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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 April 2017

MR JONATHAN SWIFT QC:

A. Introduction

1. The Claimant claims damages for personal injury arising out of an accident at work on 17 March 2012. At the date of the accident the Claimant was 43 years old. He was born in Lithuania; he has lived and worked in the United Kingdom since 2002. On 17 March 2012 he was working for the Defendant undertaking dry lining work in a house where a loft conversion was in progress. The Claimant was working in the loft when the floor collapsed and he fell to the floor below. The floor had collapsed because two supporting joists had been removed. The Claimant had been told nothing about this.
2. As a result of the accident the Claimant suffered a pelvic fracture. It is common ground that this was a severe injury. In addition the Claimant sustained a head injury (and was briefly rendered unconscious); and he sustained bruising on his left thigh. Neither the head injury nor the injury to the Claimant's left thigh is the subject of dispute in this litigation. The Claimant made a full recovery from those injuries.
3. The focus of this litigation is the pelvic injury. On the day of the accident (17 March 2012) the Claimant was taken to Tunbridge Wells Hospital, and four days later he underwent a pelvic reconstruction operation to fix the pelvic fracture. This included insertion of a screw. The surgeon who undertook the operation believed that the pelvis was stable. It is common ground in this litigation that the injury was appropriately treated. The Claimant stayed at Tunbridge Wells Hospital for two months undertaking rehabilitation work. The medical notes from this time all refer to severe persistent right leg pain. In mid-April 2012 nerve conduction studies were undertaken because the Claimant's right leg remained hypersensitive and because the Claimant had a sciatic type of pain. He was described as having significant pain in the right sacral region that radiated down the right leg to the foot. On 20 April 2012 a neurological examination was undertaken, and indicated less than normal function in the Claimant's right leg.
4. On 1 May 2012 the Claimant was transferred to the Queen's Hospital Dagenham. He was discharged on 15 May 2012. At the time he was discharged from hospital the Claimant needed to use crutches to walk; he remained in pain.
5. The issue in this litigation is the extent to which the Claimant has recovered from the injury to his pelvis, and the timing of that recovery. The extent of his recovery (and its timing) has been put in issue by video surveillance evidence of the Claimant, taken on a number of occasions, but mainly between the end of March 2014 and mid-August 2014. Put very shortly indeed there is a stark disparity between the Claimant as seen on that video evidence, and the way in which the Claimant presented when examined by a range of medical experts both before March 2014 and after August 2014. On the video evidence, the Claimant appears to have a relatively normal level of function. When examined by each of the medical experts the Claimant has appeared to be severely disabled. Since this is so, I need to say something about the sequence of events (in terms of the various medical examinations) up to and including the early part of 2014, and then from the latter part of 2014.

B. Medical evidence up to the early part of March 2014

6. In August 2012 the Claimant was examined by John O'Dowd a Consultant Spinal Surgeon based at the London Bridge Hospital. At that time the Claimant was still in pain and was taking painkillers. Mr. O'Dowd stated that there was no evidence of significant injury to the spinal column. However, Mr O'Dowd thought that the pelvic injuries required specialist assessment by a Pelvic Fracture Surgeon. At this time, the primary feature of the Claimant's condition was the pain he was suffering. The Claimant reported a very high level of pain. Mr. O'Dowd noted that the main pain affecting the Claimant was localised to the right sacroillac joint, and the Claimant suffered aching extending across the back of the pelvis; he noted that the Claimant had pain that radiated around into his groin, and that the Claimant's right leg was generally numb and hypersensitive. These matters had a significant impact on the Claimant's day to day life. He had to live on the ground floor of his house; and he could walk only with the aid of two crutches, and only then for between 10 and 20 metres at a time; the Claimant could only sleep for short periods of time before being disturbed by pain; and the Claimant was no longer able to drive. Mr. O'Dowd described the Claimant as "extremely disabled".
7. Also in August 2012 the Claimant was examined by John King a Consultant Orthopaedic Surgeon with significant experience in lower limb injuries and soft tissue injuries. The Claimant presented to Mr. King in materially the same way as to Mr. O'Dowd. Mr. King concluded that the Claimant had "got compromise definitely of the L5 nerve root and possibly more", but was uncertain whether the Claimant's symptoms were only the result of nerve damage or whether they were also the result of a chronic regional pain syndrome. He suggested that the Claimant should be examined either by a neurologist or neurosurgeon, and also by a pain specialist.
8. Since August 2012 the Claimant has been examined by a number of professionals on a number of different occasions, as follows:

