Credibility and reliability affects amount of compensation awarded by the court

  • Insight

27 June 2017

The Court of Session has found in favour of a pursuer following a relatively minor road traffic collision, although damages were awarded at only a fraction of the £182,000 sought due to a lack of credibility and reliability in the pursuer’s claims.

The facts

The accident occurred in May 2011 at a Dundee Tesco filling station. The pursuer had been sitting in the driver’s seat of his stationary vehicle leaning over to pull the petrol cap lever, when the defender travelling at a speed of approximately 4mph backed his Peugeot into the pursuer’s Subaru. The collision resulted in damage to the pursuer’s vehicle and caused injury to the pursuer and his passenger.

The case

The pursuer raised a personal injury action seeking £182,880 in damages, claiming that as a result of the accident he still suffers from injuries and remains unable to work or drive. Whilst liability was admitted, the defender averred that the collision occurred at very low speed and that any vehicle damage would have been minimal. The defender suggested that the pursuer had fabricated his whole claim and was exaggerating symptoms for financial gain. The defender sought to have the action dismissed from the outset (or in limine) due to the pursuer’s fundamental dishonesty. Failing this, the defender sought decree of absolvitor.

The decision

The court initially considered the defender’s motion in limine, but held that the defender’s submissions based on alleged fundamental dishonesty were not well founded in fact, and that to dismiss the whole action would create an injustice. Accordingly, the motion was refused.

In reaching his decision, whilst the judge accepted that elements of the pursuer’s claim were lacking credibility and reliability, he found the defender’s approach to criticizing almost evert aspect of the pursuer’s case to be unjustified. He found that despite the pursuer maintaining that he remained unable to work or drive, it had been extracted in evidence that the pursuer had several post-accident driving convictions, and had helped move furniture. Furthermore, it was established that the pursuer had been dismissed from his employment due to misconduct and had been working at a stall at Errol Market since the accident. The judge stated, “such failings and shortcomings can have serious consequences for any pursuer in relation to credibility, reliability, causation and quantum of damages.”  However, he also found that many of the pursuer’s complaints were supported by the evidence of skilled witnesses, particularly that the nerve reactions and tremors experienced by the pursuer would be difficult to manufacture.  He concluded that “the pursuer was a poor historian but his character failings and flaws and lack of candour were not enough to warrant depriving him of an entitlement to damages.”

The judge was not wholly convinced by the evidence of the defence either. The judge found that various allegations were put to the pursuer and his witnesses on the basis of comments by the pursuer’s brother, but these allegations were not substantiated in evidence. Furthermore, of the defender’s skilled witnesses, one expert’s evidence was diminished by the fact that the defender had provided him with extraneous information which was not brought out in evidence, and the other said that he had been told things which did not form part of the proceedings. This prompted the judge to remind representatives of litigants to avoid influencing the views of witnesses, even unwittingly.

On liability, the judge rejected the defender’s submissions that the pursuer’s account of events was contradicted by CCTV evidence. He concluded that he was satisfied that the defender negligently reversed into the pursuer’s vehicle, and that the impact of the collision was sufficient to cause significant damage to the pursuer’s vehicle and cause injury to the pursuer and passenger. As a result, the pursuer was entitled to reparation from the defender.

With regard to the extent of the injuries caused, the judge commented that causation posed the most difficult question as it turned on an assessment of the pursuer. Ultimately, after hearing the evidence of numerous skilled witnesses it was found that on the balance of probabilities, the pursuer suffered a soft tissue injury as a result of the collision and the effects lasted for a period of about 12 months or so.  However, in respect of the longer lasting injuries, including neuropathic and psychological complaints, although those complaints may seem real to the pursuer and they may find some support in the expert evidence, the necessary causal link had not been established.

The judge awarded damages of £6,000 in relation to solatium (pain and suffering) and interest of £1,321.32 from the date of accident.

This case is a helpful reminder that even if it can be demonstrated that the pursuer has been dishonest in their presentation of evidence, this will not preclude a finding in their favour if they are successful in demonstrating liability and loss.
 


 

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