Liam Ryan considers the recent decision of Fletcher v Keatley  EWCA Civ 1540 and how a Court should, and can approach a claim for psychiatric injury where a Claimant has been found to have purposefully exaggerated their symptoms.
Published on the 12th October 2017, the case of Fletcher v Keatley  EWCA Civ 1540 reaffirms in my opinion three broad points and areas of concern for practitioners who deal with personal injury litigation involving psychiatric injuries where the evidence before a Court demonstrates inconsistency.
Firstly, the well documented and discussed difficulties that are inherent when assessing and quantifying a psychiatric injury that cannot by its very nature be objectively verified. Secondly the need and right for parties to be able to interrogate, and call their own expert evidence on the extent of such an injury and the inevitable evidential conflicts created by the disparity of opinion which will require litigation to resolve. Thirdly, the ever-present danger of dishonest Claimants who seek to exploit the fact that a psychiatric injury cannot be independently and objectively verified, and exaggerate or fabricate their symptoms for commercial gain, damaging and tarnishing hundreds of other genuine Claimants through guilt by association.
In this matter the Court of Appeal heard an appeal arising from straightforward facts, but with serious consequences.
The Respondent (or the Claimant) was injured in 2007 when he was 17, and a passenger in the Appellants (or Defendants) car and suffered a mild head injury. At trial in 2016, there was an issue as to whether the Respondent was exaggerating the symptoms from his injury. Neurologists agreed that his injury had led to a post-concussion syndrome which would last until late 2008 and that neurological effects would not have lasted beyond that time.
Both parties called expert evidence from Neuropsychiatrists and Neuropsychologists. The Court found that the Respondent had continued to suffer post-concussion syndrome until the end of 2009 and from this point onwards to until 2014 when he commenced employment he had suffered a somatoform, or psychological and non-deliberate, disorder. The Court drew that conclusion from the evidence of the Respondent’s Neuropsychiatrist, which the Court held was supported by that of the Appellant’s Neuropsychologist that by May 2009 there was an overlay of deliberate behaviour on the part of the Respondent, as shown by his failure to co-operate with medical tests.
Going one step further, the Court also held that if the Respondent’s family had acted reasonably in getting him neuropsychological support in 2012, he would have recovered by late 2013 (see for example BAE Systems (Operations) Ltd v Konczak  EWCA Civ 1188) and that this therefore, was the period for which he could claim losses due to a failure to mitigate his losses.
The Court therefore reduced by 50% the amount the Respondent would have been awarded for pain, suffering and loss of amenity to reflect his deliberate and misleading behaviour, further reducing the damages awarded for past loss of earnings by 40% for the same reason. The logic behind this was that the deliberate behaviour had not manifested itself until May 2009 and therefore, judicial discretion was carefully applied, evidence considered and a reasoned conclusion reached as to what injury was actually suffered by the Judge.
At the Court of Appeal, the Appellant argued that the Court had been plainly wrong to accept the opinion of the Respondent’s Neuropsychiatrist over that of the Appellant’s Neuropsychiatrist. He further argued that the Judge should have struck out the claims for damages for the periods after 2008 because they had been sustained by deliberate exaggeration (note that due to the date of issue of the claim section 57 of the Criminal Justice and Courts Act 2015 did not apply).
The Judgment of the Court of Appeal given by McCombe LJ stressed two main points.
Firstly, that the Court had been entirely entitled to prefer the Respondent’s experts, and further, that the evidence of the Appellant in places supported the evidence of the Respondent. This was a classic example of one expert being more persuasive and the opinions grounded in research and accepted medical opinion. The Courts conclusion was in any event, one it was entitled to arrive at predicated on the evidence before the Court.
Effectively the Court had preferred the opinions of both two experts in forming a reasoned and well set out opinion. McCombe LJ held at paragraphs 46 – 48 of the Judgment that;
“For my part, I consider that this material amply justified the judge’s findings… In my judgment, the judge’s conclusion cannot be faulted; it was one which he was entitled to reach on the evidence.
