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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Mehmood v Mayor [2024] EWHC 1057 (KB) (08 May 2024) URL: https://www.bailii.org/ew/cases/EWHC/KB/2024/1057.html Cite as: [2024] EWHC 1057 (KB) |
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Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Qaisar Mehmood (By his Litigation friend Mrs Asma Islam pending determination by the court) |
Claimant |
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- and - |
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Harry Mayor |
Defendant |
____________________
Paul Higgins (instructed by DAC Beachcroft) for the Defendant
Hearing date: 25 March 2024
____________________
Crown Copyright ©
Master Fontaine:
Factual and procedural background
The issues in the application
(1) This section applies where, in proceedings on a claim for damages in respect of personal injury ("the primary claim") __-
(a) the court finds that the claimant is entitled to damages in respect of the claim, but
(b) on an application by the defendant for the dismissal of the claim, the court is
satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.
(2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
(3) The duty to dismiss includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.
"In my judgment, a claimant should be found to be fundamentally dishonest within the meaning of s 57(1)(b) if the defendant proves on a balance of probabilities that the claimant has acted dishonestly in relation to the primary claim and/or a related claim (as defined in s 57(8)), and that he has thus substantially affected the presentation of his case, either in respects of liability or quantum, in a way which potentially adversely affected the defendant in a significant way, judged in the context of the particular facts and circumstances of the litigation."
"The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment."
Discussion
In the joint statement:
"Dr Ford stressed that surveillance footage 'may not show the claimants reported deficits with memory, executive dysfunction, particularly problems with planning, organising, multitasking, social awareness, perseveration, insight, inability to inhibit responses, distractibility and impulsivity, which fluctuate with fatigue and mood issues. Doctor Ford considers that it is 'erroneous to form an opinion on the Claimant's neuro psychological functioning based on his presentation of the surveillance footage in the absence of additional, necessary evidence'. However, Dr Ford considers that the updated information indicates that although he needs care, this is qualitatively different to the care that was recommended in her first report. Rather than the 24 hour care with accommodation for carers annexed to the family home recommended in the first report, he now requires support that is supervisory and monitors his actions to accommodate his cognitive issues, particularly with memory and executive dysfunction. This means his care needs do not need to be as intensive as initially recommended and should be in the form of someone in the background supervising colour monitoring and keeping "an eye on him" instead of intensive input. It is considered that at work, he has co-workers/ other members of staff in the background, which is essential in case he needs assistance due to his TBI issues.
Dr Ford opines that the updated surveillance footage does not contribute in any appropriate way to the assessment of Mr Mehmood's capacity from a neuropsychological perspective or to reliably comment on his ability to undertake duties effectively required of him in his employment because of the qualitative aspects of his performance and the level/nature of support provided to him by co-workers is not known (or evidenced on the surveillance footage).
Doctor Ford states that given his ongoing index accident TBI issues, it is essential that Mr Mehmood receives input from a case manager who is experienced in working with traumatic brain injuries and also a multidisciplinary therapy team (MDT) who is also experienced in working with patients with TBI, especially with executive dysfunction. Doctor Ford recommends, as part of the MDT, that Mr Mehmood has the input of an enabler/ personal assistant (PA) to assist him in undertaking meaningful activities in the community and not just for Mr Mehmood to undertake activities in his restaurant/take away."
Professor Powell:
In the report dated 29 October 2020 (prior to seeing the surveillance evidence):
"His performance was dire, far worse than I would have expected given his presentation and given that he had done some work even if not efficiently……I began to suspect that there are non-organic factors at play….his performance was in fact far worse than in 2019 when not even fully out of PRA and there can be no organic explanation for this.
Professor Powell had concluded, following an assessment of the Claimant on 29 October 2020, prior to the surveillance footage being taken, that the Claimant's performance was "not credible", and "he was given a formal non-verbal test of effort, the Test of Memory Malingering which he comprehensively failed, not just performing below the cut-off point, but performing at below chance levels".
In a letter to the Defendant's solicitors dated 3 October 2021 (after seeing the first batch of surveillance evidence):
"What I have seen in the surveillance evidence is grossly inconsistent with his presentation upon assessment and interview when I saw him on 13.9.21, the date that the evidence was recorded, and with what I was told at that interview by he and his wife.
I need to amend the conclusions of my report of 14.9.21 to conclude that:
- the assessment results obtained on 13.9.21 are likely to be unreliable, as hinted at on the Test of Memory Malingering, regarding which I gave him the benefit of doubt
- Someone with his skills and performance is not going to be a burden on his wife
- someone with his vocational skills level is not going to need rehabilitation input; He does not need a case manage, community rehabilitation package
- he does not require a support worker
- someone functioning at this level will have capacity to manage his own financial and legal affairs even if there are some residual inefficiencies arising from the moderate to severe TBI sustained on.1.19 he has made an above average recovery"
In the joint statement:
"Subsequent to that report [his report made before the surveillance evidence was seen] Professor Powell saw the surveillance evidence which was 'grossly inconsistent with his presentation upon assessment and interview when I saw him on 13.9.21, the day that the evidence was recorded, and with what I was told at that interview by he and his wife' and amended his conclusions in a letter dated 3.10.21. He could no longer be given the benefit of doubt on the test results were likely to be unreliable as indicated by the TOMM. Someone with his skills and performance was not going to be a burden on his wife, was not going to need rehabilitation input, would not need a cased managed, community rehabilitation package, and did not require a support worker. Someone functioning at this level would have capacity to manage his own financial and legal affairs. Even if there were some residual inefficiencies arising from the moderate to severe TBI sustained on 10.1.19, he had made an above average recovery. Professor Powell reviewed further surveillance evidence in letters dated 13.10.21 and 31.10.21 and considered that this additional surveillance evidence confirmed his conclusion that even if there were some residual inefficiencies arising from the TBI he had made an above average recovery, and raised concerns that the account of he and his wife about his degree of recovery was unreliable.
