Noble v Owens [2011] EWHC 534 (QB)

Case No HQ07X03533[2011] EWHC 534 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/03/2011
Before
MR JUSTICE FIELD
Between
Mark NobleClaimantMartin Raymond OwensDefendant
Gerard McDermott QC, William Latimer-Sayer and Cara Guthrie (instructed by Reynolds Williams) for ClaimantAndrew Hogarth QC and Catherine Peck (instructed by Clarke Willmott LLP) for DefendantHearing Hearing dates: 13,14,15,16, 17, 20 & 21 December 2010 and 12 January 2011
JudgmentMr Justice Field:Introduction
[1]On 11 March 2008, I gave judgement in favour of the Claimant (“Mr Noble”) following a trial to determine the quantum of damages due to him for personal injuries suffered in a motor accident in which he was knocked off his motorcycle when the Defendant drove his car negligently out of a side road.[2]The principal injury suffered by Mr Noble was an “open book” fracture of the pelvis, leaving it fractured both at the front and the back. He was operated on at Southampton General Hospital in September 2003 but those treating him did not appreciate the extent of the damage to the front of the pelvis and consequently did not stabilise this area. As a result, the fixation at the back of the pelvis failed. In September 2004, Mr Noble was operated on by Mr M Bircher, a Consultant Orthopaedic Surgeon at St George’s Hospital in London. Mr Bircher is a specialist in major pelvic injuries. He re-broke the bones at the front of Mr Noble’s pelvis and stabilised them with a plate. He also carried out a sacroiliac fusion at the back to try to get bony union and bridging. In the result, bony healing was achieved at the back of the pelvis so that there was no posterior instability, but on one side of the front, fixation failed. However, although there was no bony union, the front was reunited by the growth of strong scar tissue which left some anterior instability.[3]Mr Noble also suffered fractures of the fibula and tibia in his left leg. The latter fracture was a serious injury consisting of a complex spiral web fracture 2 inches above the ankle.[4]In addition, both of Mr Noble’s wrists were broken, he sustained a burst fracture of the body of T4 in the spine and an undisplaced linear fracture of the right occiput.[5]In total, Mr Noble had to have 11 operations involving 18 separate procedures. Moreover, whilst he was in St George’s he developed a serious MRSA infection.[6]Mr Noble’s injuries left him in considerable pain. He also had problems with urinary incontinence and sometimes suffered faecal incontinence due to the laxatives he had to take to combat constipation caused by pain relief medication. In addition, he was suffering from a psychiatric disorder involving night sweats brought on by nightmares in which he relived the accident and his experiences in hospital. He was also depressed and listless.[7]At the quantum trial, Mr Noble’s case was that he could not walk unaided outside the house. With crutches, he could walk about 75 to 80 feet, no more. Otherwise he was wheelchair or motor car dependent. Inside the house he used his wheelchair or mobilised with crutches; he could also move about holding on to furniture.[8]Mr Noble gave evidence to this effect at the trial and he also described his mobility in these terms pre-trial to the Occupational Therapist, Ms Julia Ho, the Care Experts, Mrs Maggie Sargent and Mrs Gillian Conradie, and the Consultant Orthopaedic Surgeons, Mr Robert Carew (instructed by the Defendant) and Mr Peter Worlock (called by Mr Noble), whose reports featured at the trial. In their joint report, Mr Carew and Mr Worlock stated that Mr Noble was permanently disabled as a result of his injuries, his present level of significant disability was established and it was unlikely that there would be further improvement.[9]As a result of my judgement, the damages paid by the Defendant’s insurers to Mr Noble totalled £3,397,000. Of this total, £3,067,500, to a lesser or greater extent, was affected by Mr Noble’s description of his physical condition following the accident. The separate heads of damage making up the sum of £3,067,500 are: 1. General damages for pain, suffering and loss of amenity £157,500.00 2. Future loss of earnings £ 316,738.95 3. Future care and case management £1,237,773.59 4.Aids and equipment £162,795.04 5. Accommodation £458,491.28 6. Treatment and therapies £155,966.23 7. Travel and transport £317,187.47 8. Information and technology £57,645.50 9. Holidays £156,562.50 10. Miscellaneous £54,138.06 At the quantum trial, Mr Noble said in evidence that he wanted a live-in carer so that he and his partner, Mrs Janet Stanton, could rekindle their relationship. He also confirmed that he proposed to have a case manager in the future and that he intended to continue:(i) to see a clinical psychologist, Dr Moffat;(ii) to receive hydrotherapy and acupuncture;(iii) to be reviewed periodically by a urologist, Dr Cummings. He further testified that he wanted to acquire a vehicle with a side operated ramp and hand controls and had booked to attend a pain management course at a hospital in Bath.