Court on appeal find an alleged dog bite claim to be fundamentally dishonest
At the original trial of Ellis v Pets at Home Ltd 2025, the judge found that the claimant had not been bitten by an Alsatian in the course of her employment with the defendant as alleged, but declined to go on to find that the claimant had been fundamentally dishonest. The decision was appealed and HHJ Walsh made a finding of fundamental dishonesty, substituting it for that of the DDJ at trial. QOCS was disapplied and the respondent was ordered to pay the appellant's costs of the claim, including the appeal, on an indemnity basis in the sum of £25,470.
Facts
In the particulars of claim, the claimant pleaded that she had been bitten on the left inner thigh in an incident on 29 August 2021 and that she had reported the incident to her manager as soon as it had happened. The defendant vehemently denied that the dog had bitten the claimant and the matter proceeded to trial.
Evidence
The claimant relied on her own witness evidence and, at first instance, was unequivocal in her evidence that she had, amongst other things, been bitten on thigh; screamed in pain and had told her manager, and medics, that she had been bitten by a dog. She remained steadfast in her account. Whilst the first reference to a dog bite in the claimant's medical records was not until 29 November 2021, the claimant maintained that the entry did not relate to a later dog bite but was in fact related to the index incident.
First instance decision
Whilst the DDJ dismissed the claim and found that (a) the claimant was not bitten; (b) the bite was not discussed and (c) she did not tell medics of a dog bite, he did not make a finding of fundamental dishonesty. Fundamental dishonesty was a live issue and relevant submissions were made on behalf of the defendant. However, the DDJ simply stated that he was not prepared to make a finding of fundamental dishonesty.
Appeal
HHJ Walsh considered the appellant's position, which was that having made accurate findings to the effect that the claimant had not been bitten, he then had to ask whether the claimant genuinely, but mistakenly, believed she was bitten by a dog.
It was argued by the respondent that the court should be slow to overturn a finding of fact. However, HHJ Walsh commented that he was not persuaded that he would be interfering with a finding of fact. The DDJ had not made a reasoned finding in respect of his position on fundamental dishonesty, he had simply expressed a bare conclusion. HHJ Walsh held that it was incumbent upon the DDJ to weigh the totality of the evidence and, in particular, noted his unchallenged findings. An observation was made that the courts are repeatedly reminded, and have been in numerous authorities, of the dangers of placing weight on demeanour in particular.
HHJ Walsh said "I have reached the conclusion, and have no hesitation at all in doing so, that the DDJ was very plainly wrong, and the appeal must be allowed, and with it a finding of fundamental dishonesty must be substituted."
His reasons were as follows:
The claimant was unequivocal in her evidence that, amongst other things:
- She was bitten on her thigh.
- She screamed in pain.
- She was trapped for 15 minutes.
- She told her manager she was bitten on the day in question.
- She told medics she was bitten by a dog.
The question for the judge was whether those things happened. He found that they did not.
- He found she was not bitten.
- The bite was not discussed.
- She did not tell medics of a dog bite.
HHJ Walsh stated that "having made accurate findings to that effect, the judge then had to ask whether the claimant genuinely, but mistakenly, believed she was bitten by a dog at work."
It was held that the DDJ did not engage with the principles [of fundamental dishonesty], or do that in anything like a reasoned, systematic or adequate way.
HHJ Walsh found that given the way that the claimant had presented her case, and her unequivocal evidence on key points, once the judge had made the findings he did, the only rational and reasonable conclusion the judge could have reached was that she had been dishonest and that she did not genuinely hold the belief she was bitten on the inner thigh or at all, or that that had been the cause of her subsequent medical problems. Further, that the dishonesty went to the root of the claim.
The appeal was allowed.
Discussion
The approach taken by HHJ Walsh was entirely the correct approach. The notion that claimants genuinely believe their evidence is correct, when they clearly do not, is an argument we often see levied in the defence of an allegation of fundamental dishonesty. This is a very welcome and rational decision and we hope more judges heed HHJ Walsh's comments.
Claire Laver, Head of Fraud at DAC Beachcroft CSG, said:
"It is astonishing that the claimant, having had her claim dismissed, would further the argument that she was genuinely mistaken about being bitten by an Alsatian. The successful defence of this claim has arisen from a focussed fraud strategy combining specialist dog bite and fraud expertise. It is with thanks to the tenacity of our client and counsel that the right decision was made in the end."
Alex Baird, NFU Mutual’s Department Manager – Claims Validation (Corporate Insurance), commented:
“This claim was both lengthy and intricate, beginning with an initial allegation in 2021 and subsequently developing as further alleged incidents were reported over the following years. Throughout the process, the LCI Claims Validation team at NFU Mutual stayed focused on thoroughly examining the credibility of the account, this played a pivotal role in successfully defending the claim both at trial and on appeal. The final result highlights how perseverance is crucial in cases where suspicion arises—dedicated scrutiny can ultimately expose fundamental dishonesty and reinforce NFU Mutual’s firm position against fraudulent claims.”
For more information or advice, please contact one of our experts in our Casualty Fraud Team.