In brief Professor Powell draws attention to what the surveillance evidence does show. He has responsibilities including opening and closing the restaurant. He typically works a long day, opening up the restaurant on his own at about 11:30 am and closing it at about 11:30 pm, getting home towards midnight. He serves behind the counter independently, taking orders, using the till. He converses normally with customers including the surveillance operative(s), with no obvious communication problem. Sometimes others are seen in the background or back room, but this is not new, Professor Powell being told, 29. 10. 20, that Lazzat [the name of the restaurant] had two or three staff aside from himself and the witness statements acknowledging that there were other employees pre accident. Professor Powell considers that accounts of his post-accident work activity have been inaccurate and have underplayed the extent of his work, and that this echoes his non-credible test performance."
"I have previously commented on video and sound footage from 2019- 2021.
The more recent video shows similar activities - and it includes evidence of him smoking after working shifts in the restaurant.
My views remain the same: based on what would appear to be evidence of him working regularly in a client facing role, managing customers and money without support over long hours, I considered that notwithstanding the brain injury severity classification, Mr Mehmood has made a good recovery from this and has been able to return to work."
4.3.7:
"I note the concerns regarding the honesty of the claimant. I have described my concerns about the validity of the account he provided to me in my assessment of 2019 when compared with the video surveillance- and my concerns remain, and Professor Powell shares these concerns. Doctor Ford (neuropsychologist) considered Professor Powell's assessment unreliable because he had not used a professional interpreter. But I note that through all the contemporaneous medical notes, no concerns about his ability to speak English are raised and that Dr Cockerell obtained an account from Mrs Mehmood that an interpreter was not required and that he was "fluent" in English [paragraph 3. 4.3]. Overall, I believe Professor Powell's opinion is unlikely to be unreliable - but defer to his own opinion concerning this following his consideration of Dr Ford's criticisms.
4.4.3
"The video surveillance provides evidence that whereas he works with others, he can lead the interactions with customers without support. I think his abilities at work at this time are likely to remain the same."
"3.2.1 The Claimant's cognition cannot be assessed by viewing the surveillance evidence, but there does not appear to be any particular difficulties with interaction with other people. However, nothing I have seen on the surveillance evidence particularly contradicts what I was told (see section 3.1. 2.1, cognition section of my original medico- legal report dated 22nd March 2021)."
Dr Cockerell also commented that the neurological symptoms suffered by the Claimant will not be visible on the surveillance evidence.
"As with all surveillance footage, the video reviewed reflects only a proportion of Mr Mehmood's overall functioning and might only reflect him at his very best.
But the video footage I have viewed reveals behaviours and actions that appear to be discrepant with the account Mr Mehmood gave to me during the appointment (and that he has given other healthcare professionals in this case although I defer to their own views to judge whether this is the case). In particular he is seen working in what most individuals with brain injury would find a very demanding role: working unassisted in a client facing role for long shifts - having to multitask. I can offer no explanation for this apparent discrepancy.
The video footage supports the view that Mr Mehmood has been able to return to a client facing role at work, and that many of the limitations he described to me (for example, in relation to his ability to be left alone and similar) may not be as significant or real as his account suggested. There is no neurological explanation for this discrepancy.
Furthermore if it is the case that he had returned to work regularly in a client facing role (in 2019 or afterwards), and that he is able to function independently in a work and leisure setting, this is good evidence to support the view that there are no long term consequences arising from the index injury (notwithstanding the brain injury severity classification based on the circumstances of the accident)."
"3.8.4 My views remain the same: based on would appear to be evidence of him working regularly in a client facing role, managing customers and money without support over long hours, I considered that notwithstanding the brain injury severity classification, Mr Mehmood has made a good recovery from this and has been able to return to work.
4.3.7 I note the concerns regarding the honesty of the claimant. I have described my concerns about the validity of the account he provided to me in my assessment of 2019 when compared with the video surveillance - and my concerns remain, and Professor Powell shares these concerns."
"Having reviewed the video evidence, both experts agree that Mr Mehmood has a normal range of movement in his left shoulder. Mr Wilde describes in detail his review of the observation evidence in his supplemental report. In his opinion the claimant is not seen lifting anything heavy above shoulder height. Mr Jagernauth is in agreement with this and furthermore, observed no evidence of the claimant performing significant heavy lifting activity using his left arm.
Discussion then occurred between the experts as to Mr Mehmood's likely working ability. He is clearly seen, in the extensive video footage, in the work environment. Ultimately, the work restrictions are a matter for the court. From an orthopaedic point of view, however, Mr Wilde feels that Mr Mehmood should be able to undertake most if not all, of the duties required to run his fast food restaurant. Mr Jagernauth partly agrees but in his opinion, he would have a reduced ability to undertake duties that involve heavy lifting."
"[the court] is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim;"