Brian Muyepa v Ministry of Defence

As a generality doctors in most disciplines, and in most circumstances, start with the assumption that a patient is telling them the truth when giving a history. In some disciplines/with some conditions the patient’s history is vital when trying to arrive at a diagnosis.

As Dr Carey stated in NFCI cases 80% of the diagnosis is based on the history (Footnote: ²⁴) as there is no reliable objective diagnostic test (the INM having stopped using thermos-imaging due to concerns over its reliability as no baseline testing is available (Footnote: ²⁵)).

Psychiatry also relies very heavily of what the patient says; for obvious reasons.

As for pain management as Dr Edwards stated it would be hugely counter-productive to challenge the history given by a patient and it is necessary to work with what has been said i.e. to accept it (or to appear to accept it). So in a clinical context a patient’s history of symptoms is infrequently directly challenged. In my experience this approach tends to carry over into the compilation of medico legal expert reports.

As a result the experts were, at least initially very heavily reliant upon the accuracy of what the Claimant (and his wife) told them about the nature and extent of his symptoms.

I am quite satisfied all the experts asked for the Claimant’s history with an open mind and in particular the experts instructed by the Defendant started off from a properly independent standpoint. Indeed, Dr Mumford and Dr Edwards initially prepared reports which were favourable to the Claimant. There was no hint of bias against the Claimant arising from the source of their instructions. Although Ms Collignon robustly challenged Dr Mumford when he gave oral evidence, within her closing submissions she relied on the content of his first report when, despite stated misgivings (including by reason of the feigned fall) he gave the Claimant the benefit of the doubt and concluded that he was not consciously malingering.

Against a broad background of support for the Claimant’s case the initial opinion of Dr Friedman was notable. He set out the firm view that the Claimant was exaggerating after his first interview and before any surveillance or social media evidence. He gave very clear and compelling evidence that the Claimant intentionally presented to him as he (the Claimant) thought a severely depressed person would present. Subsequent evidence merely confirmed his view that it was not a true presentation; rather dishonest exaggeration.

Dr Mumford and Dr Edwards were both taken aback by what they were subsequently presented with by way of social media and surveillance evidence. MsCollignon criticised both experts for failing to adequately weigh into the balance against it the Claimant’s lay witness evidence when they considered whether the Claimant was consciously exaggerating his symptoms and if so to what degree. However, there is an obvious problem with this line of attack: a clip of a man walking perfectly normally, and on a seperate occasion, dancing, without a stick is indisputable, non-subjective evidence. As I have already set out, at first blush the Claimant’s lay witness evidence as set out in the statements provided a universal and clear picture that the Claimant was incapable of what was shown; but in this regard that picture was clearly wrong. Seven of the witnesses could not reconcile what had been caught on camera with what they had described in their statements.

Dr Mumford found the social media/surveillance evidence “astonishing” given how the Claimant had presented to him at examination. Dr Edwards was even less impressed. He stayed throughout the trial and is clearly a clinician who is devoted to alleviating the functional limitations caused by chronic pain. I accept that he was, as he stated, anxious to be fair to the Claimant. In the end his evidence was scathing. He was adamant that this was conscious exaggeration for secondary gain.

Together the evidence of Dr Mumford, Dr Friedman and Dr Edwards painted a coherent and consistent picture of conscious, deliberate, prolonged and significant exaggeration which I much prefer to the overly benign and, I regret to say, at times partisan, analysis of Dr Carey, Dr Baggarley and Dr Sidery.

Having given this summary I shall now deal with the oral evidence given by the experts and then set out an analysis of each discipline in greater detail.

The experts in NFCI were Dr Carey and Dr Mumford.

Dr. Carey confirmed that his experience was in occupational and thermal medicine in the military and not the civilian world. Although not a vascular or neuropathic expert but as most NFCI cases occur in the military he has had considerable experience of the condition. He had seen 500-1000 cases of NFCI in a clinical context. He had worked at the environmental unit at the Institute of Naval Medicine and had sat on the Defendant’s medical boards both as a president and as a consultant in occupational medicine.

Dr. Carey began his evidence by providing a helpful synopsis and outline of NFCI. He agreed that NFCI is rarely seen in civilian medicine and there are very few studies to show how the condition is formed (or progresses). He also said it was the orthodox view that a NFCI is caused by damage to the nerve fibres caused by prolonged exposure to a cold and wet environment without an opportunity for rewarming (Footnote: ²⁶). The damage to the nerve occurs at the time of the cold exposure, the initial exposure, and any further cold exposures did not cause a deterioration of the injury. However, further cold exposures could exacerbate the NFCI caused by the initial exposure.

Dr. Carey explained that the symptoms of NFCI had to be divided between symptoms on exposure and symptoms on rewarming. In terms of symptoms on exposure he generally regarded them as classic symptoms, i.e. numbness to the hands and feet with pain, which he said was an anomaly of NFCI, together with swelling and little to no manual dexterity. On rewarming, Dr. Carey described the symptoms as including tingling, stabbing hot and burning pain which lasts two to three hours and which generally resolves but a person may be left with susceptibility to further exposures of cold; a degree of vulnerability.

Dr. Carey said it was fair to suggest that in mild and moderate NFCI it was not uncommon for those sorts of injuries to recover over time and it was possible for a full recovery to take place.

In the Claimant’s case, Dr. Carey said the initial exposure in March 2016 caused cold sensitisation which meant the Claimant did not need the same level of exposure in order to make him vulnerable. Dr. Carey was shown a video of the Claimant dancing in a red blazer and which was posted onto Mrs Mueypa’s Facebook account on 23^rd June 2016. This was taken a few months after the initial exposure. It was suggested to Dr. Carey that the Claimant’s movements as displayed on this video and which were after the initial exposure, and before the subsequent complaints of deterioration, should not have worsened to the extent the Claimant says following what was arguably an innocuous exposure whilst working in a hanger. Dr. Carey’s view was that the video was not inconsistent with the degree of injury the Claimant had reported following the initial exposure. He added that it was taken in the summer and he was continuing in the military. I found this view sensible and convincing; however it threw the focus sharply on the claim of a very significant, subsequent deterioration after working in a hangar which to the lay person would seem somewhat strange. However, Dr. Carey said in winter months hangers can be very cold and he did not see it as unusual or inconsistent that working in that environment would exacerbate the original NFCI.

Dr. Carey agreed with his description of the Claimant’s presentation to him on 21^st May 2018:

“§5.02 Mr Muyepa required assistance from his wife and myself from the point of arrival in their car. Mr Muyepa’s wife assisted Mr Muyepa from the car, and then in walking into the building. Mr Muyepa also used a walking aid. Mr Muyepa’s gait was slow and considered. He had difficulty ascending just a few steps and had to stop regularly (every minute) to rest. Mr Muyepa chose to sit on a wooden (dining) chair rather than in a soft leather one, because he felt it easier to lower and rise from it. Throughout the consultation, which lasted for 2 hours, Mr Muyepa expressed pain, both orally and through his facial expressions, and would touch or rub his legs. During the consultation, the room temperature of around 20C, and the outside temperature was between 18-22C.”

Dr. Carey said this presentation was as bad as it gets, severe, and was a very rare presentation. As for the examination on 17^th August 2020 (Dr. Carey said that the Claimant informed him that his presentation was essentially the same as when he has previously seen him in May 2018);

“§5.06 I noted Mr Muyepa’s gait as he exited his vehicle from the passenger side, it was unsteady and he required both his walking stick and to a lesser extent his wife to help him. He used his stick to assist him sitting and raising himself from a sitting position. I asked him to stand without his stick and he did so. I then asked him if he could stand on one leg without his stick, which he did for around 2-3 seconds before he became unsteady.”

Dr. Carey was asked about the Claimant’s presentation in the videos of 1^st June 2019 (walking at the reception) and 23^rd August 2019 (dancing at the BBQ). Dr. Carey would not agree that the Claimant’s presentation in the videos was irreconcilable with his presentation to him on 21^st May 2018 and August 2020 but would accept they were inconsistent. He said the videos ‘raised eyebrows’ and he acknowledged that patients do exaggerate /malinger. Later Dr Carey was happy to adopt the term ‘irreconcilable’ when comparing the presentation of the Claimant to him in May 2018 and August 2020 with the surveillance footage of 3^rd September 2020 showing the Claimant getting into a car unaided.

Dr Carey said that he was with the Claimant for two hours during his assessment and the shots on the video from 1^st June 2019 were for a matter of seconds and he could not analyse someone in only seconds although he added that he believed there is likely to be a lot of psychological overlay. Many patients catastrophise their injuries. He said he would concede that there may be an element of exaggeration in this case however whether it was subconscious or a conscious attempt is difficult to tease out. He also said that he was a doctor and not a Spanish Inquisitor.

Both videos were taken in summer and Dr. Carey also said it did not make sense to him that the summer does not have an effect on the Claimant’s NFCI (as the Claimant had stated). He said factors such as warmer conditions and alcohol, taken cumulatively, may provide some form of explanation for improved mobility shown on the videos. Mr Ward suggested to Dr. Carey that the only person who would know if his symptoms improved in the summer is the Claimant and he said there was no difference (and no witness had referred to any improvement in summer). Dr Carey conceded that the Claimant had never given him the impression that there were good days. He was reminded of the caution he expressed regarding the “good day/bad day” explanation in the third joint statement signed 14^th October 2021 and it was put to Dr Carey that he was now “leaning over to protect the Claimant” and justify his behaviour in breach of his duty to the Court. Dr Carey acknowledged that he perhaps could have written that he was surprised the Claimant said there was no difference in the summer and on reflection he should have flagged this up as an exaggeration on the part of the Claimant.

I asked Dr. Carey why the Claimant used a stick and why he limped. The only explanation Dr. Carey could offer for the use of the stick is that many people who use one do not actually require it all of the time, rather they largely use it for reassurance. With respect to the limp, Dr. Carey said the only way he could “square it” is that when one can actually not need a stick, but use it nonetheless because of fear; having fallen in the past, and this could give rise to a limp. Dr. Carey explained that if a stick is a badge of honour and not a badge of shame, that would give rise to a gait that looks like a limp. I did not find this a convincing explanation. Dr. Carey said that in his experience, people with NFCI can fall if they have numbness in their feet which results in them not being sure footed. However this was not the Claimant’s explanation of why he had fallen. Dr. Carey was asked about the Claimant’s evidence that the pain in his feet comes first and then his legs. Dr. Carey said he had not seen/heard of this before, but that he had previously seen some people with problems with their gait. Given the totality of the evidence in this case I do not believe it proper to place significant reliance on unusual or idiosyncratic presentations by individual soldiers without much more information.

The allegation that the Claimant engineered the NFCI was put to Dr. Carey. Dr. Carey said it was highly unlikely the Claimant would be able to present a history to persuade him that he had NFCI especially since the Claimant’s medical records form part of the history. His view remained that the history of onset in the Claimant’s case was strong; the symptoms and their severity came later. I pressed Dr. Carey on whether he could provide me with an irreducible minimum of symptoms, i.e. if he could be certain that a presentation would have resulted in minor or moderate injury? Dr. Carey could not be certain; he said that mild, moderate and severe were all up for question and he did not like those terms as they mean different things to different people. Dr. Carey said he was completely secure in the diagnosis; he could not see how any evidence save for an extreme example of the Claimant running in the Olympics would take him away from that diagnosis. Dr. Carey reiterated that he had considered the videos for many hours and it did make him reconsider the severity of the injury and conclude that it was not as severe as he once thought.

Dr. Carey agreed that the Claimant might well have been retained by the army if he had suffered a mild NFCI. Dr. Carey said the medical board would have been concerned with function which varies between individuals. Dr. Carey said there are soldiers with NFCI who carry on with their service, however this is dependent on their rank and role, e.g. whether they are a marine or work in logistics; the latter could be retained the former would not be. Dr. Carey said if the Claimant had a mild NFCI but exaggerated the extent of his symptoms then he could have been retained but there was no guarantee.

Dr. Carey said if the NFCI was genuine and mild then he would have expected a good recovery in a few years so long as there was no further exposure. If there was a mild organic NFCI, then five years on from the exacerbation, Dr. Carey would have expected the Claimant to be improving.

Dr. Mumford confirmed that he was an adult neurologist who deals with all aspects of neurological disease; with a particular interest in the areas of multiple sclerosis and general neurology. He described himself as a generalist in peripheral neuropathy.

Dr. Mumford accepted that the preponderance of NFCI is in the military although he was aware of papers published concerning NFCI in fishermen and mountaineers. Dr Mumford said he was aware of NFCI but in general practice there would only be a handful of patients. Dr. Mumford said he had now seen 134 NFCI cases for medicolegal purposes. He conceded that Dr. Carey was vastly more experienced in terms of seeing cases of NFCI, however as regards peripheral neuropathy generally, he would be the more experienced clinician.

Dr. Mumford agreed that the conditions at Sennybridge in March 2016, in particular the appalling weather, and the time spent in those conditions, were precisely the type of scenario where one would get NFCI. Dr. Mumford also acknowledged that black Afro-Caribbean ethnicities were more likely to get NFCI.

Dr. Mumford was taken to the military medical records of the Claimant. The entry on 11^th March 2016 by Corporal Claire Bailey recorded that the fingers on both hands of the Claimant were cold to touch. Dr. Mumford accepted that was her finding on examination however he qualified that by saying Corporal Claire Bailey would not have been a doctor. He accepted that this finding was not dependent on what the Claimant had told her. Dr. Mumford was taken to another entry on 11^th March 2016 by Colonel Andrew Baker who recorded that both hands and feet were very cold; and 14^th March 2016 by Captain Kate Wright who recorded tender, cool mildly swollen fingers. He agreed these entries were not dependent on what the Claimant had said. Dr. Mumford also accepted that swelling had been reported but the inference he would draw was that it was ‘noticeably swollen’. He added it was difficult what to make from that however he agreed with Dr. Carey who suggested that swelling is hugely variable.

Dr. Mumford was then taken to the IRT test results from the INM and he confirmed that these were consistent with the diagnosis of NFCI.

Dr. Mumford described working in a remote hangar as a very different exposure to that at Sennybridge. Dr. Mumford said he was puzzled by the Claimant’s symptoms whilst working in only a relatively cold environment with a trivial change in temperature. Dr. Mumford added that it was a matter of common sense that the harsh exposure at Sennybridge could not be replicated in a hangar. Dr. Mumford agreed that damaged nerves can be prone to pain, however he was still puzzled as to why the overall trajectory of the Claimant’s injury deteriorated. He could not understand why modest exposure in a hangar would cause the overall trajectory to get so poor and worse so that it is dominating his life.

Dr. Mumford did not consider swelling to be a common symptom of NFCI but acknowledged that it does occur. He was taken to the witness statement of Garfield Taylor and Cecila Khan, who had observed that the Claimant had swollen fingers and feet respectively. Dr. Mumford agreed that swollen fingers and feet are an objective sign of NFCI and is not dependent on the Claimant’s account of his symptoms however he placed greater stock in reports of swelling shortly after the insult/exposure and not years after. This, in Dr. Mumford’s mind, raises some other pathological reason for the swelling. He explained that when nerves have been damaged with NFCI they should regrow. The process is slow but they will still regrow in four to five years. Dr. Mumford’s expressed puzzlement was as to why the Claimant has got worse. He said swelling is a feature of NFCI but he would expect that as a feature early on hence why he finds it odd when it is attributed to by friends years after the exposure. The view that I eventually reached was that neither Dr Carey or Dr Mumford could explain the complaints/witnessing of swelling years after the exposure and without further exposure.

