Debbie O'Connell v The Ministry of Defence

The Claimant was a gunner in the Royal Horse Artillery, a regiment she had joined in October 2014. She was assigned to the King’s Troop, first at Wellington Barracks, London but then in July 2015 she was sent to Woolwich. Her assessment, once she had arrived at Woolwich, identified the need for riding lessons which she took under the instruction of, amongst others, Lance Bombardier (L/Bdr) Hilary Oldfield.

On 4 September 2015 the Claimant was one of three recruits having a riding lesson with L/Bdr Oldfield. The other two were Gunner Smith and Gunner Collins. The lesson took place at the Defendant’s outside riding arena. The Claimant had started the lesson on one mare, Narlia, but was finding her difficult to control. She was swapped onto another mare, Electra Jazz (‘Jazz’). She had not ridden Jazz before. There came a point in the lesson when the recruits were ordered by L/Bdr Oldfield to cross the arena and turn right. Gunners Smith and Collins crossed the arena and mistakenly turned left. The Claimant turned right but assumed that she had done so incorrectly. She therefore turned Jazz in order to go in the opposite direction. This affected her balance. Jazz bucked and the Claimant was thrown off her. She fell to the ground and sustained a serious injury to her left shoulder, which ultimately deprived her of her army career.

The Claimant blames the Defendant for her accident. She puts her case both in negligence and under the Animals Act 1971. She maintains that she was not provided with appropriate equipment, in particular properly fitting riding boots, that Jazz was an unsuitable horse for her and that L/Bdr Oldfield did not pay any or any sufficient heed to an earlier incident in the lesson where Jazz had bucked and unseated her.

It is the Claimant’s case that, pursuant to section 2(2) Animals Act 1971, the Defendant is strictly liable for what happened to her because (i) her injury was caused by Jazz (ii) her injury was of a kind that, if caused, was likely to be severe and (iii) that that likelihood was due to characteristics of Jazz which are not normally found in horses or not normally so found except at particular times and in particular circumstances. These characteristics she maintains were known to the Defendant.

The Defendant denies liability in negligence. Its case is that Jazz was a suitable horse for the Claimant, that her boots were suitable and that she was properly trained and instructed, both by L/Bdr Oldfield and generally. The occurrence of an earlier incident of bucking in the lesson is denied.

The Defendant denies liability under the Animals Act 1971. It denies that the damage was of a kind that was likely to be severe. Its further case is that bucking is something that all horses do and the Claimant has failed to establish the particular circumstances that caused Jazz to buck and so cannot establish that the damage was caused by a characteristic only found in horses at particular times or in particular circumstances. Finally it argues that, if Jazz had the requisite characteristics it did not know about them.

The Defendant also made allegations of contributory negligence in relation to the Claimant’s technique and control but these were not pursued at trial.

The Claimant sustained a comminuted fracture to her left clavicle as a result of the accident. She underwent open reduction and internal fixation surgery shortly thereafter. Unfortunately, she continued to experience pain and, in 2016, she was referred first to a local pain clinic and then to the Defendant’s rehabilitation facility at Headley Court. The hoped for improvement in her condition did not occur and she was recommended for medical discharge in late December 2016. Her date of discharge was in August 2017. She left with an exemplary service record.

The army was more than a job to the Claimant and the consequences of the accident took their toll on her mental health.

Around the same time as she was recommended for discharge the Claimant had further surgery. Under general anaesthetic, a neuroma was excised and metal work removed. In late April 2017 she had a nerve block injection. It is at this point that the parties’ cases as to the Claimant’s recovery materially diverge.

The Claimant’s case is that she has recovered orthopaedically but been left with neuropathic pain, weakness, restriction of movement and hypersensitivity.

The Defendant’s case is that the Claimant has recovered to the extent that she can use her arm normally or near normally. That recovery occurred around May 2017, alternatively by no later than mid-2019 when she saw Dr McDowell, the Part 35 pain expert reporting to the court on behalf of the Defendant. (I shall refer to such experts hereafter in this judgment simply by reference to the party who instructed them.) Her representations as to the extent of her disability since then have been dishonest. That dishonesty is ‘fundamental’ engaging the provisions of s.57 Criminal Justice and Courts Act 2015 and/or CPR 44.16. It requires me to dismiss her claim even if I find the Defendant in breach of duty. In the event that I do not find for her, I am asked by the Defendant to use my power under CPR 44.16 to permit the enforcement of an award of costs, removing the Claimant’s QOCS protection. Reliance is placed on surveillance evidence, on inconsistencies in what she has said, in particular about having horses to look after and on issues concerning her vehicle, which came to prominence during the course of the trial itself.

The Claimant’s case is that she is honestly presenting her claim. She has engaged with all the evidence on which the Defendant relies and there is no inconsistency, alternatively no more than would be expected of a genuine Claimant over the course of lengthy and stressful litigation. The Claimant points to her continued engagement with clinicians and the fact that she has obtained work and competed as a disabled athlete since her accident. She had a local brachial plexus nerve block procedure in June 2018 and she has had a spinal cord stimulator fitted. She found work at a funeral director’s after leaving the army. She has been a successful competitor at the Invictus Games and has been in contention for paralympic selection.

Finally, there are issues as to the quantum of the Claimant’s claim if she is successful in particular as to past and future loss of earnings and support.

Proceedings in this case were issued shortly before the expiry of the primary limitation period. The first directions made set a timetable ending in a trial in July 2021. That turned out to be some four years before the actual date of trial which therefore took place nearly 10 years after the Claimant’s accident. The evidence, particularly that in relation to liability would, of course, have been more coherent had it been earlier.

On the Claimant’s behalf I heard evidence from her, from her grandmother, Maureen O’Connell, her Army Reserve superior officer Captain Karl Stone and her friend, Shireen Timmis. On behalf of the Defendant I heard from four of her fellow soldiers in the King’s Troop, L/Bdr Hillary Oldfield, Sgt Shaun Kershaw, Gunner Rebecca Collins and Bdr Kristian Dawson. (I have used their ranks at the time of the events with which the case is concerned). I heard expert evidence in the fields of equestrianism (Ms Taylor for the Claimant, Ms Ham for the Defendant), psychiatry (Dr Collinge, Dr Eldred), Pain medicine (Professor Lalkhen, Dr McDowell), Care evidence (Ms Gouldstone, Mr Major-Preece) and employment evidence (Mr Stafford OBE, Mr Cameron). I did not hear evidence from the orthopaedic experts (Mr Lourie and Mr Gilham for the Claimant and Mr Smith for the Defendant) but their reports and joint reports were in the trial bundle.

During the course of the trial I was greatly assisted by counsel, Mr Lewers and Ms Mawdesley-Thomas for the Claimant and Mr Fetto KC and Ms Fenelon for the Defendant.

The issues which I have to decide in order to determine liability are as follows:

The earliest account of the accident is contained in a form, MOD Accident Reporting Form 510, which was completed by L/Bdr Oldfield on 8 September 2015, four days after it happened. The form invites answers to the questions ‘How?’ ‘What?’ and ‘Why?’ and the answers given by L/Bdr Oldfield were as follows,

In her oral evidence L/Bdr Oldfield told the court that she had completed this form having gone through the “How?/What?/Why?” answers with the Claimant and she confirmed its contents. In her witness statement dated 11 June 2021, the Claimant recalled a form being completed by L/Bdr Oldfield and her signing it but it is her evidence that this was not the MOD Form 510 dated 8 September 2015. No other form has come to light and it was L/Bdr Oldfield’s evidence that the system at the time involved the electronic submission of an unsigned MOD Form 510. This form was the one she sent to her superior officer, Captain Watson. There is in the trial bundle an identically worded MOD Form 510 from Captain Watson with the later date, 24 September 2015, presumably the date when he sent it on.

The first available account of the accident written by the Claimant herself is in her February 2016 claim under the Armed Forces Compensation Scheme. It has two material differences to L/Bdr Oldfield’s report.

First, the Claimant stated that the lesson had been going well and swapping horses was simply normal practice. There is at least the implication in L/Bdr Oldfield’s report that the Claimant had been struggling and, because of that, she had had to be transferred to Jazz, ‘the safest horse in the lesson’. The Claimant now accepts that L/Bdr Oldfield swapped her from Narlia to Jazz because she was struggling.

The second difference is that the Claimant recalled that prior to the fall that caused her injury, Jazz threw her off but she was uninjured and so she got back on again. The accident was therefore her second fall from Jazz during the lesson. This is a material difference between the parties.

The Claimant provided her first witness statement dealing with the circumstances of the accident in June 2021, a long time after the accident. L/Bdr Oldfield’s November 2020 statement is similarly removed from events. They maintained their contrasting positions about the number of falls in those statements and in their oral evidence.

I heard evidence from Gunner Collins, one of the other recruits participating in the lesson. She had provided a statement in 2019 but had then left the army in 2022. I therefore regard her as an independent witness. Gunner Collins did not recall the earlier fall and told the court that, if the Claimant had fallen off, the whole lesson would have been stopped. The implication of that evidence was that if that had happened, she would have remembered it. L/Bdr Oldfield’s evidence was to similar effect and she also drew attention to the fact that there was no mounting block at the outside riding school and that remounting the Claimant would have been a significant process.

The two equestrian experts reporting to the court were present when L/Bdr Oldfield gave evidence. Neither questioned her general competence or suitability as an instructor for recruits such as the Claimant.

I find that the balance of probability is in favour of the Defendant’s case on the issue of whether the Claimant fell once or twice from Jazz. I therefore accept that she only fell off Jazz once. My reasons are as follows: L/Bdr Oldfield provided an account within a matter of days of the accident and would, I find, have mentioned the earlier fall if it had happened. She presented as a witness whose priority was to tell the truth and was, for instance, frank in her evidence about her attitude to equipping recruits with correctly sized boots, even though it might be seen as somewhat casual.I further find that the MOD Form 510 filled in by L/Bdr Oldfield was one that the Claimant herself had seen and had had input into. The reasons I so find are first that that is L/Bdr Oldfield’s evidence which I accept and, second, that that is consistent with the terms of the Claimant’s own request for the MOD Form 510 in her February 2016 compensation application. There the Claimant refers to it by name ‘the MOD 510 form’. L/Bdr Oldfield’s evidence that those forms were submitted unsigned and online was not contested. In contrast to her later evidence, the Claimant did not suggest in her February 2016 application that there was a second, separate form which she did sign. I find it was the only report form. L/Bdr Oldfield’s evidence on whether there was one fall or two is supported by the evidence of Gunner Collins who would have remembered if there had been an earlier fall. Finally, L/Bdr Oldfield came across both to me and the equestrian experts as a competent instructor. L/Bdr Oldfield had already swapped the Claimant’s horse because she had noticed that the Claimant was having difficulty controlling Narlia. If the transfer to Jazz had compounded the Claimant’s difficulties such as to cause her actually to fall off, then I find that L/Bdr Oldfield would have taken further action rather than permitting her to remount the same horse and continue.

