England and Wales High Court (Queen's Bench Division) Decisions

IN THE LIVERPOOL CIVIL AND FAMILY COURT

		35 Vernon Street Liverpool, L2 2BX
		30th January 2014

MR. JUSTICE MOSTYN:

1. This is a claim for compensation for injuries allegedly suffered by the claimants as a result of a minor car accident on 23^rd October 2008.
2. The claim was first signified on 16^th March 2010 and formally issued on 1^st March 2011. There have been no fewer than five case management orders, the last being on 16^th May 2013. It is obviously highly unsatisfactory, particularly when the case depends on both credibility and memory, for the adjudication to be nearly five-and-a-half years after the incident.
3. The claimants are Paula McIntyre and Louise Hennessy. They are Immigration Officers working in Liverpool. On the day in question they were working at Seaforth Dock, to where they had driven with their colleagues, Denise Withey and Raymond Stevens, in a silver Skoda Octavia vehicle, registration number GK08 WSU. Denise Withey was the driver. At the conclusion of their business at Seaforth Dock they all returned to the car to drive back to their office at Queen's Dock. Again, Denise Withey was the driver, Raymond Stevens took the front passenger seat, and Paula McIntyre and Louise Hennessy sat in the back. Denise Withey started the car, engaged reverse gear, put her left hand down and reversed out in a clockwise rotational direction. At the point that the car had gone through 90 degrees she hit
   a bollard on a small island which she had not noticed.
4. The claimants say that Denise Withey reversed suddenly, without warning, and quickly and that the bollard was struck with a hard force causing them injuries to their necks and backs. In contrast, Denise Withey and Raymond Stevens say that the car was reversed at very low speed and in a controlled manner. They were not injured.
5. The claimants' medical expert, Dr. Walker, agrees that if the account of Denise Withey and Raymond Stevens is correct, then on the balance of probabilities it is unlikely that the claimants would have sustained the alleged injuries.
6. Both counsel are agreed that the case turns on a stark issue of credibility between, on the one hand, Paula McIntyre and Louise Hennessy, and, on the other hand, Denise Withey and Raymond Stevens. There is no middle ground here, or shades of grey; one pair or the other is not telling the truth.
7. I heard oral evidence from Paula McIntyre, Louise Hennessy and Denise Withey. Raymond Stevens is presently working in Istanbul, and therefore
   a notice under the Civil Evidence Act was served, he being beyond the seas. Under the Civil Evidence Act 1995, all hearsay is admissible in civil proceedings, but its weight is a matter for the discretion of the trial Judge.
   I also heard oral evidence from Colin Shields for the claimants, and from Jacqueline Woodhall for the defendant. She was at the time the Local Chief Immigration Officer and was a manager of three of the four occupants of the car. In addition I heard oral evidence from the claimant's respective mothers in respect of an element of the claim for special damages.
8. When assessing credibility I remind myself of the famous dissenting speech of Lord Pearce in Onnasis Calogeropoulos v. Vergottis [1968]2 Lloyds Report, 403, where he stated:

"Credibility involves wider problems than mere demeanour, which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems; first, is the witness a truthful or untruthful person. Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly, and, if so, has his memory correctly retained them. Also, has his recollection been subsequently altered by unconscious bias or wishful thinking, or by over-much discussion of it with others. Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism often used in accident cases that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And, lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is, on balance, more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness. They are all part of one judicial process, and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."

9. Naturally I agree with every word of this, and I place considerable emphasis on the contemporaneous writings and the undisputed conduct in the immediate aftermath of this incident.
10. On 24^th October 2008, Jacqueline Woodhall sent an e-mail to Helen Wells, which was copied to Paula McIntrye, Louise Hennessy, Raymond Stevens and Denise Withey. The e-mail states as follows:

"The team had a little bump in the official vehicle yesterday. Although there was no damage to the car, we need to complete a Near Miss form and HSF001. It says the Line Manager should do it where possible, and if not the Duty Manager... Team – hope you're okay. Please let Helen/I or your Line Manager if you are not. If we are not available, you may wish to seek medical advice."