(a) Dr. Charles Pither, a Consultant Pain Specialist, who examined the Claimant on 4 September 2013 (report 24 September 2013), and 15 April 2015 (report 7 May 2015), and 22 June 2016 (report 13 July 2016);

(b) Dr. Neal Edwards, a Consultant in Pain Management who examined the Claimant on 10 February 2014 (reports dated 19 March 2014 and 26 August 2014);

(c) Mr. James Kellerman a Consultant Neurosurgeon, who examined the Claimant on 6 January 2014 (reports 4 March 2014 and 17 September 2014); and

(d) Dr. Oliver Foster, a Consultant Neurologist, who examined the Claimant on 10 September 2013 (report 12 September 2013), and on 18 May 2015 (report 30 May 2015), and on 8 March 2016 (report 10 March 2016).

9. The first examination, was by Dr. Pither in early September 2013. In the report following that examination Dr. Pither referred to the Claimant's reporting that he suffered significant, non-stop pain in his right leg, with the pain worse from the knee down. He concluded that his pain was having a major disruptive impact on the Claimant's life and social function and had caused what he (Dr. Pither) believed to be a secondary depression. This depression created a vicious ring; the depression adds to the burden and reduces a person's ability to cope. Dr Pither considered there was a chronic pain syndrome comprising on-going pain, loss of functionality, and depression.
10. The next examination was by Dr. Foster (also September 2013). He also reported widespread pain in the right lower leg, and stated this was consistent with damage to the network of nerves in the pelvis. He stated that it was possible that the pain might improve over the next one or two years, but observed that given the severity of the pain that the Claimant was experiencing (some 18 months after the accident) it was likely that the Claimant would have significant pain for an indefinite period.
11. Next, is Mr. Kellerman's first report (March 2014, following an examination in January 2014). He reported the following information obtained from the Claimant: that he suffered numbness and pain in the right leg all the way to the foot together with buttock pain; that the pain was such that he was often woken in the night; that the Claimant had back pain radiating to his right shoulder and left shoulder and some pain in his right wrist; that the Claimant's right knee tended to give way; that the Claimant could only walk 20 – 50 metres without needing to stop; and that the Claimant could no longer drive. On examination, Mr. Kellerman noted a normal range of movement in hips knees and ankles, but also reported that all aspects of the physical examination he undertook caused "pain and much grimacing". He stated that the Claimant had a degree of abnormal behaviour in terms of the pain with "exaggerated reaction to any physical examination". Mr. Kellerman's conclusion was that the Claimant's pain was due to damage to the lumbar sacral plexus and not the result of any specific continuing nerve compression. He agreed with Dr. Pither's opinion that the Claimant had developed a mild chronic pain syndrome.
12. Dr. Edwards examined the Claimant in February 2014 and wrote a report in March 2014. The Claimant reported constant pain in the right side of his pelvis continuing down the whole of the right leg; he reported numbness and sensitivity to touch; he reported pain into his shoulders and in some part of his left arm. The Claimant stated that he walked using a crutch, and could manage only 20 – 50 metres before having to stop; he had difficulty going up or down stairs and tended to live downstairs; he could only stand or sit for short periods; he could not bend or squat; he could only lift or carry very light things (the example given was an empty handbag, but not a full one); he could do light tasks around the home but no more. Dr. Edwards concluded that "the Claimant's level of reported pain and disability is significantly greater than I would have expected from [the injuries sustained in the accident in March 2012]". He stated that the Claimant had developed profound psychological and psychiatric symptoms and that these were significant factors affecting the level of the Claimant's reported symptoms. He concluded that he did not think that the Claimant was consciously seeking to mislead as to the extent of his disability; but that any exaggeration was reflection of "underlying distress, behavioural issues and language difficulties".
13. Thus the evidence as it existed by the early part of 2014 was generally all to the same effect; that the Claimant continued to experience severe and constant pain in the right side of his pelvis and his right leg; that he also experienced pain elsewhere, in his shoulders and left arm; and that the pain had a significant impact on his day to day life.

