CPR 44.16: Clyde & Co achieves dismissal of fundamentally dishonest HAVS claim

Clyde & Co has successfully defended a HAVS claim, which was found to be fundamentally dishonest for the purposes of CPR 44.16. The claim was dismissed.

The Judge found that the claimant’s evidence contained blatant mistruths which went to the root of his claim. The evidence presented on the amount of time that the claimant had used vibrating tools was grossly and consciously exaggerated and designed to strengthen his claim.

Background

Between 2016 and 2017 the claimant was employed by the defendant, MDS Civil Engineering Ltd (MDS) as a groundwork’s foreman on a housing development. The claimant alleged that he used vibrating tools for several hours a day for five months, resulting in the development of Hand Arm Vibration Syndrome (HAVS). He pursued a claim for personal injury and disadvantage on the labour market.

Acting on behalf of MDS and our insurer client AXA, we denied the claim. We submitted that the appropriate statutory and common law duties had been complied with, and that the claimant only used vibrating tools to a limited extent. The claimant had been trained in the use of vibratory equipment and the use of HAVI meters.

Furthermore, we alleged that the claimant had grossly exaggerated the extent that he used vibratory equipment and/or that the claim was fundamentally dishonest in the context of CPR 44.16, or in the alternative, pursuant to Section 57 of the Criminal Justice and Courts Act 2015.

The claim proceeded to trial and was determined by His Honour Judge Duddridge. The trial determined the extent to which the claimant was exposed to vibration during his employment with MDS. Furthermore, it was considered that MDS had put in place sufficient measures to comply with its statutory duties and its common law duty to take reasonable care to protect the claimant from the risks caused by exposure to vibration.

The claimant’s evidence

The claimant’s case evolved at trial under cross examination. He claimed that he used several different vibrating tools between three to eight hours each day. PPE was provided but training, toolbox talks or screening relating to the use of vibrating equipment did not occur until April 2017 following the appointment of a new project manager.

His symptoms were allegedly apparent prior to that appointment yet went unreported. It was agreed with the new project manager that he would move to light duties and would not use vibrating tools again. His complaints were not reported to senior management.

Two witnesses, one of whom was the claimant’s son, corroborated his account on the use of tools. They stated that anti-vibration logs and time limits were only completed and complied with after the new project manager arrived.

The defendant’s case

The defendant’s case was that it implemented measures to monitor and reduce the risks from vibrating tools. HAVI meters were used to monitor the vibration exposure of employees when using this equipment. Anti-vibration logs were also issued, and employees were instructed to record the relevant information each day. This allowed management to monitor each employee’s exposure.

The contracts manager for MDS said the claimant was given instruction on HAVI meters and told to complete logs. Disclosure showed the claimant attended a number of toolbox talks, as well as highlighting a number of risk assessments. We submitted that MDS was clearly aware of vibrating tools as a hazard and the measures that should be taken to reduce the risks.

Furthermore, the claimant’s role as a foreman and the nature of the groundworks he was carrying out meant that the claimant made very little use of vibrating tools himself.

Judgment

HHJ Duddridge was not satisfied that the claimant was exposed to excessive vibration levels or that the defendant breached their statutory or common law obligations. The claim was dismissed.

The Judge described the claimant as an unreliable witness who “gave oral evidence inconsistent with [his] witness statement”. His evidence regarding HAVI meters and logs was found to be “implausible” and “inconsistent with what the contemporaneous documents show”. HHJ Duddridge considered it likely that the claimant received logs to complete but failed to do so “despite being instructed to do so”.

The claimant’s witness evidence suggested he had been laid off because he was no longer required, whereas he had resigned due to an investigation into theft. The Judge found this showed the claimant was “capable of giving misleading, and therefore untrue, evidence under a statement of truth.” The defendants’ witnesses were preferred, giving “straightforward oral evidence, consistent with their witness statements and the contemporaneous documents.”

Fundamental dishonesty

In respect of our submissions that the claim was fundamentally dishonest, HHJ Duddridge held that the claim was fundamentally dishonest for the purposes of CPR 44.16.

The claimant’s statements were “blatant mistruths” which went to the root of the claims on breach of duty and/or adversely affected the defendant’s position.

The claimant had shown a “gross and conscious exaggeration which cannot be explained by innocent conflation or distortion of his memory.” The claimant’s evidence on the use of tools was clearly designed to strengthen his claim by inflating his exposure to vibration.

The list of tools the claimant claimed to have used was also exaggerated. The claimant had also been misleading in claiming that he had received no training and that there was no monitoring of the amounts of time he used vibrating equipment.

What we can learn

• This is a particularly pleasing outcome. Not only was the claimant’s claim dismissed but the Judge, perhaps boldly, was persuaded by our arguments and also made a finding of fundamental dishonesty. Such findings are unusual and especially so in the disease/HAVS arena. Whilst it is commonly accepted that there can be an over estimation of anger time in HAVS cases, in this case, the Judge did not accept that as an explanation for claimant’s untruthful account.
• This decision demonstrates that courts, in the right cases, are willing to make a finding of fundamental dishonesty. Claimants are reminded that they will face costs consequences for failing to give an honest account in witness evidence and on cross examination. This decision also highlights the broad range of cases where fundamental dishonesty issues arise. Whilst reports of fundamental dishonesty findings are more common in road traffic, public liability and employer’s liability cases in the disease arena these decisions are exceedingly rare.
• This is an excellent example of ensuring that the claimant’s mistruths were held to account. Section 57 was not applicable as the claimant’s claim was dismissed on its merits. The court had not found that the claimant was entitled to damages for personal injury and as such the claim could not be dismissed pursuant to section 57.
• Whilst the precise terms of the order for costs is yet to be determined, the finding of fundamental dishonesty means that the defendant is entitled to its costs on an indemnity basis and permission to enforce under CPR 44.16(1). Untruthful claimants and their legal advisors should take heed that courts are increasingly willing to make findings of fundamental dishonesty. Where found, the claimant is at personal risk in respect of paying the defendant’s costs on an indemnity basis. Furthermore, those representing such claimants will be unable to recover their costs and will find themselves substantially out of pocket having invested significant time and incurred expert fees that are unrecoverable.