My finding that there was no first fall disposes of the allegation that the Claimant was negligently ordered to remount Jazz afterwards. The Claimant’s remaining allegations concern the size of her riding boots, whether she was properly instructed as to how to use the stirrups and the suitability of Jazz as a horse for riders of her experience. The Defendant has, implicitly at any rate, accepted a duty to provide the Claimant with suitable boots and proper instruction. Its case is that she was provided with those and, further, that there is no causative relevance to the allegations. With regard to Jazz, its case is that she was a suitable horse for the Claimant.

The Claimant brought her riding boots to court. Her evidence that they were the boots she had been wearing was not challenged. She put them on and demonstrated where her big toe was and where the ball of her foot was inside them. She accepted in cross-examination that she had been using the boots since June 2015, so for some months, but she stated that she had complained about them. The boots did not have a conventional size. The Claimant’s statement put them at size 8 as compared to her shoe size of 6. She gave evidence that she was instructed to put the ball of her foot in such a position that she had only the edge of her toes touching the stirrup. She agreed that she was told to put the front half of her boot in the stirrup. Her complaint was not so much about the instruction but her inability to put the relevant part of her foot in the stirrup because the boot was too big. The two allegations therefore go together. She agreed that, when demonstrating the fit of her boots at court, she was not wearing the socks she would have been and not wearing her riding britches, both of which would have made the fit tighter.

L/Bdr Oldfield could not recall whether she had accompanied the Claimant to get her boots but volunteered that it was quite common for boot sizes not to be ‘perfect’ and it was also common for recruits to borrow boots. She recalled the Claimant complaining about her boots. It was put to her that a consequence of that was that the Claimant could not use the stirrups properly. She replied that stirrup position was something that she allowed an element of compromise on in training. She taught the gold standard but tolerated something less. She accepted that the Claimant had struggled with her stirrups previously but did not accept that the Claimant’s boots or stirrup position were relevant to her fall.

I also heard evidence from Bombardier Kristian Dawson who worked in the stores in 2015. His evidence, supported by photographs, was that the stores stocked a wide range of boots of different sizes at the time. He did not recall whether he had dealt with the Claimant. He accepted that he might have issued boots two sizes too big but said that he would be concerned if he did that that the person to whom they were issued would soon be back to change them.

Whilst acknowledging that neither of them were experts in boot sizes, I did find the observations of the equestrian experts, Ms Taylor and Ms Ham helpful. Both had seen the boots being tried on. Ms Taylor, the Claimant’s expert, considered that they were too big, although she accepted that she was mistaken in her evidence as to their actual size. If the Claimant had been her pupil she would have wanted her to change her boots. Ms Ham, the Defendant’s expert, agreed that the boots were large but did not consider them so large as to be unacceptable.

I was referred in the context of the allegations concerning the boots both to the common law and to statutory duties, which no longer give rise to civil liability and did not add anything to the Claimant’s case.

I find that the Claimant’s boots were over-sized. I do not find on the evidence before me that she has shown to the requisite standard that they were so over-sized as to render them unsuitable for her use in riding lessons. That may have been so but the demonstration before me was not ‘like-for-like’ as the Claimant was not wearing what she would have been wearing for riding and although she had complained about them, she had in fact used them for riding for some months.

Notwithstanding my finding above in relation to breach of duty, I have gone on to consider whether the size of the Claimant’s boots or her stirrup position played a role in her fall from Jazz. I find that neither did. My reason is the absence of any mention of the boots in the Claimant’s 2016 accounts. In her February 2016 Armed Forces Compensation Scheme account, the Claimant not only does not mention her boots causing her difficulty but describes the lesson as ‘going well’. She gives a detailed description of her fall which, again, does not mention problems with her boots at all. The same is true of her December 2016 personal statement. I therefore separately reject her case on the causative role of her boots and her position with regard to the stirrups in the accident.

There was conflicting evidence before me about Jazz’s temperament. It was common ground that horse riding has inherent risks. All horses can buck in particular circumstances but a distinction can be drawn between what all horses do in particular circumstances and horses with a propensity to buck. The Claimant’s case is that Jazz was one such horse and the Defendant knew or ought to have known not only that she had that propensity but also that it rendered her unsuitable for novice riders.

Between 2013 and 2014 Jazz’s veterinary records contain reference to her needing to be sedated when shod, having a sore back (which can give rise to a propensity to buck) and to being prescribed medication, “regumate”, to improve her mood. A particular entry, dated 12 February 2014 reads,

“Has been better over last 2 weeks. Stable manners – not been in ride so much so cannot comment on bucking etc/throwing toys out of pram etc but is definite improvement in temperament. Continue on regumate. Review 2 weeks.”

(I have made some assumptions as to what abbreviations in the note mean.)

There are no similar entries in 2015.

There are no reports of bucking by Jazz before the Claimant’s fall but three after it, two from 2017 and one from 2019. In the 2019 incident she bucked twice.

Sgt Shaun Kershaw gave evidence. He holds NVQ qualifications in riding instruction and horse care and management. Albeit that they cite different parts of it, both parties relied on the written statement which Sgt Kershaw provided about Jazz in July 2018 to his superior officer,

In his oral evidence Sgt Kershaw referred to Jazz’s potential to have really bad days and noted that she was difficult to handle when being shod. He did not however accept she was an unsuitable horse for novice riders or that she had a tendency to buck. He was not aware of any incidents concerning Jazz prior to the Claimant’s fall. He was aware of the incidents in 2017 and 2019.

Gunner Collins stated that she had not ridden Jazz but had seen others ride her and she described Jazz as quite a safe horse.

L/Bdr Oldfield stated in her 8 September 2015 MOD Form 510 recording the Claimant’s accident that she considered Jazz the safest of the three horses on the recruits ride. She expanded on that in oral evidence and said that she had had some familiarity with her over the course of the month or so before the accident although Jazz would not have featured in every lesson she taught. She considered Jazz neither to be an amazing horse nor one that was really badly behaved.

The post-accident reports of Jazz bucking were put to L/Bdr Oldfield who did not consider them excessive for a horse used frequently in lessons. Sgt Kershaw’s evidence was to similar effect. He pointed out that Jazz had done 5 pass out recruits’ rides whilst he was in charge of her, meaning that she had been positively chosen by recruits as a horse on which they could rely for such an important occasion. The suggestion was put to Sgt Kershaw that it would be proper to infer from Jazz’s post 2015 bucking record that there were similar incidents beforehand. He did not accept that and no records have been located to show that that was so. The existence and disclosure of the reports of bucking by Jazz after the accident leads me to the conclusion that if there had been similar incidents before then there would probably have been similar reports.

I have read the statement from Ashleigh Gaston dated 13 June 2021. She states that Jazz had a reputation for having a powerful buck, however I cannot attach any weight to it given that she did not attend to give evidence and she has failed to give any explanation for that. Her evidence is not consistent with the evidence about Jazz’s reputation which I did hear. Further, Ms Gaston incorrectly stated in her statement that on an occasion before the Claimant’s accident Jazz had bucked and unseated Gunner Collins. When Gunner Collins gave evidence she told the court that she had never ridden Jazz.

I was also asked to consider two Facebook messages, one from 2016 and one undated. Both suggest some difficulties with Jazz but the individuals who posted the messages have not provided any evidence and their context cannot be reliably understood. For similar reasons to those I have outlined in relation to Ms Gaston’s statement, I attach no weight to them.

Even though there are no accident reports, the Claimant invites me to draw the inference from the veterinary entry for 12 February 2014 which I have quoted that Jazz was known to buck and could be difficult prior to the Claimant’s fall.

In the experts’ joint report (August 2021) Ms Taylor advised that Jazz’s bucking could be explicable as a ‘normal’ equine response to a sore back or to her being in season. Ms Ham’s opinion is similar. Ms Taylor however observed that further evidence of similar behaviour might however undermine that conclusion. She referred to the evidence in the Facebook messages to which I have not attached any weight. In the absence of such evidence, Ms Taylor considered Jazz suitable for novice recruits to ride. I agree with the observation Ms Taylor made when she gave oral evidence that the vet would probably not have mentioned bucking in February 2014 unless there had been a reason to do so but the evidence does not go further than that. She told me she would not expect a horse suitable for novices to buck unless there was good reason (my underlining). It was clear from her evidence that Ms Taylor required more than the veterinary entry before she advised that Jazz was an unsuitable horse for a novice. There is no further evidence that I can accept. Rather, I find that the evidence supports Sgt Kershaw’s 2018 assessment. Jazz was a suitable horse for a novice rider such as the Claimant.

The Claimant has drawn attention to the absence, at the time, of any formal record of the temperament of horses and to the practice in other equine regiments of having such a record, a ‘horse detail form’. Sgt Kershaw was asked about this and told the court that the Troop relied on the experience of its instructors and senior soldiers. The Claimant invites me to find that system inadequate. For the reasons I have outlined in the paragraphs immediately above this one, I find that had a formal assessment of Jazz been made before the Claimant’s fall, it would have contained information similar to Sgt Kershaw’s 2018 assessment and justified L/Bdr Oldfield’s assessment on the day (with the benefit of her experience) that Jazz was the safest horse on the ride. It is not therefore necessary for the purposes of this judgment for me to consider whether the system of informal risk assessment was adequate.

For the reasons I have set out above I find that the Claimant has failed to establish her allegations of negligence and I turn to her case under the Animals Act 1971.

The Claimant’s case is that the Defendant is strictly liable to her for the fall pursuant to Section 2(2) Animals Act 1971. That section reads,

“(2)

Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage, except as otherwise provided by this Act, if—

a)

the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and

b)

the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances; and

c)

those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the animal as that keeper’s servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen.”