C. The video evidence

14. The video evidence includes two clips of the Claimant filmed in December 2013, but primarily covers the period from the end of March 2014 to mid-August 2014. In all there is video evidence relating to 17 different days; some of the extracts are short, others extend over longer periods. I have also been told that surveillance was attempted on a further 4 days, but on those days, the Claimant was not seen. However, taken in the round, the picture the video evidence presents is very striking. The videos show the Claimant walking near his house (either in his front yard, or going to and from a car) on a number of occasions. On each occasion he is walking almost normally; he has a slight limp, but this is a matter of an entirely different order to the descriptions of his movement given to the various medical experts he had seen by this time. The Claimant is not using a stick or a crutch; he appears to have a good range of movement, and appears to be moving freely. He does ordinary tasks in an ordinary way: for example walking in and out of his house over the threshold and down the front step; taking rubbish from his house to the bin in the front yard; opening and closing the front gate taking bags to and from the car, putting things in the car and leaning in to take things out. The things he carries are often small (shopping bags and the like, although on one occasion he carries something about the size of a banker's box), and of course from the video alone it is impossible to know how heavy they are. Nevertheless, all this is striking evidence of the sort of normal day to day activity that, on the Claimant's description of himself to the doctors, was simply beyond him. The Claimant is also seen driving a car; this is significant too, as he had previously stated that he was unable to drive.
15. There is one extended piece of video filmed on 30 May 2014. In this clip the Claimant is seen getting into his car and going to (what appears to be) a doctor's clinic. He stands outside for approximately 10 minutes, without difficultly, using neither stick nor crutches. He then walks along a street and over a road; he seems to have a normal pace and gait. He then walks back to the car and drives to a retail park. Once there he walks to a supermarket, and visits that shop and others. He is out and about around the shops for some 15 minutes. He walks, stops and stands all apparently normally. He then goes into the supermarket. As he walks round the supermarket he reaches for things and points at others; and he bends to reach things out of a fridge. He carries two bags of shopping to the car, and then walks off again, this time pushing a trolley. In total on that day, the Claimant is seen on his feet, walking around for the better part of an hour. Throughout he is walking normally and seems to have a good range of movement.
16. Following this evidence, the doctors who had previously examined the Claimant were asked to provide further opinion. Dr Edwards provided a further report on 26 August 2014, based solely on sight of the video evidence. He noted the significant discrepancy between the Claimant's account as given to him when he had been examined in February 2014 and what he saw on the video evidence. He stated that he was "... unable to explain this discrepancy from any physical or psychological/psychiatric viewpoint". Mr. Kellerman provided a report dated 17 September 2014; this too was based solely on sight of the video evidence. He observed that the Claimant moved "in a normal fashion, carrying out day to day activities and doing some form of work". He stated the view that he now believed that the Claimant had engaged in "some form of deliberate deception" when he had examined him in January 2014. He stated that it now appeared that the Claimant had made a very good recovery, and would be able to undertake "light manual work".

D. Subsequent medical evidence

17. Dr. Pither examined the Claimant again on 15 April 2015, and provided a report dated 7 May 2015. By this time Dr. Pither had also seen the video evidence. When examined the Claimant told Dr. Pither that he had constant pain, everywhere (although the intensity of the pain could vary from day to day); and that as a result he slept poorly (three to four hours a night). Dr Pither observed that the Claimant walked slowly, with a stick; and any examination revealed that the Claimant was tender to the touch over his back, chest, arms and thighs. Dr Pither stated that on examination this time the Claimant presented as being even worse than when he had previously been examined (in September 2013), and that he "... very convincingly presents as a person whose life is awful and has been ruined by the accident without being able to be more specific in terms of more clear cut issues and problems". Reading the report as a whole, the impression I have is that Dr. Pither was somewhat baffled as to how to reconcile what he saw on examination with what he saw on the video evidence. He said could not reconcile the discrepancy in function; he said that he remained unclear about the Claimant's exact level of function, but he said it was "unlikely" that the Claimant had no on-going symptoms.
18. Dr. Foster examined the Claimant for a second time on 18 May 2015 and provided a report based on this examination on 30 May 2015. He too noted a marked discrepancy between the video evidence and the way the Claimant presented to him in May 2015. He suggested that the fact that persons suffering from chronic pain often have "good days and bad days" might provide some explanation; but this was not put forward as either a conclusive or a complete explanation.
19. There are two further medical reports to mention. Dr. Foster provided a third report dated 10 March 2016, having examined the Claimant for a third time on 8 March 2016. Finally, Dr. Pither provided a third report dated 13 July 2016, having examined the Claimant on 22 June 2016. He noted that the Claimant continued to report continuing symptoms of pain distress and disability, which were probably worse than when Dr. Pither had last seen the Claimant. These symptoms were now more generalised: "after several years everything hurts: both from the physical and psychological perspective". Dr Pither stated that he did not think that the Claimant was malingering; he was of the view that the Claimant had "some genuine symptoms"; but the presentation was "obscured by overt pain behaviour, with probable influence from the claim itself".

