QB-2018-004997 - [2025] EWHC 2301 (KB)

I am invited by the Claimant carefully to consider the allegations that she has been fundamentally dishonest in the context of the background to her claim.

The Claimant was in her late 20s at the time of her accident. She had been in the regular army for a little under a year having excelled whilst in the Army Reserve. Captain Stone described himself as ‘proud, heartened and at the same time disappointed’ when she left to join the regular army because she had been such an asset. Her placement with the King’s Troop was the fulfilment of an ambition for her. It was where she wanted to be.

The accident on 4 September 2015 caused the Claimant to suffer a significantly displaced fracture to her left clavicle. She underwent an open reduction and internal fixation procedure in September 2015. She continued to experience pain, numbness and restriction of movement. She was referred for nerve conduction studies which took place in early 2016. During 2016 she had a course of physiotherapy and she was referred to a pain clinic. She needed help with the activities of daily living. She experienced little if any recovery and an MRI was undertaken in October 2016 to rule out a brachial plexus injury, which it did.

In November 2016 the Claimant was sent for rehabilitation at Headley Court. She was discharged in early December 2016. The Claimant’s diagnosis on discharge was, 1. Complex clavicular fracture – left, 2. Chronic Pain left upper quadrant. Her overall summary read,

“Overall patient showed great motivation to complete all tasks given and was fond of spending her CV time completing sessions on the bike with her aims to compete at the lnvictus games: On discharge it was suggested to continue with her IP from an ERi prospective and to seek guidance when returning for review.”

It was noted that the Claimant was low in mood. She could use her right arm for most tasks but avoided using the left arm.

Shortly after the Claimant’s time at Headley Court she was recommended for medical discharge. Her discharge was confirmed in February 2017 but did not take place until August 2017. As I noted earlier in the judgment her service was considered ‘exemplary’.

On 27 February 2017 the Claimant underwent further surgery. Her neuroma was excised and the metalwork in her arm was removed. She had a further nerve block injection in April 2017. When seen in an outpatient clinic in May 2017, the Claimant reported some improvement as a result of the surgery but continued to report ‘extreme sensitivity to the entire left upper limb, left side of her chest and some radiation of tingling sensation towards the right side of her chest’. She could not use her arm to undress and the clinician noted generalised wasting in the left arm. She reported pain, weakness and restriction of movement.

The Claimant was discharged from orthopaedic follow up in October 2017 and placed in the care of the pain team. By this time she had obtained part-time work with a previous employer, Jonathan Whiting Independent Funeral Directors.

The Claimant had various pain clinic appointments in 2018. She also underwent a further nerve block in May of that year. At the same time the Claimant was training for the Invictus Games in Sydney, which were held in October 2018. There she won medals in recumbent cycling and athletics.

Preparation for the Claimant’s claim against the Defendant got underway in earnest in the latter part of 2018. She issued her claim in September of that year and saw Mr Lourie, her orthopaedic expert, in December 2018. The history she gave to him was similar to that she had provided to those seeing her clinically. Mr Lourie noted that the wound area was especially sensitive but that the bone had soundly united. He also found the Claimant was hypersensitive over her tip of her left shoulder, the front of the joint and the adjacent chest wall. She did not use her left arm to undress. He described “very minor muscle wasting of deltoid around the shoulder joint” and recorded significant reductions in movement.

By the time the Claimant had seen Mr Lourie she had obtained a quotation to convert her car to automatic. That quotation is dated 5 October 2018. It relates to an Audi A3 TDI motor vehicle registration number BL10 BUF, and was provided by a Mr Shaun Wilson of HRG Limited, Shard Garage Poulton-le-Fylde. The Claimant told Mr Lourie that she had had this work done,

“She did not restart driving until three years after the accident but has now had her car adapted: it is an automatic and the indicators have been moved to the right side of the steering column and she has a knob to rotate the steering wheel.”

