Motion on fundamental dishonesty refused

A Defender’s attempt to have a Personal Injury Claim dismissed because of the Pursuer’s fundamental dishonesty was refused by a Judge in a recent Court of Session Action.

In Grant Grubb v John Finlay [2017] CSOH 81 Mr Grubb raised a Personal Injury Action arising from a collision between his and another motor vehicle on a forecourt of a Tesco Petrol Station in Dundee. The Defender admitted liability but disputed the injury claim.

Lord Kinclaven hearing the case refused the Defender’s Motion to dismiss the Action outright and also a renewed motion after the conclusion of evidence. He held, on the basis of the evidence, that the Defender’s submissions alleging fundamental dishonesty on the part of the Pursuer were not well founded in fact.

Amongst the arguments put forward by the Defender was the accident was at a very low speed and that the Pursuer was exaggerating his symptoms for financial gain.

His Lordship, despite finding the Pursuer not to be an entirely credible or reliable witness, found on the evidence he had suffered some injury as a result of the Defender’s negligence and was entitled to be compensated. The collision, which was shown on CCTV footage, was held to be sufficient to cause significant damage to the Pursuer’s vehicle and to cause injury to both the Pursuer and his passenger.

However it was accepted by Lord Kinclaven that causation of the full extent of the Pursuer’s injuries was problematic. Whilst it was accepted the Pursuer had suffered symptoms for more than twelve months and indeed continued to do so, in light of the evidence of one of the Defender’s medical experts a finding was made on the balance of probabilities that the Pursuer suffered a soft tissue injury which lasted for around twelve months or so from the accident. The ongoing symptoms were not proved to be causally linked to the accident.

At the conclusion of the evidence the Pursuer’s Counsel sought Decree in the sum of £182,880.80. However the Pursuer was awarded a much lower sum of £7,321.32, comprising £6,000 plus interest for personal injury only. Given the finding in respect of causation, most of the heads of claim sought by the Pursuer were held not to be established.

The fundamental dishonesty claim was defeated as the Court considered, whilst the defence case was robustly presented, it had a relatively weak evidential foundation in respect of certain material matters. Some of the witnesses called by the Defender were held variously not to be credible or reliable or impartial. In addition some of the skilled witnesses relied upon by the Defender gave evidence which was held to be diminished. They had relied relied upon material which was prejudicial to the Pursuer which was either unfounded, unsubstantiated or departed from.

In this case whilst the Defender’s attempts to have the case dismissed were defeated on the evidence, the Defender did have significant success in limiting the extent of compensation awarded to the Pursuer with the Pursuer being awarded less than 5% of the sum sought by him at the conclusion of the Proof.

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