E. The evidence at trial

20. At the hearing I heard evidence of fact from the Claimant, and also from his lodger and her son; and I also heard expert evidence from each of Dr. Pither, Dr. Foster, Mr. Kellerman and Dr. Edwards. One of the primary focuses of the evidence at the hearing was whether there was any basis on which the evidence over the whole period from 2012 to 2016, including the video evidence, could be reconciled. Specifically was there any explanation that could reconcile (a) the Claimant's declining condition from the date of the accident in 2012 until the end of 2013; with (b) the Claimant's apparent recovery to a level of functionality close to normal, as seen in the video evidence for the period from December 2013 to August 2014; with (c) the rapid decline in function apparent from the medical examination of the Claimant in 2015 and 2016. I can add to this, the need to reconcile the Claimant's condition as he gave evidence at the trial. Having seen the Claimant give evidence I tend to agree with the general observation made by Dr Pither (in his third report) that "after several years everything hurts: both from the physical and psychological perspective". The Claimant appeared entirely broken down by his own condition; an entirely different person from the one seen on the video evidence. (Though for the avoidance of doubt, there was no dispute that the person seen on the video evidence was the Claimant.)
21. The Claimant's evidence was to the effect that he had been getting better; and following the accident, he was at his best in 2013, although even then he had good days and bad days. However, his condition had got worse since 2014, following injections that were prescribed for him for fibromyalgia. Since then everything had started to get worse, albeit that the deterioration was gradual. The Claimant said that even when he was at his best he walked with a stick at a normal pace, or that if he walked without a stick he could only do so if he took "huge doses" of painkillers. Even in 2013, he said, he could not lift heavy shopping bags and could not bend down to pick anything up from the ground.
22. The Claimant said that now he always walks with a stick or a crutch (if outdoors); the furthest distance he can walk without stopping is 25 – 50 metres, or for about 20 – 30 seconds. He said he could probably stand for around five minutes if he had something to lean on; but did not think that he has, or could ever stand for as long as 10 minutes. The Claimant said he is not able to lift heavy objects, such as heavy shopping bags; he said he can lift other objects (an example was one of the trial bundles); but he said, he lacks feeling in his arms so often drops things. The Claimant has sharp pain in both shoulders and the pain extends down his arms to his fingers. The Claimant can stretch his arms above his head but it hurts to do this. He used to be able to drive a car, but stopped driving when he started not to be able to feel his legs.
23. I listened carefully to the Claimant's evidence for any convincing explanation that might reconcile the video evidence with the other evidence. I can find no such explanation.
24. In his evidence Dr. Pither accepted that the Claimant was in pain, but he was not able to explain the extent of the Claimant's pain by reference to the tissue injury. Dr. Pither suggested that one possibility was that the Claimant was suffering from a chronic pain syndrome, that is to say a high level of pain not explained by tissue pathology. He said that good day/bad day was a feature of the syndrome. Dr. Pither's evidence (consistent with his written reports) was that the Claimant's presentation on the video evidence was inconsistent with the way the Claimant had presented to him on both the occasions he had seen him. In evidence he also said that when the Claimant had seen him in April 2015 he had not suggested then that his (the Claimant's) condition had deteriorated in the course of the 12 months prior to the examination.
25. Dr. Pither accepted that the video evidence was a strong indication of the Claimant's actual ability. He did not think that the difference between the Claimant as he presented in the video evidence, and the Claimant as he presented on examination in September 2013, April 2015, and at trial, could be explained on the basis that at the time the videos were made the Claimant was taking pain killers. He also accepted that the disparity could not be explained by reference to any known (or previously identified) feature of a chronic pain syndrome. He thought that the Claimant was exaggerating; but he did not consider that exaggeration was the only matter at play; he thought that the Claimant was not well. He did not think that there was an organic cause; he left open the possibility of a psychological cause, or of the operation of psychological factors (but that was not a matter within is specific area of expertise). He said that he had seen no other case that had a similar trajectory as this case. That is to say, no other case had a direction of recovery, followed by this level of deterioration. He could not identify any cause linked to the accident, which both explained the Claimant's present condition and took account of what is seen in the video evidence.
26. Dr. Foster accepted that the effect of a nerve injury could spread beyond the area affected by the injury, and that such injury could have consequences not specifically connected to the nerve damage. However, he stated that the Claimant's condition is not explicable by reference to the physical function of the nervous system; nor in his opinion was the suggestion of deterioration since 2014 explicable by reference to the physical function of the nervous system.
27. He agreed that the video evidence showed a big discrepancy. He stated that (like Dr. Pither) he had seen no other case with so wide a discrepancy. He stated that he believed that psychological factors are in play; the Claimant presents as someone who is depressed and someone who is not coping; there is no psychological evidence, but such evidence might explain matters. Put another way, the Claimant might be faking his condition, but it was also possible that there was some other – perhaps psychological – cause.
28. Dr Edwards' evidence was that the majority of people do not get the level of pain claimed by the Claimant. He did not agree that the video evidence could be explained by the good day/bad day explanation, given that that evidence was collected over a number of months, and showed a significant range of activity. Thus he considered that that evidence represented the Claimant's actual level of functionality in 2014. From that starting point he did not believe that the decline since 2014 could be explained by physical factors; the explanation must lie in non-physical considerations. Nor, said Dr. Edwards, would he expect to see the range of different functionality seen in this case (from 2014 to the present day) regardless of whether the cause was a mixture of physical and psychological factors, or psychological factors alone. For this reason his conclusion was that range of functionality in this case suggested that the Claimant was exaggerating.
29. Lastly, for this purpose, the evidence of Mr. Kellerman. He described the consequence of the 2012 accident in terms of a "mechanical" fracture of the bone. There was damage to the nerves; and in this case although the injury was serious, the damage to the nervous system was not extensive. He explained that the general outcome for persons who suffer injuries of this nature is good; seven out of ten usually make a good recovery, and are left with only some residual symptoms. Most people, he said, will recover within six months to a year. The usual long-stop point is two years. By that time either the nerves will have recovered from the damage sustained, or they will not do so.
30. Mr. Kellerman considered that the Claimant had received appropriate treatment at the time of the accident and after. He believed that the video evidence probably showed the full extent of the Claimant's recovery, and that he would not recover beyond that.