The Claimant continued to have invasive treatment. She began trials of spinal cord stimulation in June 2019. That was the same month she saw Dr McDowell, the Defendant’s pain management expert.

The receipt by the Defendant of Dr McDowell’s evidence marked a turning point in its approach to the case. He pointed out that the orthopaedic surgeons who operated on the Claimant had been happy with their work and that subsequent investigations had not revealed a clinical cause for her presentation. His examination had not revealed anything either. In keeping with his duty to the court therefore, he drew attention to the fact that the objective clinical findings did not, in his opinion, support the Claimant’s presentation,

“In my opinion, given Miss O’Connell’s assertion that she is unable to use the left upper limb, the objective clinical findings are not in keeping with somebody who is unable to do this. They indicate that the claimant has normal, or near normal, use of the limb. There is no evidence that the claimant is suffering with Complex Regional Pain Syndrome.”

Dr McDowell drew the attention of the court to entries in the medical records which were difficult to explain given the Claimant’s history. Those included entries where hypersensitivity was not documented when it would be expected to be, as well as entries suggesting a greater strength and range of movement in the left upper limb. Dr McDowell was struck by the absence of muscle wasting, particularly when comparing his observations to those two years previously which had recorded such wasting. The difference suggested to him that she had been using her left arm in the intervening period.

Dr McDowell expressed his conclusion as follows:

“Whilst I would ultimately defer to expert upper limb orthopaedic opinion, my own opinion is, having viewed the medical records, that the claimant sustained a late complication of clavicular fracture, namely a neuroma of the supraclavicular nerve, this was excised, and that she had developed a degree of neuropathic pain. However, in my opinion, the degree of pain has been exaggerated and, whilst ultimately it is a matter for which the Court to opine, I have concerns about the reliability of the claimant’s account of her functional loss and pain.

I consider that the claimant does not require any further input from the Pain Clinic and she should be capable of normal employment and should have no care needs.”

The Claimant told Dr McDowell that she drove an adapted car but only locally.

The Claimant saw two other experts in 2019, Dr Tyrie (Defendant psychiatrist) and Mr Smith (Defendant orthopaedic). She gave histories consistent with those she had previously given. Mr Smith’s findings on examination were similar to those of Dr McDowell. He was baffled by her presentation, observing that it was almost unheard of for patients who had undergone the same procedure as the Claimant and then gone on to bony union, to have significant ongoing problems. He advised the court that the muscles and nerves around the Claimant’s left shoulder were working and that ‘for whatever reason’ she was not using them. He could not tell whether that was a conscious or unconscious decision but he drew attention to the lack of muscle wasting.

The Claimant told Mr Smith that she had an adapted car which she obtained about a year before he saw her (that ties in with the timing given to Mr Lourie) but she only drove it when she absolutely had to.

The Claimant continued to undergo invasive treatment. In February 2020, she had an operation under general anaesthetic for the insertion of a spinal cord stimulator. She continued with her part-time work throughout.

In November 2020 the Claimant was examined by her pain expert, Professor Lalkhen. She gave him a similar history of pain, weakness, sensitivity and restriction of movement in her left shoulder and upper limb. She reported that she could hold light objects and move her left elbow. She had adapted to her disability so that she could do more for herself but still relied on assistance from her grandmother and her friend and employer, Julie Whiting.

Professor Lalkhen took photographs to show the comparative lack of movement in the Claimant’s left upper limb compared to her right (as Mr Lourie had done). He considered the Claimant’s presentation by reference to the Budapest criteria for the diagnosis of Complex Regional Pain Syndrome (‘CRPS’). He concluded that she met the diagnostic criteria: ongoing pain, disproportionate to her injury motor and sensory signs and sensory, motor and sudomotor symptoms. He accordingly advised the court that the Claimant had experienced acute neuropathic pain due to nerve injury which had evolved into chronic neuropathic pain and CRPS.

