Last week a 23 year old carpenter called Oliver Kilbey hit the headlines. Why? Because he was injured at work (a fact no one denies) and he claims this injury caused him to develop Complex Regional Pain Syndrome. As a result, he says he’s suffered in ways familiar to anyone living with the condition: constant pain, vastly limited ability to work and socialise, plus depression and despair caused by these unwanted changes in his life.
Thus far, it’s a story many of us could tell; so what makes this case different? Well, like many of us, Mr Kilbey has chosen to take legal action against his former employer because the accident occurred at work and was not his fault. The difference here, though, is that his case has ended up at the High Court in London and the legal team defending those former employers are openly claiming that he’s exaggerated his injury.
What did the papers say?
To get a feel for the argument made by the defence you simply need to look the headlines: the Daily Mail wrote “Carpenter suing bosses for £900,000 over a squashed thumb at work ‘boasted on Facebook about playing Grand Theft Auto, took selfies with bad hand and posed for pictures snorkelling in the Maldives’“. The Evening Standard was even harsher: “‘Malingerer’ carpenter who claimed £900k over thumb injury denies exaggerating suffering after pictures emerge of him enjoying Maldives holiday’“. And The Sun just went for a good old-fashioned cringe-worthy pun: “THUMB OFF IT! Carpenter suing work for £900,000 over mangled thumb denies exaggerating injury after being pictured making OK sign”. I think it’s probably fair to say that this isn’t the way anyone would willingly choose to be portrayed in the mass media. But is it fair and is it accurate?
What does the claimant say?
There doesn’t seem to be much argument about the nature of Mr Kilbey’s accident. In 2014, whilst working as a teenage apprentice at an upscale apartment block in London, he climbed a ladder and a piece of masonry fell on his thumb, causing a bone fracture and tendon injuries. It sounds like a painful injury and unfortunately, Mr Kilbey says he went on to develop complex regional pain syndrome.
The way he describes his CRPS will be very familiar to other sufferers: he claims constant pain, which has left him “very depressed and very distressed” and only rarely able to go out. He says when he does go out he has to keep his hand close to his body to protect it. He is claiming £900,000 in damages which, in addition to including compensation for his pain and suffering thus far, will also include the cost of any future care and any potential loss of future earnings in his lifetime. Although it might seem a big number at first glance, once you break down all the elements included in that figure it becomes much more understandable and certainly what you might expect for a severe CRPS claim.
So, thus far, it’s all very plausible. But the truth is that the vast majority of CRPS claims will never end up in front of a court; this is because the expense of going through a court trial is huge and most defendants would much rather reach a financial settlement beforehand so that they can avoid these massive extra costs. So what’s different here? Why hasn’t this case settled? Why is it in front of a judge?
What is ‘fundamental dishonesty’ and why does it matter?
I think the simple truth is that the defence think they can win. To understand why that is, we need to dig into the concept of ‘fundamental dishonesty’. As my colleague Richard wrote in an article last year, before 2015 if a claimant brought a genuine claim but it contained fraudulent information (like exaggeration of pain, for example), the claimant could still be awarded damages for the genuine part of their claim, although they may have been penalised in legal costs. Not ideal, but not disastrous.
However, this changed when new legislation came into force back in 2015 giving the court the ability to dismiss an ENTIRE claim where it’s satisfied that, on the balance of probabilities, the claimant has been ‘fundamentally dishonest’ in relation to the claim. So if you are found to have exaggerated your pain, for example, that means that not only could you receive no damages AT ALL, you could also end up facing a massive legal bill. Credibility is everything, especially when it comes to an illness whose main symptom is pain that cannot be seen or felt by others.
What does the defence say about Oliver Kilbey?
So why is this so important in the case of Oliver Kilbey? Well, Mr Kilbey, like many of us, is clearly very active on social media, chronicling the activities of his daily life through posts and photos. Unfortunately for him, though, there are several posts that could be interpreted as not backing up his description of the limitations imposed by his CRPS.
We’ve written before about the realities of bringing a personal injury claim: the sad truth is that you will be put under surveillance and your social media will be examined in forensic detail. As unpleasant as that is, if you’re truthful and honest with your solicitor then you have nothing to fear. With a condition that gives you good and bad days it’s essential to maintain a regular and open dialogue with your solicitor: for example, if you have a good day and you’re able to walk further than normal then drop your solicitor a quick email saying exactly that. If you’re then shown video surveillance showing you walking further on that day than you’ve previously stated you can, it doesn’t risk damaging your credibility as you’ve volunteered the information and pre-emptively explained that this good day is not your normal.
There are a few social media posts that might be interpreted as damaging Mr Kilbey’s credibility by seemingly contradicting his evidence about how CRPS affects him and the use of his hand. There’s a picture of him snorkelling on holiday in the Maldives giving a diver’s OK sign with the affected thumb. There are several selfies that were clearly taken with his affected hand. There’s a post about playing Grand Theft Auto, a game where you have to use your thumbs on the controller. There’s photo evidence of him out clubbing with friends four weeks after the accident, along with comments on how crowded he found the venue: the defence claim this is not consistent with someone who is terrified of his hand being hit and always holds it protectively near his body. Despite claiming to avoid wearing jeans in his witness statements, there are photos of him wearing jeans with both hands tucked tightly into front pockets. There are a large number of photos of him out socialising with friends and looking like he’s having a great time. There’s a picture of him working in Greece where he talks about ‘how great his life is in Greece’. The defence contends that this isn’t consistent with someone who’s depressed and in constant debilitating pain.
Of course, Mr Kilbey and his barrister have done everything they can to try and explain all of this. The OK sign? Well, he’s in a hot climate where he can use his hand more. Grand Theft Auto? You only use the right thumb to look around and anyway, he only plays for 20 minutes at a time, maximum. Wearing jeans? There’s always someone around who can help him with the buttons. Clubbing? He didn’t dance at all, didn’t use his hands. The Greece photo? Again, he does better in a hot climate and why isn’t he allowed to be positive about his life?
So what’s the truth?
It’s impossible to say. The reality is, though, that if the headlines give an accurate assessment of the atmosphere inside court then Mr Kilbey may be trouble, as every single newspaper suggests he’s exaggerating his pain. Only time will tell if the judge agrees.
I do think it’s very unfair that claimants’ social media is pored over and picked apart to try and discredit them. For many of us, including myself, being positive is a coping strategy and I rarely use my personal social media to complain about my pain as personally, I don’t find it helpful. I know many chronic pain sufferers who only tell the truth about how bad they’re feeling within private closed groups of patients, keeping it off their personal Facebook, Twitter or Instagram.
The reality is, though, that defendants will use every tool at their disposal to try and discredit a claimant. Social media is just the newest of those tools. And in the end, as I’ve already stressed, a completely honest claimant has nothing to fear; they could allow the defence into every aspect of their lives and they’d find nothing to use against them, simply because that claimant has been entirely truthful about their pain and how it affects them.
Judgment has not yet been handed down in the Oliver Kilbey case. Regardless of the result, I wish him all the very best and hope that his injuries recover as much as possible.
Since writing this article, I have heard that judgment has been handed down by Judge Michael Yelton. Making a point of describing Mr Kilbey’s claim as “honest and genuine“, he awarded him damages and interest totalling £217,109.81.