No judgment which dealt with section 2(2) would be complete without reference to the difficulties inherent in interpreting it. I have adopted the sequential approach to the section outlined by Lord Justice Neill in Smith v Ainger (Times 16 May 1990) and subsequently followed by, amongst others, Her Honour Judge Howells in Dennis v Voute & Another [2022] EWHC 2117, and Mr Justice Cotter in Boyd v Hughes [2025] EWHC 435. Lord Justice Neill set out his observations in 12 paragraphs, not all of which are applicable to every case and some of which have been the subject of later authority. Here, there is no issue as to whether Jazz belonged to a dangerous species, she did not; as to whether damage was caused to the Claimant by Jazz, it was; or as to whether the Defendant was Jazz’s keeper, it was. The statutory exceptions under section 5 also do not apply. That takes me to Lord Justice Neill’s paragraph (5),

“It is important that the court should consider paragraphs (a), (b) and (c) of section 2(2) in turn and that the trial judge should make the necessary findings of fact so that it is clear on what basis, if any, liability is established.”

I turn first therefore to the requirements of section 2(2)(a).

The Claimant has been consistent in the way she puts her case under this subsection. She relies on the second limb, that the damage was of a kind which if caused was likely to be severe. The damage in this case was personal injury. It is not disputed that the injury the Claimant in fact suffered was severe. Equally it is agreed that the test under section 2(2)(a) is a prospective test, turning on what was “likely”.

I am grateful to counsel for their assistance in addressing section 2(2)(a). There is a significant amount of agreement and their work has made the points at which they part company clear. I start with the matters on which they are agreed:

The parties’ respective lists of relevant context and circumstances had some differences.

Whilst acknowledging that my decision turns on the facts of this case, both parties invited me to look at how other judges had addressed the interpretation of the facts and circumstances in earlier cases involving falls from horses. The Claimant invited me to consider the decision of Mr Justice Langstaff in Lynch v Ed Walker Racing [2017] EWHC 2484 and the case of Koestler v Thomas [2024] PIQR P9 where Judge Harrison considered it a short step from a finding of a violent buck to conclude that the second limb of section (2)(2)(a) was satisfied. The Claimant further relied on the observation of Lord Justice Etherton (as he then was) in Freeman v Higher Park Farm at [34] that,

“It is obvious that, if a horse bucks on beginning to canter so that the rider falls off it is reasonably to be expected that severe injury will result.”

He drew an analogy between a horse which bucks and one which rears as the offending horse had done in Welsh v Stokes [2007] EWCA Civ 796.

The Defendant reminds me that, in the subsequent case of Turnbull v Warrener [2012] EWCA Civ 412 at [54], Lord Justice Lewison considered the observations of Lord Justice Etherton in Freeman and in Welsh to be ‘statements of fact rather than rulings on the law’. The accuracy of that is demonstrated by comparing the facts of Freeman to this case. Freeman involved much more experienced riders, hacking out, travelling at a canter (faster) and a fall occurring where there had been previous instances of the horse bucking.

The Turnbull case specific approach has been followed in later cases, see for instance Lynch v Ed Walker Racing at [32] and Boyd v Hughes [2025] EWHC 435 at [126] where Mr Justice Cotter observed,

“…The issue is fact specific and to be determined on the evidence before the Court. It is true that in some cases (Welsh being a paradigm) a fall onto tarmac with the horse then falling on top of the rider may mean that the conclusion as to likelihood can be easily reached. In other cases, and in my judgment the current case is one; matters are very far from so straightforward.”

Here there are two matters which I must determine before considering whether the circumstances were such that severe injury was reasonably to be expected. The first is the violence of the buck and the second is the point at which events become too proximate to the infliction of the severe injury properly to be taken into account when assessing its likelihood.

I turn first to the violence of the buck. In her November 2020 L/Bdr Oldfield described the buck as ‘small’. She was not cross-examined on that and I accept that it was her genuine recollection at the time she made her statement. She did not however qualify the word ‘buck’ in her accident report and I have not found her use of the word ‘small’ in a witness statement she produced five years later to be helpful. I accept equally the Defendant’s submission that the Claimant’s description of her fall in evidence is of a fall ‘forward and to the left’ as opposed to a projection upwards. The Claimant’s earliest description (the February 2016 description) is “as I turned the horse bucked and threw me off.” That could suggest some upward force but equally ‘threw me off’ might be being used in a looser sense. As she accepted in cross-examination the Claimant’s own perspective on the violence of the buck was necessarily limited. She did not see it coming. I do not find that the evidence establishes anything specific about the violence of the buck. What happened justified the use of that word, no more nor less.

On the second point of difference, I have concluded that taking into account the way in which the Claimant in fact landed is too proximate to the injury itself. The injury was caused by the contact between the Claimant’s shoulder and the ground and to take that into account would be to consider what happened not what was reasonably to be expected.

I must put myself in the position of a spectator (with an excellent view and plenty of time for analysis) at the point at which Jazz has bucked and the Claimant’s fall is inevitable. The relevant context and circumstances are

I take into account two further matters. The first is that I take notice of the general guidance provided by Ms Taylor at paragraph 9.5 of her report dated 7 July 2021,

“The majority of falls do not cause serious injury, but in saying that one is referring to a very wide range of circumstances. The likelihood of injury and the degree of injury depends on many factors. The speed and violence of the horse’s action, the height the rider falls from, how the rider lands and what surface the rider lands on.”

The second matter is that I must find that severe injury, such as that suffered by the Claimant was reasonably to be expected.

Having considered the matters set out above from the perspective I have outlined, I find that severe injury was not reasonably to be expected from the fall. The statistics favour no serious injury from a fall from a horse. The Claimant fell whilst unprepared and whilst travelling at a trot, not a canter, onto a relatively forgiving surface. She was unfortunate. It was an injury which could have been foreseen but was not reasonably to be expected. Whilst it did not play a part in my reasoning, I am fortified in my conclusions by the fact that severe injury does not appear to have been sustained by the riders in the three subsequent recorded instances of falls when Jazz bucked. Those incidents also took place at the riding school, also whilst she was travelling at a trot.

Whilst my finding as to the position under section 2(2)(a) is sufficient to dispose of the Claimant’s claimunder the Animals Act 1971, I have gone on to consider whether the Claimant would have met the requirements in section (2)(2)(b), had the position been different. Section (2)(2)(b) has two limbs. The first relates to the situation where a party can show that the likelihood of damage being severe was due to characteristics not normally found in animals of the same species. This has been distilled for the purposes of this case into the proposition that Jazz had an abnormal propensity to buck, which is acknowledged to be something not normally found in horses. As Ms Taylor told the court in evidence, all horses buck but normally for a reason and she would not expect a horse suitable for novices to buck unless there was a good reason.

Consideration of the first limb of section 2(2)(b) engages the issues that have already been explored when addressing Jazz’s temperament in the context of breach of duty. My conclusion in relation to that issue was that Jazz was a suitable horse for a novice rider such as the Claimant. She did not buck unless there was a reason for her so to do. As such she did not have an abnormal propensity to buck and the Claimant’s case under the first limb is not established.

The gateway offered by the second limb of section 2(2)(b) is a wide one as the well known decision in Mirvahedy has demonstrated. However it has limits. The likelihood of the damage being severe must be due to a characteristic not normally found in horses except at particular times or in particular circumstances. The characteristic must therefore be defined, as must the particular times or circumstances.

In his closing submissions Mr Lewers on behalf of the Claimant reminded me of the agreement of the equestrian experts,

“We agree that if the Defendant’s evidence is accepted and the three recruits were riding a manoeuvre across the school, that any horse feeling a rider’s loss of balance and lack of control, combined with the fact that the other two recruits and horses were moving away in the opposite direction, could [cause a horse to] buck.”

(Square brackets inserted by me.)

The Defendant has reminded me first that the characteristic must be one which save on particular occasions is not a characteristic of horses. It was not suggested however that it is a characteristic of horses to buck without there being particular circumstances to explain it.

It was further submitted by the Defendant that it was a necessary precondition of liability under section 2(2)(b) that I should be able to identify the time or circumstances at which the characteristic would normally be found and that for these purposes “normally” should be equated with “probably”. The fact that such a reaction was within the range of possibilities for a horse in the particular circumstances that pertained was insufficient. If it could be said that it would have been normal for a horse to buck and normal for a horse not to buck then that is not the sort of case intended to be caught by section 2(2)(b) and what happened should rather be seen as an ordinary riding incident. I reject that argument as inconsistent with the wording of the statute and the approach adopted in the authorities. When setting up the problem in Mirvahedy at [19] Lord Nicholls cited the vicious behaviour of a bitch with a litter not as probable behaviour by the species in the circumstances but as characteristic behaviour by the species in the circumstances. That accords with the wording of the statute. The Defendant’s contended for interpretation does not.

Finally the Defendant sought to draw an analogy between its case and the situation in Boyd v Hughes. It relied on the analysis of Mr Justice Cotter [182-184] which led him to the conclusion that the Claimant had not established a characteristic in that case. Those paragraphs were not quoted to me but, on examination, they are clearly not apposite to the situation here,

“182.

In my view the Claimant in this case has not established a characteristic that is normally found only at particular times or in particular circumstances; rather it is a general, normal characteristic of horses to shy/jink or move sharply (itself comprising a wide range of movement and markedly distinct to the more violent actions e.g. rearing, bucking or bolting) in response to a very wide range of sights or sounds present( or which the horse believes to be present) and which can occur at very many times and in very many circumstances which cannot be described or identified in any more detail or predicted.

183.

I consider there to be a material difference between a horse that rears, bucks or bolts in response to being startled or frightened by some identifiable external stimulus, or made to move forward when it does not want to do so, and a movement sideways in response to something which a horse sees or hears or believes it sees or hears and which it does not like or perceives to be a threat even when it is a wholly unpredictable response to an unidentifiable, ordinary and everyday part of the environment. I do not consider it a distinction without a difference. In my view it would so water down the requirement as to render it nugatory.

184.In my judgment it falls short of the line of adequate particularity. The Claimant would therefore not have satisfied section 2(2)(b) on the basis that my finding equated to a characteristic.”

(My underlining)

The distinction is drawn between a horse shying, jinking or moving sharply (the Boyd situation) and a horse bucking (our situation). One is a general normal characteristic and one is not.

The Claimant’s submissions in relation to the second limb under section 2(2)(b) are I find well founded. The characteristic not normally found in horses is bucking. The particular circumstances in which that characteristic is to be found are those defined by the equestrian experts and quoted above.