Consistent with his duty to assist, Professor Lalkhen addressed in his first report what he described as ‘Issues of veracity’ and ‘Malingering/Symptom ‘magnification/Exaggeration’. He stated that he had no concerns that the Claimant was not being honest,

“I appreciate that the Claimant’s truthfulness is a matter for the Court. The information obtained from Miss O’Connell at clinical interview combined with an assessment of the events following the index accident provides a clear biopsychosocial narrative of the development of chronic pain following the index accident. The Claimant in my opinion has reported pain symptoms, pain-related distress and pain-related interference with activities of daily living in a manner which is consistent with individuals who are honestly reporting their difficulties. I have no reason to doubt her veracity with regards to her level of activity but I would be happy to comment on any additional information if and when it became available. The Claimant has engaged positively with pain management physiotherapy and psychology in an attempt to improve her function.”

I consider these observations are indeed of assistance. Whilst the assessment of the truthfulness of a Claimant is a matter for the court, it helps a judge to hear from an expert how a particular Claimant compares with other individuals with similar conditions whom the expert has seen in clinical practice. The expert can point out the presence or absence of anything unusual in the history they obtain, in their findings on examination, in their reviews of the records and in the statements and other relevant material in the case.

The Claimant told Professor Lalkhen that she had an adapted vehicle.

In December 2020, the Claimant was subject to surveillance organised by the Defendant. Footage was obtained of her driving her car (it was not possible to see a great deal inside the car), walking her large dog and undertaking various work related duties. She predominantly used her right arm but intermittently used her left arm in ways which were mildly inconsistent with what she had told those reporting to the court. The footage was not disclosed at that point.

The Claimant saw Dr Eldred (Claimant psychiatrist) to whom she provided a similar history to the one she had provided to earlier experts. She also told him that she had an adapted vehicle.

Preparations for trial continued in 2021. The Claimant served witnesses statements, all dated June 2021, from herself, her grandmother Maureen O’Connell, her then employer, Julie Whiting, along with the statements from Captain Stone and Ashleigh Gaston to which I have already referred in this judgment.

Expert evidence from non-medical experts (Equestrian, Care, and Employment) was obtained by the parties and medical and non-medical joint statements were completed in the latter part of 2021 and early 2022.

One piece of evidence in the Claimant’s statement dated 11 June 2021 has turned out to be of significance. Under the heading ‘Aids’, the Claimant stated,

“I purchased an automated car for £9.000 as I would not be able to use a car with a manual gearbox.”

That is different to the account given to the experts that she had had her existing vehicle adapted.

The course which the case was taking changed in March 2022 when the Claimant was subject to a second round of surveillance.

On 12^th March 2022 she and a friend, Shireen Timmis, transported two horses in a horsebox from a field in Winthorpe to a field in Snarford. That is a journey by road from south of Lincoln to north of Lincoln. It takes more than half an hour.

It was necessary to hire a horsebox to move the horses. The Claimant hired it. It was a manual transmission vehicle and she drove it. She can be seen on the footage carrying both small and bulky items using her left hand. She also used her left arm for other manual tasks, to manoeuvre a large box and when placing a metal cage onto a sack trolley. At another point in the footage the Claimant had both her left arm and her right arm above her head for over a minute as she tried to secure one of the doors to the horsebox. The Claimant appeared to use both hands when trying to lead a reluctant horse into the horsebox and to use her left arm when manoeuvring herself over the partition in the horsebox. She was still using her left arm to load items into her own car boot once her work with the horses was finished.

The following day, 13^th March 2022, the Claimant was again seen with the horses at the field in Snarford. She used both her arms to pull a load on a trolley. At one stage, and briefly, she used the left arm alone. She used a rake in one hand and a shovel in the other to undertake poo-picking. She held a large bin open with her left hand and used her left hand to cut a carrot for her horses.

On 26th April 2022 the Claimant informed the DWP that her disability was unchanged. She still needed assistance with cutting food and preparing hot drinks along with aspects of bathing and dressing/undressing. She reported that her pain remained the same as before and it restricted her daily activities.

