Brian Muyepa v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cotter |
| Judgment Date | 21 October 2022 |
| Neutral Citation | [2022] EWHC 2648 (KB) |
| Docket Number | Case No: QB-2018-005174 |
| Court | King's Bench Division |
| Year | 2022 |
[2022] EWHC 2648 (KB)
Mr Justice Cotter
Case No: QB-2018-005174
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Laura Collignon and Michael Smith (instructed by Bolt Burden Kemp Solicitors) for the Claimant
Andrew Ward (instructed by Keoghs LLP) for the Defendant
Hearing dates: 27th, 28th, 29th, 30th June 2022 & 4th, 5th, 6th, 7th, 8th, 11th, 12th & 14th July 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Index
| i. Introduction | Page 3 |
| ii. Brief factual overview | Page 3–4 |
| iii. Lay witness evidence | Page 4–5 |
| iv. Expert evidence | Page 5 |
| v. The approach to the lay witness evidence | Page 5–10 |
| vi. The Claimant's case | Page 10 |
| The Claimant's evidence | Page 11–17 |
| The Claimant's witnesses | Page 17–31 |
| vii. The Defendant's case | Page 31 |
| Marlon Lessey | Page 31–36 |
| Alice Mgemezulu | Page 36–37 |
| viii. Analysis of the lay witness evidence | Page 37–39 |
| ix. Expert evidence | Page 39 |
| (a) Medical expert evidence | Page 39–41 |
| NFCI experts | Page 41 |
| Dr Carey | Page 41–45 |
| Dr Mumford | Page 45–47 |
| Analysis | Page 47–52 |
| Psychiatric experts | Page 52 |
| Dr Baggaley | Page 52–53 |
| Dr Friedman | Page 54–55 |
| Analysis | Page 55–57 |
| Pain experts | Page 57 |
| Dr Sidery | Page 58–60 |
| Dr Edwards | Page 60–63 |
| Analysis | Page 63–65 |
| (b) Non-medical expert evidence | Page 66 |
| Care | Page 66–74 |
| Employment | Page 74–78 |
| x. Findings of fact | Page 78 |
| Chronology | Page 79–93 |
| Conscious and dishonest exaggeration | Page 93–95 |
| Effect of dishonesty on breach of duty | Page 95–96 |
| What would have happened if no NFCI | Page 96–97 |
| What would have happened if the Claimant had not exaggerated his symptoms | Page 97 |
| xi. Valuation of claim | Page 97 |
| General damages | Page 98 |
| Past Loss | Page 98–101 |
| Future loss | Page 101–102 |
| xii. Fundamental dishonesty | Page 102 |
| Relevant principles | Page 102–109 |
| Analysis | Page 109–110 |
| Substantial injustice | Page 110–111 |
| xiii. Conclusion | Page 111–112 |
Introduction
By proceedings issued on 20 July 2018, the Claimant seeks damages for personal injury and consequential losses as a result of the Defendant's alleged breaches of statutory duty and common law duty of care, which resulted in him suffering a Non Freezing Cold Injury (“NFCI”) 1. He alleges that he initially sustained a NFCI to his hands and feet whilst participating in a Potential Non-Commission Officer (“PNCO”) promotion course at Sennybridge in Wales in February/March 2016. He was diagnosed with the condition and a recommendation was made that he should not work in cold environments. On two occasions during 2016 he worked in the Ascension Islands in a warm climate and the condition improved. On his return to the UK the condition significantly worsened after he had worked in a cold environment in hangars over the winter 2016/2017. A Medical Board held on 23rd June 2017 downgraded him and he was medically discharged on 16th January 2018 2. It is his case that ongoing symptoms from the NFCI have left him severely disabled.
It is the Defendant's case that if the Claimant's claim is genuine there was a breach of duty. If, however, the Claimant deliberately engineered an NFCI injury to advance a fraudulent personal injury damages claim, then there were no reasonable steps that the Defendant could have taken to prevent the injury such that it would not be in breach of duty to the Claimant. In any event it is the Defendant's case that the Claimant has either created, or consciously and significantly exaggerated NFCI symptoms to such an extent that he has been fundamentally dishonest and the claim must be dismissed.
The case turns on whether the Claimant has been honest about the existence, causation and extent of NFCI symptoms. In his final Schedule of Loss dated 4th May 2022, he claims damages of £2,977,821 3 a very significant sum. However if the Defendant's case is accepted he faces devastating personal consequences. Both sides' approach to the hearing reflected the importance of the case and the mills of this litigation have ground slowly; but they have ground fine. Over 12 days I heard from 29 lay witnesses and 10 expert witnesses.