[10]In September 2008, Mr Noble and Mrs Stanton bought a property, “Hillview”, in Wareham, Dorset, and some adjoining land, for a total of £780,000.[11]Not long after acquiring Hillview, Mr Noble turned off a supply of water that ran across his land to a tap in the corner of a field owned by Mr Richard Bendall and his wife. Mr Bendall’s wife and the owner of an adjoining field used this tap to provide water for their horses and were put out by Mr Noble’s actions. Mr Bendall accordingly drove up to Hillview to raise their concerns with Mr Noble. Mr Noble told Mr Bendall that he had capped off the water pipe because it ran straight across his land. There was also a discussion about a new boundary fence which Mr Noble had erected without leaving a gap between the new fence and Mr Bendall’s fence.[12]Later, Mr Bendall had other concerns over the activities of Mr Noble on his land. These activities included the erection of a large bank, the excavation of an extensive pond close to Mr Bendall’s land, and the development of what appeared to be an off-roading track in woodland belonging to Mr Noble.[13]Mr Bendall heard from a third party and from an article on the internet that Mr Noble had been badly injured in an accident and had received a large pay-out from an insurance company. He was accordingly surprised to see Mr Noble walking unaided and picking up a dog and placing it on his shoulder when he visited Hillview to discuss the cutting off of the water supply. On 31 October 2008, he telephoned the Insurance Fraud Bureau and reported that Mr Noble was not disabled. Acting on this tip off, the solicitors then acting for the Defendant’s insurers, Direct Line, instructed Target Countrywide Investigations and Surveillance (“Target”) to undertake secret filmed surveillance of Mr Noble in and about the grounds of Hillview.[14]Target had previously been used by Direct Line to conduct surveillance on Mr Noble prior to the quantum trial over 8 days from 15 October to 9 December 2007. This evidence was consistent with Mr Noble’s reported symptoms and the Defendant based no submissions upon its content at the quantum trial. Footage shot on 15 October and 21 November 2007 was disclosed and shown to the court. It showed Mr Noble walking short distances outside with an elbow crutch and a gutter crutch; holding his dog; reaching up to the spotlights on the top of his vehicle; and using his wheelchair.[15]The post trial surveillance was carried out by Mr Ben Culpin on 18 and 19 November 2008, 22 and 23 December 2008 and 9, 10, 11 and 12 March 2009. The camera used was a Sony Easy UP AP 1500 with a x 40 telephoto lens.[16]Annexed to this judgement is an agreed schedule of the activities of Mr Noble shown in the post trial surveillance. In summary, the footage shows Mr Noble carrying on various activities for several minutes at a time without the use of any aids, including: walking around (albeit stiffly) in his yard; using a chain saw and lifting wood panels; fixing wood panels to a shed in the course of construction; using a wheelbarrow to carry a relatively large tyre; dragging an orange plastic bucket and, on another occasion, some wire; bending down; kneeling to inspect a vehicle; operating a dumper truck whilst standing on it; getting off the dumper and walking alongside it operating the controls; kicking something on the ground; carrying an aluminium bench; and standing on his feet working on the erection of a shed. He is also seen for considerably longer periods driving a mechanical digger and getting into and out of a digger.[17]On 28 April 2009 the Defendant applied ex parte and was granted by me anorder freezing the damages received by Mr Noble pending an appeal to the Court of Appeal based on fraud. That freezing order, as amended, remains in place.[18]On 10 March 2010, the Court of Appeal directed [2010] EWCA Civ 224. that I, as the trial judge, should determine (i) if any significant part of the damages had been fraudulently obtained by Mr Noble; and (ii), if so, to set aside the award of damages and re-assess the damages as they should have been at the original trial.[19]This judgement is concerned with issue (i).