Dr. Mumford said it was uncontroversial that the Claimant’s symptoms should be better in a warmer climate such as the Ascension Islands and he would expect the symptoms to be generally less troublesome in the summer when he is not being exposed to a cold environment. However, Dr. Mumford added that he would still not expect to see major variations in function on a day to day basis. Dr. Mumford said the Claimant’s complaints of variation in intensity of pain in the Claimant’s feet, and “haphazard” symptoms during the day with no particular pattern, were not things that he had seen in NFCI and were curious.

Dr. Mumford reiterated thathe saw no reason why the Claimant used a stick. In his first report he stated that the Claimant walked with a stick but he thought he did not need it as he was not putting much weight through it. Dr. Mumford emphasised that from a physical point of view the Claimant did not need a stick and he was perfectly normal.

Dr. Mumford explained that his initial reaction to the Claimant falling during his first examination was ‘Crikey, what’s that?!’ He had said in his first report that the fall appeared in his view to be ‘affected’; and did not believe there was a wide difference between affected and feigned. Dr. Mumford said there was nothing in the nerves that would explain neurologically why the Claimant fell.

Dr. Mumford accepted that the video clips of the Claimant walking at the reception on 1^st June 2019 and dancing at the BBQ on 23^rd August 2019 were short and did not show the Claimant moving around for a considerable time. However he said they were still astonishing. Dr. Mumford said he spent two hours with the Claimant who had said to him that 80% of the time he could not do anything.

Dr. Mumford accepted that he initially opined there to be a mild NFCI with other psychological factors. Also that the symptoms that others have observed support NFCI. However he stated that other symptoms such as back pain and pain that makes him fall over are ones for which there are no explanation other than they are bizarre. Further, speaking from a neurological basis he said that the inconsistencies were so marked that they had thrown into question the diagnosis of NFCI; it was now “insecure”.

On the assumption that there is a secure diagnosis of NFCI, Dr. Mumford opined that on balance it was a mild NFCI. However, several years down the line Dr. Mumford said the Claimant was presenting as someone with a range of symptoms and therefore it was difficult for him to say how many of those relate to the true organic baseline. He could not explain why he has pain up his legs, back pain and why he falls.

The two experts had markedly different experience. Whilst Dr Carey had greater experience of the presentation of NFCI amongst soldiers Dr Mumford had a greater experience in relation to neurological symptoms generally and upon issues such as the alleged pain shooting up from the feet through the legs to the hip and back and the loss of balance.

The Claimant presented to Dr Carey as at the “extreme end of the spectrum” as regards symptoms and “as bad as it gets” with a “dramatic” presentation. Dr Carey has seen a lot of NFCI cases, so these descriptions reveal how bad the Claimant was claiming his symptoms were. He said that he was in continuous pain. This is the picture he has presented to many people since the spring of 2017 as set in the Claimant’s lay witness evidence.

Initially the experts had been happy to agree in a joint statement of 2020 that the Claimant had suffered an NFCI and the most likely cause for it was a cold exposure during the course in February/March 2017. They also agreed that if the Claimant was further exposed to cold it could have further exacerbated his NFCI. However even in the first joint statement concerns both had formed were set out, specifically that:

“We agree that the Claimant now has symptoms consistent with cold sensitisation, which, if reflective of underlying small fibre neuropathy, would be the result of his NFCI. However, we both agree that there is a significant psychological element in the Claimant’s presentation, and this causes us both to question the security of the diagnosis. This is because although many elements of the Claimant’s past symptoms were consistent with NFCI , he currently complains of other symptoms that are less typical and inconsistent, and there were findings on examination, especially those signs identified by Dr Mumford during his examination in March 2020, relating to the Claimant’s balance, gait and perception of vibration which raised the possibility of non-organic issues. In other words we agree that in this case there is a realistic possibility of exaggeration of symptoms and questions of credibility arise.”

and

“Dr Carey was of the opinion that the Claimant’s NFCI is severe because he does not apportion as much emphasis to the psychological component of his condition. In contrast, Dr Mumford is of the opinion that the Claimant’s NFCI is mild, with the majority of his current symptoms taking origin on a psychological rather than a physical basis, moreover Dr Mumford is concerned that there may be ongoing exaggeration or embellishment of the symptoms in this case, but accepts that determination of veracity is an issue for the court.”

They subsequently agreed that the Claimant’s presentation to them and as shown on the video surveillance evidence is inconsistent with the presentation before them at examination and that they can give no organic explanation. However, as set out above, they differed as to the extent to which this evidence undermined the Claimant’s history and explanation of his symptoms.

In my judgment when evaluating the NFCI expert evidence the following matters are of significance:

Dr Carey accepted that the inconsistencies (which included getting into a car unaided which he agreed was irreconcilable with what he saw at interview) would have caused him to “raise an eyebrow” had he been provided it alongside what he saw and heard at interview. In my judgment this very significantly underplayed the differences. Under questioning Dr Carey conceded that in his reports he should have said secondary gain for money was a possibility before he agreed in the joint statement of October 2021 that “we also agree that this degree of inconsistency must raise the possibility of either exaggeration of symptoms, or even malingering..”

As regards the June 2019 wedding clip it was set out in the joint statement of February 2022 that:

“Dr Mumford was of the opinion that the video evidence showed the Claimant walking normally at a wedding in 2019, with no signs of any neurological deficit. Dr Mumford was also of the opinion that such a gait was inconsistent with the presentation of the Claimant when he saw him just nine months later in March 2020. Dr Carey agreed with Dr Mumford that the Claimant’s gait appeared normal, and that it was in stark contrast to the presentation of the Claimant when he saw him nearly 2 years earlier in October 2018, and one year later in August 2020.”

I found Dr Carey’s view that the wedding was a happy social occasion in a warm, summer environment and that since there was a significant psychological element in the Claimant’s condition and presentation this could have accounted for the stark inconsistency in mobility, to be unconvincing and unrealistic. He suggested that video clips for a matter of seconds could not be representative of the Claimant’s activities throughout the entire day or evening. However the Claimant admitted he did not use a stick throughout the day (and the wedding photographs show him without a stick).

I much prefer Dr Mumford’s analysis that it is “implausible” and that “the startling change in neurological function” was far too great to be explained by these features. Not only was there too great a swing in the pendulum, it took place over too short a time. As Dr Mumford stated the changes were inconsistent with the natural history of the range and breadth of general neurological diseases that he dealt with on a day-to-day basis. He pointed out that he raised concerns in his first report regarding unusual findings on neurological examination, which appeared not to take origin from a physical basis. Those early observations regarding non-organic features found on examination then took on greater significance when taken with the further inconsistencies revealed by the video recordings. He opined in his report of 6 September 2021 that:

“The video recordings are astonishing. They show Mr Muyapa moving around normally, without any evidence of gait difficulty not of poor balance……He clearly does not need to use a stick for walking assistance, despite his report (and illustration) of such a requirement at interview…..It now seems very likely that he was exaggerating and or substantially embellishing his problems when he and I met.”

I accept his view that the profound deficit described and exhibited at the time of the interview “would not miraculously disappear on a good day”.

I much prefer Dr Mumford’s assessment of the inconsistencies in presentation. They are very marked and inexplicable on any organic basis. Also the inconsistencies have to be taken together with the fact that the Claimant’s NFCI has not followed the usual pattern and also the presence of bizarre and inexplicable symptoms. I accept his opinion that it is very likely that the Claimant exaggerated and/or substantially embellished his problems during his interviews. I find as a fact that he did.

During his evidence Dr Carey was quite firm and unshakeable in his view that it was highly unlikely that the Claimant had “faked the whole lot” (of the NFCI symptoms) and he felt certain about a mild injury diagnosis even if the rest was stripped away. Significantly he explained that if the symptoms had been mild then the Claimant may not have been discharged from the army and may have been retained.

I accept the analysis of Dr Carey that hangars can be cold places and working there could cause an exacerbation of an NFCI. Also that second or subsequent exposures need not be as marked or severe to cause an aggravation or exacerbation. However I prefer and accept the opinion of Dr Mumford that any exposure in a hangar could not explain the overall trajectory of the Claimant’s symptoms. I accept that the Claimant was exposed to cold temperatures whilst working in the hangars and that there was some worsening of his symptoms. However the worsening was nowhere near as severe as the Claimant has claimed. He has hugely exaggerated his symptoms.

The psychiatric experts were Dr Baggaley and Dr Friedman.

At the outset of his oral evidence, I expressed my concern that Dr. Baggaley’s first report was dated 2^nd April 2020, some 18 months after his examination on 11^th September 2018. Although the report postdates the Claimant’s witness statement of 3^rd March 2020, Dr. Baggaley had not seen it. I pointed out that this was very unsatisfactory and could lead to a misleading impression and/or confusion. A report dated 3^rd July 2020 following a second examination on 21^st May 2020 was provided in the morning of Dr. Baggaley’s evidence. This had not been included within the trial bundle.

Dr. Baggaley was asked about the examination via Skype on 11^th September 2018, in particular how the Claimant presented in terms of mobility. Dr. Baggaley replied that he did not have a clear view of his mobility and explained that this is one of the limitations of remote assessment as very often people are seated and he cannot see them move. In terms of the Claimant’s mental state and utilising his notes and the best of his memory, Dr. Baggaley said the Claimant was objectively depressed, pessimistic and concerned with his situation. Dr. Baggaley confirmed that his second examination on 21^st May 2020 was also a remote video assessment because of Covid.

Dr. Baggaley was taken to his first addendum report dated 8^th September 2021 where he stated as follows:

“12.

Reliability

a.

Surveillance or social media evidence can reveal discrepancies between a claimant’s account of his activities to experts with the objective reality.

b.

I could see nothing in the DVD or social media footage which suggested any such discrepancy.

c.

This is consistent with my impression at interview where I found no suggestion of exaggeration or abnormal illness behaviour.

d.

This is also consistent with the contemporaneous medical records in which I could find no suggestion that the treating clinicians detected signs of exaggeration or malingering.”

Dr. Baggaley was then shown the video dated 23^rd August 2019 of the Claimant dancing at a BBQ. It was put to Dr. Baggaley that this video was at odds with the Claimant’s presentation to Dr. Friedman on 8^th March 2020 and that there was a marked discrepancy. Dr. Baggaley said that by marked discrepancy he would expect someone who never leaves the house to be seen outside or someone who says that they cannot walk more than 50 metres to be running. He said he had been given lots of material and he did not come across any significant discrepancy with the Claimant’s accounts of his disability. Dr. Baggaley did not accept that he was being partisan and non-compliant with his CPR 35 duty. He said for him to take the view that the videos were discrepant he would expect to see the Claimant walking for a substantial amount of time without his stick. When taken to the reception videos of 1^st June 2019, he said he did not consider this video to be inconsistent because his view was that the stick was used for support to give him assistance if he would start to fall rather than being necessary for walking. Eventually he conceded that what could be seen in the various clips was inconsistent with the Claimant’s statement that there was no variability in those symptoms (as the Claimant had stated to Dr Carey).

It was Dr Baggaley’s opinion that the Claimant was not forcibly pretending to be depressed. Dr. Baggaley said that people can give dishonest accounts but that does not mean that they are not depressed. He added that he would not expect a man of African origin to fake being depressed as in his experience of treating those from an African background, it is unlikely that they would fabricate depression because showing signs of depression would be frowned upon. He also said that mental health issues were not as well known in Africa.

Dr. Baggaley explained that his opinion in respect of the Claimant was partly influenced by his experience of having seen a substantial number of cases involving people in the military with NFCI and psychiatric issues. In summary it was his view that the Claimant sustained a moderate psychiatric episode caused by and perpetuated by the organic NFCI and that loss of career was a relevant factor. Dr. Baggaley stood by his prognosis as set out at paragraph 9a in the first joint statement;

“Dr. Baggaley is pessimistic about the outcome given the chronicity of symptoms and lack of response to date. Dr. Baggaley understands that the pain and disability arising from his NFCI is likely to run a chronic course and there is likely to act as a chronic perpetuating factor for his depressive disorder.”

Dr. Baggaley was asked about his view if exaggeration had been established. He said that if there was a mild NFCI then he would be cautious regarding his diagnosis.

Dr. Baggaley agreed that the Claimant did not need any care from a psychiatric perspective.

In cross-examination Dr. Friedman was referred to his first medical report dated 11^th March 2020 and in particular his opinion that he considered that the Claimant “…was a poor historian and it was difficult to get a clear account as to his psychological problems over time.” He said that as a general proposition it may be true that patients may be poor historians because of their depression, but he did not think the Claimant had been, or was, depressed. In the first joint statement dated 5^th November 2020 it was his view that

“Dr. Friedman considers that his adjustment disorder had resolved by the time that he was discharged from the army. Dr. Friedman considers that he remains distressed by ongoing pain and disability but below the level of a psychiatric disorder, and defers to expert opinion as to the severity of his physical problems. The claimant did not seek any psychological treatment in the period of time after his discharge from the forces. He remained on Duloxetine, which while an antidepressant, is licensed and prescribed for the treatment of pain.”

However Dr. Friedman explained that when he first saw the Claimant he had concerns over the Claimant’s veracity and the existence of a NFCI was a major factor in his diagnosis of an adjustment disorder. When Dr. Friedman first saw him, his presentation was of someone who was severely disabled and depressed. He could not answer a question and could not do a single thing. Dr. Friedman recalled not knowing how the Claimant would be able to leave the room as he could not do anything.

During cross-examination he was taken to the medical and other records with entries referring to depression including the entry of 30^th June 2019 concerning Universal Credit and the recording that the Claimant suffered from mixed anxiety and depression, had been referred for CBT and was on Duloxetine. Dr. Friedman denied this record was consistent with ongoing depression and anxiety. He said this entry was a process of form filling and the authors were not gatekeepers. Dr. Friedman reiterated his view that the Claimant was being prescribed Duloxetine for pain and not depression.

Dr. Friedman agreed that he had heard from a large number of witnesses on behalf of the Claimant and confirmed that he had read their witness statements. It was suggested that he should have reached the same conclusion on those witness statements as Dr. Baggaley did in his first addendum report:

“The evidence covers a considerable period and comes from a wide range of informants. It also gives a consistent impression of a man who has become socially withdrawn and depressed and whose personality and character has markedly changed since his injury.”

Dr. Friedman did not accept this proposition as these were lay people who were not qualified to give psychological evaluations. Dr. Friedman added that by and large the witness statements described the Claimant as miserable but the statements do not support depressive illness. He also explained that medication is not a reason for there to be good days and bad days and you would not expect symptoms to fluctuate if one is chronically depressed.

Dr. Friedman said he found Dr. Baggaley’s comment that those of an African background were unlikely to fabricate depression, extraordinary.

I asked Dr Friedman directly whether, as he had made a number of comments about the Claimant’s presentation at his examination, he thought the Claimant had not been truthful at his examination Dr. Friedman said that the way the Claimant stood up and the way he walked was very odd; and clearly not in keeping with depression. Dr. Friedman felt the Claimant was being cagey and was careful not to answer questions so that he was not caught out. When he was trying to get an account from the Claimant he would not provide one. He thought the Claimant was putting it on. He said he had been reluctant to put into his report (in plain terms) that the Claimant was acting like somebody who is pretending to be severely depressed.