F. Conclusion

31. Drawing all this together, I accept that the video evidence shows the Claimant's level of recovery from the 2012 accident, by the mid-part of 2014. My conclusion is that by that time, the Claimant had recovered to the extent that he had regained something approaching normal functionality.
32. I have considered the possibility that the Claimant's day to day activities, as seen on the video evidence, are explained on the basis that he was taking large doses of painkillers, thereby masking the pain and enabling him to give the appearance of a relatively normal level of functionality. Dr. Pither did not consider that this was a possible explanation; I accept that evidence, and in any event think that this explanation lacks plausibility, for essentially the same reason as the good day/bad day explanation also lacks plausibility. The video evidence is of 17 occasions over the period from December 2013 to August 2014. In total, surveillance was attempted on 21 occasions, but on four of the days the Claimant was not spotted. Given that sample, over that period of time, it is improbable either that only "good days" were sampled, or that the only days observed were those when the Claimant had taken painkillers.
33. In his submissions for the Claimant, Mr. Leech suggested that I should take account of the gaps between the periods of surveillance, and that I might infer that in these periods, the Claimant was not as able as he appeared on the video. I do not think that any such inference can be drawn; to do so would be to assume that the surveillance followed some sort of pattern which (advertently or otherwise) captured only the Claimant's "good" periods. I do not consider that there is any basis for such an assumption. Overall therefore I accept the video evidence as representative of the Claimant's level of functionality as at 2014.
34. Next Mr. Leech submits that the point is to be considered in terms of the respective weight to be attached to the video evidence as against the body of medical evidence. I do not think that this approach assists the Claimant. Once the good day/bad day contention on the video evidence is rejected; and once the suggestion that the Claimant was on painkillers when he was under surveillance is also rejected, there is nothing left to undermine the weight to be attached to the video evidence as representative of the Claimant's abilities as at 2014. It is what it is. What is then to be set against that is the Claimant's own evidence of his state of health as reported by him to the doctors he saw from time to time. I accept that in 2013, 2014 and thereafter, the Claimant did not see just the medical professionals who have give evidence at this hearing, but also saw other professionals – his GP and others who saw the Claimant on referral by the GP. But this does not affect either the weight to be attached to the Claimant's own reporting of his condition from time to time, or the significance that is to be attached to the video evidence.
35. The next matter is what conclusions to draw in respect of the Claimant's current condition. Does the available evidence make good a contention that there is a sufficient causal connection between the Claimant's current condition and the 2012 accident? My conclusion is that the evidence does not make that connection; the Claimant's present condition is not therefore to be attributed as a consequence of the 2012 accident. The medical evidence does not support a conclusion that the Claimant's present condition can be so attributed. For example neither Dr. Pither nor Dr. Edwards, nor Dr. Foster could provide any example of any other case known to them in which there had been a recovery to the extent evidenced by the video evidence followed by a decline to the extent evidenced by the subsequent medical evidence. It has been suggested that the Claimant suffers from a chronic pain syndrome; but I do not understand any of the medical evidence to suggest that such a syndrome is likely to explain the level of recovery followed by the level of decline that is apparent in this case. Nor has any of the medical evidence been able to suggest any physical or neurological explanation. Both Dr. Pither and Dr. Foster suggested that it was possible that there could be a psychological explanation for this pattern of recovery and decline which might also be capable of demonstrating a causal connection between the Claimant's present state and the 2012 accident. However, there is no psychological report in evidence – as I understand it this is because the Claimant declined to be examined by the psychiatrist chosen by the Defendant as a further expert witness. In any event, because there is no such evidence, this point goes nowhere for this purpose.
