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Evans v Sully, Torquay County Court, 17 October 2003

22 October 2003
The issues

Assessment of damages – fraud – Claimant’s untrue statement – costs – indemnity costs.

The facts

The Claimant, an Australian schoolteacher, sustained quite serious injuries in a road traffic accident whilst visiting the UK on 24 April 1996.

The Claimant’s physical injuries and an exacerbation of depression had all largely resolved by 2 to 3 years post accident. The Claimant however also sustained a closed head injury, which, he contended, caused permanent impairment of short-term memory. This was significant as the Claimant was employed as a school teacher in Australia at the time of the accident. He returned to his job but only lasted 1 year. He had difficulty coping. There were incidents of unacceptable and unprofessional conduct involving pupils, parents and other staff. The Claimant was about to be dismissed but he resigned first.

The main issue in the lead up to Trial was whether the short term memory loss and the problems arising from it caused the loss of the teaching job and meant that he was not able to gain another teaching post and continue his teaching career. The Claimant contended he was only capable of carrying out menial gardening work. There was a significant loss of future earnings of about £200,000. However, there was a history of poor performance and unprofessional conduct stretching back 10 years prior to the accident involving 2 previous teaching posts as well. The Defendant therefore contended that the loss of the teaching job was not caused by the injury and that the Claimant’s teaching career was already well down the “slippery slope”.

Seven days prior to Trial, the Claimant’s solicitors informed the Defendant’s solicitors they had just been told by their client that he had been working as a school laboratory technician since February 2000. He had previously told a medical expert who examined him that he had been gardening. Furthermore, this is what he had said in 2 witness statements in 2000 and 2002. The Claimant’s solicitors served a revised Schedule of Special Damages the day before Trial with a reduced earnings claim of £140,000. The Defendant contended that the medical evidence was tainted and nothing which the Claimant had said about this difficulties and his earnings position could be relied upon.

The decision

1. The Claimant was awarded approximately £44,000. This included £17,500 for generals and a lump sum of £20,000 for earnings.

2. The medical evidence was tainted by the false information given to the medical expert and it and the Claimant’s evidence was unreliable unless it was independently corroborated.

3. There was sufficient objective medical evidence (in the form of neurological testing), which indicated there was continuing impairment of short term memory. The Recorder relied however on the pre-accident personnel and medical records and found that the continuing affects of the head injury did not cause the loss of the Claimant’s teaching job or career. He therefore awarded a global sum of only £20,000 which was made up of £14,000 for past loss of earnings and £6,000 for handicap on the labour market.

4. The Claimant had failed to beat the Defendant’s payment into Court of £60,000 of November 2002. However, the Recorder exercised his discretion and, referring to the matters set out in CPR 44.4 and 44.5, particularly the Claimant’s conduct, the Defendant was only ordered to pay the Claimant’s costs up to March 2000 which was the date when the Claimant filed his first untrue witness statement. The Defendant was awarded indemnity costs from thereafter to include the costs of the Trial.

Comments

For further information about this case please contact Darren Salter at darrensalter@vpinsurance.net.

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