Dr Baggaley and Dr Friedman agreed in their first joint statement that the Claimant had developed a psychiatric disorder following the development of NFCI symptoms in March 2016. They preferred slightly different diagnostic terms with a significant degree of overlap. Dr Baggaley preferred the category of a moderate depressive disorder whilst Dr Friedman was of the view that it was an adjustment disorder. It was their view that the difference was within the range of reasonable clinical opinion. They also agreed there was some pre-existing vulnerability in terms of pre-existing psychological problems and relationship issues. They agreed that the development of the NFCI and the secondary effects on his physical abilities, military career in the setting of a strained marital relationship were significant factors in the development of his psychiatric disorder.

The significant area of disagreement between the experts was that Dr Baggaley considered that the NFCI led to the loss of military career which caused continuing pain and disability which was of the greatest significance in the development of a psychiatric disorder. Further that the Claimant remained significantly depressed. Dr Baggaley was pessimistic about the outcome given the chronicity of the symptoms and the lack of response to date. Pain and disability arising from the NFCI was likely to act as a chronic perpetuating factor for the depressive disorder.

Dr Friedman considered that an adjustment disorder had resolved by the time that the Claimant was discharged from the army. He considered the Claimant remained distressed by ongoing pain and disability but below the level of a psychiatric disorder. He supported this view by reference to the fact that the Claimant had not been referred to his GP when he been discharged from the army (there having been some improvement in mood by 24^th January 2018) and also had been mentally fit and well enough to organise a four-month stay in Malawi.

The experts also considered Dr Friedman’s significant concerns that the Claimant was a poor historian and that he might be exaggerating his level of disability.

Dr Baggaley stated that he did not find any evidence of exaggeration. Dr Friedman stated that he had concerns in relation to the Claimant’s straightforwardness and comprehensiveness of his account. Not surprisingly given the nature of psychiatric and psychological analysis the experts agreed that the assessment of the Claimant’s current symptoms and level of functioning mainly depended on the account provided by the Claimant and that matters of his veracity and reliability were for the court.

It was Dr Friedman’s view that the Claimant was a poor historian when he was interviewed and the reason was not because he was depressed. The Claimant’s presentation in the witness box over one and a half days was unrecognisable from the shuffling and uncommunicative, severely disabled man who had presented before him. He described the Claimant presenting before him in a terrible state and that if it were an accurate representation of how he was day to day no responsible member of the family would have left him like that as he could not answer a question; it would have been inhuman not to take him to see a GP (which he did not do for a year). He repeatedly stressed how the Claimant was presenting as seriously ill and was very firmly of the view that the Claimant’s presentation to him was not consistent with the social media and surveillance evidence. Clinical depression produced a pervasive mood disturbance without “good days”. He had worked in pain clinics for 30 years and recognised that there were cases where pain was amplified by depression. However this was not the case here. Dr Friedman stated that psychological factors were not a significant driver for the alleged pain and disability. He believed the Claimant was not truthful and was putting on an act by pretending and acting as he thought a seriously depressed person would act.

Dr Friedman had set out his initial view without the benefit of any third party evidence. His view was “reinforced”, confirmed and hardened by the video surveillance and material taken from various social media sites.

Dr Baggaley stated that he did not consider that either the video surveillance or social media evidence demonstrated “any discrepancy between (with) the Claimant’s account to him”. In my judgment the final two words are important and the view taken both narrow and unsustainable. I recognise that Dr Baggaley conducted his interview remotely via skype so did not have a clear view of the Claimant’s physical disability e.g. how he walked, got up from and sat down on a chair etc. However, he failed to comment upon the inconsistency with the presentation to other medical experts, including Dr Friedman. Dr Baggaley only reluctantly conceded during extensive cross-examination that there were any inconsistencies and was accused by Mr Ward of a partisan view. In my opinion there was some force in the criticism; not least of the reasons for which is that Dr Carey and Dr Mumford agreed that there were inconsistencies. My view is that such inconsistencies were plain to see and Dr Baggaley should have readily conceded that this was the case.

Dr Baggaley remained of the view that the Claimant had suffered, and continued to suffer, with depression. He stated that depression was a common comorbid symptom with an NFCI. He supported his view that the Claimant had not pretended to be depressed with an assertion (made for the first time in cross-examination) that people with an African background are ashamed of mental illness. Dr Friedman took great issue with this opinion which he said was wholly unsupported by any evidence. Dr Friedman had been involved with Rwandan and African psychiatry services and has an adopted son who is African. He believed that Dr Baggaley’s view was offensive and that a significant number of African soldiers had presented with mental health problems including, most significantly, the Claimant himself in November 2015 (when he was noted to be self reporting as PH9; consistent with a severe depression). I accept Dr Friedman’s view that this was a point without any validity and a rather unfortunate attempt to shore up an untenable opinion.

As for the comorbidity of depression with NFCI if the Claimant was trying to exaggerate his symptoms for financial gain, having discussed the condition with other soldiers (which I find as fact that he did), it is likely that he would have been aware that others had suffered with depression. The major mistake the Claimant made is that he very significantly overacted (appearing as he thought a severely depressed person would appear) before a very experienced clinician who saw through him from the start.

In my judgment Dr Friedman was much the more impressive and persuasive expert in relation to the analysis of the Claimant’s presentation of symptoms. I am sure that the Claimant consciously and very significantly exaggerated his presentation to him. I also prefer the view of Dr Friedman that at its highest the Claimant suffered a time-limited adjustment reaction disorder to the development of NFCI. In my judgment it was quickly overtaken by conscious exaggeration of physical and psychiatric symptoms to obtain discharge from the army. I have weighed in the balance the Claimant’s lay witness evidence concerning his low mood and (to the lay eye what looked like) depression. In my view it is likely that he presented an exaggerated low mood for much (but not all) of the time so as to be consistent, given the claim that he was mounting.

It is my view that if the Claimant had not exaggerated his physical symptoms, whilst he would have faced limitations on his army career, such limitations would not have caused psychiatric injury. I accept Dr Friedman’s view that the Claimant would, at most, have had periods of distress which fell short of a recognised psychiatric disorder. It is also my view that had the Claimant not suffered a NFCI at all the birth of the child with a disability and the death of a brother in the context of a failing relationship would in any event have caused considerable distress for the Claimant who, as the November 2015 entry showed, had some psychiatric vulnerability.

If the Claimant had been honest about the nature and extent of his physical symptoms I do not believe it is likely that any psychiatric symptoms would have led to his discharge. The true extent of any psychiatric symptoms was limited and as Dr Baggaley conceded moderately depressed people can work; they can function sufficiently to carry out normal duties.

The pain experts were Dr Sidery and Dr Edwards

At the outset of the oral evidence of Dr Sidery, I aired my concerns about the limits of the written evidence of the pain experts. I referred to the third joint statement of Dr. Sidery and Dr. Edwards dated 4^th March 2022 where they set out that

“We agreed that whatever diagnosis is accepted by the Court the Claimant’s reported level of pain and disability is disproportionate.”

And

“We agreed that any reported physical symptoms which cannot be reasonably explained by the underlying pathology has 2 possible explanations:

1.

That symptoms are being significantly magnified by psychological distress.

2.

That the Claimant has exaggerated his symptoms for the purpose of secondary gain (Footnote: ²⁷).”

It concerned me that neither expert had adequately set out an opinion, analysis, guidance or research that would assist the Court in deciding this central issue. Ordinarily that is the function of a pain expert in cases such as this. Although issues were identified, such as his limited mobility, neither of these experts had, by way of example, watched/ observed the Claimant walking across the room and set out the conclusions they reached as a result. Neither set out a view as to why it is that the Claimant limps and why he uses a stick although in their second joint statement dated 7^th October 2021 they said at §30:

“Mr Muyepa has bilateral injuries. He uses a stick not a crutch. A stick cannot be used to transfer any meaningful weight through the upper limb (unlike an elbow crutch) and in this context would be used as additional support or ‘psychological support’ in the context of an account of having sustained falls. Use need not, from a chronic pain perspective, involve observable transfer of weight through the stick in this context.”

I explained that my understanding of having bilateral foot issues is that one would shuffle and not limp i.e. not favour one leg. I also did not understand why the Claimant consistently used a stick and whether it was consistent with any organic pathology or not. I had hoped to be enlightened on this issue by the experts. Dr. Sidery replied it was a reasonable criticism but that it was a matter for the Court to assess the evidence and therefore the Claimant’s veracity. Credibility was crucial. He accepted that if the Claimant’s presentation was dishonest it would put into doubt his findings.

Dr. Sidery was taken to paragraph 63 of his report where he recorded that the Claimant “…explained that 90% of his problems are centred upon his feet” and that the constant stabbing and burning pain he experiences in the soles of his feet score 9/10 and that when he in addition experiences unpleasant cramping pains this elevates the score to 10/10. Dr. Sidery said it was fair to say that the Claimant was complaining to him of the highest level of pain possible.

Despite the complaint of spasms in the feet and difficulties in standing and walking, Dr. Sidery said he did not get the Claimant to stand up and walk as the facility where the examination took place had small rooms and could not accommodate the space needed to examine the Claimant’s gait. Dr. Sidery added that in peripheral neuropathic pain the issue is how long and the distance the person can walk before they struggle; it gets worse over time when one weight bears on the feet.

Dr. Sidery acknowledged that the Claimant had told him that he used a stick for more than comfort i.e. the Claimant placed actual reliance on a stick. Dr Sidery also agreed that it was fair to suggest that the Claimant gave him the impression that he always needed a stick. Dr. Sidery said the Claimant did not refer to any foot being worse than the other and that the Claimant’s gait was short and odd for a young male. Dr. Sidery saw the stick as “a reassuring aid” although how he utilised it was “up for debate”. I did not find this particularly helpful evidence.

I asked Dr Sidery whether the Claimant mentioned anything about his legs (pain and/or shaking in his legs) because the nerve conduction tests performed by Dr. Moran showed no abnormality in the nerves in his legs yet the Claimant has said he falls over because of issues with his legs; he explained that pain went up his legs and that caused him to become unsteady (Dr. Mumford said there was no reason to explain the shaking/pain in the legs or hips; in fact he said it was inexplicable). Neither Dr Sidery nor Dr Edwards had addressed this issue in their reports. Dr Sidery said the Claimant had described shaking in his feet and that peripheral neuropathy was linked to the soles of the feet. He said that his interpretation of the medical records is that the Claimant is distressed and has difficulties with chronic pain. In his opinion it was feasible for someone who is dealing day in and day out with neuropathic pain, to experience pain that goes well beyond the pain that the original insult inflicted. The Claimant’s reported symptoms in this case were disproportionate and contained a number of discrepancies.

Mr Ward suggested to Dr Sidery that an explanation for his reported but inexplicable leg pain/shaking was that the Claimant was lying and that he was consciously exaggerating for financial gain. Dr. Sidery said it was his view that the Claimant had suffered an NFCI to his feet and the psychosocial distress and combination of both can produce a disproportionate response. Dr. Sidery explained that the medical records for him were reassuring as they appeared to be consistent. He highlighted no clinician has stated that the Claimant had presented in a strange way (although this ignored his presentation at interviews with Dr Friedman and Dr Mumford).

Dr. Sidery accepted that in consideration of whether there is an organic NFCI he would defer to the NFCI experts. He maintained his view that from a pain perspective, the small nerve fibre neuropathy in the Claimant’s feet is the cause of his pain however it is affected by psychological and psychosocial factors.

Dr. Sidery confirmed he was aware of how the Claimant presented to Dr. Carey and he had watched the video of 23^rd August 2019 of the Claimant dancing at a BBQ. He accepted that there were certainly large discrepancies between the two. He was asked why he had referred to them as inconsequential in his first addendum report dated 20^th August 2021. Dr Sidery replied that although they raised a number of issues with the Claimant’s credibility the Claimant retained the capacity to do all those things in the videos; he added by way of example the neuropathic injury would not stop the Claimant from running from a burning building.

Dr. Sidery was shown the videos of 1^st June 2019 of the Claimant walking at the reception and agreed it was evidence of the Claimant walking without a stick or a limp. It was put to him that the Claimant was putting on his limp as in an unguarded moment there was no limp. Dr. Sidery replied that in the context of walking indoors and in a warm environment it might represent him on a “good day”. Dr. Sidery said he was not astounded when he saw the videos and added that, in his view, they do not undermine the Claimant’s veracity as a whole (although Dr. Sidery accepted that the videos of 1^st June 2019 was not reconcilable with the statement to the benefits agency that he could not walk unaided) (Footnote: ²⁸). Dr. Sidery accepted that if the Claimant is found to have misled others by saying he always uses a stick and needs assistance, that cannot be explained on a psychological basis; you cannot use a psychological issue to justify dishonesty.

Dr. Sidery was taken to the NFCI experts’ view that the condition would not have such an extreme “swing of the pendulum” with regards to signs and symptoms. However, Dr. Sidery commented that it is likely on balance there were “other factors” active and pertinent. He did not know why the Claimant improves on a good day and therefore he agreed there is a discrepancy.

Dr. Sidery confirmed he had read the witness statement of Marlon Lessey and accepted that if the Court were to accept the content as accurate “it would be fairly cataclysmic” and that one explanation would be that the Claimant constructed a factual narrative in order to get money. Dr. Sidery added there would be no psychological element to explain what he claimed to have seen/heard.

Dr. Sidery agreed that he would have expected some degree of improvement in the Claimant’s condition from a moderate NFCI to a mild NFCI. In his view this was a difficult case and he “gets the feeling” the Claimant is vulnerable and that there are specific issues in this process that are having an impact on him.

Dr. Edwards explained that he has been involved in medico-legal work for over twenty years and has undertaken extensive research experience in pain and anaesthesia. He explained that in terms of pain management his is a holistic approach working with psychiatrists and he has developed pain management in the community (Footnote: ²⁹).

Under cross-examination, Dr. Edwards agreed that he had no experience of NFCI and was reliant upon the NFCI experts. He agreed with Dr. Sidery’s opinion that people with neuropathic pain in their feet will experience more pain the longer they walk. He was not sure whether standing for long periods would cause more pain but he did not disagree with the proposition. Dr. Edwards also agreed that a psychiatric condition can amplify pain from an injury.

Dr. Edwards also confirmed that as he had recorded in his first report that the Claimant described his mood as low, with no positive feelings and that he gets anxious and restless. Dr. Edwards added that he took a video of the Claimant’s presentation which showed that he was feeling low. He agreed on the evidence of the clinical records that the Claimant was suffering from low mood psychologically.

Dr. Edwards explained in relation to paragraph 5.12 of his first report:

“On 2 March 2017, it is reported that ‘since he was last seen in July 2016, he has been doing his job and feels he has improved’. However, by 27 April 2017 he is noted to have a recent deterioration in his symptoms, and is walking with antalgic gait and a stick.”

That an antalgic gait would imply a limp. So as at April 2017 it appears that he was limping and using a stick. Dr. Edwards was then taken to the Claimant’s military medical records and he agreed that the entry on 8^th May 2017 by Dr. Sally Acton was the first entry with reference to anxiety and depression following the NFCI.

Dr Edwards did not agree with the analysis of Dr. Sidery that there was not a lot of secondary gain in the case of the Claimant. Dr. Edwards said he always tries to look for why an individual presents and it is always important to consider secondary gain. He also stated that when treating patients he is not interested in pain; he is interested in function; function is what is key.

Dr. Edwards was of the view that the Claimant’s leg pain was likely to be non-physical in nature. He concurred with Dr. Carey and Dr Sidery’s views that swelling is highly variable and whilst swelling can occur with NFCIs it was his understanding that it was unusual to see it longer term. Dr. Edwards added that medication such as Gebapentin and Pregabalin can cause swelling and in his view it was inevitable that on travels or sitting down for too long can also cause swelling.

