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Published 31 agosto 2023
To date, claims relating to industrial disease have not been an area where instances of fundamental dishonesty have been as prevalent as some other types of personal injury claims. However, in Compton v (1) S&K Ground Work Solutions Ltd, (2) TDR Groundworks Ltd. & (3) Columbus Building Contractors Ltd. DAC Beachcroft (Daniel Hobson instructing James Murphy of counsel) acting on behalf of the third defendant ("Columbus") was successful in establishing fundamental dishonesty on the part of the claimant ("C").
C claimed to have been employed by all three defendants: by Columbus from 25th January 2010 to 5th August 2011, by D1 from 4th February 2014 to November 2017 and by D2 from November 2017 until January 2019.
The basis of the claim was that while working for the defendants he was required to use vibration tools which has caused him to develop Hand Arm Vibration Syndrome (HAVS) for which he sought compensation, including a substantial claim for future loss of earnings. All the defendants disputed the degree of exposure to vibration alleged by C, and denied negligence or breach of statutory duty.
The claim against Columbus
As far as the claim against Columbus was concerned, C began working for them when has was 18 carrying out mainly house extension work together with some work for one chain of supermarkets in the area. It was his case that after a couple of weeks of training he started using a wide variety of vibration tools, using one or more every day. C asserted that, as the least experienced of the gang, he was given the jobs using vibrating tools allowing the more experienced workers to do work requiring more skills. He described jobs, including some specific instances which involved breaking up tarmac and concrete for long periods.
C alleged that at no stage did Columbus provide any specific advice in relation to HAVS and that there was no job rotation, no advice about trigger times, and no health surveillance. C denied seeing a health and safety handbook similar to that disclosed by Columbus which was said to have been in use at the time.
In cross-examination, C was challenged about many aspects of his claim including the work he claimed to have done, the extent to which he alleged that vibratory tools had been used and the tools that he had used. It was put to C that Columbus did not own some of the tools which he alleged he had used and indeed it was Columbus's case that he did not use vibrating tools at all and that only thirty percent of Columbus’ work required vibrating tools.
C's father with whom he worked for Columbus supported his son's assertions saying that they were never provided with training or advice in relation to HAVS, the risks of excessive exposure to vibration or trigger times. He also could not remember any risk assessments being carried out. Further, he said he had not seen the health and safety handbook. Under cross-examination C's father said that he was “possibly” aware of the link between vibrating tools and damage to hands.
Evidence given on behalf of Columbus was that C had been taken on as a labourer to assist his father, to whom he would report a labourer, not as a groundworker. Evidence was also given as to what equipment Columbus owned at the time, its primary position being that C was not permitted to use vibrating tools as a young inexperienced worker. Columbus also called evidence from a witness who had been on site with C who gave evidence as to the tools used on site and their usage.
The claimant's symptoms
C asserted that he first noticed symptoms of HAVS in around 2017 with intermittent numbness and tingling in his hands with a few episodes where his fingertips went white. Diagnosed as suffering from HAVS in June 2018, C claimed that his condition continued to deteriorate and that by July 2021 when he signed his witness statement he continued to suffer badly with his hands. C alleged that in the winter he experiences several blanching attacks a day and that he experienced attacks all year round, approximately three times a week on average. C, a keen surfer, claimed that as a result of developing HAVS he cannot surf at all December and April and even in the summer, whereas he would have gone surfing for three or four hours at a time, he was now limited to between one and one-and-a-half hours before he risks an attack.
When cross-examined C was faced with a significant amount of social media evidence including photographs and video footage of him surfing on a number of occasions at times when it was claimed that his condition prevented him from doing so along with images of him riding a motorbike off road and rock-climbing.
The judge's findings
In a full and detailed judgment in which he considered the evidence in great detail, the judge identified seventeen points which caused him difficulties with C's evidence. In describing his concerns with C's evidence the judge used comments such as "not entirely consistent", "At best this was exaggeration", "trying to get himself out of a difficult question being asked in cross-examination", "He was asked a clear question and gave an untruthful answer.", "This was not true.", "The omission was deliberate." and "I do not accept his evidence as being truthful on this point." The judge also rejected evidence from other witnesses called by C.
The judge was equally unimpressed with C's evidence in relation to a health surveillance form and his suggestion in his witness statement that "the signature was not his, with the necessary implication that it had been placed there by others." No expert handwriting evidence was called, but the judge concluded that "I am satisfied on the balance of probabilities that he was dishonest in his evidence about the forging of the signature…...".
As far as the claim against Columbus was concerned the judge said "I do not accept Mr Compton’s evidence as to his use of vibrating tools; it was nothing approaching the magnitude that he now' seeks to assert. I am sure that in relation to Columbus he rarely, if at all, used vibrating tools." The claim against Columbus, and the claims against D1 and D2 failed at the first hurdle.
Given these findings, the judge did not need to consider whether the case ought to be dismissed under the provisions of s.57 of the Criminal Justice Act 2015 but went on to consider the submissions made by the defendants on the matter of fundamental dishonesty. After a detailed consideration of the law on fundamental dishonesty the judge said:
"I identified seventeen issues with Mr Compton’s evidence during the course of my judgment. I am satisfied on the balance of probabilities that he was dishonest in his evidence about the forging of the signature, in what he said to his medical expert about his family history, smoking and the absence of health checks, his evidence about not using recreational drugs other than cannabis, and in denying his knowledge of the link between vibrating tools and HAVS. He exaggerated his use of tools whilst working for each defendant and was not truthful in what he said about his participation in motocross or the effect of his symptoms on his surfing. I am satisfied that he was dishonest by the standards of ordinary decent people."
The judge added "I am also satisfied that some of these matters are fundamental to the claim" concluding
"I do find Mr Compton to have been fundamentally dishonest within the meaning of CPR r.44.16(1) and would have done so had I been required to consider s.57."
Findings of fundamental dishonesty are rarer in industrial accident/disease claims than they are in other areas such as motor accident claims but this case is a clear demonstration of the importance of adopting a vigilant approach to defending such claims and ensuring that there is careful analysis of the assertions and evidence with appropriate intelligence investigations undertaken to ensure that a robust evidential response is prepared. Doing so can result in a significant saving to defendants and their insurers.
The Schedule of Loss advanced by C was pleaded at a maximum of £225k in addition to general damages which would have placed a value on the claim overall at a figure approaching £250k.
Identifying the cases to challenge and then working closely with our clients to identify and agree and appropriate defence strategy is an important element of our claims handling approach and it was gratifying to see the judge dealing robustly with the claim and delivering a judgment in favour of our client.
For more information or advice, please contact our Casualty Team.
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