Section 2(2)(c) requires that the characteristics which fulfilled the requirements of section 2(2)(b) were known to the keeper. The issue of knowledge was considered by the Court of Appeal in Welsh v Stokes where Lord Justice Dyson observed at [70-71],

“It is not in dispute that subsection (2)(c) requires it to be shown that the keeper knew that the particular animal which caused the damage had the characteristics found to satisfy subsection (2)(b). The only question is how that knowledge can be proved. Miss Rodway submitted that it can only be proved by showing that the keeper knew that the particular animal had previously behaved in that way.

I do not agree. I do not see why a keeper’s knowledge that a horse has the characteristic of normally behaving in a certain way in particular circumstances cannot be established by showing that the keeper knows that horses as a species normally behave in that way in those circumstances. Indeed, the Mirvahedy case [2003] 2 AC 491 shows that subsection (2)(b) may be satisfied where the characteristic is displayed by the animal in the same particular times or circumstances as by other animals of the same species. It is a general characteristic of horses to bolt in the particular circumstances of the facts of the Mirvahedy case, or to rear in the particular circumstances of the present case. It makes no sense to require a keeper, if aware of that general characteristic, to have some additional and more particular knowledge.”

The passage I have quoted above from Welsh makes clear that thekeeper does not need to have knowledge of the characteristics of the particular horse. Knowledge of the characteristics of horses as a species in the particular circumstances will be sufficient. At paragraph 10.6 of her July 2021 report Ms Taylor’s observed that she would expect the keeper to have been aware that any horse might buck in the circumstances described. I interpret ‘the circumstances described’ to be a reference to the circumstances of the Claimant’s fall. Her analysis of the cause of the accident and that of Ms Ham, the Defendant’s expert, relied on their experience and knowledge of the behaviour of horses generally. I consider it reasonable to infer that the Defendant itself had a similar level of knowledge. Had it been relevant I would have found that the keeper was aware of the characteristics which fulfilled the requirements of section 2(2)(c).

I have found that the Defendant did not breach its common law duties to the Claimant and is not liable to her under section 2(2) Animals Act 1971. Those findings are sufficient to dispose of the issue of liability and I accordingly dismiss the Claimant’s claim. The Defendant however seeks a further finding that the Claimant has been fundamentally dishonest in relation to her claim and, if I am persuaded that is so, seeks my permission to enforce any order for costs ultimately made against her to the full extent.

I am invited by the Claimant carefully to consider the allegations that she has been fundamentally dishonest in the context of the background to her claim.

The Claimant was in her late 20s at the time of her accident. She had been in the regular army for a little under a year having excelled whilst in the Army Reserve. Captain Stone described himself as ‘proud, heartened and at the same time disappointed’ when she left to join the regular army because she had been such an asset. Her placement with the King’s Troop was the fulfilment of an ambition for her. It was where she wanted to be.

The accident on 4 September 2015 caused the Claimant to suffer a significantly displaced fracture to her left clavicle. She underwent an open reduction and internal fixation procedure in September 2015. She continued to experience pain, numbness and restriction of movement. She was referred for nerve conduction studies which took place in early 2016. During 2016 she had a course of physiotherapy and she was referred to a pain clinic. She needed help with the activities of daily living. She experienced little if any recovery and an MRI was undertaken in October 2016 to rule out a brachial plexus injury, which it did.

In November 2016 the Claimant was sent for rehabilitation at Headley Court. She was discharged in early December 2016. The Claimant’s diagnosis on discharge was, 1. Complex clavicular fracture – left, 2. Chronic Pain left upper quadrant. Her overall summary read,

“Overall patient showed great motivation to complete all tasks given and was fond of spending her CV time completing sessions on the bike with her aims to compete at the lnvictus games: On discharge it was suggested to continue with her IP from an ERi prospective and to seek guidance when returning for review.”

It was noted that the Claimant was low in mood. She could use her right arm for most tasks but avoided using the left arm.

Shortly after the Claimant’s time at Headley Court she was recommended for medical discharge. Her discharge was confirmed in February 2017 but did not take place until August 2017. As I noted earlier in the judgment her service was considered ‘exemplary’.

On 27 February 2017 the Claimant underwent further surgery. Her neuroma was excised and the metalwork in her arm was removed. She had a further nerve block injection in April 2017. When seen in an outpatient clinic in May 2017, the Claimant reported some improvement as a result of the surgery but continued to report ‘extreme sensitivity to the entire left upper limb, left side of her chest and some radiation of tingling sensation towards the right side of her chest’. She could not use her arm to undress and the clinician noted generalised wasting in the left arm. She reported pain, weakness and restriction of movement.

The Claimant was discharged from orthopaedic follow up in October 2017 and placed in the care of the pain team. By this time she had obtained part-time work with a previous employer, Jonathan Whiting Independent Funeral Directors.

The Claimant had various pain clinic appointments in 2018. She also underwent a further nerve block in May of that year. At the same time the Claimant was training for the Invictus Games in Sydney, which were held in October 2018. There she won medals in recumbent cycling and athletics.

Preparation for the Claimant’s claim against the Defendant got underway in earnest in the latter part of 2018. She issued her claim in September of that year and saw Mr Lourie, her orthopaedic expert, in December 2018. The history she gave to him was similar to that she had provided to those seeing her clinically. Mr Lourie noted that the wound area was especially sensitive but that the bone had soundly united. He also found the Claimant was hypersensitive over her tip of her left shoulder, the front of the joint and the adjacent chest wall. She did not use her left arm to undress. He described “very minor muscle wasting of deltoid around the shoulder joint” and recorded significant reductions in movement.

By the time the Claimant had seen Mr Lourie she had obtained a quotation to convert her car to automatic. That quotation is dated 5 October 2018. It relates to an Audi A3 TDI motor vehicle registration number BL10 BUF, and was provided by a Mr Shaun Wilson of HRG Limited, Shard Garage Poulton-le-Fylde. The Claimant told Mr Lourie that she had had this work done,

“She did not restart driving until three years after the accident but has now had her car adapted: it is an automatic and the indicators have been moved to the right side of the steering column and she has a knob to rotate the steering wheel.”

The Claimant continued to have invasive treatment. She began trials of spinal cord stimulation in June 2019. That was the same month she saw Dr McDowell, the Defendant’s pain management expert.

The receipt by the Defendant of Dr McDowell’s evidence marked a turning point in its approach to the case. He pointed out that the orthopaedic surgeons who operated on the Claimant had been happy with their work and that subsequent investigations had not revealed a clinical cause for her presentation. His examination had not revealed anything either. In keeping with his duty to the court therefore, he drew attention to the fact that the objective clinical findings did not, in his opinion, support the Claimant’s presentation,

“In my opinion, given Miss O’Connell’s assertion that she is unable to use the left upper limb, the objective clinical findings are not in keeping with somebody who is unable to do this. They indicate that the claimant has normal, or near normal, use of the limb. There is no evidence that the claimant is suffering with Complex Regional Pain Syndrome.”

Dr McDowell drew the attention of the court to entries in the medical records which were difficult to explain given the Claimant’s history. Those included entries where hypersensitivity was not documented when it would be expected to be, as well as entries suggesting a greater strength and range of movement in the left upper limb. Dr McDowell was struck by the absence of muscle wasting, particularly when comparing his observations to those two years previously which had recorded such wasting. The difference suggested to him that she had been using her left arm in the intervening period.

Dr McDowell expressed his conclusion as follows:

“Whilst I would ultimately defer to expert upper limb orthopaedic opinion, my own opinion is, having viewed the medical records, that the claimant sustained a late complication of clavicular fracture, namely a neuroma of the supraclavicular nerve, this was excised, and that she had developed a degree of neuropathic pain. However, in my opinion, the degree of pain has been exaggerated and, whilst ultimately it is a matter for which the Court to opine, I have concerns about the reliability of the claimant’s account of her functional loss and pain.

I consider that the claimant does not require any further input from the Pain Clinic and she should be capable of normal employment and should have no care needs.”

The Claimant told Dr McDowell that she drove an adapted car but only locally.

The Claimant saw two other experts in 2019, Dr Tyrie (Defendant psychiatrist) and Mr Smith (Defendant orthopaedic). She gave histories consistent with those she had previously given. Mr Smith’s findings on examination were similar to those of Dr McDowell. He was baffled by her presentation, observing that it was almost unheard of for patients who had undergone the same procedure as the Claimant and then gone on to bony union, to have significant ongoing problems. He advised the court that the muscles and nerves around the Claimant’s left shoulder were working and that ‘for whatever reason’ she was not using them. He could not tell whether that was a conscious or unconscious decision but he drew attention to the lack of muscle wasting.

The Claimant told Mr Smith that she had an adapted car which she obtained about a year before he saw her (that ties in with the timing given to Mr Lourie) but she only drove it when she absolutely had to.

The Claimant continued to undergo invasive treatment. In February 2020, she had an operation under general anaesthetic for the insertion of a spinal cord stimulator. She continued with her part-time work throughout.

In November 2020 the Claimant was examined by her pain expert, Professor Lalkhen. She gave him a similar history of pain, weakness, sensitivity and restriction of movement in her left shoulder and upper limb. She reported that she could hold light objects and move her left elbow. She had adapted to her disability so that she could do more for herself but still relied on assistance from her grandmother and her friend and employer, Julie Whiting.

Professor Lalkhen took photographs to show the comparative lack of movement in the Claimant’s left upper limb compared to her right (as Mr Lourie had done). He considered the Claimant’s presentation by reference to the Budapest criteria for the diagnosis of Complex Regional Pain Syndrome (‘CRPS’). He concluded that she met the diagnostic criteria: ongoing pain, disproportionate to her injury motor and sensory signs and sensory, motor and sudomotor symptoms. He accordingly advised the court that the Claimant had experienced acute neuropathic pain due to nerve injury which had evolved into chronic neuropathic pain and CRPS.

Consistent with his duty to assist, Professor Lalkhen addressed in his first report what he described as ‘Issues of veracity’ and ‘Malingering/Symptom ‘magnification/Exaggeration’. He stated that he had no concerns that the Claimant was not being honest,

“I appreciate that the Claimant’s truthfulness is a matter for the Court. The information obtained from Miss O’Connell at clinical interview combined with an assessment of the events following the index accident provides a clear biopsychosocial narrative of the development of chronic pain following the index accident. The Claimant in my opinion has reported pain symptoms, pain-related distress and pain-related interference with activities of daily living in a manner which is consistent with individuals who are honestly reporting their difficulties. I have no reason to doubt her veracity with regards to her level of activity but I would be happy to comment on any additional information if and when it became available. The Claimant has engaged positively with pain management physiotherapy and psychology in an attempt to improve her function.”