He was referred to his first addendum report dated 31^st August 2021, which he provided following the disclosure of the social media videos and surveillance footage and confirmed that he has seen a lot of people use sticks because of the need for reassurance/support. He considered the videos of the Claimant at the reception and dancing at the BBQ on 23^rd August 2019 to be very significant pieces of evidence. What was shown was discrepant with what the Claimant had told him.

Dr. Edwards was also shown the surveillance footage of 3^rd September 2020, in particular the section showing the Claimant shopping. Dr. Edwards said the Claimant’s gait whilst shopping was normal. He conceded that the Claimant was not carrying shopping weighing more than 10kg, that he was using a basket, was walking slowly with a short stride and with a stick and was putting his items of shopping out onto the till with one hand. However, he observed that the Claimant was putting his heels down first when walking. He said that this was an indication of perfectly normal gait (this was the type of analysis which I had expected to see in the written reports). Indeed, Dr Edwards questioned what was possibly abnormal about it. He was then shown part of the footage where the Claimant was shopping with a trolley. Dr. Edwards described the Claimant as not pushing the trolley but leaning on it and looking like he had back pain. He strongly disagreed with Dr Sidery’s analysis of this footage that the Claimant’s gait was not normal, that there was genuine use of the walking stick and that the Claimant was reliant on the shopping trolley.

Footage of the Claimant walking back to the car was also played to Dr Edwards who commented that whilst there appeared to be a slight limp the Claimant had his walking stick in the wrong hand. He observed that the Claimant appeared to have a slight limp in his left leg and was using his stick in the left hand. This, according to Dr. Edwards, was creating the limp. Otherwise the Claimant was walking with otherwise a relatively normal heel to toe gait. It was put to Dr. Edwards that the Claimant was acting in accordance with the advice given to him by a therapist some six months before the surveillance footage that he should get out more. Dr. Edwards said that when he interviewed the Claimant, the Claimant originally told him that he goes as an escort to shopping and at times he would sit in a wheelchair.

It was put to Dr Edwards that lots of factual witnesses had given evidence of the Claimant’s use of the walking stick (apart from Mr Lessey) and Dr Edwards had not given those witness statements sufficient weight before coming to his conclusions. Dr. Edwards replied that it is difficult for lay witnesses to comment on medical issues and how the Claimant had appeared in front of some others was not as important as the surveillance footage which in his view was key. He accepted the point that all the evidence had to be considered and that he had to be very careful to be fair and objective given that there was an allegation of fundamental dishonesty. Dr Edwards explained that he had taken the case very seriously indeed and had been in attendance throughout the trial and heard all of the evidence. He said that he has considered and weighed in the balance fairly what the witnesses had said and that he stood by everything he had said in his reports.

Dr. Edwards said it was absolutely clear that the Claimant’s gait was normal, that he did not need a stick and whilst there was no footage of the Claimant walking on stairs, it was ridiculous and preposterous to say that the Claimant needed a stairlift. He said that he had carefully considered the video/ social media/surveillance footage evidence; the walking, dancing, shopping, driving etc and the Claimant was clearly less disabled than he had suggested. He agreed that the surveillance footage did not show the Claimant get out of his car only into it however as regards the feet Dr. Edwards said there was no difference and the ability of the Claimant to get into his car easily was not compatible with him saying he needed help getting off the toilet. He assessed the Claimant’s level of function compared to the Claimant’s reported level of function and the discrepancy could not be explained away by good and bad days and he stood by paragraph 2.08 of his first addendum report in which he said:

“I note that the Claimant seeks to explain the discrepancies between the surveillance and what he has told experts in terms of him having good days and bad days. I accept that in individual's with NCFI [sic] symptoms there will be fluctuations and symptoms will be worse in cold weather. However, I am unconvinced by that argument.”

Dr. Edwards maintained that he had been very fair in his analysis. He took great offence at the suggestion that he had not been objective and was being partisan.

As set out in the joint statement dated 4 March 2022, the pain experts agreed that whatever diagnosis is accepted by the court the Claimant’s reported level of pain and disability is disproportionate to any underlying condition. They also agreed that any reported physical symptoms that cannot be reasonably explained by the underlying pathology have two possible explanations; magnification by psychological distress or exaggeration for financial gain.

Dr Edwards is a clinician of very considerable experience who clearly has great empathy with those disabled by chronic pain. As recorded in his first report following the examination on 30 March 2020 the Claimant had stated to Dr Edwards that he was significantly limited in how far he could walk and that he

“Always uses a walking stick which he has been using since mid-2017. On a really good day he could walk up to 100 m, then he would have to stop for a few minutes. He could then go again but not as far, maybe 50 m. Are the days when the pain is worse, he can walk less distances.”

He said that after maximum of 10 minutes standing he would have to sit down. After a while sitting in the same position he had problems with his back. He was restricted as regards how much he could lift and carry because of the need for a walking stick and his other symptoms. As regards shopping

“He told me he goes more as an escort than getting involved in shopping itself. If it is a big shop, he might sit in a wheelchair inside or might sit in the car.”

So the Claimant presented as very significantlydisabled. Dr Edward stated

“…it is known that there is a significant incidence of malingering in patients reporting chronic pain with financial incentives. In my opinion secondary gains may be a factor here, and I cannot rule out the possibility that there may be an element of conscious exaggeration. However in the absence of evidence it will be my view the Claimant’s presentation can be adequately explained in terms of physical problems being significantly magnified by psychological/psychiatric factors.”

The first report of Dr Edwards was favourable to, and supportive of, the Claimant’s case. Indeed Ms Collignon suggested that it was a balanced and fair analysis. However, as he set out in the second joint statement, after sight of the social media and surveillance evidence, Dr Edwards’ view changed very markedly. He considered that as opposed to suffering significant functional limitations, the Claimant requires no further treatment, had a good prognosis, was able to work full-time in some capacity and had no need for care. He had changed his mind and it was his firm, “clear” view that the Claimant had consciously exaggerated his symptoms. His analysis in relation to the supermarket surveillance (the Claimant attended two shops; Lidl and Home bargains over an extended period of time but had told Dr Edwards that he could not go shopping) was that the Claimant could be seen with an entirely normal gait, a basket in one hand and a stick in the other which he was not using. It was persuasive evidence. He explained that the Claimant could be seen leaning on the trolley as he pushed forward with no evidence of a limp. Also that a limp favours one leg to protect another and that when the Claimant is seen to limp in the car park (so when he knew he was in full public view) if it was his left foot that caused greater difficulties, he was using the stick in the wrong hand. He strongly disagreed with Dr Sidery’s analysis of the Claimant’s movement and was of the view that the Claimant was clearly “creating a limp”.

Dr Sidery acknowledged in the second joint statement that there were certain aspects of the surveillance that did not support the Claimant’s claim regarding his level of disability as reported to him and to others. However it was his view that the evidence showed an individual who did not appear to walk normally (although he recognised that this was an opinion that was not uniformly held) and that his gait was slow, with a short stride length and that the Claimant is seen walking with a stick “on each occasion” (this being incorrect as the clip at the wedding and the barbeque show the Claimant is not always reliant on a stick). He stated that the Claimant

“Has the capacity to function relatively normally in a thermoneutral environment. He considers that the drivers for Mr Muyepa’s low levels of function were psychological (a function of active psychological issues and vulnerability).”

Notwithstanding the social media and surveillance evidence Dr Sidery held a view that the Claimant presented as an archetypal chronic pain patient, with evidence of disproportionate symptoms not easily explained from a biomedical or psychological perspective. It was his view that the nature of the injuries and their implications had led to the descent into a negative spiral of psychological distress and chronic pain. Somewhat remarkably, and in my view unrealistically, he stated:

“The new evidence only strengthens my previously held opinions in this case.”

As regards the use of a stick Dr Sidery stated in oral evidence that he was “not hugely hung up on the stick”. He set out in the joint statement that

“Mr Muyepa has bilateral injuries. He uses a stick and not a crutch. A stick cannot be used to transfer any meaningful weight through the upper limb (unlike an elbow crutch) and in this context would be used as an additional support or “psychological support” in the context of an account of having sustained falls. Use need not, from a chronic pain perspective, involve observable transfer of weight through the stick in this context.”

However there were four problems with this opinion;

In my judgement Dr Sidery significantly underplayed the existence of the limp (which he could not explain) and the use of the stick. Whilst I understand very well, both from the evidence of both experts, and also from my experience in other chronic pain cases, that organic symptoms may be significantly magnified by psychological overlay, it is difficult to see how, given the totality of the evidence (i.e. the other expert evidence and the social media and surveillance evidence) that here they were not clearly aspects of conscious exaggeration for secondary gain. This being before any consideration of the devastating impact of the evidence of Marlon Lessey.

I much preferred the evidence of Dr Edwards to that of Dr Sidery who in my judgment, as is sadly too often the case, tended to stray from objectivity and into the role of an advocate for the Claimant.

I heard from two care experts, Ms Amanda Kerby and Mrs Jill Ferrie and two employment experts Mr Craggs and Mr Cameron.

I doubt either Ms Kerby or Mr Craggs would be anxious to relive their experience of giving evidence. However I have limited sympathy for either in this regard. They acted at times as advocate for the Claimant and both at times presented partisan views to the court and, in my view, in so doing neglected their duties as independent experts.

The very significant edifice of damages constructed within the schedule was built with significant reliance upon the evidence of Ms Kerby and crumbled significantly as the case progressed even on the assumption that the Claimant’s evidence was largely reliable.

At times Mr Craggs adopted the twin roles of expert and Judge of the facts (his findings being favourable to the Claimant).

Given the issues that arose in respect of the expert evidence in relation to care in this claim it is necessary to consider the principles which govern such evidence.

Experts should constantly remind themselves through the litigation process that they are not part of the Claimant’s or Defendant’s “team” with their role being the securing and maximising, or avoiding or minimising, a claim for damages. Although experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code, as CPR 35.3 expressly states they have, at all times, an overriding duty to help the Court on matters within their expertise. That they have a particular expertise and the court and parties do not (save in some professional negligence claims) means that significant reliance may be placed on their analysis which must be objective and non-partisan if a just outcome is to be achieved in the litigation.

The duty that a care (and/or occupational therapy) expert owes to the court is no different to that of any other expert discipline. The well known principles set down by Mr Justice Cresswell in National Justice Compania Naviera SA Prudential Assurance Co Ltd(“the Ikarian Reefer”) [1993] 2 Lloyd's Rep 68 are applicable and must be borne in mind at all times. They were described as follows;

“(i)

Expert evidence presented to the court should be, and should be seen to be, the independent product of the expertuninfluenced as to form or content by the exigencies of litigation (Footnote: ³⁰).

(ii)

An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate (Footnote: ³¹).

(iii)

An expertwitness should state the facts or assumption upon which his opinion is based. He should not omit to consider the material facts which could detract from his concluded opinion.

(iv)

An expertwitness should make it clear when a particular question or issue falls outside his expertise.

(v)

If an expert's opinion is not properly researched because he considers insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

(vi)

If after exchanging reports an expertwitness changes his view on a material matter having read the other side's expert report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.”

The Court of Appeal in the same case endorsed these points without hesitation.

CPR 35.3 sets out the primary duty of an expert as follows;

Some care experts have a (full time) private practice solely preparing reports for either Claimants or Defendants. Given that the compilation of a care report often requires a significant amount of subjective judgment, there is an obvious risk of contravention of Cresswell J’s first principle and CPR 35.3. (2) through a lack of true independence arising from the need to maintain a source of instructions and the pressure to prepare a report which is favourable to the instructing party.

There is also often, if not usually, a very marked aversion shown by those conducting higher value personal injury or clinical negligence claims to the use of single joint care experts, despite the fact that there is often no principled reason against such an instruction. In my view the common working assumption within these fields of litigation that it is axiomatically the case that each party will have a care expert is misplaced, helps perpetuate polarised expert opinions and often greatly increases the cost of litigation.

An expert must provide an objective unbiased opinion in relation to the relevant matters upon which they are assisting the Court. CPR 35 PD 3.3 provides that an expert must verify his/her report by a statement of truth in the following form:

“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

The words “and complete” are there for a purpose. As set out above CPR 35 PD 2.3 provides that experts should consider all material facts, including those which might detract from their opinions and CPR 35 PD 3.6(6) refers to the need to deal with any range of opinions on the matters covered within the report. The court should receive a comprehensive, objective analysis; including whether analternative view to that held by the author is tenable. An expert must not solely pick out pieces of evidence or entries in documents which provide support for the conclusion he/she has reached whilst not addressing material that points, or may point, the other way. Where there is a contrary interpretation, analysis or view it should be set out in the report and it is a breach of the duties owed to the Court by an expert to leave such issues to be raised by an expert instructed by the other party.

The sixth of the Ikarian Reefer principles and CPR 35 PD 2.5 cover the position where an expert has changed his or her view arising as a result of matters that have occurred after they have prepared a written report (or joint report). Importantly this includes a change of opinion during a trial. By way of example if as a result of lay witness evidence an expert’s view has changed he/she should communicate this (through the legal representatives who have instructed him/her) to the other side without delay and when appropriate to the court. An expert should not step into a witness box having changed his /her view without having made this plain beforehand. If the change of opinion is properly communicated it may alter the need for or extent of evidence to be given.

Although they are well settled it is also necessary to briefly set out the relevant legal principles which entitle an injured Claimant to damages in respect of care or the purchase of a particular aid/appliance.

The purpose of an award of damages is, in so far as a sum of money can do so, to put a Claimant, as nearly as possible, in the same position as he/she was in before the relevant injury was sustained (see generally Wells-v-Wells [1999] 1 AC 345). As a result a Claimant is entitled to damages to meet his or her “reasonable requirements” or “reasonable needs” arising from his negligently caused disability (see e.g Sowden v Lodge[2004] EWCA Civ 1370, [2005] 1 All ER 581, [2005] 1 WLR 2129).

So the question to be addressed is whether care, and/or aids or equipment are reasonably required? In Whiten v St George's [2011] EWHC 2066 (QB), Swift J said that the approach she adopted was as follows:

“The Claimant is entitled to damages to meet his reasonable needs arising from his injuries. In considering what is 'reasonable', I have had regard to all the relevant circumstances, including the requirement for proportionality as between the cost to the Defendant of any individual item and the extent of the benefit which would be derived by the Claimant from that item.”

And

“It is unlikely that the Claimant will ever have the requisite level of cognitive ability to make it necessary or appropriate for him to be able to control lights and curtains. The cost of a system that would permit him to do this would be disproportionate to the benefit he would derive from it. He will have carers to attend to his needs and comfort.”

The evaluation of damages for care and equipment is not just a question of a requirement simpliciter, including on a theoretical and/or very limited or occasional basis, rather of a reasonable requirement. Damages will not be recoverable if the cost is disproportionate to the benefit. The requirement of reasonableness is used to qualify and filter suggested requirements and there is no entitlement to have funding for a wish list of all care and expenditure which could conceivably provide any benefits.

When assessing reasonableness consideration must be given to all relevant factors. By way of example it may be necessary to consider the interaction of care and equipment/aids. If an aid/piece of equipment enables a Claimant to do tasks for himself/herself it may remove or reduce the reasonable necessity for care to assist with that task.