36. The Defendant contends that in the absence of any other evidence that explains the Claimant's pattern of significant recovery followed by significant decline, the conclusion I should reach is that, since 2014 there has been nothing wrong with the Claimant, or that at the least the Claimant has significantly exaggerated any residual effects of the 2012 accident. Although I accept that there is a logic to that submission, it is not a submission that I accept. I carefully observed the Claimant when he gave evidence; he was also in court for most of the hearing, and so I saw him in one context or another over a period of time. The Claimant appears deeply distressed by his condition, and as I have already said, entirely worn down, and apparently sincere. It is of course possible that all of this is fake. But I regard that to be very implausible. I mean no disrespect to the Claimant when I say that I do not believe that he is sufficiently sophisticated to be capable of such a deception conducted over so extended a period of time. As I have mentioned, both Dr. Pither and Dr. Foster suggested the possibility that there could be some psychological explanation for the Claimant's present state. There is no specific evidence before me on that possibility. Yet it has been raised by both witnesses, and albeit that it is not a matter within their respective areas of particular expertise, it is appropriate for them to make this point by reference to their general experience, and I do attach weight to their view, in addition to the weight I attach to the opinion I formed about the Claimant having observed his evidence and seen him in court over the period of the trial. Thus although I do conclude (based on the video evidence) that the Defendant is not responsible for any significant symptoms consequent on the Claimant's injury beyond mid-2014, it is not my conclusion that since that time the Claimant has consciously fabricated or exaggerated his evidence; and I do not conclude that he has otherwise acted dishonestly in these proceedings.
37. This conclusion addresses the submission made by the Defendant that I should strike out the Claimant's case, with the consequence that he would recover no damages at all by reason of the 2012 accident. The Defendant referred me to the judgment in Summers v Fairclough Homes [2012] 1 WLR 2004. In that case the Supreme Court concluded that a claim could be struck out at any stage of the proceedings, even after a trial; yet the court also stated (per Lord Clarke at paragraph 43) that the power should be used following trial only where a court was satisfied "... that the party's abuse of process was such that he had forfeited the right to have his claim determined ...", and stated further that it would only be in a very rare case that at the end of a trial it would be appropriate for a judge to strike out a case rather than dismiss it on its merits in the usual way. For the reasons set out at paragraph 33 I do not conclude that this case falls into the category of very rare cases envisaged by the Supreme Court where a party has by his conduct forfeited his right to a judgment on the merits. I do not consider that the Claimant's conduct in these proceedings approaches that mark.
38. My overall conclusion on liability is that the Defendant is liable to compensate the Claimant for the injury he suffered on 17 March 2012 and for the consequences of that injury thereafter, but only to the extent that by the end of May 2014 the Claimant had substantially recovered from the effects of the injuries he sustained. On this point, based on the video evidence, I agree with the observation made by Mr. Kellerman in his September 2014 report, that the video evidence shows that the Claimant had recovered to the extent that he was capable of undertaking "light manual work".