I consider these observations are indeed of assistance. Whilst the assessment of the truthfulness of a Claimant is a matter for the court, it helps a judge to hear from an expert how a particular Claimant compares with other individuals with similar conditions whom the expert has seen in clinical practice. The expert can point out the presence or absence of anything unusual in the history they obtain, in their findings on examination, in their reviews of the records and in the statements and other relevant material in the case.

The Claimant told Professor Lalkhen that she had an adapted vehicle.

In December 2020, the Claimant was subject to surveillance organised by the Defendant. Footage was obtained of her driving her car (it was not possible to see a great deal inside the car), walking her large dog and undertaking various work related duties. She predominantly used her right arm but intermittently used her left arm in ways which were mildly inconsistent with what she had told those reporting to the court. The footage was not disclosed at that point.

The Claimant saw Dr Eldred (Claimant psychiatrist) to whom she provided a similar history to the one she had provided to earlier experts. She also told him that she had an adapted vehicle.

Preparations for trial continued in 2021. The Claimant served witnesses statements, all dated June 2021, from herself, her grandmother Maureen O’Connell, her then employer, Julie Whiting, along with the statements from Captain Stone and Ashleigh Gaston to which I have already referred in this judgment.

Expert evidence from non-medical experts (Equestrian, Care, and Employment) was obtained by the parties and medical and non-medical joint statements were completed in the latter part of 2021 and early 2022.

One piece of evidence in the Claimant’s statement dated 11 June 2021 has turned out to be of significance. Under the heading ‘Aids’, the Claimant stated,

“I purchased an automated car for £9.000 as I would not be able to use a car with a manual gearbox.”

That is different to the account given to the experts that she had had her existing vehicle adapted.

The course which the case was taking changed in March 2022 when the Claimant was subject to a second round of surveillance.

On 12^th March 2022 she and a friend, Shireen Timmis, transported two horses in a horsebox from a field in Winthorpe to a field in Snarford. That is a journey by road from south of Lincoln to north of Lincoln. It takes more than half an hour.

It was necessary to hire a horsebox to move the horses. The Claimant hired it. It was a manual transmission vehicle and she drove it. She can be seen on the footage carrying both small and bulky items using her left hand. She also used her left arm for other manual tasks, to manoeuvre a large box and when placing a metal cage onto a sack trolley. At another point in the footage the Claimant had both her left arm and her right arm above her head for over a minute as she tried to secure one of the doors to the horsebox. The Claimant appeared to use both hands when trying to lead a reluctant horse into the horsebox and to use her left arm when manoeuvring herself over the partition in the horsebox. She was still using her left arm to load items into her own car boot once her work with the horses was finished.

The following day, 13^th March 2022, the Claimant was again seen with the horses at the field in Snarford. She used both her arms to pull a load on a trolley. At one stage, and briefly, she used the left arm alone. She used a rake in one hand and a shovel in the other to undertake poo-picking. She held a large bin open with her left hand and used her left hand to cut a carrot for her horses.

On 26th April 2022 the Claimant informed the DWP that her disability was unchanged. She still needed assistance with cutting food and preparing hot drinks along with aspects of bathing and dressing/undressing. She reported that her pain remained the same as before and it restricted her daily activities.

The Claimant found out that she had been subject to surveillance in late April 2022 and the Defendant was given permission to rely upon that evidence by the order of Master Cook dated 31^st May 2022. There was provision for further statements and expert comment. The timetable was adjusted to accommodate this.

The Claimant served a detailed schedule of loss dated on 5 May 2022. It was endorsed with a statement of truth, which was signed on her behalf by David Poole of Austen Jones solicitors. The Claimant averred that she had derived little or no benefit from treatments for her pain, that she needed assistance with personal care and domestic activities and could only manage part-time work. She remained hypersensitive. The Claimant claimed that she reasonably needed and would continue to need a support worker for 5 hours a week and domestic assistance of four hours a week. She would need a carer to accompany her to sporting events. The schedule included the claim for the car referred to in her 2021 statement and, for the future, claimed the costs of automatic transmission, infrared controls and a steering knob. It was pleaded that the purchase of the automatic vehicle had occurred in 2018.

The total value of the claim in that schedule was £2,446,738.66.

On 20 May 2022, fifteen days after her schedule had been signed on her behalf, the Claimant took part in an investigatory meeting which was part of a disciplinary process at her work, Jonathan Whiting Funeral Directors. The meeting was recorded and a transcript was prepared. Most of the matters raised with the Claimant do not have relevance to this claim. She was however asked questions concerning her alleged failure to comply with the appearance standards expected of a person working at a funeral directors. Included with the disclosed material were undated photographs which showed the Claimant’s left and right hands, both of which were dirty. She was wearing ‘outdoor’ clothes in the photographs. The complaint being addressed was,

“Quite often she’ll come to work in the clothes that she’s been to see the horses in and then she’ll change at some point during the day.”

In the interview the Claimant was asked whether she attended work in work clothes. She answered,

“So, no, usually I arrive in civilian clothes because I have horses, so, normally I would go to the horses, and then arrive in those clothes so as not to get my work clothes dirty. So, I usually keep my work clothes at work. She’s really going for-, she’s really digging it here, I know where she’s going with this. I cannot actually believe this. So, yeah, I mean I have technically, on paper, I’m on a part-time contract, but I work full-time hours, which is reflected in my payslips. So, what tends to happen is Julie has allowed me more, sort of, flexible working over the last few months because of the ongoing issues I’ve had with my horses and my mental health. So, yes, usually I would go to the horses, we negotiated about an hour either end of the day, so I can either, sort of, leave an hour early or start an hour late and this is beyond belief considering that I have to come into work sometimes at 8 o’clock in the morning, which is definitely not in my contractual hours, to carry out funerals. I can’t believe this.”

In a statement that she prepared and made available to the investigator, the Claimant shared matters which were causing her significant personal stress. These included the following,

“My young horse sustained an injury that lead to him being taken to a Veterinary hospital and staying for 4 weeks, he was very unwell and it was an up and down emotional rollercoaster, I had to keep taking leave from the office to see the vet with him, travel and take things to him and receive phone calls with updates on his condition. At times it looked as though he might need to be put to sleep but he did eventually come home on Friday 6^th May, the day after my leave started. I have a £12,000 vet bill to pay and I earn £1,300 a month this has caused me significant financial pressure of which Julie was aware because we had discussed a potential loan from the business and on 6^th May I asked her for that £1,000 loan which she sent the same day.”

In June 2022 the Claimant and her employers reached an agreement as to the terms of her departure.

In a detailed letter dated 16 June 2022 the Defendant made clear that it considered the Claimant’s claim had been dishonest since April 2017, around 6 weeks from her February 2017 surgery and set out grounds in support of that position. The letter included a request for evidence concerning her Audi A3 car,

“We would be grateful for clarification regarding a further matter. The Claimant has represented that her car, Audi A3, has an automatic transmission and has been adapted at her expense in light of her alleged injuries. Please would you provide evidence both of the vehicle’s automatic transmission (including a copy of its V5 logbook) and of the adaptations that have been carried out, including the date and cost thereof?”

The Claimant has never supplied the V5 logbook.

The Claimant continued to seek help in the form of psychological therapy. She started that therapy in 2022. It continued into 2023 and included a number of sessions she funded herself. She has continued to pursue athletics although she was not selected for the 2024 Paralympics. Her focus is currently Adaptive CrossFit athletics and her plan is to pursue a career as a professional adaptive athlete.

The Claimant’s statement dated 3^rd August 2022 contained detailed comments on all the surveillance. On the key surveillance, that dated 12^th and 13^th March 2022, in essence her explanation was that she was helping out a friend in need, Shireen Timmis, to whom the horses belonged. Her effort was exceptional and only possible because of her use of her spinal cord stimulator and pain-killers. She stood by the accounts she had previously provided to experts. Shireen Timmis herself provided a supporting statement. A further statement from the Claimant dated 31st December 2022 recorded the fact that she had lost her job and had entered into an agreement with her ex-employers but did not go into detail about the circumstances which had led to that and the relevant documents had not been disclosed at that stage. They were subsequently obtained when the Defendant made an application for third-party disclosure in November 2023.

All the experts (medical and non-medical) provided reports commenting on the surveillance evidence and the Claimant’s statement in response. The evidence of the non-medical experts has not been particularly relevant to my decision on the issue of fundamental dishonesty and does not feature in this judgment.

Mr Lourie (Claimant orthopaedic) accepted that the Claimant had a significantly improved range of movement on surveillance compared to when he saw her. He considered the explanations in the Claimant’s statement and a contrary position both to be tenable. Mr Smith (Defendant orthopaedic) considered that there was evidence that the Claimant had voluntarily chosen not to use her left arm when seeing the experts. In his opinion the footage showed that the Claimant had full, normal use of her left arm. The Claimant subsequently obtained orthopaedic evidence from Mr Gilham as Mr Lourie had retired. He did not offer an orthopaedic explanation for the Claimant’s symptoms and deferred to other experts.

Mr Gilham and Mr Smith provided a joint report in October 2024. They offered the following agreed observations,

“Both Experts agree that there is some degree of inconsistency in the available documentation for which they are unable to provide an orthopaedic explanation.

The Experts agree that there is some degree of inconsistency between the claimed disability and the surveillance footage reviewed for which they are unable to provide an orthopaedic explanation.

After a detailed review of the available clinical records, including more recent investigations and each other's examination findings, neither Expert has been able to identify an orthopaedic reason for the Claimant’s reported left upper limb disability.

Both Experts agree that, in view of the disability that the Claimant claims, significant muscle wasting would be expected to be noted on clinical examination. The Experts agree that this was not a feature noted on either of their examinations of the Claimant.

The Experts also agreed that he absence of wasted muscles is difficult to explain on the basis of her reported disability.”

There were insufficient differences between the experts to justify their attendance at court and they were, sensibly, not called.

Dr Eldred (Claimant psychiatric) was provided with the surveillance evidence and recorded the Claimant’s observations about it but did not himself comment on its significance. Dr Tyrie (Defendant psychiatric) also rehearsed the observations of others but did not add to them.

