In this case the All Scotland Sheriff Personal Injury Court was required to assess the credibility and reliability of the pursuer (claimant) in order to consider whether he was attempting to mislead the court and exaggerating or inventing symptoms.
Facts of the case
The pursuer, Mr Conway, sought damages following a road traffic accident on 5 October 2017. At that time he had been working as a modern apprentice with West Coast Harley Davidson and injured whilst test driving a customer's 750cc Harley Davidson bike.
Liability was admitted and the case proceeded to proof (trial) on quantum only.
The pursuer claimed he'd suffered both a whiplash type injury and an adjustment disorder and a specific phobia relating to riding his own bike and to riding other bikes, in particular Harley Davidsons. Due to the impact of his psychiatric injury he claimed he was prevented from completing his apprenticeship and furthering his career at West Coast Harley Davidson, his dream job.
The court heard from six witnesses including the pursuer and two psychiatric experts, Dr Alison Harper for the pursuer and Dr Hilary Livingston for the defender.
In evidence the pursuer advised he attempted to return to work in a restricted role but that "did not work out". He described himself as terrified of riding bikes and no longer able to test drive them. He claimed he sought a "fresh start" away from bikes and went travelling with his fiancée for four months. In April 2019 however he began work with Ride On Motorcycles with whom he continued to work as at February 2020, date of the proof.
The pursuer was asked to explain a number of social media posts which had been included in surveillance reports lodged as evidence. In particular, he was asked to explain a post from 22 April 2018 where it was shown he had ridden his own bike in a large group on a day trip to Tighnabruaich on the West Coast of Scotland.
In cross examination he accepted that when interviewed he had failed to tell either psychiatric expert about the trip. When asked for an explanation the pursuer advised the court that he "completely forgot". He also accepted he had failed to tell both employment and medical experts about his job with Ride On Motorcycles
Whilst Dr Harper gave evidence that this omission did not alter her opinion, Dr Livingston took a different view. Both experts initially diagnosed adjustment disorder and specific phobia. However after reviewing the surveillance information, Dr Livingston advised that any problems the pursuer had were fairly minor, short lived and did not meet the criteria for a psychiatric disorder.
Despite his omission the pursuer maintained he was a credible and reliable witness and that he was not trying to deliberately mislead the court. His failure to mention the April 2018 trip was "an inconsistency of omission".
On the other hand the defender submitted the pursuer was unreliable and lacking credibility, could not possibly have forgotten about the April 2018 trip, had deliberately omitted to tell his expert of the incident and was thus either exaggerating or inventing symptoms. It was the defender's position that there had been deliberate attempts to mislead the court about the full extent of the pursuer's employment.
In reaching his decision Sheriff Fife opined that Dr Harper had been an assured witness, able to rely on her own experience from clinical practice when giving evidence although was not convinced by her position regarding the Tighnabruaich trip.
On the other hand Sheriff Fife found Dr Livingston had struggled to express her opinion and had changed her position a number of times leaving the court in a position of uncertainty. He therefore preferred the evidence of Dr Harper.
Sheriff Fife accepted the pursuer had posted about the trip and that his account that he'd "completely forgotten" was not credible. He had accepted in evidence he had not told the truth about his employment. Nonetheless Sheriff Fife found the pursuer to be a credible witness. Although he accepted there had been no satisfactory explanation provided by the pursuer for not telling the experts about the trip to Tighnabruaich, Sheriff Fife was not persuaded the pursuer was deliberately misleading experts or fabricating his symptoms. He subsequently awarded decree for £61,252.27 commenting that had he concluded the pursuer had misled expert witnesses the damages awarded would have been substantially restricted.
This case provides further guidance of how the Personal Injury Court may approach the question of the credibility and reliability of pursuers. Despite accepting he had not told the truth to his experts on all the facts, Sheriff Fife was not inclined to conclude there had been an attempt to deliberately mislead the court, partly it would seem due to the pursuer's willingness to accept in evidence omissions had been made. This is therefore another example for insurers and those dealing with claims where questions of credibility and reliability are raised, that the court will set a high bar and will need to be presented with persuasive evidence before finding a pursuer to be presenting deliberately misleading evidence.