A claimant who was found to have unconsciously exaggerated his injuries was not fundamentally dishonest, the High Court has ruled.
Mr Justice Jacobs upheld the county court’s decision in Ellamae v Westminster City Council that the claimant, who had thwarted ambitions to be a full-time stunt man, had a ‘genuine belief’ in the facts which he represented.
The trial judge had not found that the claimant had subjectively lied to him and so he rejected the defendant’s argument that the claim was fundamentally dishonest. As a result, the £125,321 damages award was upheld, as well as the indemnity costs order based on the defendant’s rejection of the claimant’s Part 36 offer.
The court heard that claimant Marwan Elgamel had been 22 in 2012 when he injured himself on equipment at the defendant’s gym in London. He performed a flip, landed awkwardly and violently twisted his left knee, leaving him requiring a series of operation to reconstruct the joint. Liability for the accident was compromised at 65% in the claimant’s favour.
The defendant’s case on fundamental dishonesty concerned the alleged exaggeration of the claimant’s symptoms, including the development of a limp. Surveillance footage appeared to show Elgamel was capable of walking normally, using a staircase and using public transport. He submitted that he made major efforts to appear ‘normal’ in public but that he paid the price for this later in private.
In the county court, His Honour Judge Murdoch found he was exaggerating the ongoing effects of his injury but that he believed he was disabled to a greater extent than had been found, and from his perspective he was not lying. Although there was a level of exaggeration, those findings were not fundamental to the case, and did not result in a reduction in general damages to the extent the defendant submitted.
In the appeal judgment, Jacobs J said the authorities showed he should be reluctant to interfere with the judge’s conclusion. He rejected the submission there had been ‘conscious exaggeration’, adding: ‘Judges frequently hear from witnesses who have persuaded themselves as to the existence of certain facts, but where the judge takes a very different view. Such witnesses are not, or at least not necessarily, untruthful or dishonest.’
He added: ‘It does not seem to me that the exaggerations alleged had an actual or potential impact on the claims advanced so as to move into the territory of fundamental dishonesty. Put simply, they did not go to the root of the claims whether viewed as a whole or individually.’
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