The admissibility of the surveillance evidence

[20]It was argued on behalf of Mr Noble that the surveillance evidence should be excluded on the grounds that:(i) part thereof must have been carried out on Mr Noble’s land;(ii) there were grounds for believing part of it had been edited;(iii) the filming had been selective with no film being taken of occasions when Mr Noble was using his wheelchair or crutches; and(iv) the unavailability of the original footage recorded on the SD cards used in the camera. I reject all of these grounds. I accept the evidence of Mr Culpin and his assistant, Mr Samuel Else, that all the footage was filmed on land owned by Mr Noble’s neighbours who consented to the surveillance. Much of the filming was done from within an animal shelter straddling the boundary of two fields with a fence down the middle marking the boundary. There were two entrances giving out to each field which allowed horses to enter and feed on each side of the boundary fence. Mr Culpin filmed standing on this fence and occasionally had to stop filming when a horse entered and became interested in his boots. Another location used was behind a wooded slope where the camera was placed on a 50 foot mast and operated by Mr Culpin on the ground using a monitor through which he could see what the camera had sight of.[21]I also accept Mr Culpin’s evidence that he did not film selectively but instead filmed Mr Noble as he saw him in his yard and walking to and from that location. I am also wholly satisfied that the film has not been edited. As for the unavailability of the original footage on the SD card used in the camera, I accept the evidence of Mr Culpin and the proprietors of Target, Mr Graham Gee and Mr Stuart Gee, that pursuant to the company’s standard procedure, the SD cards used in the surveillance were brought to Target’s office where they were copied on to master DVDs and then wiped clean for re-use. This procedure is adopted because SD cards are an unstable medium as compared with DVDs.[22]Unfortunately, one of the master DVDs was not disclosed before or during the trial. This was because Mr Abel of Direct Line had mistakenly failed to provide this disc to Clarke Willmott LLP who had taken over as the solicitors acting for the Defendant. This was a regrettable mistake but it was no more than that and has caused no injustice.

The burden and standard of proof

[23]It is the Defendant who alleges that Mr Noble obtained a substantial part of his damages by fraud and thus it is the Defendant who has the burden of proof in this trial. What has to be proved is that Mr Noble obtained a substantial part of the damages awarded by dishonestly and knowingly misrepresenting the true level of his disability to the care experts, the expert orthopaedic surgeons and the court at the quantum trial.[24]This being a civil trial, the standard of proof is the balance of probability, but as Lord Nicholls said in Re: H and others (minors) [1996] AC 563 at p 58673. When assessing the probabilities the court will have in mind the factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence …. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.74. Although the result is much the same, this does not mean that where a serious allegation is in issue, the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established….75. ….This approach also provides a means by which the balance of probability standard can accommodate one’s instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.[25]In summary, it is the Defendant’s case that the only credible explanation for Mr Noble’s mobility as seen in the surveillance footage is that pre-trial he had dishonestly reported the extent of his disability to the Occupational Therapist, the Care Experts and the Orthopaedic Surgeons and had given false evidence about these matters to the court. In addition to the surveillance evidence, the Defendant called:(i) Mr Bendall;(ii) the proprietors of Target, Mr Stuart Gee and Mr Graham Gee, who testified that on a visit to a property looking on to Mr Noble’s yard they saw him on the roof of a shed that was under construction;(iii) a Mr Evans who visited Hillview with a police officer after a complaint about fireworks;(iv) Mrs Conradie, the Defendant’s Care Expert at the quantum trial; and(v) two medical experts, Professor Tom Fahy, a psychiatrist, and Mr Carew.