Written by Tim Wilkinson.
In the clinical negligence case of Aileen Brint v Barking, Havering and Redbridge University Hospitals NHS Trust  EWHC 290 (QB), HHJ Platts dismissed the claim but declined to find the Claimant fundamentally dishonest. It is a reminder that significant unreliability does not necessarily equate to dishonesty, particularly where there is a complex psychological component.
The claim involved an extravasation injury following a CT scan with contrast. The fact of an injury was not in dispute, but liability and quantum were. The Claimant alleged, in essence, that there had been no warning of material risk, that the clinician had injected a needle into her left thumb despite a request not to do so, and that her repeated complaints of pain failed to cause the clinical to remove the needle or stop the scan.
Despite some difficulty with the Defendant’s witness evidence, HHJ Platts rejected the Claimant’s account of events as “on the whole to be unconvincing and unreliable”. Amongst the findings were:
In addition to the above, HHJ Platts was clearly troubled by the fact that the Claimant had, until being seen by the Defendant’s care expert, failed to disclose her longstanding receipt of the highest rate of Disability Living Allowance.
Having dismissed the claim, HHJ Platts went on to consider the allegation of fundamental dishonesty, made ‘on the eve of trial’. He reminded himself of the test of dishonesty, as per Ivey v Genting Casinos Limited  UKSC 67, namely the (subjective) actual and genuine state of the individual’s knowledge or belief as to the facts and, thereafter, whether the conduct was honest or dishonest according to the (objective) standards of ordinary decent people. HHJ Platts concluded:
This was an unusual case. The Claimant’s evidence was almost universally rejected, despite her having made her allegations very shortly after the alleged incident and having remained broadly consistent throughout. Some of her allegations were, not unfairly, described by the Defendant as ‘incredible or unreliable’, and by one of the Defendant’s witnesses as ‘absurd’. Despite the elaborate detail presented to the Court as fact and ultimately found to be untrue, the Claimant was found not to be fundamentally dishonest. HHJ Platts placed point 5, above, as the most important point, and it is reminder that a trial judge’s impression of a witness is key. Here, the consistency of the Claimant’s complaints, on the background of her psychological profile, led HHJ Platts to the conclusion that she had not deliberately lied in order to advance her claim.