Airbus Operations Ltd Qbe Insurance Company (uk) Ltd v Adam Lee Roberts
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick |
| Judgment Date | 14 December 2012 |
| Neutral Citation | [2012] EWHC 3631 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 December 2012 |
| Docket Number | Case No: CO/2770/2012 |
[2012] EWHC 3631 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-bick
and
Mr. Justice Cranston
Case No: CO/2770/2012
and
Mr. William Featherby Q.C. (instructed by Berrymans Lace Mawer LLP) for the applicants
Mr. Craig Sephton Q.C. and Mr. Brett Williamson (instructed by Gray & Co.) for the defendant
Hearing date: 28 th November 2012
Introduction
This is the judgment of the court on an application by the claimants, Airbus Operations Ltd ("Airbus") and its employer's liability insurer, QBE Insurance (Europe) Ltd ("QBE"), to commit the defendant, Adam Roberts, to prison for contempt of court. It arises out of a claim the defendant made for damages for personal injury said to have been suffered in the course of his employment by Airbus. That claim was later comprised in circumstances to which we shall refer in due course. Airbus, with the consent of QBE, admitted liability but disputed the amount of damages. The claimants say that the defendant set out to manipulate the proceedings by exaggerating his symptoms to such an extent that his claim was fraudulent. His conduct therefore amounted to contempt of court and ought to be punished.
Background
In October 2007 the defendant was employed by Airbus as an apprentice aircraft electrician. On 15 th October, while he was applying cable to the wing of an Airbus A380, he fell and twisted his back. He says that he immediately felt some pain but that it was not severe and he was able to finish his shift. The next day he found that the pain had increased noticeably. He went to work as usual, but left after about an hour in order to see his GP. The doctor advised him to take proprietary painkillers and go to the accident and emergency department of his local hospital if the pain did not subside. The defendant found that ordinary painkillers were not effective and, since the pain was becoming worse, he did so. The hospital carried out an MRI scan which revealed small tears in his lumbar discs, but it was not thought that relatively minor degeneration of that kind could have produced the symptoms of which he eventually complained, namely, lower back pain radiating down his right leg.
The defendant approached his trade union for help and was referred to a firm of solicitors who agreed to act for him. In April 2008 they sent a letter to Airbus on his behalf claiming damages for personal injury and consequential loss. Just under two months later, in mid June 2008, the claimants indicated in response that liability would not be in dispute.
The defendant was off work from October 2007 until the beginning of January 2008. Between late November 2007 and early April 2008 he underwent a course of physiotherapy which he found beneficial. When he returned to work in January 2008 he was able to resume his former job as an apprentice, but he stopped work again in June 2008 and in about August 2008 he started using a crutch. In November 2008 he was seen by a spinal surgeon, Mr. Braithwaite, but decided not to undergo surgical treatment because he considered that the risks outweighed the likely benefits.
In April 2009 the defendant was examined by a consultant orthopaedic surgeon, Mr. Wootton, with a view to producing a report for the purposes of legal proceedings. In a report dated 21 st April 2009 Mr. Wootton described the defendant as suffering from low back pain radiating to his right leg which disturbed his sleep and prevented him carrying out various activities that he had previously liked. He recorded the defendant as having told him that he could walk only short distances and normally had to use two crutches. Mr Wootton diagnosed soft tissue injury to the spine. There was clinical and radiographic evidence of a torn disc or annular tear of the disc with degeneration of the disc. One of Mr Wootton's recommendations was enrolment in a functional restoration programme at an orthopaedic hospital. The defendant did attend such a programme but said he had not obtained any benefit from it. Mr. Wootton examined the defendant again on 23 August 2010. He reported that the defendant was no better and that his symptoms remained as before.