Brief factual overview
The Claimant was born in Malawi on 5 th June 1988. In 2004 following death of his mother, the Claimant arrived in the UK (aged 16) to live with his father who was
Following domestic issues and court action he was placed on a three-year promotion bar. As at 2016, he had two children born on 1 November 2007 and 4 April 2012.
By the winter of 2016/2017 he remained on his entry grade but was taking the necessary preparatory steps for promotion. It is his case that he would have remained in the army for his full term had he not suffered an NFCI.
Lay witness evidence for Claimant
I heard from the Claimant, his wife Racheal Muyepa and also from
i. Christoper Olivant
ii. Clara Chibwana
iii. Alexander Chitenji
iv. Peter Makosah
v. Elizabeth Makosah
vi. Davie Chirwa
vii. Balena Mwalwanda
viii. Patricia Morgan-Lynch
ix. Austin Chiwala
x. Yamikani Guba
xi. Pesley Khonje
xii. Mada Brown
xiii. Peter Napolo
xiv. Wanga Nkalo
xv. Christa Nanton-Browne
xvi. Garfield Taylor
xvii. Princess Green-Taylor
xviii. Edwin Mtumbula
xix. Erness Chirambo
xx. Amos Khonje
xxi. Mervis Muyepa
xxii. Blessings Msowoya
xxiii. Cecilia Khan
xxiv. Martin Brown
xxv. Noel Chikoleka
I also heard from two lay witnesses called by the Defendant; Marlon Lessey and Alice Mgemezulu.
Expert evidence
I heard from the following experts who were called by the Claimant
i. Dr David Carey (an expert in NFCI)
ii. Dr Martin Baggaley (a consultant psychiatrist)
iii. Dr Mike Sidery (an expert in chronic pain conditions)
iv. Amanda Kerby (an expert in care and occupational therapy)
v. Mr Craggs (an employment expert)
I also heard from the following experts called by the Defendant
i. Dr Colin Mumford (a consultant neurologist)
ii. Dr Trevor Friedman (a consultant psychiatrist)
iii. Dr Neil Edwards (an expert in chronic pain conditions)
iv. Jill Ferrie (an expert in care and occupational therapy)
v. Mr Cameron (an employment expert)
The approach to the lay witness evidence
Given the polarised cases of the parties, what is at stake, the fact that at least one person took the oath and perjured themselves to advance or undermine a very large claim, the large number of people interested in the case and also the content of the closing submissions it is, unusually, necessary to briefly set out my approach to evaluation of the lay witness evidence and the determination of factual findings. I do so with some considerable hesitation as Judges up and down the land deal with factual issues on a daily basis and much of what I will set out are elements of very basic Judgecraft.
In Pomphrey v Secretary of State for Health & North Bristol NHS Trust [2019] EWHC [2019] Med LR Plus 25 I stated as follows in respect of the determination of disputes as to the facts 4;
“[31] I start with some very general and basic propositions. When evaluating the evidence of a witness whose testimony has been challenged it should be broken down into its component parts. If one element is incorrect it may, but does not necessarily, mean that the rest of the evidence is unreliable. There are a number of reasons why an incorrect element has crept in. Apart from the obvious loss of recollection due to the passage of time, there may be a process of conscious or subconscious reconstruction or exposure to the recollection of another which has corrupted or created the recollection of an event or part of an event.
[32] The court must also have regard to the fact that there can be bias, conscious or subconscious within the recollection process. When asked to recall an event that took place some time ago within the context of criticism, people often take an initial stance that they cannot have been at fault; all the more so if the act in question was in terms of their ordinary lives; unmemorable. There is a tendency to fall back on usual practice with the telltale statement being “I would have” rather than “I remember that I did”.
[33] The approach to the exercise of fact finding in a complex case (when faced with stark conflicts in witness evidence) as necessarily requiring all the pieces of the jigsaw to be fitted together is often both flawed and an exercise in the impossible. This is because individual pieces of the jigsaw may be wrong, distorted to a greater or lesser degree, or absent. Indeed, it is not possible to make findings if the state of the evidence or other matters mean that it is not proper to do so (see generally ( The Popi (M) Rhesa Shipping Co SA v Edmunds [1985] 1 W.L.R. 948). However, often a sufficient number of pieces may be fitted together...
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Mr Michael Nana Mantey v Ministry of Defence
...of symptoms is capable of being dishonesty going to a substantial part of a claim. 16 Similarly in Muyepa v Ministry of Defence [2022] EWHC 2648 (KB) at [390] Cotter J also had no difficulty in finding that the deliberate exaggeration of “symptoms and functional limitations for financial g......