Also, when care/aids or equipment are used to confer therapeutic or pleasurable benefits, consideration should be given as to whether any “loss” which is sought to be addressed should be addressed as part of a Claimant’s general damages for loss of amenity. In Cassell v Riverside [1992] PIQR Q168 the trial judge allowed the cost (£32,000) of building a swimming pool. This decision was overturned by the Court of Appeal, Purchas L.J. observing that

“the provision of a swimming pool is more properly considered as an element in the damages for loss of amenity, etc.”

By way of a more prosaic example I am sometimes doubtful that there has been adequate analysis of what assistance is required with gardening so as to identify what is reasonably necessary solely for maintenance purposes as opposed to catering for the pleasurable element. In the present case Ms Kerby gave as part of the justification for an element of privately funded care/assistance that the Claimant had lost the ability to play football with his children. However children do not have a need to play football with their father and to the extent that the Claimant had suffered a loss in this regard it was clearly a matter to be compensated through the loss of amenity element of general damages.

If a reasonable requirement is identified it is then necessary to consider two further questions. Firstly, whether it is likely that the uninjured Claimant would have paid for or had access to what is being recommended in any event. Sometimes what is claimed for is to be found in most households. In P v North Devon Healthcare NHS Trust[2002] Lloyds’ Rep. Med. 100. Mr Justice Gage stated:

“In my view, a lawnmower is now an everyday item of expenditure for anyone with a garden.”

And

“The microwave: Mrs P said that she only purchased one because S P's dinners need constantly to be left warm. Nevertheless, this is nowadays a normal piece of household equipment, and I disallow the cost of it. A dishwasher: For the same reasons as with the microwave, I disallow this item. TV and video: For the same reasons as above, I disallow this item.”

In the present case there were a number of items, such as kitchen equipment, which were recommended by Ms Kerby apparently without any thought as to whether they were ordinary household items or not. In a similar vein Ms Kerby also recommended the cost of breakdown roadside assistance but could not say if she had asked the Claimant (who stated that he loved driving) whether he had it pre-NFCI, or would have been likely to purchase it once he left the army, in any event.

The second question is whether, as a matter of fact the Claimant will actually use/receive what would be recommended as a reasonable necessity. As Russell LJ, in Woodrup-v-Nicol [1993] PIQR Q104, at Q114, as follows:

“..if, on the balance of probabilities, a plaintiff is going to use private medicine in the future as a matter of choice, the defendant cannot contend that the claim should be disallowed because National Health Service facilities are available. On the other hand, if, on the balance of probabilities, private facilities are not going to be used, for whatever reason, the plaintiff is not entitled to claim for an expense which he is not going to incur.”

There is a danger that because comparatively few personal injury/clinical negligence cases reach a hearing where the issues of care/aids and equipment are contested, and as a result few reminders are given by the Courts of the correct approach to be adopted, that some reports will fail to approach the analysis of what should be claimed/funded with sufficient rigour.

Ms Kerby’s experience when giving evidence should stand as a warning. The following issues arose in respect of her evidence;

Ms Collignon wisely tried to limit potential damage to Ms Kerby’s credibility by striking several items out from the schedule which were based on her recommendations before she gave evidence (taken together they amounted to a very sizeable concession). However much of what was claimed should simply never have been recommended within Ms Kerby’s reports.

After I asked (her report contained no breakdown (Footnote: ³⁴)) Ms Kerby revealed that she has been preparing reports solely on behalf of Claimants for nine years. She recognised the understandable concern a Court will have as to the risks that arise when an expert’s workload (and income) is solely for one side to litigation. In my view the risk came to fruition and the reports she prepared contained some partisan views designed to maximise damages for the Claimant rather than recommendations made, as they should have been, after balanced and objective application of the relevant principles.

Turning to other respects of Ms Kerby’s evidence, it is necessary to highlight the fact that the Claimant complained to Ms Kerby (in January 2020) of constant pain. He told her of a typical day including:

“At 3 am he wakes up. Mrs Muyepa will sort the children out, take them to school, come back and attend to his breakfast routine. In the holidays, he will get up at 5am and is assisted downstairs to watch TV. His breakfast is provided. If Mrs Muyepa is going out she will administer his medication then put the fluids and snacks near him. When there is time, he has a shower with assistance from Mrs Muyepa on waking. Mrs Muyepa prepares breakfast. Dependent on his pain levels and impact on his mobility, he either uses a urine bottle or go to the toilet, with assistance to urinate. Use a stick with assistance from his wife to mobilise. In the middle of the day, he sits in the chair for most the time and his wife will encourage him to mobilise. Mrs Muyepa were very occasionally work a shift for 2 to 3 hours within the school day, and will leave his lunch, medication and fluids reachable from his chair. After Mrs Muyepa has picked up the children from school, they have tea together, which has been prepared by Mrs Muyepa. He is assisted to have a shower before is assisted to go to bed.”

Mrs Kerby then set out a diary of care and estimated that between 17^th January 2018 and 31^st May 2018 the Claimant was receiving 77 hours of care per week, between 1^st June 2018 and the 30^th November 2018 73.5 hours a week, and from 1^st December 2018 to 30^th December 2019 (the date of the visit) 57.75 hours of care per week. Eventually during cross-examination Mrs Muyepa admitted that she and the Claimant had deceived the experts as to where she was living. The reality was that she had never lived at the property having separated from her husband in December 2018. As I have set out the effect of this deception was that the Claimant’s Schedule was drastically reduced (in a rather clumsy and basic approach past care was reduced by a quarter of the hours previously claimed) Ms Kerby stated that if she had known the true position her first report would have been markedly different. Ms Ferrie stated within the second joint report:

“Jill Ferrie highlighted in her supplemental report that the detail in the witness statements…describe a different scenario to that advice to both care experts and to (sic) which assessments were based. Importantly Jill Ferrie highlighted that Mrs Muyepa advised she had not moved to the current property with Mr Muyepa in December 2018 and therefore she does not feel that the past assessments of care can be accurate. She also considers that with the above, the ongoing and future care assessments would need to be reassessed.”

In my judgement the attempt to deceive was due to dishonesty on the part of the Claimant and his wife with the sole and naked aim of increasing the care claim.

Ms Ferrie was also an experienced care expert (with a balance of instructions roughly two thirds defendant and one third Claimant).

She stated that the surveillance evidence gave her “an awful lot more” than she gained from her initial assessment and showed a completely different level of function to what had been explained to her. She pointed out that the Claimant was captured getting into his car which did not reflect his reported difficulties in rising from the toilet and the need to rely on a rail. She stated that she would not have anticipated that the Claimant (who said he was only able to stand for 10 minutes) would have left the home unaccompanied and managed both school trips and visits to stores on one morning. She stated that her revised opinion was the Claimant was clearly able to contribute to childcare and some shopping and there was no reason why his level of functioning as observed in the surveillance would not allow him to assist in domestic tasks at the home or preparing a meal. She strongly disagreed with the proposition that was put to her by Ms Collignon that the surveillance evidence should not have caused her to alter her views. On the basis of the Claimant having significant ongoing symptoms she would accept that some assistance with DIY and decorating would be reasonable given the dangers of climbing a ladder. She would also allow recommend assistance and associated costs in relation to functional restoration programme if one was justified by the other experts.

Ms Ferrie was a balanced and helpful expert and I have no hesitation in preferring her analysis of the degree of function revealed on the surveillance and social media clips.

In his report of 23 September 2021 Mr Craggs, an employment expert, provided a critique and his conclusions in relation to the surveillance and social media evidence and the statement of Marlon Lessey and Ms Mgemezulu. Quite why he thought this was within his remit (and why it was not pointed out to him that it was inappropriate for him to stray into matters of fact) I found difficult to understand. Examples of his comments are (in relation to the wedding in June 2019)

“I acknowledge the video does show Mr Muyepa walking without a stick, but for a very limited time and in my opinion it cannot be inferred from this that he walked without a stick regularly for any significant distance.”

and

“….In the absence of any images or video corroborating Ms Mgemezulu’s statement that Mr Muyepa was standing for long periods of time by the bar drinking and then dancing around leads me to conclude that I cannot place any significant weight on her statement with regard to Mr Muyepa’s claim about his functional ability or his capacity for work, then, now or in the future.”

Mr Craggs also gave some partisan views. In relation to the footage on 23 August 2019 showing the barbecue he stated:

“I note that Mr Muyepa was wearing thick soled training shoes and sports socks, compared with the others in the clip who were wearing sandals or flip-flops without socks. It could be inferred from this that Mr Muyepa’s need to keep his feet warm and cushioned was far greater than others in the clip.”

Nobody else had ever suggested this was why the Claimant was dressed as he was and in my judgment it was a clear example of Mr Craggs straining to find an explanation that could assist the Claimant. He also opined that there was nothing in the new evidence that indicated the Claimant’s functional capacity was inconsistent with what he indicated in his first witness statement, and at both interviews, “therefore on this aspect in isolation, there is nothing that requires me to change any of my opinions” However on any reasonable analysis the new evidence was inconsistent with what the Claimant had said in his first witness statement. He also stated:

“In my experience unless the discrepancy is blatant or obvious…care must be taken in inferring an individual’s functional ability for work from video footage. In my experience in order to provide reliable opinions employment experts must therefore look for repeated instances of performing the same functional activity over a protracted period of time or prolonged performance of the functional activity over a limited number of occasions”

The problem with this analysis is that it would place an impossible burden on the defendant. The clips showed that the Claimant was capable of walking unaided and even dancing and this was obviously inconsistent with the very limited functionality he had described to two other experts and also in his witness statement. It was Mr Craggs’ duty to provide an opinion for the court based on the range of alternative scenarios in terms of residual function apparent from the evidence. He failed to do so.

Mr Craggs also only provided scenarios for the court based on what would happen if the Claimant completed 20 years in service. He failed to provide the court with information as to what would happen if the Claimant left before 20 years which, based on the objective statistics, is what 46% of soldiers do. His scenarios were based upon what he decided on balance was likely, as a matter of fact, to have occurred. He expressed the view that a number of factors affected time in service including a range of personal, family, financial and career issues and that:

“In Mr Cragg’s experience and opinion the analysis of these factors does not suggest the chances of Mr Muyepa completing 22 years were less than that indicated by the general statistics and are likely to have been greater than indicated by the general data.”

Even ignoring the evidence of Marlon Lessey, given that the Claimant was very substantially behind his peers in terms of promotion, had complained of stress in November 2015, had not taken the opportunity for all available operational tours and had three children (one of whom was disabled) it is difficult to see how Mr Craggs arrived at this analysis. In any event given that general statistical likelihood of leaving was approaching 50% he should have provided any illustrations that would have assisted me if I found, which in fact on balance I have, that the Claimant would not have completed twenty years. This was a significant failure to provide full and complete evidence to the court.

Mr Craggs gave the opinion that the Claimant could have been retained as a driver within the army despite an NFCI but that as he would have to be out in all weathers and service the vehicle this may have been impractical. He also accepted there were many soldiers with a logistics role deployed in the field, but he did not see that it was likely that the Claimant would have been retained in such a role. However, the difficulty with expressing partisan views (and making factual assumptions/findings favourable to an instructing party) when giving an expert opinion is that it calls into question the reliability of views expressed elsewhere. Put simply if the aim is to assist the Claimant to advance his case any answer has to be viewed with caution.

Mr Cameron pointed out that once he had been promoted to lance bombardier the Claimant had to prove himself at that level before achieving further promotion. Further he was on the brink of changing from a mechanical trade to work with drones so had to prove himself in a new role. He was relatively speaking a late promotion so it may have been a bigger struggle. If he were promoted to bombardier, the expectation would be that he would challenge himself with a new role.

As regards the Claimant staying in post Mr Cameron pointed out that whilst the Claimant had been to Canada (for four months) and also the Ascension Islands more recently he had previously not taken the opportunity for two deployments (he would be able to decline with reasons).

It was agreed between the employment experts that:

Having considered the totality of the evidence (including the evidence of Marlon Lessey which I accept) I find that the Claimant would not have completed 20 years. He was keen to leave despite what he said to a number of his friends. The entry in November 2015 shows a degree of unhappiness with his role (and specifically with his superior officers); sufficient that he was signed off duties for a week. I have little doubt that very sadly Malvina’s disability would also have produced significant challenges to the Claimant’s domestic circumstances. Given that he had three children any substantial time away from Larkhill would have produced an enormous strain on Mrs Muyepa. According to the 2020 UK regular armed forces continuous attitudes survey the main reason (60%) personnel leave the services is due to the impact of service life on the family and personal life. Mr Muyepa does have ambitions (as can be seen from his hope of retraining as a social worker); and he would have known that others had left the army and gained roles in civilian life which within a reasonably short period were equally remunerative.

As for what would have happened had the Claimant disclosed the true extent of his mild NFCI it is an extremely difficult issue upon which to make findings. In my opinion the following entry made in July 2016 is significant:

“NFCI to feet and hands or other body part Email from BC 10 Bty RA (Maj Harvey) If Gnr Muyepa is diagnosed with a NFCI and the decision by ROHT is to down grade him I would like them to know that l am very keen to retain this soldier. He is likely to score well on the upcoming Gnr-LBdr grading board in September and has completed a PNCO leadership course (where he sustained his injury). I would hope to be able to deploy him to Ascension for immersion training - an environment which is warm. When we move into ES2 with WATCHKEEPER my aim would be to employ him as L&R operator. I can employ him now within the Bty with his current limitations. These courses won't take place until next May/June time, Gnr Muyepa has a great attitude to improvement and recovering from his injury and I want to support his efforts Fit for Full Duties within current MES.”

It appears that the Claimant’s commanding officer would have been broadly supportive and tried to keep him if he could. The problem with the Claimant advancing a dishonest claim that he had severe, as opposed to mild, symptoms is that no consideration was given to the issue at the time. As a result I must approach the issue with considerable caution.

I have already set out some factual findings with the analysis set out above. I will now set out a chronology drawn from the documentation and other evidence before me together with further findings.

11^th March 2016 The medical record entry of Corporal Clare Bailey at Brecon 08:40hrs was as follows;

“History – spent several days on the field and then yesterday morning started to feel very cold and was shivering. Found as he warmed up his fingers and toes on both hands and feet began to feel tingly and painful. Patient said his fingers were swollen yesterday but that this has now gone.

Examination – difficulty undressing due to needing to use his fingers to grip zip and shoelaces. Fingers on both hands are cold to touch. Patient experiences pain on palpation of all fingers. Fingers look slightly swollen. Toes on both cold to touch. Altered sensation in the big toe on each foot. Pain on palpation of toes 2-5 on each foot.

Admitted to ward”.

11^th March 2016 Entry by Colonel Andrew Baker in the medical records at Brecon 09:19hrs

“History – Feet and hands very cold but only became painful on 8.3.16. Two others with suspected cold injury already made known. Fingers and toes sweating a lot last night.

Examination – all fingers hypersensitive at DIP joint with swelling and hyperaemia. All toes affected. On big and second toe of both feet single area on each of brown discolouration measuring approx. 3mm not previously noted by patient. Full extension of fingers on both hands painful.

Discharged to unit at 15:28hrs as unit had transport going to Larkhill”.

14^th March 2016 Record entry of Captain Kate Wright at Larkhill at 08:28hrs

“Notes from Brecon reviewed.

Examination – tender, cool mildly swollen fingers. No need for active rewarming”.

24^th March 2016 The entry in the record made by Dr Fiona Graham Munro at Larkhill at 08:34hrs was as follows ;

“Difficulty sleeping last 2 weeks. Gets off to sleep ok then wakes up with pain in feet and fingers. Wears socks but not gloves to bed. Presented wearing winter gloves”.