Just as the Claimant had with her orthopaedic evidence, so the Defendant had to instruct another psychiatric expert. It instructed Dr Collinge in place of Dr Tyrie. In her evidence Dr Collinge pointed out that surveillance was of limited use in diagnosing the kind of mild mood disorder systems which were under consideration in the Claimant’s case. She noted the inconsistencies to which other experts had drawn attention and stated that she was unable to offer an explanation from a psychiatric perspective. She reminded the court that, if the Claimant was found to be unreliable, that would affect her opinion because of the reliance she had to place on the Claimant’s history. Neither the joint report of Dr Tyrie and Dr Collinge nor their oral evidence contained anything further that was material to the issue of fundamental dishonesty which I have to decide.

Dr McDowell, unsurprisingly, took the view that the 2022 surveillance evidence confirmed the opinion he had expressed in 2019. He properly accepted that the issue of veracity is a matter for the court but, equally properly, offered his opinion to assist. In his view the Claimant appeared to be functioning completely normally and that gave him cause to doubt her reports. In stating that he was doing no more and no less than Professor Lalkhen had done in the passage I have included from his 2020 report at paragraph 96 above, albeit that they came to different conclusions.

Professor Lalkhen’s opinion that the Claimant was suffering from CRPS was central to her case. In his second report dated 27/7/2024, he changed his opinion because in the light of the video evidence he no longer considered that the Claimant had the shoulder motor dysfunction she reported to him and therefore she did not meet the Budapest criteria on the basis of which he had diagnosed CRPS. He was prepared to offer a revised but supportive formulation. Based on the Claimant’s report of persistent pain, he advised that she was suffering with ‘Chronic pain after peripheral nerve injury but not CRPS type 2.’

In his second report Professor Lalkhen did not include sections with the same titles as those in his November 2020 report, ‘Issues of veracity’ and ‘Malingering/Symptom ‘magnification/Exaggeration’ and did not make any explicit comment on the section which I have quoted under paragraph 96. Rather, he stated,

“It would be for the Court to interpret the Claimant’s report of pain-related disability to experts and the function which she demonstrates on the video surveillance and explained in her witness statement 03/08/22.”

and, in a section entitled ‘Allegation of fundamental dishonesty’,

“The Claimant’s veracity is a matter for the Court.

The video surveillance has caused me to change my opinion regarding the Claimant’s chronic pain diagnosis. The diagnosis of CRPS was based on the Claimant’s self-report and cooperation during the clinical examination.

There would be a range of opinion regarding the Claimant’s explanation that she took a dose of gabapentin and used her spinal cord stimulator to reduce her pain to a sufficient degree that she was able to help her friend with delivery of the horses. Whilst the gabapentin and the spinal cord stimulator may have not had an effect beyond a 30% placebo effect, if sufficiently motivated by the psychological reward of the activity, individuals with chronic pain can perform tasks that they would not normally undertake and would be willing to suffer the consequences of increased pain after the activity.”

The joint report of the pain experts did not produce any further material relevant to the issues I have to decide.

When he gave oral evidence Professor Lalkhen described the Claimant’s presentation on the video surveillance as very different from the brief examination he undertook. He would not have thought what the Claimant was doing there possible based on her report to him but he left open the possibility that people in her position can undertake tasks which appear beyond them if they are sufficiently important to them and they are prepared to suffer the consequences.

Having read his reports and having heard him give his oral evidence, I have come to the conclusion that Professor Lalkhen did not, in his second report, comment on his earlier opinion about the Claimant’s honesty and veracity because he was no longer of the views he had expressed there. I appreciate that I have the benefit of hindsight. I have heard all the evidence in the case, some of which was not available to Professor Lalkhen. I further appreciate that Professor Lalkhen might point to his silence in his second report on the subject of the Claimant’s honesty and consistency as something from which the necessary inferences could be drawn. I am nonetheless of the view that, having made the remarks he made in his first report, it was part of his duty as an expert positively to make clear that he no longer held those views. Had he done so, all parties, including the Claimant herself, would have benefited from that clarity.

It was put to Dr McDowell in cross-examination that his comments that he would expect to have seen muscle-wasting if the Claimant was as disabled as she said she was, involved him departing from his role as an expert and trespassing into the court’s territory. I disagree with that. Both he and Professor Lalkhen assisted the court by sharing what they would expect to see in a patient with the Claimant’s history and presenting complaints. As I have made clear in the paragraphs above, I consider that, if anything, the court and the parties would have been assisted by more comment from Professor Lalkhen, not by less from Dr McDowell.

The Defendant relies on a number of aspects of the evidence in support of its contention that the Claimant has been fundamentally dishonest. I have not addressed all of them in this judgment. I have focused on the four areas I consider important. In its skeleton argument for trial the Defendant’s submissions on fundamental dishonesty were focused on the surveillance evidence (in particular the March 2022 surveillance) on how the Claimant’s presentation on video was different from her accounts of her disability elsewhere. The video evidence is my first area. Over the course of the trial other evidence relevant to fundamental dishonesty became significant. That evidence can usefully be grouped under three further headings – (2) evidence in relation to the Claimant’s responsibility for horses, (3) evidence relating to the Claimant’s car, (4) other material inconsistencies.

It is necessary before beginning to discuss the evidence to record the fact that the Claimant gave evidence on two occasions. The main part of her evidence was given on the first two days of the trial (Tuesday 8^th July and Wednesday 9^th July). However, she returned to the witness box on Monday 14^th July. This happened because whilst she was giving her evidence for the first time the Defendant came into possession of further evidence, screenshots of Facebook messages between the Claimant and her mother from the summer of 2022. The evidence was particularly relevant to the issue of the vehicle adaptations but also touched on the question of the Claimant’s employment and her overall disability. I drew the attention of both parties to the observations of the Court of Appeal in Ras al Khaimah Investment Authority v Farhad Azima [2021] EWCA Civ 349. Consistent with the pragmatic approach that characterised counsel for both parties, Mr Lewers accepted that the evidence would be admitted but sought further time to respond to it. He was given that time and, in the end, the Claimant provided a further statement on 12^th July to which the Defendant’s solicitor, Ms Kirstie Mallaney, responded with a statement of her own on 13^th July.

The Claimant attributed her capacity to assist as seen on the surveillance, in part at any rate, to the beneficial effects of her spinal cord stimulator and the use of a strong pain-killer, gabapentin. She was taken to a number of reports and entries in the records where she had described both treatments as ineffective. The Claimant was asked where she got her medication from in 2022. She said that she still had some from when she had been prescribed it six years before.

It was put to the Claimant that she had not told any expert that she could raise her arm for brief periods. She pointed out that she had never said that that was something she could not do. Her response when she was asked why she had not mentioned to them that she was capable of this level of activity even if exceptionally, was similar. She answered the specific questions she was asked and it did not come up.

In relation to the period of surveillance where her left arm was above her head, the Claimant stressed that that was only possible because she could hold on to something with her hand. She stressed that her left arm played a limited role in the manual handling and that she was materially assisted by her friend Shireen.

The Claimant accepted that the information she had given the experts was that she could hold nothing or light objects in her left hand. When it was put to her that she was holding a water container in the surveillance footage, she replied that it was a light, empty water container. She gave similar answers in relation to the other objects she was seen carrying in her left hand. The Claimant was asked why she had not included comment on the section where she used her left arm to pull a trolley in her August 2022 statement in response to the surveillance, which went into some detail in its analysis of the footage. She replied that she was unsure why that was not there.

It was put to the Claimant that she presented on the surveillance as not disabled at all. She denied that.

Ms Timmis gave evidence. Her evidence was largely supportive of that of the Claimant and she rejected the constructions of the surveillance evidence Mr Fetto suggested to her. She was clear that the Claimant had little use of her left arm. She was grateful for the Claimant’s support and understood the effort it cost her. She asked the Claimant to help because she did not have many ‘horsey’ friends to call on. She explained that she was not sufficiently confident in driving the horsebox because she had problems with her own back and shoulder at the time.

I also heard evidence about the Claimant’s disability and restrictions from her grandmother, Maureen O’Connell. She provided a great deal of assistance to her adult grand-daughter, such as putting toothpaste on her toothbrush, whether or not that assistance was needed or even sought. She had not seen the surveillance evidence before the hearing and found it difficult to comment meaningfully on the extracts to which she was taken. She did suggest that the fact that the Claimant had cut a carrot (something that Maureen O’Connell had said she could not do in her statement) could be explained by reference to the different height and texture of the surface which she was using. She was asked about her grand-daughter’s activities outside the home. She told the court that the Claimant did not share the minutiae of her life with her and so she did not for instance know how much she had looked after horses but she did recall them having an argument about it. She was sure that, if the Claimant was able to do more, she would not impose on her as much as she did.

Responsibility for the horses

It was put the Claimant that the horses she was moving were hers. She was adamant that that was not the case, they had never been her horses. It was put to her that she had looked after them since 2020. She denied that. Ms Timmis gave supportive evidence on this point.

The Claimant was asked about looking after horses. It was put to her that she tended to horses in the morning before coming to work. She said that was not correct. The photograph of her hands and the transcript of her investigatory meeting with her then employer, Jonathan Whiting, were shown to her. She said that she did not recall the matter of her dirty hands being raised. The part of the transcript where she explained why she came to work in dirty clothes was put and she said that she did not recall saying that. She said it was the first time she had seen the document. (As I noted above, the documents were in fact obtained pursuant to an order granted by Master Davison in November 2023 which required disclosure by the end of February 2024. They had been included in the trial bundle.)

The Claimant was taken back to the subject of horses on the second day of her evidence. She again said that she did not think she said what was on the transcript (although she later appeared to accept that she had said it) but she added that she did look after the horses she had moved for a week at the end of March 2022 at the request of Shireen. She invited a construction of her answers that they simply related to the week she was looking after the horses for Shireen. When therefore she said,

“…usually I arrive in civilian clothes because I have horses, so, normally I would go to the horses, and then arrive in those clothes so as not to get my work clothes dirty.”

‘normally’ in this context therefore meant normally that week she was looking after the horses but not normally at other times. Ms Timmis’ evidence was that the Claimant looked after her horses when she had broken her leg and that was for quite a long time.

The Claimant was asked about her message to her mother in July 2022 in which she said she was just feeding the horses. The Claimant’s evidence is that this must have been a ‘one-off’ at the request of Shireen Timmis.