Further, I do not find that the judge’s analysis is defective for want of sufficient reasoning… The judge’s conclusions were supported by the overall background which he recited in his comprehensive judgment. He set out fully and clearly the rival views of the experts and his finding that the evidence of Dr Scheepers and Dr Kemp pointed to the probable explanation of the respondent’s condition. The underlying opinions of those experts were well known to the parties, as was the rival view of Professor Trimble…
The balance of the evidence of two experts, one supporting the other, favoured the respondent, and it was not necessary for the judge to go over the ground again. The parties could see quite clearly from the judgment overall that the judge preferred the opinions of the two experts that he identified to that of the third and his reason for so doing was obvious, when taken in the context of the judgment as a whole”.
Secondly the Court considered what course to take in the face of the unsatisfactory features in the Respondent’s case, namely the exaggerations. The Court of Appeal held that the Court had reached an entirely proper conclusion and considered the matter precisely in line with the approach set out in Summers v Fairclough Homes Ltd  UKSC 26, and the decision and its logic couldn’t be criticised.
The award of 50% of what the Respondent would have been awarded for pain, suffering and loss of amenity could not be faulted and in my opinion, was more than just since the Respondent had proved to the Courts satisfaction some genuine adverse consequences of the accident in the 2009-2013 period but the shadow of exaggeration persisted over this period.
The Court considered it seemed probable that the element of exaggeration had increased towards the end of this period, but the experts were not capable of forming an opinion as to the apportionment of any deliberate exaggeration and genuine injury at these times. Therefore, the Court had reached a pragmatic solution within the Summers guidance and applied appropriate reductions to ensure a just result was arrived at. The Judgment of McCombe LJ at paragraphs 54 – 57 records that;
“In my judgment, that was an entirely proper conclusion for the judge to reach. He had a discretion to exercise and it cannot be said that he exercised it contrary to any principle. It seems to me that he considered the matter precisely in line with Lord Clarke’s statement in Summers and that his decision cannot be faulted. It is to be noted that the judge’s costs order also appears to have reflected part of his sanction for the manner in which the respondent’s case had been advanced.
Next within this group of grounds, the appellant argued that the judge erred in his conclusions in seeking to untangle the genuine from the non-genuine aspects of the respondent’s claim…
In the end, the judge awarded 50% of what he would have awarded for pain, suffering and loss of amenity in the period from the end of 2008 to the end of 2013, the deduction being made for the respondent’s “own deliberate behaviour”.
…I can find no fault in this assessment. This respondent had proved to the judge’s satisfaction some genuine adverse consequences of this accident in the period 2009 to 2013. It seemed probable that the element of exaggeration increased towards the end of the period, but quite reasonably, the experts could not fix the extent of the contribution to the respondent’s presentation made by his deliberate exaggeration at any particular time. In my judgment, in such circumstances, the judge reached a sensible pragmatic solution, within the guidance given by Lord Clarke in Summers, and I would not disturb such a finding by a trial judge who had heard the evidence”.
An application under section 57 of the Criminal Justice and Courts Act 2015 could not be pursued it appears in this matter as the Claimants case was issued before the 13th April 2015 but in my opinion, had one been, it would on balance have succeeded since there would have had to been a finding of fundamental dishonesty in relation to the primary claim (the personal injury), and also fundamental dishonesty in a related claim (the loss of earnings). Therefore, the case would have needed, and been required to be dismissed.
The Judgment certainly warrants reading for any personal injury practitioner. It is a salient reminder of not only the need for an adversarial and inquisitorial process in litigation, but also of the fact that a Judge doesn’t need to be bound unequivocally to one parties expert evidence (although it will always be persuasive) and is free to reach their own conclusions.
Whist is reassuring to see an example of this being done in such a careful and well thought through manner, it is sad to see that a single dishonest Claimant has yet again tarnished the perception of genuinely injured Claimants who suffer psychiatric injuries, adding further stigma and difficulty to those seeking justice. The case re affirms that a Judges role is to listen to all the evidence in a case, assess it and burn away the aspects which cannot be found to be reliable, or preferred to reach a refined, and on the balance of probabilities, pure core of true facts on which a Judgment can be based.