G. Damages

(1) General Damages

39. Both parties refer me to the Judicial College Guidelines, specifically (a) section 7(D) "injuries to the pelvis and hip"; and (b) section 8 "chronic pain". I approach this taking care to look at the injury that the Claimant suffered in the round (including its consequences between 2012 and 2014, and the pain endured by the Claimant during that period), but also taking care not to engage in any form of double-counting (as between section 7 and section 8 of the Guidelines.
40. The Claimant did suffer a significant injury, and notwithstanding the conclusion I have reached based on the video evidence, the evidence is that over an extended period of recovery (until 2014), Claimant endured significant and constant pain. Looking at the hip injury alone I would place it in the Moderate (b)(i) class within section 7(D). For the purpose of assessing the specific amount to award I do place significant importance to the pain suffered by the Claimant. For this reason I award an amount of general damages toward the top end of the range, namely £29,000.

(2) Damages for loss of earnings

41. The first task here is to establish the Claimant's level of earnings immediately prior to March 2012. In the years prior to March 2012, there is no steady picture of the Claimant's earning. Until 2008 the Claimant had worked as a dry-liner. He did not work in permanent employment, but from job to job as each might arise. In some years (for example, 2006 – 2007) the Claimant had earned very well, and had undertaken work regularly for certain builders, one of which was the Francas Building Company. However, from 2008 the Claimant gave up dry lining work to run his own convenience store. This venture was not successful; in January 2011 the Claimant was declared bankrupt. The Claimant then returned to building work. However, by this time, the Claimant had been out of this type of work for a while; and inevitably it would take him sometime to build up his contacts once again; and in any event by 2011 the change in economic circumstances meant that the building market was not what it had been, say in 2007/08.
42. The Claimant's evidence as to his earnings immediately prior to March 2012 is relatively thin. The Claimant's case is that in the 7 months between July 2011 and January 2012 he earned a net income of £10,188.02. I note also that on the Claimant's tax return for the year ending 5 April 2012 he declared income received from self-employment (before tax) in the amount of £10,688.00.
43. If I took the £10,188.02 net figure as a starting point, if that level of earnings were sustained over 12 months, the Claimant's net income would have been approximately £17,500. Then account needs to be taken of the fact that the dry lining work would not necessarily take the form of a steady stream of predictable work; how much the Claimant would earn would depend on the amount of work available and the number of others competing to do the work. As to this point, the Claimant's case included a witness statement from Ilona Miliauskiene. She and her husband are directors of the Francas Building Company. However it was clear that Mrs. Miliauskiene's husband has sole responsibility for the day to day running of the business. The information in the witness statement was primarily (if not entirely) within his knowledge, not her knowledge. That being so I do not attach any significant weight the information set out in the witness statement, at least insofar as it goes to the likelihood of the Claimant's earnings after March 2012 had he not been injured.
44. Overall, I assess that a fair figure for the Claimant's earnings in the year April 2012 – March 2013 is £20,000, net. I reach this figure taking into account (a) the figure declared by the Claimant on his 2011-12 tax return; (b) that that figure probably does not represent a full 12 months earnings; and (c) an allowance for a modest increase in earnings in 2012-13 over 2011-12. This results in damages for loss of earnings per month in the amount of £1,667.00, and in the period from April 2012 to May 2014 (26 months) in the amount of £43,342.00.
45. Next, I consider loss of earnings in the period June 2014 to date (April 2017). I approach this on the basis of the conclusion I have stated above, namely that by the end of May 2014, the Claimant had substantially recovered from the injury. I accept the Claimant's submission to the effect that even on this premise I cannot assume that the Claimant would ever have recovered sufficiently such that he could resume dry lining work. There is no evidence before me to suggest that that would have been the position. As I have already mentioned, work that the Claimant could have done by this time has been described as light manual work; an example of this has been work as a van driver. Mr. Leech for the Claimant informs me that the Annual Survey of Hours and Earnings for 2014 stated that the annual average net income for van drivers was £17,453.00. Taking this into account (and bearing in mind that van driving was simply one possible example of the sort of work that the Claimant might do, my conclusion is that from June 2014 the Claimant ought reasonably to have been in work earning at the level of £15,000 net per annum (i.e. £1,250 per month). On this basis in the period June 2014 to April 2017 (35 months) there was a net loss per month of £417, and over the period in the amount of £14,595.
46. The Claimant's submission on future loss of earnings is that I should award an amount equivalent to three years income at the level earned by the Claimant prior to the accident. The Defendant's submission is that an appropriate amount would be equivalent to one year's pre-accident income. In circumstances such as those of this case where there are vagaries both in respect of the pre-accident occupation, and also any occupation the Claimant may have in the future, any sum in respect of loss of future earnings is a little speculative. I award £40,000 (i.e. a sum equivalent to 2 years net earnings for the Claimant, as I have assessed them to be, in the period immediately prior to the accident).
47. Overall, therefore, I award £57,937.00 in respect of loss of earnings to date; and £40,000.00 in respect of future loss.