Evidence relating to the Claimant’s car

At the beginning of her evidence the Claimant was given permission to rely on a further (5^th) statement dated 3^rd July 2025. Part of that statement addressed the issue of the October 2018 work to her car. She testified that the work was done in Blackpool but not by Shaun Wilson who had provided the estimate but by a Mr Paul Barton. It had cost £2,000 but she was not claiming for that. She exhibited to that statement ‘photographs of my car’ taken in July 2025. The car was a white Audi A3 with the same numberplate as the car seen in the December 2020 surveillance, BL10 BUF. It was automatic transmission. It has large distinctive decal stickers covering the doors on the driver’s side, containing the poppy emblem, images of soldiers and the words ‘Lest we forget’. The Claimant’s evidence was that the car’s indicators had been moved across and that it had been manual and was now automatic. She produced further photographs of an adaptation to her parking brake which she stated that she had put in place at the same time as the other adaptations were done in 2018.

The Claimant was asked by Mr Fetto about the evidence in her June 2021 witness statement that she had purchased an automatic car for £9,000. She told him that that was wrong. She was asked where the figure came from and said she did not know. She never purchased another car. When it was suggested to her that the claim was in her schedule of loss, she stated that she did not believe it was. When she was taken to the schedule, she said that she thought it was a mistake. She could not explain how the claim came to be made. In her sixth statement dated 12^th July 2025 she stated that £9,000 was the sum she paid for her car but she bought it before the accident.

One of the Facebook messages, which is split over several pages, concerns the estimate for adapting the vehicle from October 2018 which was provided by a Mr Shaun Wilson of HRG Ltd. It had come up in the context of her providing material for her August 2022 statement. The Claimant refers to the fact that the quote was provided by ‘Shaun’ and asked her mother whether she thought that, if the Defendant were to make contact with Shaun, he would consider saying “it was an off books favour to convert it”. The clear implication of this is that this is not what had happened. The Claimant’s mother subsequently forwarded a message in which an unknown person (whom I infer was ‘Shaun’) said that he thought he had been quite specific about this and that if the Claimant and her mother tried to pursue it as a claim it would be an easy win for the other side. Their best hope would be to say that they have no bills and the garage has gone bust. The same person advised that if there was no claim in his view the Defendant would not be bothered contesting it but that if there was an attempt to run with it the Defendant might pick up on that and ‘cry fraud’. The Claimant replied to her mother that she understood “it’s about being caught up leading on that the car is automatic when it is actually manual”. There were then further exchanges about who might be prepared to say that they had done the work. The Claimant’s mother’s partner ‘Mac’ was canvased (“They don’t know he isn’t a mechanic or related”) but he refused. The names “Paul” and “Uncle Paul” came up. The Claimant’s mother observed in a message “I would use Paul he will say yes and not bother.” Subsequent messages showed that their confidence in “Paul” was not misplaced. He agreed to do it. The message from the Claimant reads,

“Absolutely…don’t know what shauns (sic) problem was really…Paul knew nothing about it and was just like, yeah sure!”

The Claimant also asked her mother if her car was a manual or automatic. On being told it was a manual she sent a further message in which she shared that she was thinking that her car, “might need to go into hiding until all this is over…I don’t want to get rid of it but I should be driving an auto really…was gonna say we could swap until it’s all done but no good if yours is auto (sic) too.”

On 3^rd August 2022 the Claimant sent a Mr Paul Barton, the 2018 quotation. The accompanying message reflected the contents of her 3rd August 2022 witness statement, the relevant extract from the latter is set out below,

“I have found some paperwork from the initial garage HRG Ltd I approached in Poulton-Le-Fylde, which is an estimate of the work (68-69). The garage giving the estimate were unable to do the works so I then had the work carried out independently by Mr. Paul Barton, who works at Cowley Road MOT Centre, Blackpool.

I cannot currently find any paperwork from Mr Barton’s work, although I will continue with my search, but he followed the estimate from HRG Ltd. At the time I had an M&S bank account and I have requested statements from M&S and the payment for the work should be recorded in the statements. Mr Barton also said the V5 wouldn’t be altered for the conversion as it isn’t a requirement for change of transmission.”

In her fifth statement which deals with these messages, the Claimant acknowledged that “read in isolation and without context” they could seem like attempts on her part to persuade others to give false evidence. She stated that this was not the case. At the time she was under stress and panicked. She had been asked by her solicitor for a statement, she had no paperwork and was unable to get hold of Mr Barton who was in fact the person who had done the work. Her attempts to contact others were attempts to get retrospective confirmatory evidence and were a result of her inability to contact Mr Barton in the time available. Coincidentally one of those others was the Claimant’s great-uncle, “Uncle Paul”. The Claimant’s evidence therefore was that, whilst knowing nothing about it, Uncle Paul was ready to step in and provide some confirmatory evidence. Fortunately contact details for Paul Barton were located in time and he could testify to the fact that the work was undertaken.

The Claimant’s discussion about her car going into hiding was motivated by her desire not to be the subject of surveillance, not by a wish to conceal the fact that she owned a car with manual transmission. The Claimant exhibited video footage of her Audi A3 to the statement taken on 12 July 2025.

The Claimant’s statement was followed within 24 hours by a statement from the Defendant’s solicitor, Ms Mallaney. There Ms Mallaney advanced, for the first time, the proposition that the car currently owned by the Claimant was not the car seen on the surveillance in March 2022. They were two different white Audi A3s. They both had the same numberplate but the car seen in the March 2022 surveillance had manual transmission; the car in the Claimant’s July 2025 video was automatic. Ms Mallaney further deposed first to the fact that an Audi with the registration plate BK12 NTX had had a registration plate change on 14 December 2022, from BK12 NTX to BL10 BUF (the Claimant’s plate) and second to the fact that the mileage on the invoice for Audi the Claimant bought in February 2015 was over 120,000. The mileage on her current vehicle was 94,086 miles a lower reading than the Audi had at the time of its 2015 purchase. Ms Mallaney’s attempts to trace a separate BK12 NTX vehicle were unsuccessful. Entering the plate BK12 NTX into car checker websites simply produced the details for BL10 BUF.

On 14 July 2025 the Claimant gave further evidence. It was put to her that she said she had bought an automatic vehicle in her witness statement in June 2021 and in her schedule of loss in July 2022 and she had said the same thing to her care expert, Ms Gouldstone in November 2021. The Claimant accepted that the documents read that way but that was not the position. The position was as set out in her August 2022 statement. She had had the vehicle she owned adapted. She said, in oral evidence, that there were further messages between her and her mother which would have provided greater context to those before the court. Her answers in oral evidence reflected those in her statement. She was asked at the end of her evidence why she did not tell her solicitor what the problem was (that is that she was having some difficulty locating Mr Barton) and ask him what she should do. She did not know why she had not done that.

The Claimant disclosed further documents relating to her vehicle on 15 July 2025. Ms Mallaney commented on those documents in a further statement also dated 15 July 2025. The key point emerging from those documents is that two different VIN numbers were recorded in relation to the vehicle with the registration plate BL10 BUF, one number ending in 1703 and one ending in 5347. The plate BL10 BUF is currently attached to 5347. It was attached to 1703 until December 2022 when the plate was transferred from 1703 to 5347. 1703 now has a different registration plate, FR10 0DP. The Defendant invites me to find that this evidence confirms that, albeit that they were the same make and colour and had the same registration plate, the Claimant was driving a different car in March 2022 to the one she is driving now.

In closing submissions the Defendant further invited me to compare the decal stickers on the vehicle in the surveillance in 2022 to those on the video taken of the Claimant’s vehicle in 2025. I have done so and I agree they are obviously different.

Other material inconsistencies

One of the Facebook messages contained an offer from the Claimant to her mother in the following terms,

“When you get a free weekend and fancy some manual labour let me know…I was thinking about laying some of the dreaded plastic boards in the horse field before the bad weather comes..but no idea how to do it”

Her mother replied that she would and doing the work in September was discussed. In her 12^th July 2025 statement the Claimant accepted that she did intend to do this work but said she would have done it on her own but for her shoulder injury.

The Claimant was asked about her world para athletic form completed in April 2023. On its first page she has signed it dated to confirm that it was a true account. On the second page is a section entitled “Health condition as described by the athlete”. The information recorded under that is “Nerve damage to brachial plexus”. The Claimant accepted that she knew that she had not damaged her brachial plexus but said that she did not believe that those were her words and she did not see the form. On the same part of the form was a box entitled “Athlete’s description of primary impairment impacting sport.” The recorded answer is “no left arm power due to no movement”. This form was of course filled in after she had demonstrated the movement on the video. The Claimant was asked about that and replied that she could not remember what she had said and that it was their wording.

The Facebook messages include a reference to the Claimant having booked some work with Amazon. It had been her evidence that she had done no work and she was in receipt of benefits on that basis. In her 12^th July 2025 statement the Claimant explained that this work was a one-off trial day which did not work out and was something she had forgotten about.

The Claimant told Ms Gouldstone in 2021 that she was limited to part-time sedentary employment managing three to four hours per day and working three days per week. This was the narrative basis of her claim for loss of earnings in her schedule of loss signed with a statement of truth and dated 5 May 2022. During the investigatory interview with Peninsula on 20 May 2022, the Claimant stated that she worked full-time hours and that her pay slips would demonstrate that.

This is a case to which the regime of Qualified One-Way Costs Shifting set out in CPR rr 44.13 to 44.16 applies. The effect of that part of Rule 44 is to preclude a Defendant from enforcing an award of costs save by way of set-off against damages or adverse costs orders, unless one of the exceptions contained in CPR 44.15 or 44.16 applies.

One of the exceptions, CPR 44.16(1) relates to ‘fundamental dishonesty’. It reads,

“Orders for costs made against the Claimant may be enforced to the full extent of such orders with the permission of the court where the claim is found on the balance of probabilities to be fundamentally dishonest.”

The phrase is also used in section 57 Criminal Justice and Courts Act 2015 which requires that the court dismiss a claim, notwithstanding that the Claimant was entitled to damages, if the Claimant has been fundamentally dishonest in relation to it (or a related claim).