[26]Mr Noble gave evidence and called the following lay witnesses: Mr Peter Grigg; Mr Paul Batty; Mr Michael Duthie; Mr Rupert Coutts; Mr Richard Warmington; Mr Matthew O’Donegan; Mr William Reeves; Mrs Janet Stanton.[27]The expert medical evidence called by Mr Noble was given by Mr Douglas Dunlop; Mr Worlock; and Dr Morgan O’Connell.[28]None of the expert medical witnesses whose reports featured in the quantum trial have re-examined Mr Noble for the purpose of this fraud trial; nor has Mr Noble been assessed by Professor Fahy, The lay witnesses called by the Defendant.[29]Mr Bendall testified that when he drew up at Hillview to discuss the cutting off of the water supply, Mr Noble, in the company of a man introduced as an ex-police motorcycle rider, walked up to greet him without the use of any aids. Further, during the ensuing conversation, Mr Noble bent down and picked up a dog which he placed on his shoulder.[30]Mr Bendall had also seen Mr Noble riding a quad bike quite fast and was concerned that the noise would frighten his wife’s horses. He also stated that in early 2010 Mr Noble approached him whilst standing on a bank 6 to 8 feet high whilst he (Mr Bendall) was putting horse manure on Mr Noble’s side of a fence to kill off the grass in order to prevent horses on Mr Noble’s land leaning over the fence.[31]Mr Bendall’s evidence was not challenged in cross-examination save that he accepted that he could not dispute that Mr Noble had got up the bank in a digger, although he had not seen any sign of a digger.[32]Mr Evans is a Senior Trading Standards Officer with Dorset County Council He made two appearances in the witness box. First time round he said that he visited Hillview with a police officer following a complaint about fireworks. Mr Noble got off a digger and approached him and they, together with another man, walked to the barn where Mr Evans spent about 20-25 minutes looking for fireworks, but found none. Mr Evans saw no sign of any walking aids and had no reason to think that Mr Noble was disabled. Mr Evans’ version of events was not substantively challenged in cross-examination.[33]Mr Evans was recalled on the application of Mr Noble’s Leading Counsel, Mr McDermott QC, who had omitted to put certain matters his client wished to be put to the witness. Second time round, Mr Evans confirmed that Mr Noble did not go with him into the barn but remained outside with the police officer.[34]Mrs Conradie testified that during her pre-trial visits to Mr Noble to assess his care needs, she never saw him behave as he is shown behaving in the surveillance evidence. She accepted in cross examination that when she interviewed Mr Noble pre-trial he said he was trying to do more for himself and that she had thought there was some scope for improvement. However, she had not at all expected the improvement shown in the surveillance footage.[35]Mr Stuart Gee and Mr Graham Gee each testified that on 10th March 2009 at about 1.35 pm they visited a neighbour of Mr Noble, Mrs Green, whose conservatory looked onto Mr Noble’s yard. The purpose of their visit was to persuade Mrs Green to consent to surveillance footage being filmed from her property. Mrs Green was nervous as soon as she opened her door. She did not want to get mixed up with the surveillance operation. She ushered Messrs Green into her conservatory and then cried out, “Look, there’s Mr Noble”, as a man appeared on the roof of the shed being constructed in Mr Noble’s yard. Both witnesses said that they recognised the man to be Mr Noble from the surveillance evidence gathered before the quantum trial. Both accepted that they each caught only a glimpse of the man on the roof before being ushered out of the room by Mrs Green.[36]Mr Noble denies that it was he who was on the roof and his denial is supported by the evidence of Mr Grigg recorded in paragraph 53 below. In my judgement, the evidence of Messrs Gee is not reliable enough for me to reject Mr Noble’s denial. Both witnesses only caught a glimpse of a man on the roof of the shed and their identification was bound to have been affected by Mrs Green’s saying, “Look, there’s Mr Noble”, when Mrs Green was very jumpy and for that reason may have mistakenly assumed that the man she saw was Mr Noble when it was not.