(3) Cost of care

48. The Claimant's claims in respect of care for the period 17 March 2012 to 14 May 2012 are admitted by the Defendant (i.e., an amount of £229.76, by reference to the figures for this period in the Claimant's Updated Schedule of Loss).
49. Thereafter the Defendant accepts that the Claimant had a continuing need for care until the end of December 2013, but submits that towards the end of this period the level of care required would have tailed off. The Claimant's case is that after May 2013 the Claimant needed 14 hours care per week (i.e. 2 hours per day)
50. I deal first with the level of care. My conclusion above is that by May 2014 the Claimant had substantially recovered from the consequences of his injury. I accept that the logic of this is that towards the end of that period, the need for care would be less than the need at the outset of the period. My conclusion is that the level of care claimed by the Claimant (an average of 2 hours a day) is appropriate for the period until December 2013 (i.e. 85 weeks), and that for the period from January to May 2014 (21 weeks) an average of 1 hour per day should be allowed. This results in 1,190 hours of care for the period to December 2013, and 147 hours of care thereafter until May 2014; and a grand total of 1,337 hours.
51. As to the appropriate hourly rate, the Claimant claims on the basis of the aggregated rate; the Defendant submits that the basic rate is appropriate as the care would not have needed to have been provided either overnight or at weekends. I accept the Defendant's submission on this point, and I also apply the rate per hour proposed by the Defendant in its Counter-Schedule of Loss – i.e. £6.84
52. This produces an award in respect of cost of care to date in the amount of £9,145.08, for the period from 14 May 2012, and a grand total of £9,374.84 in respect of the whole period since 17 March 2012.
53. Next, future cost of care. Here, I award damages in accordance with the estimate of the Defendant's expert (Ms. Phillips) under her "scenario 2", namely (a) for assistance in respect of household maintenance £10.972.33 (increased from the figure stated by Ms. Phillips to take account of the change in the discount rate effective 20 March 2017); (b) for armchairs and replacements, £1,865.36; and (c) for a perching stool, £669.64. A total of £13,507.33.

(4) Travel and miscellaneous matters

54. The Claimant claims £1,050 for travelling expenses for various medical appointments and other matters; and also £50 on miscellaneous expenditure on postage, phone calls, etc. The Defendant points out that these sums are not particularised, and in its Counter-Schedule of Loss allows £100 and £10, respectively. Given the extended period over which the Claimant has needed to attend for medical treatment and other matters, I do not consider that the sums claimed by the Claimant are unreasonable, and I allow them both.

(5) Summary

55. In summary, the award of damages is as follows.

(a) general damages, £29,000.00

(b) loss of earnings to date, £57,937.00

(c) future loss of earnings, £40,000.00

(d) cost of care, £9,374.84

(e) future care needs, £13,507.33

(f) travel and miscellaneous expenses, £1,100.00

I have not calculated interest on past losses; I would be grateful if counsel for the parties could address this matter.