The Claimant found out that she had been subject to surveillance in late April 2022 and the Defendant was given permission to rely upon that evidence by the order of Master Cook dated 31^st May 2022. There was provision for further statements and expert comment. The timetable was adjusted to accommodate this.

The Claimant served a detailed schedule of loss dated on 5 May 2022. It was endorsed with a statement of truth, which was signed on her behalf by David Poole of Austen Jones solicitors. The Claimant averred that she had derived little or no benefit from treatments for her pain, that she needed assistance with personal care and domestic activities and could only manage part-time work. She remained hypersensitive. The Claimant claimed that she reasonably needed and would continue to need a support worker for 5 hours a week and domestic assistance of four hours a week. She would need a carer to accompany her to sporting events. The schedule included the claim for the car referred to in her 2021 statement and, for the future, claimed the costs of automatic transmission, infrared controls and a steering knob. It was pleaded that the purchase of the automatic vehicle had occurred in 2018.

The total value of the claim in that schedule was £2,446,738.66.

On 20 May 2022, fifteen days after her schedule had been signed on her behalf, the Claimant took part in an investigatory meeting which was part of a disciplinary process at her work, Jonathan Whiting Funeral Directors. The meeting was recorded and a transcript was prepared. Most of the matters raised with the Claimant do not have relevance to this claim. She was however asked questions concerning her alleged failure to comply with the appearance standards expected of a person working at a funeral directors. Included with the disclosed material were undated photographs which showed the Claimant’s left and right hands, both of which were dirty. She was wearing ‘outdoor’ clothes in the photographs. The complaint being addressed was,

“Quite often she’ll come to work in the clothes that she’s been to see the horses in and then she’ll change at some point during the day.”

In the interview the Claimant was asked whether she attended work in work clothes. She answered,

“So, no, usually I arrive in civilian clothes because I have horses, so, normally I would go to the horses, and then arrive in those clothes so as not to get my work clothes dirty. So, I usually keep my work clothes at work. She’s really going for-, she’s really digging it here, I know where she’s going with this. I cannot actually believe this. So, yeah, I mean I have technically, on paper, I’m on a part-time contract, but I work full-time hours, which is reflected in my payslips. So, what tends to happen is Julie has allowed me more, sort of, flexible working over the last few months because of the ongoing issues I’ve had with my horses and my mental health. So, yes, usually I would go to the horses, we negotiated about an hour either end of the day, so I can either, sort of, leave an hour early or start an hour late and this is beyond belief considering that I have to come into work sometimes at 8 o’clock in the morning, which is definitely not in my contractual hours, to carry out funerals. I can’t believe this.”

In a statement that she prepared and made available to the investigator, the Claimant shared matters which were causing her significant personal stress. These included the following,

“My young horse sustained an injury that lead to him being taken to a Veterinary hospital and staying for 4 weeks, he was very unwell and it was an up and down emotional rollercoaster, I had to keep taking leave from the office to see the vet with him, travel and take things to him and receive phone calls with updates on his condition. At times it looked as though he might need to be put to sleep but he did eventually come home on Friday 6^th May, the day after my leave started. I have a £12,000 vet bill to pay and I earn £1,300 a month this has caused me significant financial pressure of which Julie was aware because we had discussed a potential loan from the business and on 6^th May I asked her for that £1,000 loan which she sent the same day.”

In June 2022 the Claimant and her employers reached an agreement as to the terms of her departure.

In a detailed letter dated 16 June 2022 the Defendant made clear that it considered the Claimant’s claim had been dishonest since April 2017, around 6 weeks from her February 2017 surgery and set out grounds in support of that position. The letter included a request for evidence concerning her Audi A3 car,

“We would be grateful for clarification regarding a further matter. The Claimant has represented that her car, Audi A3, has an automatic transmission and has been adapted at her expense in light of her alleged injuries. Please would you provide evidence both of the vehicle’s automatic transmission (including a copy of its V5 logbook) and of the adaptations that have been carried out, including the date and cost thereof?”

