A tangled web: What we can learn from the case of Willams-Henry v Associated British Ports Holdings Limited

April 12, 2024

High Court, Ritchie J.

Pankaj Madan Barrister, Exchange Chambers

The Judgment in the case of Kirsty Williams-Henry makes for very uncomfortable reading for everybody who deals with severe to catastrophic personal injury cases.

On the face of it, this was not a case where ordinarily one would have expected a Claimant to have been fundamentally dishonest. The Claimant herself had worked in the insurance industry for a major respected insurer, Admiral. There had been a rehabilitation programme involving a case manager, neuropsychological and physical rehabilitation at a cost of over £80,000.

The brief facts

The judgment runs to 99 pages. It is a characteristically clear and well constructed judgment by Ritchie J. The judgment is well worth a read.

In July 2018, this Claimant, now 33 years of age, suffered a moderately-severe traumatic brain injury and other multiple injuries in a nasty fall off Aberavon Pier which was insufficiently guarded by railings. The Defendant was the owner or occupier of the pier and had admitted liability which settled at 2/3rds 1/3^rd in the Claimant’s favour.

This was essentially a moderate-severe brain injury and pain case. The claim was £3.5 million, full liability. The Counter-schedule admitted either £374,000 or £552,000 odd on a full liability basis.

She had made some recovery and indeed returned to work before the instruction of a case manager and neuropsychologist recommended that she cease work for rehabilitation. The Court found that this recommendation was iatrogenic and inappropriate and was critical of the case manager and treating neuropsychologist.

It was contended that the Claimant lost capacity largely because of her deteriorating mental health. Indeed, she had undergone the removal of part of her frontal lobe in a cranioplasty. Unsurprisingly, she was not a good witness, but the Court found her nonetheless to be a fundamentally dishonest Claimant in the light of contrasting DWP records, personnel records, social media depictions, extensive video-surveillance and a life insurance application form arising after the accident.

The Judgment

The Court found the Claimant had been dishonest. She was severely depressed by the time of trial but this was largely as a result of her own dishonesty, the allegations of dishonesty made, and the impending trial and as such was largely her own fault.

Ritchie J assessed the genuine element of her damages claim as £895,000 on a full liability basis. The Court deprived her of all of her damages due to her fundamental dishonesty but allowed her not to repay interim payments of £75,000.

Key findings

The Court found that the reported problems to the case manager, which were extensive by late March 2022, were largely fabricated and that there had been a taking of the Claimant’s assertions at face value.

The case manager had failed to read or was not given the relevant neurorehabilitation and other treatment notes, and had a lack of understanding and “sloppiness” and a blinkered approach. This set in train some adverse consequences for the Claimant. She would stop work in 6 months, disengage from all NHS treatment and fall into a suicidal state of despair.

The advice to give up work was truly catastrophic for her state of mind, the Court found.

The Claimant had misled the Court and experts (and no doubt her skilled legal team). Key points were: –

She had exaggerated the effects of the injuries in her DWP claim for benefits. Whilst much of that was collateral, it gave the impression of a Claimant willing to lie for financial gain.
She had lied on a life application form. She knew, coming from an insurance company, above all how this was unlawful. Whilst collateral to the claim it gave a very poor impression of the Claimant.
She had grossly exaggerated the effects of her injuries to medical experts, for example a major intolerance to heat (seen going about on holidays in warm climates), eating the same meals every day and not being able to eat curry anymore (seen out for curries on social media posts),
Showering at home without help, when saying she needed to shower at her mother’s house under supervision due to dizziness,
Noise intolerance in large crowds, yet going to a “Spice Girls” Concert.
Not drinking alcohol due to her TBI but seen doing so in various social media posts.
Struggling at work and with multi-tasking, contradicted by work appraisals – some self-performed – and performance reviews.
Failed to disclose holidays abroad, spa trips, attendance at weddings, hen visits, rock and pop concert attendances.
New assertions made in the claim, such as light reflecting off water disorientated her, were false.
A spa weekend where she was seen walking up the hill with no limp and no stick, having driven her friends there.
When the successful application for social media was made, this showed undisclosed holidays, spa weekends, cinema trips, pop concerts, weddings, hen nights, drinking, partying – yet she failed to tell clinicians, medico-legal experts and her lawyers; creating a false impression of extensive disability for financial gain.

“Lie by lie, the answers were exposed by professional and careful cross examination….”

The Court found that she had: –

“Provided the breathtakingly dishonest answer in cross examination that there is nothing she would take back which was written in the DWP forms”.

“Overall, I regret to say that I found the Claimant to be dishonest and manipulative both in Court and in what she said to the medico-legal experts.”

A number of the claimant’s experts, case manager and treating experts didn’t come out of the claim too well.

