances and alleged injury sustained, with reference in particular to a draft RIDDOR (Reporting of
Injuries, Diseases and Dangerous Occurrences Regulations) report, the claimant’s Employment Tribunal
Claim Form, their A&E records, written statement
and evidence at trial.
Professor Farooq Khan
Consultant Psychiatrist
MBBS, M.D. Psychiatry, FRCPsych, FIPS, MSc Med Ed
Professor Khan is a Consultant Psychiatrist and works
in the NHS and independent practice. He is Visiting
Professor of Psychiatry, University of Chester and,
Clinical Lead for Dementia, West Midlands, NHSE&I.
Finding that the claimant had fabricated an incident
and injury they had somehow sustained in another
manner, the claimant’s claim was therefore dismissed
and a finding of fundamental dishonesty was made.
Given the finding of fundamental dishonesty, Qualified One-Way Costs Shifting was disapplied and the
claimant was ordered to pay the defendant’s costs,
which were summarily assessed.
Professor Khan has specific expertise in the following:
l Older Adults
l Dementia in all ages
l Memory impairment
l Cognitive impairment
l Assessment of cognition
Further expertise lies in the areas of general and forensic psychiatry, including a
comprehensive and wide ranged professional experience of working in adult, old age,
child, alcohol and substance use, learning disability, assertive outreach, mental capacity,
and a number of psychiatric disorders, such as psychosis, depression, anxiety, phobias,
dementia, and bipolar disorders.
Comment
Fundamental dishonesty is not defined. However, case
law provides a useful guide for how it has been interpreted.
He has a number of years of experience in writing medical expert reports for NHS
England, General Dental Council and other medico legal bodies. Professor Khan also
specialises in complex Court of Protection cases and Mental Capacity issues in patients
with dementia, delirium, learning disability and other mental health presentations. He
also gained expertise in asylum and deportation related matters which pose a significant
challenge to the individuals involved.
In (1) Lorna Howlett (2) Justin Howlett v (1) Penelope
Davies (2) Ageas Insurance Limited [2017], Lord Justice
Newey observed that the dishonesty must go to the
root of the claim and not merely ‘a collateral matter’
or ‘minor head of damage’. Lord Justice Newey referred to the judgment in Gosling v Hailo [2014] in
which his Honour Judge Maloney KC observed that
if the dishonesty: went to the root of either the whole of his
claim or a substantial part of his claim, then it appears to me
that it would be a fundamentally dishonest claim: a claim
EXPERT WITNESS JOURNAL
Professor Khan has experience in giving evidence and writing reports as an expert in
matters relating to occupational health, fitness to practice, fitness to plead / give
evidence in court, and similar litigation matters.
Professor Khan is a member of an editorial review board of a Medical Journal. He has
authored more than 50 publications in National and International Medical Journals and
Newsletters including 16 PubMed indexed and peer reviewed Journals.
Tel: 0121 301 6191 - Fax: 0121 301 6151
Email: kfmpsychservicesltd@gmail.com
West Hub CMHT, Ashcroft Unit, The Moorings, Lodge Road, Hockley
Birmingham, B18 5SD - Area of work: West Midlands and Nationwide
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DECEMBER 2023