25^th March 2016 Record of Major Jennifer Johnston at Larkhill at 11:06hrs

“Symptoms in hands and feet have improved since initial injury but still problematic. Awaiting INM appointment (15.7.16). Reports feet painful when wearing boots. Wearing trainers to work.

29^th July 2016 Record entry of Captain Kate Wright at Larkhill

“Keen to retain Claimant if he is diagnosed with NFCI and downgraded. Fit for full duties within current MES”

28^th October 2016 Record entry of Dr Rowena French at ROHT Tidworth

“History – hand sx settled by 2 months. Ongoing sx in feet – intermittent pain and swelling. In Ascension his feet were a lot better and since return a week ago they are better than before he went. Due to return to Ascension in 4 weeks.

[D61] History – describes his hand symptoms settling by 6-8 weeks and whilst his feet symptoms improved, they remained intermittently troublesome, such that he is unable to wear his boots, requires medication 3-4 times a week and avoids impact activities. He has had no previous problems with cold exposure, having been exposed during his initial training, and twice in Sennybridge and twice at Otterburn, and BATUS from March. He has returned from 3 weeks in Ascension, where he found his feet symptoms improved and since returning a week ago they have been less troublesome than previously.

Current symptoms – He continues to have one sensitive area to the medial aspect of his left ring finger and his feet intermittently swell and become painful, such that his functional ability is reduced. This is unpredictable occurring in both summer and winter but less so in warmer weather. He keeps himself warm at all times and always wears gloves. His heating at home is up high and he wears socks at night. The temperature on his shower at home is locked and he avoids bathing his children.

22^nd November 2016 Record entry of Lieutenant Corporal Andrew Worth at Larkhill

“Reported sick due to pain getting worse in his feet and not so much in his hand. Recently returned from Ascension and had not issues with NFCI out there and has gotten worse since returning to the UK”.

Record entry of Dr Susanna Soar at Larkhill

“Duty doctor appointment. Returned from Ascension 4 weeks ago. Going again tomorrow for a month. Increasing symptoms in hands and feet associated with the colder weather. Increasing dosage of medication. Once in Ascension reduce back”.

26^th January 2017 The Claimant had a telephone consultation with Major Sarah Dunnill, who recorded

“Ongoing symptoms. Since back from Ascension it has got worse. Increased dosage when returned from Ascension. Dosage increased further. INM appointment for March”.

17^th February 2017 Major Sarah Dunnill recorded

“Review – requesting custom boots and allowing him to go to work at 11:00hrs due to effects of medication”.

3^rd March 2017 Dr Sally Acton at Larkhill noted that the Claimant was

“Requesting repeat prescription of previous medication and current medication and dosage is making him sleepy. Still requesting custom boots. Says he gets swollen feet and may need 2 sizes”.

13^th March 2017 Notes in record of Dr. Sally Acton at Larkhill

“Current medication working and seeking increased dosage”.

24^th March 2017 Dr. Sally Acton noted

“Review – current medicine not effective as pain relief at current dose. Dosage increased. Vasectomy requested. Decided to reconsider as irreversible”.

10^th April 2017 Dr Panagiotis Degaitas (also at Larkhill) noted in the records;

“Review – life gets worse as family is affected by his symptoms and side effects of medications – Wife feels and looks depressed as she has to carry the burden of his symptoms and medications. Made clear to Claimant that medications are not a treatment; only to cope with his symptoms. He also has to think life ahead. Advised to see Dr. Acton”

18^th April 2017 The Claimant had a telephone consultation with Dr. Sally Acton who recorded

“Call to welfare office to see if there is anything that welfare can do to support family at home. Explained that 3 young children at home and Mrs Muyepa is struggling to cope with husband’s symptoms and manage with children with little social support.”

20^th April 2017 Dr. Sally Acton recoded that the Claimant was

“Getting swollen legs and also very sleepy. Increased medication. Very sleepy. Wife describes him as a zombie and says he is very forgetful. She is looking after him as well as small children. Brother died 3 days ago and they are all going to Nottingham and aiming to be back in Larkhill next week. He is also having issues with swollen ankles later in the day and has pain radiating up through feet into lower legs. This is impacting on gait. Couple are happy to be referred to welfare support. Review in ten days”.

As I have already set out there has never been any satisfactory explanation why pain from a peripheral neuropathy would radiate up the legs. Dr Mumford, the only neurologist to give evidence stated that there could be no explanation (major nerve conduction studies were normal). The Claimant has continued to describe this phenomenon with pain radiating back up his legs to his hips and even his back.

21^st April 2017 Dr. Rowena French at ROHT Tidworth recorded

“Case review – unable to attend appointment due to compassionate reasons. Unable to wear boots for prolonged periods. Sees MO regularly for pain and swelling of his feet requiring neuropathic pain medication. His INM review indicates deterioration in cold sensitisation with inability to gauge temperatures”.

27^th April 2017 Dr. Sally Acton’s entry in the records was as follows;

“Consideration of medical discharge. Attended with wife and both visibly upset. He has 3 small children and his wife feels she cannot go back to work as she is looking after him.

Examination – walking with antalgic gait and stick today. Discussed recent deterioration in symptoms. Currently unfit for work. Review again on 2.5.17.”

In my judgment this is a very important record. The Claimant presented as far more disabled than on previous occasions after “a recent deterioration” in his symptoms. For the first time he is recorded as limping and using a stick. The following matters are to be noted

(a)

the marked deterioration occurred in late April i.e. not in winter and there was no complaint of any recent cold exposure

(b)

he was limping. There has never been a satisfactory explanation for why he limps and favours one side when he has a bilateral foot condition.

(c)

there was no complaint of any fall/s

(d)

there has never been a consistent and plausible explanation for the use of the stick. The Claimant says that he was advised to use a stick however there is no reference to any such advice given by anyone. Mrs Muyepa stated that the advice to use a stick came after a fall had led to attendance at hospital. However this was in October 2017. There had been no attendance at hospital or before a Doctor at the time of this entry.

(e)

Mrs Muyepa attended at this appointment and referred to the difficulties with child care. At this stage Malvina was proving a “difficult” baby. In support of her submission that the Claimant loved the Army and did not want to leave Ms Collignon referred in her closing submissions to the fact that the Claimant and Mrs Muyepa had coped with him being away from home for extended periods. This may well have been the case in the past but Malvina created a very significant additional caring duties.

(f)

There was no attempt to “play down” symptoms (which would be consistent with trying to stay in the Army); quite the reverse. This presentation if continued before a medical board would, I am sure that the Claimant very well appreciated, inevitably lead to his discharge.

I am entirely satisfied so that I am sure that by this stage the Claimant had a settled intention to obtain discharge. I am also satisfied, having carefully considered the totality of the evidence, that the use of a stick and the limp were both conscious exaggerations designed to ensure he achieved his aim. In my judgment the Claimant was concerned that if he disclosed the true extent of his disability he would not be discharged.

28^th April 2017 Dr. Panagiotis Degaitas noted

“Walks with antalgic gait with the help of a stick as is too painful to bear full weight on left foot. Foot: skin feels cold, digits no evidence of ischaemia.”

This the only reference to why the Claimant limps on one side. As I have stated the condition is bilateral and no explanation could be given by any medical expert as to why he limped, and has continued to limp on one side. A limp and consequential need a stick to weight should be due to an orthopaedic and /or neurological cause. I repeat that none has ever been identified. As for the suggestion that the use of the stick was in part a psychological aid given that he has fallen in the past, it important to note that this was not what the Claimant was stating to the Doctors. He was not complaining of having fallen and he stated that the stick was to bear weight. In my judgment the expert evidence, social media clips, surveillance videos and evidence of Marlon Lessey establish that the Claimant does not need a stick as he has repeatedly claimed he does.

8^th May 2017 Dr. Sally Acton recorded

“Increased medication is helping sleep better but still having significant pain in his feet which is affecting how he walks.

Examination – antalgic gait and walking slowly with stick. Remains unfit for work. Difficulty kneeling due to pain and sitting on stool in bath as this is the only way he can get in and out due to pain”.

I am satisfied that this was an exaggerated presentation.

11^th May 2017 It is noted in the records;

“symptoms worsened over winter. Considering discharge. Mood worsened. diagnosed with NFCI in March 2016. Some initial improvement especially in hands but has always had intermittent pain and swelling in his feet.”

19^th May 2017 Dr. Sally Acton recorded;

“Review – feels a little better from medication. Getting support from welfare and unit. Attended with his wife who alluded to his impotence.

Examination – still walking with a stick and has had some easing of pain. Trying to come to terms with where he is. Remains unfit for work”.

2^nd June 2017 Dr. Sally Acton recorded;

“Review – pain radiating from feet up his legs. Described as pins and needles. Intermittent in legs and pain in feet present 90% of the time. Pain in legs last night accompanied by shaking of legs. Feels as though he has lost control of his legs.

Examination – walking slowly with stick. Looks as though he is in pain still however good interaction and appears to have better mood”.

The pain radiating up the legs and “shaking” of the legs are inexplicable neurologically and I find that these complaints were, and are, an exaggeration.

2^nd October 2017 The Claimant attended at Salisbury Hospital after a 999 call at 5.02 am. He stated that he had fallen down seven stairs having lost his balance and was complaining of neck and back pain. It is recorded

“Pt uses a stick to assist walking as he has nerve damage to his feet caused by cold weather.. he always has pins and needles in hands and feet from existing nerve damage (so it was difficult to assess any neurological deficit)”.

There are photographs of the Claimant lying across a landing (with the stick shown) and interestingly the paramedics noted “no obvious damage or marks to wall”. He was given a soft collar there was no follow up.

3^rd October 2017 Major Sarah Bremner recorded

“Review – here with wife and child. Needs more pain relief. Had fall yesterday with to ED – given codeine and told to get paracetamol and bruffen for acute pain (has not yet done) says given soft collar. Pain in feet limit activity/impact.

25^th October 2017 Ms. Winfred Formson (based at DCMH Tidworth) recorded

“Telephone consultation – reporting severe pain in hands and feet. Still low mood. Final discharge from army in January 2018 confirmed by patient. Process of applying British Passport. Having difficulties with Life in UK test due to lacking concentration and feeling tired/sleepy. Wants an exemption letter to support his application. Patient advised to learn different coping mechanism to revise and possible ask partner to support him. Awaiting response from PIP and Swindon social housing. Also applied with Wiltshire housing and awaiting a response.

Comment – patient denied any thoughts of self-harm and suicidal ideas. Currently very low and worried about writing the life in the UK test”.

27^th October 2017 Ms Winifred Formson recorded

“Seen patient as arranged. Joint session with wife present. Patient still low mood, pain in feet and hands seem to get worse. Patient also distressed about difficulties memorising life in the UK test. Agreed for exempt form to be completed to support naturalisation application”

It is difficult to understand how the pain in the hands and feet would be worsening. Interestingly the complaints of low mood and difficulties with memory support a request for an exemption from a “life in the UK” test.

15^th January 2018 Dr. Sally Acton recorded

“Travelling to Malawi at the end of this month. Going for 4 months. Family remaining in the UK. Needs medication. Planning to move to Swindon”.

Dr Friedman referred to the planned trip to Malawi as evidence that any adjustment reaction has resolved. It is also difficult to see how the Claimant could contemplate such a trip; travelling alone; if he had the disability and consequential care requirements which he claimed that he had.

24^th January 2018 The Claimant’s release medical was undertaken by Dr. Sally Acton. She recorded

“Leaving for Malawi. Medically discharged.

Examination – walks with a marked limp. Slow gait and careful, uses a walking stick. Wears soft shoes for both support as his feet are swollen. Able to walk 50m at his own slow pace with a stick. Able to sit in a chair for 1 hour. Has difficulty getting up and out of chairs especially low chairs. Difficulty with stairs. Does 3 then rests and repeats this. Needs assistance from another person. Car – max 20 minutes. Has had poor concentration. Does not drive for longer. Must be careful with water temperature. Wife monitors this and heating”.

I shall now draw together my conclusions upon the central issues in this case. Given the submissions made on behalf of the Defendant I start with the question of whether the Claimant has created or exaggerated his symptoms of a NFCI for gain

I am satisfied that the Claimant has consciously and dishonestly exaggerated his symptoms.

The army provided financial security, but the Claimant was looking to leave. However he did not wish to do so “empty-handed” i.e. without a financial cushion. When faced with mild NFCI symptoms which were likely to impact on his army career, and specifically promotion, the birth of his third child with consequential very significant additional pressure on family life, and some issues in his marriage (to a very hard-working but ambitious partner) he decided to make sure discharge was a certainty and to obtain as much compensation as he could. The Claimant had friends and family with NFCI and had spoken to Marlon Lessey about it. He had gained very significant knowledge about the symptoms, testing and compensation.

The Claimant started to exaggerate symptoms by limping and using a stick. There was no reason for him to limp and he did not need a stick (and no medical practitioner advised him to use a stick). He told those examining him (as I have set out in detail above) of very considerable loss of function and an inability to walk any distance. The Claimant also alleged shooting pains up his legs and loss of balance which I am satisfied were also conscious exaggeration. I am satisfied that he feigned a fall when examined by Dr Mumford. Mrs Muyepa was a party to the deception. Early on in the process she started attending medical meetings to back up her husband’s story. Because the Claimant was dishonestly exaggerating his symptoms, he was unable to be internally consistent in relation to his claims of symptoms/version of events (such as whether symptoms improved in the warm) or describe symptoms which were consistent with known physiology (haphazard symptoms and pains shooting up from the feet through to the back when his problem was solely peripheral neuropathy).

I am satisfied that the Claimant significantly exaggerated his symptoms to Dr Carey. He put on an act to try and convince the doctor that he was very significantly disabled, grimacing and rubbing his legs throughout the examination. There were a number of inappropriate signs on the examinations by Dr Carey and Dr Mumford that pointed to something other than purely organic symptoms. Dr Mumford initially gave the Claimant the benefit of the doubt although he clearly thought that he feigned a fall for effect.

It is important to carefully consider the Claimant’s case as set out in the pleadings, reports and witness statements before the Defendant’s investigations. The Claimant was presenting as a very disabled man. Reliant on astick to walk and suffering with constant pain. He needed a stair lift and could not even go to the toilet unaided and relied upon a urine bottle when Mrs Muyepa could not provide assistance. He was not capable of basic domestic tasks or any employment and was presenting as a man so severely disabled by depression that he was virtually uncommunicative during his examination by Dr Friedman (who formed the view from the start that there was exaggeration).

The Claimant told Dr Carey on 17 August 2020

“… his NFCI symptoms were the same as when I had last seen him in October 2018, in that he suffered continuous pain in his feet, the intensity of which varied with both temperature and analgesia, at worst his feet were swollen and extremely painful making it difficult to walk for longer than 10 minutes.”

and that his legs

“would feel shaky and because of this and the fact that he had fallen on several occasions felt unconfident on his feet and therefore relied upon a walking aid.”

However the footage of what he could do in the summer of 2019 (a year earlier) tells its own story.

If the Claimant’s presentation had been accurate and properly representative of his symptoms and functional limitations he would have been entitled to very large award of damages (although the care, aids and equipment claim would still have contained unrealistic elements).

The reality was and is very different. However, it took considerable effort and research to unearth evidence to prove it. Records proved that the Claimant and Mrs Muyepa had lied to the care experts. Social media clips and surveillance showed the Claimant was able to walk normally without a stick, dance, drive (getting into and out of the car unaided in respect of the former it was shown with ease) and undertake shopping. Not only did the Claimant not receive (let alone need) the care he claimed to receive he was also providing a significant amount of care to his disabled daughter.