11. This e-mail clearly records information given to Jacqueline Woodhall. The description was that the incident was a "little bump". It was stated that there was no damage to the car. It asked all members of the team to let her,
    Helen Wells, or their Line Manager, know if they were not okay. It is accepted that no member of the team replied to this e-mail. Specifically, it is accepted by the claimants that they did not report any injury.
12. Unfortunately if the Near Miss form and HSF001 were completed, they have since been lost.
13. On 26^th October 2008, Denise Withey took photographs of the rear of the car. These clearly show that no damage whatsoever was caused by the impact.
14. Neither of the claimants took any time off work by reference to any alleged injury, although the records show that they each took some time off work for other reasons. Thus on 8^th December 2008, Paula McIntyre took eight days off with a cold or flu; on 26^th January 2009, she took eleven days off for stress related reasons. Louise Hennessy took two days off with a cold or flu on
    13^th December 2008; and three days off for no specified reason on 19^th May 2009.
15. On 30^th October 2008, Louise Hennessy went to see her doctor. This was
    a full week after the incident. Dr. Martinez recorded the following:

"History of road traffic accident one week ago, back passenger in work car, driver reversed into lamppost, low back pain since, no eradiation. Work adviced [sic] to come, helped by NSAI, no tender spine, slight tender para-vertebral muscles, full mov, obverse, posture advice,
rev SOS."

No further visits were made by Louise Hennessy to her doctor over the following months concerning these injuries. The next visit that was made by Louise Hennessy to the doctor concerning these alleged injuries was on
16^th October 2010, five days after she had signed a conditional fee agreement with her present solicitors and on the very same day that they had signified this claim in a letter before action. In my judgment that was no coincidence.

16. On 10^th November 2008, a full eighteen days after the incident, Paula McIntyre went to her doctor, Dr. Maassarani, who recorded as follows:

"Muscular skeletal pain – joints. In low impact RTA 2/52 ago. Jarred wrist and lower back. No NVD. Still getting intermittent pain. OE well. Wrist NAD. Slight tenderness to base of thumb and around wrist.
OK ASB. No NVD. Back NAD. Re-assured, C1/12 or SOS – physio."

The acronyms are explained as follows: RTA stands for road traffic accident; 2/52 stands for two weeks; NVD stands for no visible disturbance; NAD, means no abnormality detected; 1/12 signifies one month. Again, Paula McIntyre did not further attend her doctor in relation to these alleged injuries. She did, however, attend on a number of occasions in relation to other matters. Thus she attended on 15^th December 2008 about a viral infection; on 28^th January 2009 about stress; on 2^nd February 2009 again about stress; and on 29^th September 2009 about wax in her right ear.