Learning from the case

What can practitioners, and experts, whether Claimant or Defendant, take away from the case. Here is my 23-point guide: –

Don’t assume that because the Claimant suffered a very serious injury that there cannot be serious dishonesty and that this cannot be found to be fundamental.
Don’t assume that collateral dishonesty in applications especially for insurance or benefits will be forgiven or attributed to the injury. Brain Injury or depression should not cause dishonesty. Collateral dishonesty is highly relevant to the impression the Court will form of a Claimant.
Ensure that the case manager preparing an INA does not take self-assertions at face value.
Ensure that the case manager and neuropsychologist have read the treatment notes or go back to those when they are available and see if they support their initial conclusions even if they didn’t have the notes when they made the INA.
Even in a serious injury case, you cannot ignore social media. Claimant lawyers should ask to look at it once an initial record of the Claimant’s symptoms and condition have been taken. Keep it under review.
Social media is potentially disclosable and must be preserved. Defendant lawyers should be considering applications for disclosure. In this case as this was post-surveillance, it was unanswerable.
Ensure treating and medical experts do not lose objectivity or neutrality and do not take the Claimant just at face value. A good rule of thumb is to remember if you can’t prove your claim without the Claimant’s evidence, then you may not have a good claim.
Don’t assume that failed performance validity testing on neuropsychological testing can always be explained or falls away. It is a relevant factor and should cause you to test the evidence in more detail.
Experts should not countersign a litigation capacity report (or anything) if they have not carried out testing of the Claimant themselves.
If surveillance is disclosed, Claimant lawyers must ensure that all their experts have seen the videos and social media.
Experts should be able to explain logically the assertions they make e.g. “a 2-year acceleration”. If you cannot, don’t make it. Use literature when appropriate.
Experts should not ignore advising on which complaints are caused by the tort and which are not. An attempt should always be made even if it is difficult to do so. The duty is to help the Court.
Experts should not be too accepting of self-reported information. They must adequately cross-reference it with contradictory medical notes, video evidence, social medial, employment and personnel documentation and consider the contradictions with sufficient objectivity.
A new explanation in this case “Functional Neurological Disorder” made at trial by an expert is unlikely to hold water. Avoid off the cuff opinions post-joint report.
Ensure experts are instructed to consider surveillance and social media evidence in a supplemental report not just when coming to the joint report.
Experts must not step outside their field of expertise. Neuropsychologists on both sides stepped outside their field into areas which were the province of the neuropsychiatrist.
Whether expert or lawyer, think very carefully before ever advising any claimant who is working to stop work. This always must be a carefully managed decision and one taken by the Claimant themselves. Work is often beneficial to the state of mind and recovery.
Examine experts’ CVs in conference and ensure they are up to date and accurate. One of the Claimant’s experts was challenged for example on their split of work. They said it was 60% claimant, when under expert cross examination it appeared to be more like 90%! This didn’t help.
Be mindful of the effect of the potentially iatrogenic effect of a claim itself upon claimants and whether it is doing them any good or causing proliferation of symptoms.
Experts should be sure about advising on the need for lifetime care and case management, particularly if there is a lack of demonstrable organic pathology caused by the TBI. This can cause further loss of self-esteem, self-confidence and ability to be independent.
Long winded-ness and long disseminations under cross examination from experts or any witness is unlikely to impress. Test your expert in conference and instruct experts where possible who are experienced in giving evidence in Court.

Of one of the Claimant’s experts, the Court said: –

“Watching the process of getting her to admit that [the claimant had given a worse account of her symptoms than the reality] was like watching counsel pushing a boulder up a steep hill.”

Firms should avoid instructing the same expert to the extent that they may become beholden to the firm for their work and face the charge that they have lost impartiality. This applies both to Claimant and Defendant firms and possibly insurers too.
Consider early offers to settle and mediation. Both sides on occasions demonstrate fantastic victories in this hotly contested area of litigation. I have always believed in “sensible, steady, and objective”. Even the most skilled lawyer can be caught out by a manipulative Claimant. Although the Defendant achieved a terrific victory in this case, no doubt the costs are unlikely to be recovered and the cost of an 11 day trial will be very substantial. It is worth remembering other cases have not always proven to be so successful for the Defendant.

Substantial injustice

Ritchie J disagreed with the test laid down by Knowles J in London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018] EWHC 51. The test is that it is the dismissal of the claim for damages that triggers the analysis of whether a substantial injustice will occur if no damages are awarded. The Court must balance the facts factors and circumstances of the case.

Here is the 8 point test.

The amount claimed when compared with the amount awarded.
The scope and depth of the dishonesty, minor, moderate or gross.
The effect of the dishonesty on the construction of the claim.
The scope and level of the Claimant’s assessed genuine disability.
The nature and culpability of the Defendant’s tort.
What the Court would do in relation to costs if the claim were not dismissed.
Interim payments and how the Claimant could afford to pay them back.
Effect on the Claimant’s life, housing, finances and ability to work.

Summary

The Court found that: –

“Had the Claimant been honest and genuine with her clinicians, the Defendant, the Court and the experts, the case would never have warranted surveillance and would probably have settled in late 2023, with a quite substantial payment and no costs penalty. In my judgment the case went to trial because of the Claimant’s dishonesty, and this led to her deepening depression”.

About the author:

Pankaj Madan is a senior Barrister specialising in Traumatic Brain Injury from the subtle to the Catastrophic and Severe pain cases. He acts for both Claimants and Defendants and practices from Exchange Chambers and 12 King’s Bench Walk. He is a member of the Royal Society of Medicine, Pain Section Council and has many years’ experience as a Deputy District Judge. He is the author of published books about brain injury and pain.

Back to News