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Elgamal v Westminster City Council [2021] EWHC 2510 (QB): When Exaggeration Does Not Amount To Fundamental Dishonesty - Nicholas Dobbs, Temple Garden Chambers

24/11/21. In Elgamal v Westminster City Council, the Defendant appealed a judgment following trial to pay the Claimant £125,321.33 in damages for personal injury. The central issue on appeal concerned the judge’s decision that the Claimant had not been fundamentally dishonest in relation to his claim, and accordingly whether the provisions of s 57 of the Criminal Justice and Courts Act 2015 applied. A further issue arose as to the way in which the trial judge had dealt with the costs of the proceedings (the subject of a previous PIBU article published last month).

The claim arose from an accident on 27 January 2012. The Claimant injured himself on an air track at the Defendant’s gym in London when he performed a flip, landed awkwardly and violently twisted his left knee. At the time of the accident, he was 22 and had been heavily involved in free running and parkour. He had also worked on a number of film projects as a trainee stunt man. It was his intention fully to qualify as a stunt man and then to develop his career in that role, which his injury had curtailed. Liability was compromised at 65% in the Claimant’s favour.

At trial, the judge found that there was exaggeration as to the level of the ongoing disability arising from a very serious base injury; the Claimant believed that he was disabled to a greater extent than was found by the judge at trial. The judge went on to say: “From his perspective he was not lying. However objectively he was exaggerating and so as a fact was lying.” The judge described the ways in which the Claimant was exaggerating, including that there was a clear difference between his presentation at a medical examination and the surveillance video taken minutes after it.

However, the trial judge went on to find that the exaggeration was not fundamental to the case: the relevant findings did not result in a reduction in general damages to the level the defendant submitted or anywhere near that level, nor did they result in the failure to recover the Smith v Manchester award claimed. The major head of claim, for future loss of earnings, was not recovered due to the failure to produce sufficient evidence to establish a difference between what he would have earned as a stuntman and what he would now earn.

On appeal, the court reviewed...

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