Mr Noble’s Evidence

[37]Mr Noble made two witness statements for this trial. In the first, dated 5 June 2009, he says that there is no truth whatsoever in the allegations made against him. He never exaggerated his injuries; on the contrary he has always tried to do as much as he could, despite his injuries. His physical condition is now in the main exactly the same as it was at the time for the quantum trial. He has taken regular exercise following exercise sheets provided by a physiotherapist to improve his dexterity and mobility, both in his home gym and in the barn where there are bars on the wall he uses to steady himself if he is tired or stumbles. This hard work, together with strong medication and the cortisone injection in his leg has got him to the position where, on a good day, he can walk short distances without the use of crutches. For anything other than short distances, he needs his wheelchair or some other form of transport.[38]His lower back is still painful; he has constant inner pain in his pubic area but this is helped by taking Gabapentin; his left knee is loose in the joint and grinding, leading to fatigue and pain after a little use. He has inner pain in his left hip and in the area above his left ankle after only a little exercise as he puts his weight through the ankle. He has no feeling down his left buttock, or in the left side of the pelvic area, or from his hip to the left side of his left leg, or to the top of his left foot.[39]In October 2008 he bought a new Range Rover and gave the Voyager he had at the time of the quantum trial in part exchange. This new vehicle has been fitted with a hoist mechanism to lift his powered wheelchair which he keeps in the car, along with a gutter crutch.[40]In his second witness statement, signed on 19 December 2010 (the day before he went into the witness box), Mr Noble states that the first time he walked without crutches was shortly after moving into Hillview. By the middle of October 2008 he had begun walking from his house to the barn with his “buddy”, Paul Batty, staying close by. He has four pairs of crutches which he leaves at points around the property, usually the front door, back door, barn and the bedroom.[41]The intention had been to install a mobile home for Paul Batty to live in but this was put on hold when Paul’s father’s health deteriorated and Paul stopped working full time for Mr Noble in October 2010. If it had not been for the fraud allegations and pending trial, Paul would have started work as Mr Noble’s residential carer towards the end of 2009, after the death of his father.[42]When Mr Evans came to talk about fireworks, Mr Noble was in one of his diggers. He telephoned Simon Goldfinch, who was also a “buddy”, and Mr Goldfinch showed Mr Evans around the barn. Mr Noble did not get out of the digger.[43]In paragraph 13, Mr Noble says: My witness statements do not deal with how I take my dihydrocodeine (which I call DF118s). My prescription is for one or two of these three times a day. However I control my own pain medication and what I do is take a minimum of three a day and I save up my spare DF118s so on a day that I’m active I can take some extra pills instead of having to give up and go to bed. I have been known to take up to 12 in a day. Janet thinks that I am very stupid to do this and Mr Dunlop had a long conversation with me about it and told me that I have to be careful that I don’t turn into a junkie.[44]In his live evidence, Mr Noble said that his motivation to walk without crutches was to walk his partner Janet down the aisle unaided. He also confirmed that he still intends to install a hydrotherapy pool at Hillview.[45]In cross examination, he was asked about Mr Bendall’s visit to discuss the cutting off of the water supply. He said that he was in his Land Rover when Mr Bendall arrived. He got out and spoke to Mr Bendall standing in front of the vehicle with Mr Michael Duthie, a friend who was visiting at the time, between them. He did not pick his dog up. He could have done, but he did not. The dog remained in the Land Rover. He was unable to say why this account is not in his witness statements or why Mr Bendall’s account was not challenged in cross examination.[46]As for when he spoke to Mr Bendall about horse manure being put over the fence, he said that he drove across the field in a digger and beckoned to Mr Bendall. Mr Bendall approached and they had a conversation with Mr Noble leaning out of the digger. He was not up a bank.