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Brint v BHR UHNT: Misleading, Wholly Unreliable and Inaccurate, but not Fundamentally Dishonest

Legal Update

Written by Tim Wilkinson.

In the clinical negligence case of Aileen Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] 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:

1. Despite the Claimant’s claim that she was ‘fit healthy and active’, she was complaining of significant and disabling physical and psychological symptoms prior to her injury;
2. On the balance of probabilities, she was warned of the risk of extravasation;
3. The Claimant’s account that the needle was inserted into her thumb was incorrect (it was to her anatomical snuffbox) but in any event it is unlikely she was not aware of the clinician’s intention beforehand.  The Claimant’s evidence that she cried out in pain immediately, and called out at least five times for the scan to be stopped, was an account of a highly unlikely “total and alarming disregard for the comfort and well-being of the patient”.  It was also undermined by the expert evidence, which pointed to the injury only occurring towards the end of the scan and to it being unlikely that the hand would have become black and blue, and fixed in a claw position, whilst in the scanning room (as was alleged);
4. The Claimant’s account of what happened after the scan was inherently unlikely and undermined by the contemporaneous medical records. Such allegations included the clinician pouring hot water over her arm and being isolated in a dark room, untreated, for hours. 

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 [2017] 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:

1. None of the experts accused her of being dishonest (save for a late suggestion that was rejected); 
2. The Claimant did not give the impression of having been motivated by money.  Even her failure to disclose her DLA was never an actual denial of receiving benefits. He accepted her evidence that she did not think it relevant because it related to her back problem; 
3. The Claimant had made prompt (within hours) and consistent (numerous, largely similar) complaints about her treatment. It was highly unlikely that she had fabricated her account so quickly, and yet managed to remain so consistent. She had also complained of another event, several weeks earlier, in a very similar manner. HHJ Platts thought it probable that the Claimant had conflated the events; 
4. The Claimant’s evidence had to be considered against the background of her complex psychological profile; 
5. His impression of her as a witness, during 1.5 days’ cross-examination, was that she firmly believed her version of events.

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.