The test for dishonesty at common law is that set out by the Supreme Court in Ivey v Genting Casinos Limited [2018] A.C. 391 at paragraph 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 meaning of the phrase “fundamental dishonesty” was considered by the Court of Appeal in Howlett and another v Davies and another [2018] 1 WLR 948. There at paragraphs 16-17 Lord Justice Newey cited with approval an earlier judgment of His Honour Judge Moloney QC,

Analysis of the decided cases on “fundamental dishonesty” has almost invariably led judges back to the statute itself. I have in mind Mr Justice Freeman’s observations in Denzil v Mohammed [2023] EWHC 2077 at paragraph 41, with which Mr Justice Cotter agreed in Boyd v Hughes, that,

In cases where there is a finding of dishonesty the three questions posed by Mr Justice Cotter in Brian Muyepa v Ministry of Defence [2022] EWHC 2648 at paragraph 388 are useful tools for assessing whether the dishonesty has been fundamental;

“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,

a)

At what stage and in what circumstances did the Claimant’s dishonest conduct start? In some cases the true core of the claim, the base, can be determined without considerable difficulty and the dishonesty can be traced to a point/time when the Claimant decided to consciously exaggerate for financial gain, for example after an operation or treatment has alleviated symptoms. The timeframe may be an extended period, e.g. as residual symptoms gradually ease, or sharply defined. In other cases it may be more difficult to identify when the dishonest conduct started. In any event the court is entitled to proceed with considerable caution in answering this question given the limits of any reliable evidence.

b)

Does the dishonesty taint the whole of the claim or is it limited to a divisible element?

c)

How does the value of the underlying valid claim (which the court must assess) compare with that of the dishonestly inflated claim? There is no set ratio as to what constitutes fundamental dishonesty but it is usually important to consider relative values.”

I have dismissed the claim and therefore the requirement at (c) to assess its value contained section 57(4) does not apply. The significance of the dishonesty and how it would have affected the value of the claim remain however relevant considerations.

Like all capacitous Claimants, the Claimant either verified her statements and her schedules of loss with a statement of truth herself or authorised their verification by her solicitors. This is a step in the litigation whose importance was set out by His Honour Judge Sephton KC at paragraph 171 of his judgment in Shaw v Wilde [2024] EWHC 1660,

“In my view, the statement of truth indicates that the person verifying a document knows what they are signing and vouches for its accuracy. This is the object of the clear policy evident in recent rule changes: the form of the statement of truth has been altered so that a person who verifies a document appreciates the serious consequences of verifying without an honest belief in its truth; the rules have changed to ensure that persons whose own language is not English express themselves in their own language. The court is entitled to expect that a person who verifies a document understands it and has an honest belief that what he is verifying is true.”

The burden of proving fundamental dishonesty is on the Defendant. The standard to which I must be satisfied is the balance of probabilities taking into account the serious nature of the allegations.

The Defendant argued that the evidence showed that the Claimant had misrepresented her disability in a way which fell within the definition of fundamental dishonesty. In particular,

The Claimant has invited me to attach weight to the following matters,

The Claimant has shown herself to be a resilient individual. She had started out on her cherished career and was deprived of it by a fall which would not normally have had such serious consequences. She was unlucky. The evidence of Captain Stone is a reminder of how well she might have done had she been able to stay in the army. It was a sign of the esteem in which he held her that he took the trouble to come to court and testify.

Having lost her career and at a time when she was still significantly restricted, the Claimant proactively sought and found employment.

The Claimant has shown herself to be motivated particularly in pursuit of athletic success but also in other areas. She has pursued avenues of treatment, including invasive treatment and I note that she funded her own psychological therapy in 2023. Her achievements in the field of athletics are testament to her determination.

The evidence shows that, for some time after it occurred, the accident had serious disabling consequences for the Claimant. The surveillance evidence from 2020 is, from the Defendant’s perspective, at best neutral, with relatively minor inconsistencies being balanced out by what appears to be a tendency to favour the right arm.

Notwithstanding the matters set out above, I am afraid that my conclusion is that the evidence that the Claimant has been dishonest is overwhelming.

I accept the evidence of Dr McDowell (supported by the orthopaedic experts) that the increase in muscle which he noted in June 2019 as compared to the generalised wasting noted in the clinical notes in May 2017, was a sign that the left upper limb was being used more.

The differences between what the Claimant told the Part 35 experts who examined her and what she can be seen doing are stark. They are not capable of being explained by assistance from her friend Shireen. I do not accept the explanation that she was rendered capable of doing what she can be seen doing by pain killers and a spinal cord stimulator. Neither had helped her in the past or would do so again. She chose to hire and drive a horsebox with manual transmission. That of itself is inconsistent with her account as to the extent of her disability.

The difference in the Claimant’s presentation was sufficiently material to cause Professor Lalkhen to change the opinion he offered to the court. I am not surprised that he did not feel able to repeat the reassurance that he had previously offered the court that her presentation was in keeping with what he would expect from an honest Claimant.

The Claimant’s April 2022 account of her disability to the DWP cannot realistically be reconciled with what she can be seen doing a little over a month earlier.

The Claimant relies on the evidence of the witnesses, Maureen O’Connell and Shireen Timmis to corroborate her account of her disability at this time. I do not accept that evidence. Maureen O’Connell came across to me as a witness who was making some effort to assist the court but by reason of her close relationship with her grand-daughter. However, she found it difficult to be objective. She was also and, to a material extent, reliant on and inclined to accept what the Claimant told her about the extent of her disability. I am driven to the conclusion that Shireen Timmis gave what she knew to be a partial and inaccurate account of the Claimant’s disability and of her involvement with horses to which I shall turn below.

The Claimant’s presentation on the video is of someone with normal or near normal function in their left upper limb and shoulder. That is what I find the Claimant had at that time. I do not accept her accounts of continuing pain and hypersensitivity. I find her evidence in relation to her symptoms must be dishonest.

I find that what the Claimant told the investigator in May 2022 about having horses in her charge was the truth. Whatever the legal position, she was responsible for the care of more than one horse on a long term basis. What she told me in evidence was not true. She simply would not have said what she said to the investigator if the position were otherwise. If her coming in to work with dirt on her hands and in outdoor clothes unsuitable for work as a funeral director had been because of a short-term need to help Shireen Timmis out with her horses, then that would have been what she said at the time, as it would have been an answer to her employer’s concern.

To state, as the Claimant did in oral evidence, that she did not recall giving what was a lengthy and detailed account of her ownership of horses was not credible. I am confirmed in that conclusion by the later reference to her responsibility for vet’s bills for the horses. The Claimant attempted to construe her answers in this part of her investigatory interview to make them consistent with the scenario she had put forward in oral evidence. This involved her suggesting that when she said ‘normally’ in the context of coming in to work after looking after horses that meant the same as ‘for that week but not afterwards’. I do not accept that.

The Claimant’s account to the investigator is in fact consistent with a Facebook message she sent to her mother in July 2022 saying that she was ‘just feeding the horses’. The use of that phrase without further expansion suggests that it was a regular activity rather it being a ‘one-off’ favour for Shireen Timmis. That is what I find it was.

The Claimant was unable to explain why she had included a claim for a purchase of an automatic vehicle in her June 2021 witness statement. I find the reason she could not explain it was that she had no regard for whether it was true or not. She is responsible for that untruthful statement and for the inclusion of a false claim within her 2022 schedule endorsed with a statement of truth that she bought a vehicle in 2018 for £9,000 when, in fact, she did not.

I find that the Claimant did indeed own two white Audi A3s, the first having a VIN ending in 1703 and the second ending in 5347. She transferred the number plate from one to the other. I refer to them as 1703 and 5347 below. The diligent research of Ms Mallaney produced the evidence in support of this. Its cogency gradually increased and eventually reached the point where I find it was irrefutable:

The Claimant’s evidence is that she has driven the same car since 2010. For the reasons set out in the paragraph above I find that is not the case. I note that the Claimant’s closing submissions (perhaps realistically) did not suggest that I positively find that the car in 2025 was the same car as in the 2022 surveillance. I am asked either to find that the evidence is insufficient to come to a conclusion on or that if I find there were two cars, then I should find that the Claimant did not know that to be the case. I do not accept that is plausible. Anyone who drives a car knows when it has been changed. In the Claimant’s case she had the added assistance of the different stickers. Further, she would have had to fill in the paperwork for the sale of her vehicle and the transfer of its plate.

I have set out my findings without rehearsing the contents of the Facebook Messages. They demonstrate that the Claimant was looking for someone to give false evidence that alterations had been undertaken to her car in 2018, when that had not happened. Her explanations for the messages she wrote do not accord with the natural meaning of the words she used and I reject all of them. The natural interpretation of the messages is that she wanted to conceal the fact that she was still driving a manual vehicle and wanted to find someone who would corroborate that. If her priority had been to track down the Paul Barton who had actually done the work on her vehicle, that is what she would have focused on in her messages. The messages do not suggest a particular difficulty in tracking him down. Second, if her explanation that she was running out of time to find him were correct, she would have shared her difficulties with her solicitor and asked him what she should do.

The timing of the change of the number plate is consistent with that having been alighted on as the best way forward to maintain what was a false account of vehicle adaptations that never took place.

The request by the Claimant that her mother assist her in manual labour is couched in terms which suggest that she was fully capable of playing her part in what needed to be done. It is accordingly consistent with and corroborative of the proposition that what can be seen on the March 2022 videos is not something exceptional.

The reference in the Facebook messages to working for Amazon does not naturally read as if this was a first time for the Claimant, as she told me in evidence but I accept it is not wholly inconsistent with that.

The Claimant’s May 2022 schedule put, as part of her case, that she was only fit for part-time work. I find that a little over two weeks later she told the investigator retained by her employer that she was working full-time hours. The only inference it is realistic for me to draw is that what was stated in the Claimant’s schedule was dishonest. I find the Claimant knew that she was working more than was stated in her schedule at the time she authorised it.

It follows from my findings as to her false presentation of her disability that the Claimant not only did not reasonably need the support she claimed in her schedule but that she knew that to be so.

Taking all these matters together I find that the Claimant knew that her evidence about her disability, her responsibility for horses, her vehicle and her employment which she has provided in her statement and her schedule for the purposes of these proceedings were untrue. I further find that she knew that she was being dishonest. Even if she did not know that, what she did was dishonest by the standards of ordinary decent people.

The Claimant’s dishonesty goes to the heart of her claim. She has been dishonest in relation to each aspect which I have discussed in order to present a picture that she is materially more disabled than she in fact is. That false picture supported a claim for higher general damages than her actual disability would have permitted, a significantly greater loss of earnings claim, principally because of the effect it has on her presentation of her residual earning capacity and justified a claim for future support to which she would otherwise have not been entitled.

I would answer Mr Justice Cotter’s three questions from Muyepa as follows:

This is a claim which I have found to be fundamentally dishonest. The Claimant has persisted with her dishonesty over a long period. She has sought to engage others and her attempts to conceal the truth have been sophisticated. It is I find an appropriate case in which to grant permission to the Defendant to enforce any order for costs it may obtain against her to its full extent.