[47]Mr Noble said that his ability to work as shown in the surveillance evidence was a modest improvement, not a dramatic or significant improvement. He had achieved this improvement by “working my arse off” and taking large doses of DF118s. He did not mention the cortisone injection in his left ankle given him by Mr Dunlop in April 2008 as a factor contributing to his improvement.[48]He accepted that he paid his “buddies”, Paul Batty and Simon Goldfinch, in cash (in the former case after October 2008) but denied that he was cheating the Revenue or that he treated the Revenue as fair game. (Mr Batty ceased to work full time for Mr Noble in October 2008 and was replaced by Mr Goldfinch who left in January 2009 following a falling out with Mrs Stanton. Mr Ben Harvey replaced Mr Goldfinch).[49]Mr Noble was asked whether he spent money on numerous facilities that he had said he needed at the quantum trial. He stated that whilst no case manager had been employed, he had intended to employ one and had left it to Mrs Stanton because he locked himself away after the trial. (Judgement was handed down 1½ months after the conclusion of the trial). Following the trial he had seen fortnightly Dr Moffat, a clinical psychologist, until moving to Hillview. He had not gone on a pain management course; this was something he intended to do later and was going to be arranged by Dr Moffat. He had not seen a psychiatrist. He had had hydrotherapy and acupuncture sessions until the centre was closed down and had now started having acupuncture at home. He had not given Mr Warmington, an architect who had drawn up plans for a hydrotherapy pool at Hillview, the go ahead for this project because he wanted time to see if the house was comfortable. He had not hired a personal carer because it was difficult to have someone in the house, but Paul Batty had helped Mrs Stanton at weekends. There was a ramp for his wheelchair at the front door of Hillview, but not one at the back. He had bought none of the equipment for inside the house set out in a list that featured at the trial, including a walk-in bath, a body drier and an eye-level hob. He had not done so because he wanted to see if he was going to stay at Hillview. Nor had he bought an “entervan” to replace his Chrysler Voyager, but he thought he might do so. He denied that he had had no intention to buy such a specially equipped car.[50]In re-examination, Mr Noble said that when he acquired Hillview, he was on a high. The lay evidence called by Mr Noble Mr Grigg

The lay evidence called by Mr Noble

[51]Mr Grigg is area sales manager for a company selling construction equipment and machinery, including mechanical diggers. Towards the end of 2008 Mr Noble telephoned Mr Grigg’s company to say that he was interested in buying a digger and it fell to Mr Grigg to return the call. In the course of the ensuing conversation, Mr Grigg realised that he was talking to someone he had known many years previously at school. Following this call, Mr Grigg and his boss, Mr Sturgess, visited Mr Noble at Hillview to discuss his requirements. Mr Grigg testified that when he made this visit Mr Noble was not very well. He was walking with the aid of crutches and had to keep sitting down. He offered his visitors a cup of coffee but Mr Grigg had to make it. When he showed his visitors round his workshop, yard and garden Mr Noble walked very slowly and looked as if he was in a lot of pain.[52]On 10 March 2009, Mr Grigg went to Hillview to supervise the delivery of a digger Mr Noble had bought. Mr Grigg’s arrival, followed sometime later by the arrival of the digger, is part of the surveillance evidence filmed that day. Mr Grigg’s witness statement was made without having seen this footage. He said in that statement that once the machine had been delivered Mark, (Mr Noble) got into the cab and could not reach over to get the operator’s book and had to ask one of his assistants to get it for him. This is not what is seen on the DVD which shows Mr Noble asking for the handbook after he has climbed out of the cabin and a man called Kevin reaching in and getting hold of the document.