PI Brief Update

What Every Claimant Should Know - Dr Mark Burgin

22/04/25. Dr Mark Burgin explains the very high standards that are now expected of a claimant following the case Boyd v Hughes [2025] EWHC 435 (KB).

1. Provide Full and Accurate Disclosure:
   • It is a high standard to expect a layperson to ensure "every detail" is correct but claimants should make a genuine effort to be truthful and complete.
   • Flagging uncertainties by saying "I'm not sure about this detail, but..." is not likely to help as the expert cannot include these comments.
2. Seek Clarification and Professional Guidance:
   • Claimants should rely on their lawyers for guidance on how to present information but cannot be coached on what to say.
   • There is a responsibility on lawyers to provide clear, accessible advice on fundamental dishonesty to their clients.
3. Rely on Documentary Evidence:
   • Documents are more reliable than memory but claimants may lack comprehensive records and may not keep the right information.
   • A medical questionnaire can allow the claimant time to really consider the questions before the assessment.
4. Avoid Overstating or Generalizing:
   • Claimants may use everyday language that, while not intentionally dishonest, can be interpreted as exaggeration.
   • Even neutral, fact-based language can be misunderstood and the lawyers should instruct an expert with experience in communication skills.
5. Be Transparent About Uncertainty:
   • Claimants should ensure that they answer the expert’s questions but also that they are aware of their limitations.
   • For instance, Estimating timescales (fact) is acceptable but self-assessment of severity (opinion) is not likely to be reliable.
6. Understand the Legal Definition of Dishonesty:
   • The legal definition of dishonesty is changing so that honest mistakes may be considered to fall below the standard expected.
   • If a claimant has a hidden disability such as neurodifference or feels they do not understand the definition they can ask for reasonable adjustments.

TheBoyd v Hughes case.

Boyd v Hughes was a fundamental dishonesty case where the judge was critical of the claimant’s use of language both in the medical reports and during the trial. The medical experts appear to be orthopaedic surgeons and they were asked to give disability opinions. There was a dispute whether the claimant had used the exact wording in the reports.

The wording used was open to misunderstanding and the experts confirmed that it would be ‘unusual for the elbow to have a full range of pain free motion following this injury’. Some issues were ‘not specifically asked by either expert in their interview’. The claimant’s version was ‘she took pain killers and "just get on with things"’.

One expert stated that they were ‘not aware that she was back to football matches’ but ‘not surprised by the Claimant's evidence that she could not carry a heavy shopping bag’. ‘He would anticipate that there were several activities (e.g. cooking and gardening) that she would still have difficulties with’. The claimant submitted that ‘she had made, and was continuing to make, an excellent recovery from a nasty injury’.

The court found that ‘The Claimant did not fully disclose to either medical expert that she had resumed football and rugby training in August 2020’. ‘She knew that she was not giving honest answers to some of his straightforward questions.’ The claimant and their solicitor would have read through the reports and did not flag up the mistakes.

Disability analysis.

Disability analysis provides a comprehensive framework to understanding disability. The activities of daily living assessment is more detailed than is normal for an orthopaedic surgeon. The expert considers functional restrictions so that any problems that the person has is properly explained. The claimant is asked how they do the activity rather than whether they can or cannot do the activity.

The Disability analysis is often cheaper than specialists reports and is particularly valuable when considering psychological issues. Often a person who has had a serious injury will lose confidence. It is this rather than their injury that prevents them from returning to the previous activities. Hidden disabilities can also impact the ability of function normally.

Reasonable adjustments can explain apparent inconsistencies such as a person with serious injury being able to return to heavy activities. This information can permit the court to understand the reasons behind their problems from a functional point of view. The impact of pre-existing problems is also more accurately assessed by considering disability comprehensively rather than by specialty.

Conclusions

Fundamental dishonesty is raised in an estimated 25% of cases of personal injury. The courts are becoming alert to inconsistencies in the language used by claimants. As an expert since 2000 with general practice training I recognise that these inconsistencies arise from inherent human factors rather than dishonesty.

Increasing use of specialist experts has led to large numbers of experts instructed at great cost who may be asked to give opinions outside of their expertise. Fixed costs has caused many cases to have less access to the higher level skills of experienced lawyers. Claimants with disabilities may not have access to reasonable adjustments.

My website contains a personal injury questionnaire which can be downloaded and used for free. The questionnaire is designed to those with neurodifferent brain patterns as it is largely circle the correct word. The claimant stands to lose tens of thousands of pounds if they get it wrong so it is worth getting a second opinion if you are worried that you may have been misunderstood by your lawyers or experts.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is a Disability Analyst and is on the General Practitioner Specialist Register.

This article was written with the assistance of Gemini and ChatGPT.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 websites drmarkburgin.co.uk and gecko-alligator-babx.squarespace.com

Disability Analysis: A Practical Guide by Mark Burgin | 18 Oct 2024

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

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