Despite the best efforts of the experts instructed on his behalf (such efforts at times extending beyond the proper role of an expert) I am in no doubt that there was very significant conscious exaggeration for financial gain. To criticise the defendant for only having limited clips is unrealistic, unfair and misses the point that the Defendant can only be expected to undertake limited investigations given the costs involved. If those investigations prove that the Claimant has significantly consciously exaggerated on one or two occasions that is ordinarily enough to undermine the credibility of his accounts to the doctors and others and also before the court. The effect of credibility having been damaged will vary, but anyone evaluating the history of symptoms is entitled to be cautious and sceptical in a way that would not be appropriate if credibility remained intact. Reading the Claimant’s account of his disability and then watching the footage of him at the wedding and at the barbecue any reasonable person would be struck by the marked discrepancies. Those with significant neurological conditions would dearly love to be able to cast aside items such as walking aids for a day and to be able to walk entirely normally; but they cannot do so. People with severe depression would dearly love to have days when they function normally, attending weddings and barbecues and enjoy themselves, chatting with others normally etc, but as Dr Friedman explained the condition is unremitting and they, also, cannot do so.

The Claimant made significant attempts to maintain the deception. He probably followed the advice of, or history given by, others; for example claiming the use of a urine bottle (Mrs Muyepa retreated from the position outlined to the care experts, saying that she knew him only to have used it once; but the reality is it was just a prop within the acting).

The Claimant also exaggerated his symptoms to the benefits agency and others to gain financial assistance and aids and equipment which he knew would support his claim to have compromised function in his feet and legs.

The Claimant had a wide circle of friends and the Army community is a close one. As a result he was forced to deceive others; including those who came to give evidence on his behalf. I have some concerns about the evidence given, but in any event several were very uncomfortable when confronted with the fact that he could walk normally and without a stick. He claimed he was very happy with army life but the reality was that in spring 2017 he took the decision to ensure that he left it.

It is my finding that the Claimant continued after his exposures to have mild, and it is likely improving, NFCI symptoms. On occasions when his feet were cold he could have some pain and discomfort. The swelling witnessed by others is curious and may be linked to such symptoms. Given the extent of the Claimant’s dishonesty I can go no further in terms of findings.

I now turn to the impact of my findings on the Claimant’s case on breach of duty.

It is the Defendant’s case that the Claimant had either lied about the existence of any NFCI symptoms, or alternatively deliberately exposed himself to the wet and cold to gain relevant symptoms rested on three pillars. The first and main pillar for the assertions was the evidence of Marlon Lessey. The second was the Claimant’s proven conscious and dishonest exaggeration and the third, and very much the thinnest of the pillars, was an extract from the report concerning the course which stated that

“Gnr Muyepa also suffered a suspected NFCI at the same point of injury on 8 Mar 16. He, however, did not report cold symptoms to DS. Instead DS noticed he was cold and was wearing wet gloves. Gnr Muyepa was then given dry inner and outer gloves by a member of DS and placed in a Land Rover to warm up. He then returned to the exercise without complaint. It was not until he was assessed by the CMT on 11 Mar 16 that a suspected NFCI was noticed and subsequently confirmed by the Medical Centre at Dering Lines. Gnr Muyepa was RTU at that point.”

Mr Ward submitted that this extract supported an argument that the exposure was deliberate as the Claimant did not complain, rather he was spotted as cold and wet. Why had he not complained or asked for dry gear?

Dr Carey was unshakeable in his conviction that the Claimant had not “made up the whole lot” and he was quite certain there was an underlying mild injury. He applied his very considerable experience to the contemporaneous records andfound them entirely consistent with the existence of an NFCI. He also relied upon the thermo imaging. Further, he noted that two others on the course suffered NCFI and the Claimant, as an Afro-Caribbean soldier, had a heightened vulnerability to the condition.

I accept the evidence of Marlon Lessey as accurate. This means that I find that the Claimant had discussed making a claim in relation to NFCI in the past. Further that he was waiting for an exercise in the cold to do so. I also accept Dr Carey’s opinion on the existence of a NFCI of some form and I find that the Claimant did develop mild NFCI after the course. The question is then whether I accept the evidence of the Claimant on the issue of how the breach of duty came about. The Defendant argues that, based on this extract and the evidence of Marlon Lessey it is likely that if the Claimant did suffer injury he engineered it. However the Defendant did not call the author of the report to give evidence. I also have the evidence of Mr Oliphant on the issue of breach of duty.

I have been very troubled indeed by this issue, but in the end I am satisfied by a narrow margin that there was a breach of duty. I find that the Claimant, who did well on the course, simply followed his instructions and did nothing to enhance or create a risk of injury.

I now turn to other factual issues.

I am satisfied that had the Claimant not suffered an NFCI he would have left the army within a relatively short period of time in any event i.e. he would not have served 20 years. This conclusion rests upon my acceptance of the evidence of Marlon Lessey about the Claimant’s comments about unhappiness with army life, the medical entries in November 2015, his changed family circumstances and marital issues. For the avoidance of doubt I should state that I have carefully considered the evidence of the witnesses called on behalf of the Claimant in relation to the Claimant loving and missing army life. I have no doubt that he gave this impression. However, he also gave the impression that his marriage continued to be happy even after his wife moved out. I have come to the conclusion that for whatever reason hewas not always frank with his friends/relatives on this issue.

What would have happened had the Claimant not exaggerated his symptoms is also a very difficult factual issue to determine, primarily due to the Claimant’s dishonesty. I am quite satisfied that he very significantly exaggerated his symptoms because he wished to ensure that he was discharged from the army. In my view this means that he must have been concerned that if he disclosed the true extent of his symptoms hewould not be discharged. It is clear from the evidence of Dr Carey, Dr Mumford, Mr Craggs and Mr Cameron that soldiers do remain in service with a NFCI. I find that the Claimant would have known this. His future would have depended upon whether his commanding officer could support his retention given continuing restrictions.

The burden of establishing fundamental dishonesty rests on the Defendant. However, the burden of establishing the causation of loss remains at all times upon the Claimant. Where there is an evidential lacuna due to a party’s dishonesty the court is properly entitled to be cautious in relation to factual findings.

It is clear from the July 2016 note that the Claimant’s commanding officer thought highly of him. Also, he was qualified as a driver and could assist with logistics (although I appreciate that his was not a logistics unit). Taking all available evidence on the issue I am not satisfied i.e. I do not think that it is more likely than not, that he would have been discharged, at the very least initially. Thereafter he may well have become disenchanted with his reduced role and given notice. However, as I set out above it is my view that he would have given notice in any event.

The determination of the correct amount of damages in a claim where a Claimant has significantly and dishonestly exaggerated his symptoms is often difficult and again the court is entitled to approach the assessment with considerable caution. As Lord Clarke observed in Fairclough Homes -v- Summers;

“[52] A party who fraudulently or dishonestly invents or exaggerates a claim will have considerable difficulties in persuading the trial judge that any of his evidence should be accepted. This may affect either liability or quantum. In the instant case, as explained above, the Claimant's fraud and dishonesty led the judge to reject his evidence except where it was supported by other evidence. The judge naturally refused to draw any inferences of fact in his favour. It is likely that, if the Claimant had told the truth throughout, his damages would have been assessed at a somewhat larger figure than they were in fact. This is often likely to be the case.”

My assessment is as follows

The 16^th Edition of the Judicial College Guidelines provides the following guidance;

Cold Injuries

Based on my findings including as to the existence of an adjustment reaction, an award of £15,000 is appropriate. I make an additional award for loss of congenial employment of £250 as the Claimant would have left the Army had the injury not been sustained.

I assess the figure for interest on general damages to be for four years at 2%; £1220.

If the Claimant had remained in the army the employment experts were able to agree his likely progression. However, my finding is that he would not remain in the army longer term and on balance would have left before the trial date. Quite when he would have left is very difficult to determine given his case (which I reject) that he was very happy in the Army and would have completed his full service.

The Claimant’s mild NFCI would have impacted upon his promotion prospects, pay and earning capacity in and out of the army. Doing the best that I can with the available evidence I am not satisfied that the Claimant would have been discharged without significant attempts to accommodate him, at least initially, probably within logistics. His mild symptoms probably improved in the summer months so the real challenge would have been in the winter of 2017/18. I suspect that matters would have been reviewed at that stage.

So the following issues require to be addressed:

The difficulty with assessment of these features is that the exaggerated nature of the claim means the evidence which should have been available on any claim in relation to the “true” NFCI is not available. As a result they can properly be described as “imponderables”.

When dealing with future employment related losses it is not infrequently the case that the court deals with imponderable factors by a lump sum assessment to cover loss of earning capacity, loss of benefits and allowances and pension loss. Such an approach is well established and has been known for many years as a “Blamire” award following the decision of the Court of Appeal in Blamire-v-South Cumbria [1993] PIQR Q1. The Claimant still bears the burden of establishing loss and a Blamire award is an assessment of loss based on available information before the Court. It does not ignore, or negotiate around, any evidential lacuna which is due to the Claimant’s conduct or presentation of the case (Footnote: ³⁵).

I see no reason in principle why such an approach cannot be used for the assessment of past employment related losses and this appears to have been the view of the Court of Appeal in Willemse-v-Hesp [2003] EWCA Civ 994. Lord Justice Potter stated

“Miss Perry's alternative submission is that, in any event, the judge was wrong to take a multiplier/multiplicand approach even on the basis of £10 an hour for earnings loss in the light of the uncertainty as to the number of hours worked by the claimant upon the boat. She submits that the judge should simply have attempted a broad assessment on the lines approved by this court in Blamire v South Cumbria Health Authority [1993] PIQR/Q1. The approach in Blamire was of course one which related to award of a global sum to assess as at trial the present value of the risk of future financial loss. However, to the extent that it represents an example of the necessity on occasion, in the light of uncertain circumstances, for the court to award a global (and somewhat impressionistic) sum, I accept that it affords Miss Perry some assistance in principle in relation to pre-trial loss. Had the judge decided that, on the general state of the evidence and his judgment of the claimant, a Blamire (i.e. round sum) award was all that was appropriate, I cannot think that this court would have interfered. Equally, however, the judge having felt able to take the approach he did as the just way of dealing with the difficult question of past-earnings loss, I do not think that this court should interfere with the sum awarded in that respect.”

On occasions whilst the Court may be satisfied on the evidence that there has been past loss, it may not be possible, due to the nature and extent of factors which are very difficult, if not impossible, to individually assess on thebalance of probabilities, to set out a precise calculation up to trial. It would clothe matters in too much certainty. The court has to do the best it can, bearing in mind that the burden is on the Claimant, to assess the loss globally taking into account the relevant factors that bear upon employment. At times the Court has been very candid about such a process as regards future employment related losses. In Tait-v-Pearson [1996] PIQR Q92 Butler-Sloss LJ set out that;

“ It would, in my view, be preferred at this stage in the Court of Appeal to stand back and look broadly at the figure, and to do what judges over the years have done, which is to pluck a figure from the air as best to provide an appropriate recognition that he has a financial loss of the future, because it is known that he will not be able to earn at the rate that he has earned in the past, but allowing for all the vagaries, uncertainties of partly, unemployment and partly not.”

The employment experts agree that if he had remained in the army uninjured the Claimant would have been promoted to lance bombardier between September 2016 and January 2017 (with an increase in net pay of £981 per annum to salary of £23,980 net) and, on the assumption that he performed well in the role, promoted to bombardier between November 2020 in January 2021 (with a pay increase of £1,964 per annum). With a mild NFCI the Claimant is likely to have been unable to achieve the promotion to Lance Bombardier with effect from 1^st January 2017. Whether he would ever have achieved the promotion would have depended on the timescale and extent of his recovery. I doubt he would have done so.

I am not satisfied that, absent injury, the Claimant would have remained in the army for a sufficient length of time to achieve promotion to bombardier; but there is a chance that he would have done so. It is very difficult to assess what employment he would have obtained in civilian life without a NFCI. It is also extremely difficult to determine what he would have been capable of with mild (and likely improving) NFCI symptoms. I note Marlon Lessey who has NFCI is a HGV driver.

The Claimant’s last day of service was January 2018 so there is approximately 4.5 years of past loss of earnings and employment related benefits losses (longer separation allowance, health, fitness and medical benefits and subsidised accommodation). The schedule seeks £109,546 and £24,007 for these elements respectively. Having considered all relevant factors I award a sum of £30,000 for past employment related losses.

As for care and assistance I am not satisfied that there should be any award given the Claimant had only mild symptoms.

In respect of aids and equipment I allow the cost of a foot massager to help alleviate mild symptoms; £90.

As for other losses I would allow the following sums:

As for Interest, past losses total £30,265 and interest at 1.108% is £335.33

As for loss of earning capacity, in line with findings of fact and analysis of past employment related losses the approach is again by way of lump sum given the imponderable factors; mainly due to the Claimant’s dishonest exaggeration. Whilst the underlying mild NFCI is likely to have been improved it is likely that the Claimant still has some symptoms in cold weather. I accept this could have some impact on the open labour market. The Claimant is also still relatively young (at least from my perspective). Doing the best that I can to reflect the loss of earning capacity (and pension loss) I award a lump sum of £50,000.

I make no award in respect of care and assistance

As for other miscellaneous losses, save for two heads, I make no award. My assessment is as follows

The total future losses of £50,625

The total award is £97, 595.33.

As HHJ Sephton QC very fairly observed in Iddon his assessment of damages but for the fundamental dishonesty was “conservative”. I also recognise that if the Claimant had advanced an honest case, which would have led to different additional evidence before the court; particularly in relation to employment related losses, he may have achieved a significantly higher sum. However, he bore the burden of proving his case and the court should not engage in speculation in the absence of reliable evidence.

I start with the legal framework

Fraudulent personal injury claims have long been, and remain, a well-recognised and extensive problem. In South Wales Fire and Rescue Service v Smith [2011] EWHC 1749 (Admin), Moses LJ said of such claims;

“2.

For many years the courts have sought to underline how serious false and lying claims are to the administration of justice. False claims undermine a system whereby those who are injured as a result of the fault of their employer or a defendant can receive just compensation.

3.

They undermine that system in a number of serious ways. They impose upon those liable for such claims the burden of analysis, the burden of searching out those claims which are justified and those claims which are unjustified. They impose a burden upon honest Claimants and honest claims, when in response to those claims, understandably those who are liable are required to discern those which are deserving and those which are not.

4.

Quite apart from that effect on those involved in such litigation is the effect upon the court. Our system of adversarial justice depends upon openness, upon transparency and above all upon honesty. The system is seriously damaged by lying claims. It is in those circumstances that the courts have on numerous occasions sought to emphasise how serious it is for someone to make a false claim, either in relation to liability or in relation to claims for compensation as a result of liability.”

In Summers v Fairclough Homes Ltd [2012] 1 WLR 2004, the Claimant had claimed over £ 800,000 from his employers following an accident at work on the basis that he was grossly disabled, unable to work and likely to remain so. As a result of the accident, he suffered fractures requiring two arthrodesis operations. So, the initial injury was genuine and significant. Surveillance evidence showed that he appeared to have no ongoing significant disability and was in fact working and playing football. The judge accepted that the claim as presented was largely fraudulent, assessed his damages at just under £90,000 but considered himself unable to strike the action out as an abuse. The Court of Appeal agreed. The Supreme Court held that under both its inherent jurisdiction and CPR r 3.4(2), the court had power to strike out a statement of case, on the ground that it was an abuse of the process of the court, at any stage of proceedings, even after trial in circumstances where the court had been able to make a proper assessment of both liability and quantum; but that that power would be exercised at the end of a trial only in very exceptional circumstances where the court was satisfied that the party's abuse of process was such that he had thereby forfeited the right to have his claim determined.