The defendant's solicitors issued a claim form in the Wrexham County Court on 30 th September 2010 claiming damages for personal injury. Particulars of claim were served on 17 th January 2011 verified by a statement of truth made by the defendant's solicitors with his authority. In the particulars of claim the defendant relied on the admission of liability made in June 2008 and said very little about the circumstances in which he had sustained the injury. It was alleged that the defendant suffered from persistent and chronic pain and the preliminary schedule of loss included claims for future loss of earnings, care and support, equipment, adaptations to property, and medication and treatment costs. The following month Airbus served a defence to the claim.
On 11 th January 2011 the defendant was examined by Professor Main, a clinical and health psychologist, in connection with his claim. In a report dated 1 st June 2011 Prof. Main recorded that the defendant had told him that his symptoms had worsened around October 2010, that he stayed in his room most of the day and that he had pain all across his lower back and buttocks, with radiation down the right side of his right leg to his ankle. Prof. Main concluded that the persistence of pain and the impact of pain on his sleep, well-being and function had led to the development of a severe psychologically mediated chronic pain syndrome, which had adversely affected his capability for work and which in turn had further demoralised him. Prof. Main said that he could detect no evidence that the defendant was other than genuine in the presentation of his symptoms.
On 24 th July 2011 the defendant signed a witness statement produced for the purposes of the proceedings. It was verified by a statement of truth. After outlining the accident and his symptoms, the defendant described his current state of health. He said he could walk only short distances; he had to use two crutches, although at times he managed with one, particularly when carrying something; he was in constant pain. He said he was unable to carry out any domestic activities apart from some light cleaning work; he needed the assistance of others for anything more strenuous. He relied on his neighbours for help with the garden and would have to pay others to do the painting and decorating when that became necessary.
In September 2011 the defendant was examined by two doctors on behalf of the claimants. Mr. Marks, a consultant orthopaedic spinal surgeon, saw the defendant on 9 th September. He recorded the defendant as saying that his wife had to get him in and out of bed, dress his lower half and put on his trousers, socks and shoes, and help him to shower. He was unable to undertake any household activities and had given up decorating and gardening. Mr. Marks noted that the defendant moved with discomfort and used a walking stick to get from the consultation area to the examination couch, a distance of several feet. He concluded that the defendant appeared to have developed a symptomatic lumbar degenerative complaint as a result of the accident, but that the disability described by the defendant was much greater than he would have expected.
Dr. Tim Johnson, a consultant in pain management and anaesthesia, examined the defendant on 26 th September 2011. The defendant's description of his symptoms on that occasion was similar to that which he had given to Mr. Marks. Dr. Johnson concluded that the defendant's accident had played an insignificant role in the development of his problems. There were complex explanations for his failure to rehabilitate, including his seeking compensation, unresolved medical issues, the possibility of surgery, and an overwhelming psychological reaction. We shall return to the reports of Mr. Marks and Dr. Johnson later.
On 3 rd October 2011 the defendant's solicitors served a revised schedule of special damages. The claim for past loss of earnings was put at £28,018 and the claim for past care and assistance at £19,958. The claim for future losses remained unquantified.
The surveillance
In the meantime, events had occurred that were to have a profound effect on the progress of the defendant's claim. Over a period of three days in June 2011 the defendant was kept under observation by investigators engaged by QBE. On 17 th June 2011, he was seen leaving his house on foot. Although he had a crutch on his right arm, he appeared to be walking without apparent difficulty and with no sign of a limp. He appeared to be putting very little, if any, weight on the crutch. Some time later he was observed at a house in Ellesmere Port with a lady we now know to have been his mother. A video recording of his activities was made over a period of about an hour and three quarters. The recording shows the defendant carrying building materials from a house and putting them into a skip. He can be seen moving without any apparent difficulty, despite the absence of a crutch or any other walking aid, and carrying heavy objects, including a wash basin, a lavatory, a cabinet containing an electric bar heater, a bathroom wall cabinet, and several bags full of some kind of rubbish. Although his mother can be seen helping him to carry a bath to the skip, he can...
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