The Claimant has never supplied the V5 logbook.

The Claimant continued to seek help in the form of psychological therapy. She started that therapy in 2022. It continued into 2023 and included a number of sessions she funded herself. She has continued to pursue athletics although she was not selected for the 2024 Paralympics. Her focus is currently Adaptive CrossFit athletics and her plan is to pursue a career as a professional adaptive athlete.

The Claimant’s statement dated 3^rd August 2022 contained detailed comments on all the surveillance. On the key surveillance, that dated 12^th and 13^th March 2022, in essence her explanation was that she was helping out a friend in need, Shireen Timmis, to whom the horses belonged. Her effort was exceptional and only possible because of her use of her spinal cord stimulator and pain-killers. She stood by the accounts she had previously provided to experts. Shireen Timmis herself provided a supporting statement. A further statement from the Claimant dated 31st December 2022 recorded the fact that she had lost her job and had entered into an agreement with her ex-employers but did not go into detail about the circumstances which had led to that and the relevant documents had not been disclosed at that stage. They were subsequently obtained when the Defendant made an application for third-party disclosure in November 2023.

All the experts (medical and non-medical) provided reports commenting on the surveillance evidence and the Claimant’s statement in response. The evidence of the non-medical experts has not been particularly relevant to my decision on the issue of fundamental dishonesty and does not feature in this judgment.

Mr Lourie (Claimant orthopaedic) accepted that the Claimant had a significantly improved range of movement on surveillance compared to when he saw her. He considered the explanations in the Claimant’s statement and a contrary position both to be tenable. Mr Smith (Defendant orthopaedic) considered that there was evidence that the Claimant had voluntarily chosen not to use her left arm when seeing the experts. In his opinion the footage showed that the Claimant had full, normal use of her left arm. The Claimant subsequently obtained orthopaedic evidence from Mr Gilham as Mr Lourie had retired. He did not offer an orthopaedic explanation for the Claimant’s symptoms and deferred to other experts.

Mr Gilham and Mr Smith provided a joint report in October 2024. They offered the following agreed observations,

“Both Experts agree that there is some degree of inconsistency in the available documentation for which they are unable to provide an orthopaedic explanation.

The Experts agree that there is some degree of inconsistency between the claimed disability and the surveillance footage reviewed for which they are unable to provide an orthopaedic explanation.

After a detailed review of the available clinical records, including more recent investigations and each other's examination findings, neither Expert has been able to identify an orthopaedic reason for the Claimant’s reported left upper limb disability.

Both Experts agree that, in view of the disability that the Claimant claims, significant muscle wasting would be expected to be noted on clinical examination. The Experts agree that this was not a feature noted on either of their examinations of the Claimant.

The Experts also agreed that he absence of wasted muscles is difficult to explain on the basis of her reported disability.”

There were insufficient differences between the experts to justify their attendance at court and they were, sensibly, not called.

Dr Eldred (Claimant psychiatric) was provided with the surveillance evidence and recorded the Claimant’s observations about it but did not himself comment on its significance. Dr Tyrie (Defendant psychiatric) also rehearsed the observations of others but did not add to them.

Just as the Claimant had with her orthopaedic evidence, so the Defendant had to instruct another psychiatric expert. It instructed Dr Collinge in place of Dr Tyrie. In her evidence Dr Collinge pointed out that surveillance was of limited use in diagnosing the kind of mild mood disorder systems which were under consideration in the Claimant’s case. She noted the inconsistencies to which other experts had drawn attention and stated that she was unable to offer an explanation from a psychiatric perspective. She reminded the court that, if the Claimant was found to be unreliable, that would affect her opinion because of the reliance she had to place on the Claimant’s history. Neither the joint report of Dr Tyrie and Dr Collinge nor their oral evidence contained anything further that was material to the issue of fundamental dishonesty which I have to decide.

