Fundamental Dishonesty: Beware the (not so) injured golfer

What links the player who will finish 15th at the US Open in North Carolina this week and a claimant who pursued a false claim for damages after an allegedly negligent surgery in the UK? Both individuals will be looking at a cheque in the region of £325,000. However, one will be cashing that cheque and the other will be paying the amount in defence costs following a finding of fundamental dishonesty.

The most decorated golfer of all time, Jack Nicklaus, once said: “If there is one thing golf demands above all else, it is honesty.” A message that the claimant in a medical negligence claim should have considered before pursuing an embellished future care claim for damages.

Facts of the Claim

The claim began when the claimant underwent gastric band surgery, which she claimed was performed negligently. The claimant pursued a claim against the surgeon and the NHS Trust. Both defendants denied liability. The initial claim for damages put forward by the claimant was in excess of £2.5 million.

The claimant alleged that she was left with life-changing injuries following the gastric band surgery, resulting in a significant future care claim. The following figures were pleaded:

• £867,000 (future care)
• £487,000 (aides and equipment)
• £857,000 (past and future loss of earnings)

The above claims were progressed on the basis that the claimant had suffered significant bowel issues, fatigue and reduced mobility. It was pleaded that she required help with basic day-to-day tasks such as cooking, cleaning and maintenance of her home. The claimant also said that she was unable to work and spent most of her time in bed. During examinations held by the experts for the defendants, the claimant was supported by her husband and seemingly required assistance when walking in front of the experts.

The defendants were sceptical about the extent of the claimant’s care needs. They instructed a specialist team to carry out video surveillance of the claimant (able to be filmed once the claimant had left her home). The specialist evidence obtained also included a review of the claimant’s social media posts. Just like a golfer hitting a wayward drive into a penalty area, the claimant’s hopes of succeeding in her claim were sunk by the defendants’ evidence.

Expensive Golf Lesson

The video surveillance showed the claimant visiting a local golf course and attending a golf lesson. The claimant was seen swinging a golf club during the lesson for a significant period. She was also filmed carrying a large golf bag without difficulty. Further investigations found that the claimant was in fact, an active member of the committee at the golf club and playing records showed that she had competed in at least three tournaments since the allegedly negligent surgery.

Based on the strength of the evidence regarding the claimant’s ability to play golf, the claimant discontinued the claim five days before trial. This prompted the defendants to seek a finding of fundamental dishonesty and an order that the claimant pay their costs.

Fundamental Dishonesty

Under Section 57 of the Criminal Justice and Courts Act 2015, fundamental dishonesty is a defence against personal injury and medical negligence claims. The defendant can use this defence where they believe that the claimant has been dishonest about the claim and the extent of the injuries sustained. The fundamental dishonesty allegation is a serious one and is often only progressed after a claimant has discontinued their claim following disclosure of evidence that leaves them with no hope of winning the case.

The court will consider various factors when making a finding of fundamental dishonesty including:

• The stage at which the claim is discontinued.
• The costs incurred by the defendant(s) in investigating the claim.
• The public interest in identifying false claims and claimants who pursue such claims should be required to meet the costs of litigation.

Based on the facts of this case, the claimant was ordered to pay the defendant’s costs in the sum of £323,000. The key evidence was the video footage of what must now be, the most expensive golf lesson in history.

This case demonstrates that when claimants pursue a claim for damages, they must do so honestly throughout or risk severe cost consequences. Interestingly, this is not the first time that a (not so) injured golfer has been found to be fundamentally dishonest. Last year, an individual pursuing a personal injury claim against his local Council was ordered to pay the defendant £11,000 in costs after a finding of fundamental dishonesty. This order was made after an investigation into the claimant’s social media accounts showed the claimant had posted photos of him playing golf, including a photo with a caption explaining how he had “nailed a drive.” The photos were posted just three weeks after the index incident, despite the fact he had alleged in his claim that he was unable to play golf for 12 months.

Conclusion

Claimants (especially golfers) should be advised to listen to the words of Jack Nicklaus when pursuing a claim for damages. Damages in injury litigation are only awarded to claimants who can prove those damages are necessary as a result of the negligence of the defendant. Acting dishonestly will not only lead to suspicion but could prove extremely costly as it is a fundamental principle that claimants who pursue false claims will be required to meet the costs of litigation.