In Versloot Dredging BV and another v HDI Gerling Industrie Versicherung AG and others [2014] EWCA Civ 1349 Lord Justice Clarke observed at paragraph 105:

“Since Summers, judges have showed a willingness to strike out claims including personal injury claims before trial or award nominal damages where those claims were pursued fraudulently: Scullion v Bank of Scotland (HHJ Cotter QC, Exeter County Court, 24 May 2013), where a claim for personal injury was struck out on the basis of sustained dishonesty during the litigation (Footnote: ³⁶); Homes for Haringey v Fari [2013] EWHC 757 which records at [17] the striking out of an exaggerated claim for personal injury; Joseph v Spiller [2012] EWHC 2958 where Tugendhat J refused to award more than nominal damages in a defamation case because of the fraudulent presentation of special damages despite the fact that some were genuine.”

In the Supreme Court in the same case [2017] AC 1, Lord Hughes, referring to the 'fraudulent claims rule', i.e., the rule that a genuine insurance claim supported by fraudulent evidence should fail even if valid in law, stated:

“95.

The need for such a rule, severe as it is, has in no sense diminished over the years. On the contrary, Parliament has only recently legislated to apply a version of it to the allied social problem of fraudulent third party personal injuries claims. Section 57 of the Criminal Justice and Courts Act 2015 provides that in a case where such a claim has been exaggerated by a "fundamentally dishonest" Claimant, the court is to dismiss the claim altogether, including any unexaggerated part, unless satisfied that substantial injustice would thereby be done to him. Parliament has thus gone further than this court was able to do in Summers v Fairclough Homes.

96.

Severe as the rule is, these considerations demonstrate that there is no occasion to depart from its very long- established status in relation to fraudulent claims, properly so called. It is plain that it applies as explained by Mance LJ in The Aegeon at paras 15-18. In particular, it must encompass the case of the claimant insured who at the outset of the claim acts honestly, but who maintains the claim after he knows that it is fraudulent in whole or in part. The insured who originally thought he had lost valuable jewellery in a theft, but afterwards finds it in a drawer yet maintains the now fraudulent assertion that it was stolen, is plainly within the rule. Likewise, the rule plainly encompasses fraud going to a potential defence to the claim. Nor can there be any room for the rule being in some way limited by consideration of how dishonest the fraud was, if it was material in the sense explained above; that would leave the rule hopelessly vague.”

Parliament then acted. At the Committee stage of the passage of the Criminal Justice and Courts Bill through the House of Lords, Lord Faulks QC stated (Hansard, 23 July 2014, cols 1267–1268). (Footnote: ³⁷)

“Under the current law (Footnote: ³⁸), the courts have discretion to dismiss a claim in cases of dishonesty, but will do so only in very exceptional circumstances, and will generally still award the claimant compensation in relation to the ‘genuine’ element of the claim. The Government simply do not believe that people who behave in a fundamentally dishonest way – and I will come to address the adverb in a moment – by grossly exaggerating their own claim or colluding should be allowed to benefit by getting compensation in spite of their deceit. Clause 45 seeks to strengthen the law so that dismissal of the entire claim should become the norm in such cases. However, at the same time, it recognises that the dismissal of the claim will not always be appropriate and gives the court the discretion not to do so where it would cause substantial injustice to the claimant. To that extent, some of the remarks of my noble friend Lord Marks were entirely appropriate. The clause gives the court some flexibility to ensure that the provision is applied fairly and proportionately.

…

I assure the Committee that the way that the clause is drafted should not result in the courts using the measures lightly. Civil courts do not make findings of dishonesty lightly in any event; clear evidence is required. The sanction imposed by the clause – the denial of compensation to which the claimant would otherwise be entitled – is a serious one and will be imposed only where the dishonesty is fundamental; that is, where it goes to the heart of the claim. That was very much what my noble friend said about what it was aimed at.

Of course, ‘fundamental’ has an echo in the Civil Procedure Rules and the qualified, one-way costs shifting. An adverb to qualify a concept such as dishonesty is not linguistically attractive, but if we ask a jury to decide a question such as dishonesty, or ask a judge to decide whether someone has been fundamentally dishonest, it is well within the capacity of any judge. They will know exactly what the clause is aimed at – not the minor inaccuracy about bus fares or the like, but something that goes to the heart. I do not suggest that it wins many prizes for elegance, but it sends the right message to the judge.”

Section 57 of the Criminal Justice and Courts Act 2015 provides:

“Personal injury claims: cases of fundamental dishonesty

(1)

This section applies where, in proceedings on a claim for damages in respect of personal injury ("the primary claim") -

(a)

the court finds that the claimant is entitled to damages in respect of the claim, but

(b)

on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.

(2)

The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.

(3)

The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.

(4)

The court's order dismissing the claim must record the amount of damages that the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim.

(5)

When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.

(6)

If a claim is dismissed under this section, subsection (7) applies to -

(a)

any subsequent criminal proceedings against the claimant in respect of the fundamental dishonesty mentioned in subsection (1)(b), and

(b)

any subsequent proceedings for contempt of court against the claimant in respect of that dishonesty.

(7)

If the court in those proceedings finds the claimant guilty of an offence or of contempt of court, it must have regard to the dismissal of the primary claim under this section when sentencing the claimant or otherwise disposing of the proceedings.

(8)

In this section—

"claim" includes a counter-claim and, accordingly, "claimant" includes a counter-claimant and "defendant" includes a defendant to a counter-claim;

"personal injury" includes any disease and any other impairment of a person's physical or mental condition;

"related claim" means a claim for damages in respect of personal injury which is made—

(a)

in connection with the same incident or series of incidents in connection with which the primary claim is made, and

(b)

by a person other than the person who made the primary claim.

(9)

This section does not apply to proceedings started by the issue of a claim form before the day on which this section comes into force.”

The burden is on the Defendant to establish on the balance of probabilities that the Claimant has been fundamentally dishonest. I would respectfully agree with Lord Faulks’ comment that application of the test within the section is well within the capacity of any judge who will know exactly what the clause is aimed at. I also do not believe any gloss is needed upon the plain wording. The issue is highly fact specific.

The first matter to be addressed in a case where fundamental dishonesty is raised is whether the claimant has been dishonest. The Supreme Court addressed the elements the court must consider in deciding whether dishonesty is made out in Ivey v Genting Casinos UK Limited (t/a Crockfords Club) [2018] AC 391. Lord Hughes, with whom the other justices agreed, said at [74]:

“74.

When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

The next issue is whether such dishonesty can be properly characterised as fundamental in relation to the primary claim or a related claim. In Howlett v Davies [2017] EWCA Civ 1696 the Court of Appeal approved the following formulation by HHJ Moloney QC of 'fundamentally dishonest' in the context of CPR 44.16(1):

“44.

It appears to me that this phrase in the rules has to be interpreted purposively and contextually in the light of the context. This is, of course, the determination of whether the claimant is 'deserving', as Jackson LJ put it, of the protection (from the costs liability that would otherwise fall on him) extended, for reasons of social policy, by the [Qualified One-way Costs Shifting] rules. It appears to me that when one looks at the matter in that way, one sees that what the rules are doing is distinguishing between two levels of dishonesty: dishonesty in relation to the claim which is not fundamental so as to expose such a claimant to costs liability, and dishonesty which is fundamental, so as to give rise to costs liability.

45.

The corollary term to 'fundamental' would be a word with some such meaning as 'incidental' or 'collateral'. Thus, a claimant should not be exposed to costs liability merely because he is shown to have been dishonest as to some collateral matter or perhaps as to some minor, self- contained head of damage. If, on the other hand, the dishonesty went to the root of either the whole of his claim or a substantial part of his claim, then it appears to me that it would be a fundamentally dishonest claim: a claim which depended as to a substantial or important part of itself upon dishonesty.”

In London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018] EWHC 51, Knowles J reviewed the authorities concerning 'fundamentally dishonest' and 'fundamental dishonesty' and concluded as follows:

“62.

In my judgment, a claimant should be found to be fundamentally dishonest within the meaning of s 57(1)(b) if the defendant proves on a balance of probabilities that the claimant has acted dishonestly in relation to the primary claim and/or a related claim (as defined in s 57(8)), and that he has thus substantially affected the presentation of his case, either in respects of liability or quantum, in a way which potentially adversely affected the defendant in a significant way, judged in the context of the particular facts and circumstances of the litigation. Dishonesty is to be judged according to the test set out by the Supreme Court in Ivey v Genting Casinos Limited (t/a Crockfords Club), supra.

63.

By using the formulation 'substantially affects' I am intending to convey the same idea as the expressions 'going to the root' or 'going to the heart' of the claim. By potentially affecting the defendant's liability in a significant way 'in the context of the particular facts and circumstances of the litigation' I mean (for example) that a dishonest claim for special damages of £9000 in a claim worth £10 000 in its entirety should be judged to significantly affect the defendant's interests, notwithstanding that the defendant may be a multi-billion pound insurer to whom £9000 is a trivial sum.”

In Iddon-v-Warner [2021] Lexis Citation 39, the Claimant brought a claim as a result of a GP’s negligent late cancer diagnosis which had required her to undergo disfiguring surgery which she would not otherwise have needed. She claimed to have been left significantly disabled. Her total claim approached £1,000,000. The claim was dismissed under section 57 by HHJ Sephton QC, as fundamentally dishonest. He set out his view that:

The learned judge went on to hold that it would not cause substantial injustice to deprive the fundamentally dishonest claimant of the whole of her damages, notwithstanding she had used a large interim payment to buy a house which would have to be sold in order to repay the money. Permission was subsequently given to make an application for committal for contempt. After a hearing I imposed a penalty of seven months imprisonment for contempt.

As I have already set out, the determination of the amount of damages that the court would have awarded to the Claimant in respect of the primary claim but for the dismissal of the claim can be difficult to assess and the court is entitled to approach the exercise with considerable caution. Dishonesty may well have a pervasive effect, and given that the claimant retains the burden of establishing the true extent of loss it may be difficult to satisfy the court of what is likely to have occurred in the absence of objective or independent evidence which is unaffected by the dishonesty. In Iddon HHJ Sephton QC found that had he not dismissed the claim he valued it at just over £70,000. He recognised it was a “conservative” valuation.

In cases of this nature when considering whether the Claimant’s dishonesty has been fundamental dishonesty in relation to the primary claim or a related claim I have found the following three questions (which have a degree of overlap) to be helpful

Turning to the present case my analysis is as follows;

I am wholly satisfied the Claimant was dishonest. He deliberately exaggerated symptoms and functional limitations for financial gain. I would have found so in the absence of any evidence from Marlon Lessey. As it is I accept his evidence. Had what he saw also been captured on camera I very much doubt the claim would have reached trial, certainly in anything like the form that it did.

I find that the Claimant began to deliberately and significantly exaggerate symptoms in March/April 2017 in order to secure his discharge from the army with a payout. So he was dishonest from a very early stage and before the case was commenced.

Once a Claimant has been proved to have dishonestly and significantly exaggerated his symptoms, by indisputable visual evidence, considerable care has to be taken when determining what the true extent of injury was and is. Sometimes a baseline was/is objectively verifiable by independent evidence (such as testing), or a person will have had an operation and the court may be able to conclude that the exaggeration only occurred when symptoms were alleviated by the procedure. In such circumstances it may be possible to carve out the dishonest element of the claim. However, in a case where the diagnosis primarily relies on the Claimant’s reporting of the history of symptoms, the persistent and significant, dishonest exaggeration of those symptoms may taint the whole case making it very difficult to assess the extent of any true underlying claim. That is the position in this claim.

I start with the claim advanced. At the start of the trial the Claimant’s schedule sought damages of £2,977,821 and also an award of general damages of £60,000 plus interest); so total damages of over three million pounds. However, this was a reduction from the sum claimed in his Interim Schedule of Loss dated 17th February 2021 of £3,766,615 as the deception in relation to where Mrs Muyepa was living had been discovered. This dishonest deception alone wiped £675,363 off the Claimant’s own valuation of future care (and altered the past care claim). As the Trial progressed the schedule figure was amended down due to concessions (so on the basis of the Claimant’s own case) to £1,694,975 (a reduction of 55%) of the interim value. As I have set out above the award I make for the true extent of injury is £97,595.33. This is just over 3% of the claim when advanced at its highest and approximately 5.5% of the claim as advanced at the end of the trial. These figures, even if my assessment of the true value is necessarily conservative, speak for themselves.

I find that the Claimant suffered a minor NFCI. After an initial period of trying to cope with the symptoms he decided to present a picture to the defendant, his friends, medico-legal experts and the court that he was suffering from a very severe NFCI which had left him greatly disabled. He fundamentally and persistently transformed the claim by dishonest exaggeration. His dishonesty tainted the whole claim from the outset.

I find that the Claimant has been fundamentally dishonest in relation to the claim

Where a Court finds fundamental dishonesty it must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed. In London Organising Committee of the Olympic and Paralympic Games v Sinfield Knowles J stated:

“65.

Given the infinite variety of circumstances which might arise, I prefer not to try and be prescriptive as to what sort of facts might satisfy the test of substantial injustice. However, it seems to me plain that substantial injustice must mean more than the mere fact that the claimant will lose his damages for those heads of claim that are not tainted with dishonesty. That must be so because of s. 57(3). Parliament plainly intended that sub-section to be punitive and to operate as a deterrent. It was enacted so that claimants who are tempted to dishonestly exaggerate their claims know that if they do, and they are discovered, the default position is that they will lose their entire damages. It seems to me that it would effectively neuter the effect of s 57(3) if dishonest claimants were able to retain their 'honest' damages by pleading substantial injustice on the basis of the loss of those damages per se. What will generally be required is some substantial injustice arising as a consequence of the loss of those damages.”

I respectfully agree. Although, as with Mrs Iddon a substantial award would have been made had there been an honest claim, there is no substantial injustice by reason of its loss. I also do not accept that there are any other realistic grounds for arguing injustice.

I am satisfied on the balance of probabilities that the Claimant has been fundamentally dishonest in relation to the claim and therefore dismiss it by reason of section 57(2).

Had the claim not been dismissed the claimant would have been entitled to damages in the sum of £97, 595.33.

I leave it to Counsel to draw an appropriate order.

I should finally add that I found the evidence of Mr Lessey to be concerning on the issue of widespread dishonesty in respect of NCFI. I would suggest that the Defendant, which has paid out large sums in respect of NCFI claims should reflect upon his evidence. Of course, the problem may be very limited in scope and concerning only those Mr Lessey came into contact with. Alternatively, it may not be.

I was also surprised when I was informed by Dr Carey about the lack of studies into NCFI (including the lack of any base line testing of soldiers before any cold exposure) and by Ms Collignon’s comment that, in her experience, there is still a widespread failure to adhere to available guidance as to the prevention of NFCIs. I have only heard one NFCI trial so my observations as to the general picture can carry limited weight. However, the history of industrial disease litigation provides the lesson that if an employer continues to breach its duty of care and personal injury claims can be made, wholly or substantially, on the basis of subjective reporting of symptoms there will be, along with the valid claims, some dishonest claims; both partially and fundamentally. The obvious solution is to carefully consider to what extent, and why, any breaches of the duty of care continue to occur, and then to take appropriate action.