Dr McDowell, unsurprisingly, took the view that the 2022 surveillance evidence confirmed the opinion he had expressed in 2019. He properly accepted that the issue of veracity is a matter for the court but, equally properly, offered his opinion to assist. In his view the Claimant appeared to be functioning completely normally and that gave him cause to doubt her reports. In stating that he was doing no more and no less than Professor Lalkhen had done in the passage I have included from his 2020 report at paragraph 96 above, albeit that they came to different conclusions.

Professor Lalkhen’s opinion that the Claimant was suffering from CRPS was central to her case. In his second report dated 27/7/2024, he changed his opinion because in the light of the video evidence he no longer considered that the Claimant had the shoulder motor dysfunction she reported to him and therefore she did not meet the Budapest criteria on the basis of which he had diagnosed CRPS. He was prepared to offer a revised but supportive formulation. Based on the Claimant’s report of persistent pain, he advised that she was suffering with ‘Chronic pain after peripheral nerve injury but not CRPS type 2.’

In his second report Professor Lalkhen did not include sections with the same titles as those in his November 2020 report, ‘Issues of veracity’ and ‘Malingering/Symptom ‘magnification/Exaggeration’ and did not make any explicit comment on the section which I have quoted under paragraph 96. Rather, he stated,

“It would be for the Court to interpret the Claimant’s report of pain-related disability to experts and the function which she demonstrates on the video surveillance and explained in her witness statement 03/08/22.”

and, in a section entitled ‘Allegation of fundamental dishonesty’,

“The Claimant’s veracity is a matter for the Court.

The video surveillance has caused me to change my opinion regarding the Claimant’s chronic pain diagnosis. The diagnosis of CRPS was based on the Claimant’s self-report and cooperation during the clinical examination.

There would be a range of opinion regarding the Claimant’s explanation that she took a dose of gabapentin and used her spinal cord stimulator to reduce her pain to a sufficient degree that she was able to help her friend with delivery of the horses. Whilst the gabapentin and the spinal cord stimulator may have not had an effect beyond a 30% placebo effect, if sufficiently motivated by the psychological reward of the activity, individuals with chronic pain can perform tasks that they would not normally undertake and would be willing to suffer the consequences of increased pain after the activity.”

The joint report of the pain experts did not produce any further material relevant to the issues I have to decide.

When he gave oral evidence Professor Lalkhen described the Claimant’s presentation on the video surveillance as very different from the brief examination he undertook. He would not have thought what the Claimant was doing there possible based on her report to him but he left open the possibility that people in her position can undertake tasks which appear beyond them if they are sufficiently important to them and they are prepared to suffer the consequences.

Having read his reports and having heard him give his oral evidence, I have come to the conclusion that Professor Lalkhen did not, in his second report, comment on his earlier opinion about the Claimant’s honesty and veracity because he was no longer of the views he had expressed there. I appreciate that I have the benefit of hindsight. I have heard all the evidence in the case, some of which was not available to Professor Lalkhen. I further appreciate that Professor Lalkhen might point to his silence in his second report on the subject of the Claimant’s honesty and consistency as something from which the necessary inferences could be drawn. I am nonetheless of the view that, having made the remarks he made in his first report, it was part of his duty as an expert positively to make clear that he no longer held those views. Had he done so, all parties, including the Claimant herself, would have benefited from that clarity.

It was put to Dr McDowell in cross-examination that his comments that he would expect to have seen muscle-wasting if the Claimant was as disabled as she said she was, involved him departing from his role as an expert and trespassing into the court’s territory. I disagree with that. Both he and Professor Lalkhen assisted the court by sharing what they would expect to see in a patient with the Claimant’s history and presenting complaints. As I have made clear in the paragraphs above, I consider that, if anything, the court and the parties would have been assisted by more comment from Professor Lalkhen, not by less from Dr McDowell.