There has been a flurry of judicial decisions in recent months where personal injury claims have been struck out based on a finding of fundamental dishonesty under s57 of the Criminal Justice and Courts Act.

Claims for occupational diseases are just as susceptible to dishonesty as other types of claims and, in some cases, possibly even more so. This is often due to the fact that they involve evidence concerning exposures that occurred many years ago, often in situations where the employer may no longer be in business, witnesses have become unavailable, and important documents have been lost or misplaced.

Therefore, examining the circumstances that lead to fundamental dishonesty findings in occupational disease cases is both important and interesting, whether you’re a claimant or defendant.

I’ve recently reviewed two such cases, which you’ll find below:

Stanley v Vaughan (18 – 19 April, 15 May 2024, County Court at Worcester, HHJ Salmon)

This was a noise induced hearing loss (NIHL case), albeit not in a traditional industrial setting.

The Claimant has been employed as a gamekeeper at the the Defendant’s estate, and noise exposure was said to have occurred as a result of using a variety of machinery (quad bikes, strimmers etc), but primarily from shooting.

The audiograms undertaken were such that there might have been NIHL in the left ear, but not the right.  Both parties had instructed medical experts.  They did not attend trial since they were in agreement that NIHL was possible if there was exposure which was almost entirely to the left ear.  It was agreed that when shooting weapons from the right shoulder there was a ‘shadow’ to the right ear and so (perhaps counter-intuitively) the left ear was exposed to more noise than the right.

However, within the Claimant’s medical records was also an entry from an audiology appointment undertaken slightly before the Claimant began his claim.  This stated that the Claimant had had a loss in his left ear for about 20 years following an incident where he was shot with a pellet. This was before employment with the Defendant.

This point was raised to both medical experts in Part 35 questions after exchange of witness statements.  The experts agreed that if the Claimant’s symptoms began at or around the time of the earlier pellet incident, then this was the more likely cause of the Claimant’s problems than NIHL.

The Claimant stated in his evidence that the audiologist note was incorrect.  By way of an explanation, he suggested that the note ought to have read that there was ‘not’ a loss since the pellet shooting incident.

The Defendant’s witness gave evidence that the Claimant had told him on many occasions that his hearing was poor due to a having been shot in the ear some time (so in similar circumstances to the audiology note) which happened before the Claimant started work for the Defendant.

It was also the case that the Claimant had taken relevant extracts from the audiologist record and included it in his Letter of Claim without suggesting that this note was incorrect.  The Claimant’s witness statement, likewise, did not include any suggestion that the audiologist record was incorrect.

In his Judgment, the Judge found that the Claimant had had a loss to his hearing in his left ear since the pellet shooting incident, so before employment with the Defendant. 

That was what the audiology record stated, which, prior to the trial, the Claimant had never suggested was incorrect.  Further, the Judge found the Defendant’s witness to be an honest witness.  It was simply unlikely that these two different sources would both have noted the previous pellet shooting incident if the Claimant had had no subsequent problems as a result.

Accordingly, the claim was dismissed. 

The onset of symptoms was clearly a fundamental element of the claim (it was determinative of it) and the Judge found that the Claimant had been dishonest in relation to it.  The Claimant’s explanation that the audiologist report was missing the word ‘not’, was considered to be a ‘lame’ excuse by the Judge.  A finding of fundamental dishonesty was, therefore, made.  The Claimant was ordered to pay the Defendant’s costs, without benefit of QOCS protection.

Hodgson v Northumberland County Council (28/03/2024, County Court at Newcastle, per DJ Thomas).

This case started as something of a ‘routine’ trial on the preliminary issue of limitation in a noise induced hearing loss case (NIHL).  The Claimant alleged exposure to excessive levels of noise at work and that his claim was ‘in time’.  The Particulars of Claim stated that he did not notice any problems with his hearing until about 2 ½ years before the Claim Form was issued, and it was pleaded that it took a further year for the Claimant to realise that his hearing problems may be due to work reasons.

However, in evidence it transpired that the Claimant had realised that he had hearing problems and ringing in his ears for a considerable amount of time before the Claim Form was issued.

In fact, it was 19 years before the Claim Form was issued that the Claimant began to notice problems with his hearing.  He believed this to be due to noise exposure 17 years before.  At that stage he undertook a health and safety course and recalled discussing his problems with a colleague in a similar situation. 

In cross-examination the Claimant accepted that his Particulars of Claim and witness statement were not true and that he had been dishonest.

The claim was found to be out of time and the section 33 discretion was not used in the Claimant’s favour.

Further, in the circumstances, the Judge found that date of onset of symptoms and knowledge were clearly ‘fundamental’ features of the Claimant’s case.  It was also found that the Claimant had been dishonest as to these issues.  The Judge noted that many insurers would have settled the claim on the basis of the Claimant’s written case. 

A finding of fundamental dishonesty was made, and the Claimant ordered to pay the Defendant’s costs, with QOCS cost protection removed.