17. That is the sum total of the contemporaneous writings, and on the basis of that the claim is very tenuous indeed. The contemporaneous material clearly shows, in my judgment, that the impact was trivial; that no damage was caused to the vehicle;, that no hurt was suffered by the front passengers; and that any hurt suffered by the rear passengers was trivial, of short duration, and therefore non-compensable.
18. I now turn to the documents brought into being for the purposes of this litigation. On 16^th June 2010 each of the claimants attended Dr. Brian Walker, a consultant physician. Dr. Walker had the medical records of Paula McIntyre but not those of Louise Hennessy. I do not think he can have carefully read the records that he had. He wrote a report in respect of each claimant.
19. It is plain that his reports are largely based on the oral information given to him by the claimants respectively. It is impossible to think that he invented what he records about the accident. What he recorded from each of the claimants was in many respects indisputably inaccurate. He wrongly recorded that the accident occurred at Queen's Dock while Helen Willey was parking. He wrongly recorded that the force of the impact was "considerable". He wrongly recorded that each of the claimants attended their GPs the following day. He would have been able to have seen from Paula McIntyre's records that this latter claim was, in respect of her, absurd, and it is for this reason that I rather doubt that he bothered to read carefully the GP records.
20. The fact that the claimants were able to give such an erroneous account to
    Dr. Walker casts grave doubt on their general credibility.
21. Before leaving the report of Dr. Walker, I would observe that in his section about the injuries, what he writes in respect of nervous shock, psychological trauma and injury to the neck is word for word identical in each of the reports. Thus he writes for each of the claimants that each of them had suffered "recurrent obtrusive memories of the accident and obsessional thoughts as to how she might have been seriously injured." When describing the neck injury for each claimant he wrote, "The symptoms were severe and constant for four months and then started to improve, but it was a full six months before her neck had returned to normal."
22. Obviously it is, in terms of probability, almost inconceivable that each of these claimants would have suffered physically and mentally in precisely the same way. I have to say that the identical replication of language in each report casts considerable doubt on the professional objectivity of Dr. Walker, but
    I am not here to determine that.
23. So far as the alleged pain in Paula McIntyre's back was concerned, Dr. Walker recorded: "The pain in her back was undiminished for over a year and then slowly started to improve. However, she was still having the pain when, on
    1^st April this year, she was involved in a second accident which understandably caused a further flare up of her condition." As I have said, Dr. Walker wrote this on the day of examination, namely, 16^th June 2010. Just over two months later, on 27^th August 2010, Paula McIntyre was examined by
    a Dr. Byrne in relation to the injuries suffered by her in the accident of
    1^st April 2010, and for the purposes of another personal injury claim. In the report of Dr. Byrne it is stated, "Miss McIntyre admitted that she had been involved in a similar road traffic accident in October 2008 whilst a passenger in a car that reversed into a bollard. She informed me that she suffered with typical whiplash injuries affecting her neck and back in this accident, although she admitted that she had completely recovered from all injuries sustained in this earlier accident prior to her accident detailed for the benefit of this report."
24. Plainly Paula McIntyre has told totally different stories to the two different doctors, and this seriously affects her credibility.
25. In addition to the accidents in 2010 and 2008, Paula McIntyre had been involved in an accident when she was eighteen in 1993, and also in an accident in 2007 when she collided with a car ahead of her leading to the driver of the other car making a personal injury claim. In discussion with Dr. Walker, Paula McIntyre failed to mention the 2007 accident, and similarly she failed to do so when interrogated under Part 18. Again, this suppression of the truth casts doubt on her credibility.
26. Louise Hennessey told Dr. Walker that she had been involved in an accident seven years previously; this was inaccurate also – it was in 2006, four years earlier, and in respect of that Miss Hennessey pursued a personal injury claim.
27. I now state my conclusions on the witnesses, in part judged by their demeanour in the witness box.
28. I say first that I completely discount the evidence of Colin Shields as being nearly incomprehensible. He says that he took statements from all four occupants of the car, although none of them has any recollection of that and the statements apparently do not exist. He says he took the vehicle for repair following the accident, and that Skoda provided an estimate for repair with which he was not happy. Again that estimate does not seem to exist, and it would appear that the repair in question was to a rear sensor which may have been faulty anyway. I have to say I found his evidence to be completely unhelpful.
29. Denise Withey was obviously a completely honest witness. She had no motive to lie at all. I accept her evidence that she drove at very low speed and that the impact was extremely minor. I also accept her evidence that Paula McIntyre immediately said, "My neck, my neck, I can make a compensation claim." Denise Withey reported this to Jacqueline Woodhall on her return. It was because of these remarks that Denise Withey took photographs of the rear of the car and indeed suggested that Jacqueline Woodhall should make a note of that conversation.
30. I would have preferred to have heard the oral testimony of Raymond Stevens, but I accept that he has good reason for not giving evidence at this trial by virtue of his duties working for our Government in Istanbul. I very much doubt that any inroads would have been made into his credibility. Again, he has no motive at all to lie. I accept his evidence as stated in his witness statement.
31. As I have stated, the principle expert witness on behalf of the claimants accepts that if the story of Denise Withey and Raymond Stevens is true, then "on the balance of probabilities the claimants did not sustain the injuries stated to me."
32. My finding that Denise Withey and Raymond Stevens have told me the truth effectively disposes of this claim. However, it is proper that I should go on to record that I do not accept the evidence of either claimant, which I find to be inaccurate, evasive, partial and advanced for an improper pecuniary motive. This is yet a further example of the national phenomenon of false whiplash claims being made and it is in an attempt to stem the tide that I do not shrink from making firm adverse findings against these claimants.
33. For all these reasons each claim is dismissed.
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