Mr. Pinkus (P), a film director, was involved in a road traffic accident on the M4 motorway in August 2012. The Defendant driver, a Mr.Khodak (K), had pulled out into the fast lane in front of P’s car, making contact. Liability for the collision was admitted by K at an early stage so was not an issue, but the nature and severity of the collision, and the personal injuries and losses purported to have been caused by it formed the basis of the claim. The claim was brought by P against K’s insurer, Direct Line (DL), by virtue of the doctrine of subrogation. This is where the insurer ‘stands in the shoes of its insured’ in order to sue or be sued.
P’s physical symptoms were relatively insignificant (minor whiplash) but he argued that the ’terrifying accident’ had triggered severe ‘post-traumatic stress disorder with dissociative symptoms, leading him to lose his job and causing significant and detrimental difficulties with family relationships. An early suggestion of subtle brain injury was abandoned and whilst the initial claim was in seven figures, this was reduced to £850,000 just before trial. This included substantial sums for both past and future loss of earnings, the cost of care and general damages. P alleged that his symptoms from PTSD were worsening and that he had lost his job as second assistant director on the Jack Ryan film set as a consequence. He had only managed to undertake short term decorating contracts since then. He maintained that the accident had affected his ability to work generally, to read and even to concentrate on a TV storyline.
The Defendant’s case was that P was fabricating and exaggerating his injuries and continuing symptoms. The physical and psychological injuries caused by the car accident were minor, “short lived travel anxiety/adjustment disorder” and had largely been resolved by early 2013, and that the claim should be no more that £3,000 rather than the £850,000 actually being claimed. If there were any continuing and genuine psychiatric symptoms, these were caused by depression due to serious family and marital problems which had existed before the car accident.
Honesty is the first chapter in the book of wisdom.”
Thomas Jefferson
The legal team for the defence undertook extensive research to produce evidence to counter P’s claim. These investigations uncovered a large number of inconsistencies in the allegations affecting the credibility of P’s claim which, at trial, contributed to an overall picture of dishonesty.
Facebook entries showed the Defendant commenting on the actual day of the accident, and subsequently joking about it with friends. He was seen over the intervening years to be living a full life- he was able to travel extensively (including a 700 mile trans-American road trip), to read, consider and engage in debates regarding social or political issues, films and the film industry and television documentaries. Surveillance evidence revealed that P was capable of driving and undertaking many other everyday activities. The Judge later commented that the intelligence, rather than the surveillance work, had been particularly valuable. P had referred to having extensive difficulties undertaking contractual decorating work. His work colleagues, one of whom was an old close friend of P, were interviewed. Answers revealed that none of the alleged difficulties were in fact true. Instead P had complained of significant family problems which he had downplayed throughout the trial.
Although liability for the car accident was not in dispute, the actual facts of the accident varied enormously between the two drivers. K was called as a defence witness, the judge accepting his impartiality as liability was not in issue. His evidence, as well as photos and garage receipts helped show P’s exaggeration and false claims which had changed at various times during the trial.
All in all, and in a 78 page judgement, the Judge found P’s “performance in the witness box was unconvincing and deliberately staged“. She found that his fabrication and dishonesty affected every aspect of the claim- his health prior to the accident, his account of the actual accident and his claims about its lasting impact on his life. The severe memory loss he reported appeared to be selective, according to whether or not it helped his case. He lied about an attempt to contact a defence witness the day before trial and was also found to have been dishonest in tax returns. His wife also fabricated and exaggerated her account of her husband’s symptoms and had proved obstructive.
The defence argued that P should be found “fundamentally dishonest” under s.57 Criminal Justice and Courts Act 2015. Although they only entered this plea the day before trial, the Judge had waived the Claimant’s objections as she considered P had been aware that he had been under surveillance and scrutiny before the trial and knew from the outset that his credibility was in issue.
Section 57 provides that even where there is a valid claim for damages, a finding of “fundamental dishonesty” can cause a Claimant to lose their claim in its entirety. It came into force on 13 April 2013 and applies to all claims for personal injury issued on or after that date. Having examined relevant case authorities, the Judge found that P’s dishonesty went “close to the heart” of the claim, that the reason for fabrication was “financial gain“, that he had indeed been “fundamentally dishonest” and that the entire claim should be dismissed.
Link: David Pinkus v Direct Line Group [2018] EWHC 1671 (QB)
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