[53]Mr Grigg said in his witness statement that he did not remember if Mr Noble used crutches inside or outside the house. His oral evidence, having seen the surveillance footage was that Mr Noble did not have crutches outside the house. At about 1.30 pm he and Mr Noble went into the house for a chat and a cup of coffee lasting between 15-20 minutes. Mr Grigg made the coffee; Mr Noble was a bit puffed. During this period, Mr Noble did not leave Mr Grigg’s sight. Paul Batty[54]Mr Paul Batty worked as Mr Noble’s “buddy” full time until October 2008, after which he would come in when and as he could. After the quantum trial Mr Noble was in a low mood and depressed. When they made their weekly visit to Salisbury, if they parked right outside the Bank, Mr Noble would walk to the Bank using his crutches; if they were not parked this close, Mr Noble would use his wheelchair.[55]After the move to Hillview, Mr Noble would use a digger to put in fencing. Getting in and out of the digger was a huge effort and after a while would become painful. Sometimes, he was in too much pain to return to the house using his crutches and Mr Batty would bring him in his buggy.[56]Mr Batty had often known Mr Noble “to over medicate” due to the pain.[57]As at the date of Mr Batty’s witness statement (4 June 2009), the main area of improvement since the quantum trial was that Mr Noble was able, on occasions, to walk without crutches; he was also able to walk slightly further on his crutches and was more stable: he could walk the length of the barn (60ft) unaided but sometimes had to hold on; he stayed close to the barn wall just in case.[58]In paragraph 34 of this witness statement, Mr Batty says: Words fail me when it comes to replying to the accusation that Mark has in some way been exaggerating his injuries.…Unlike those making the accusation, I have spent countless days with Mark, both before and after the hearing last year. I have witnessed his pain and suffering at first hand and I have witnessed his commendable efforts to make small improvements in whatever areas he can. There is absolutely no way I could have been fooled or taken in by Mark during this time and I am absolutely adamant that this accusation is completely false. Mr Duthie[59]Mr Duthie is a retired police motorcyclist. He became a close friend of Mr Noble’s after they met in St George’s Hospital and he has visited Mr Noble fairly frequently. He has seen Mr Noble try to mask the pain on painful days by taking large amounts of prescription drugs.[60]In his witness statement, Mr Duthie said nothing about the occasion Mr Bendall visited to speak to Mr Noble about cutting off the water supply. He was asked about Mr Bendall’s visit in cross examination and said that as the neighbour approached, Mr Noble got out of a blue Land Rover and stood without crutches beside Mr Duthie. He did not see Mr Noble pick the dog up. The dog was in the Land Rover. Mr Noble kept his crutches in the car. Mr Duthie denied that anyone had told him what Mr Bendall had said in evidence. Mr Warmington[61]Mr Richard Warmington is an architect. In August 2008 he was asked by Mr Noble to advise on the provision of wheelchair access and a hydrotherapy pool at Hillview which he was in the course of acquiring. Following an inspection of the property on 13 August 2008, Mr Warmington drew up an initial scheme which envisaged an extension providing:(i) a large main bedroom suitable for wheelchair circulation and transfer, with arrangements for hoist access through to a bathroom with a specialist bath and a shower with wheelchair access;(ii) a hydrotherapy pool with an adequate landing for Hoist access; and(iii) widened door openings in the existing accommodation and the kitchen adjusted to suit wheelchair circulation.[62]Mr Warmington sent a set of plans to Mr Noble and Mrs Stanton, but he was told to put the scheme on hold and it was not progressed further.[63]When Mr Warmington surveyed Hillview in October 2008, Mr Noble remained in the house and spent most of the time resting; he was suffering from strain and exhaustion. When he headed for the kitchen he moved with difficulty holding on to the furniture and the walls for support. Mr Coutts[64]Mr Rupert Coutts worked at Hillview for about 7 months from November 2008 installing electric gates and a CCTV system and doing other jobs. Some weeks he worked just a day, other weeks 2 or 3 days. He has known Mr Noble for about 19 years but until November 2008, had not seen him for 12 years. Whilst he was working at Hillview he saw a lot of Mr Noble, mostly in the mornings. Mr Noble often slept in the afternoons. Mr Noble mainly got around using his scooter or quad bike or car or his crutches. Occasionally Mr Coutts saw him free walk but over short distances. Mr O’Donegan[65]Mr Mathew O’Donegan is a Sales Executive with Westover Land Rover. In April 2008, Mr Noble made the first of about 4 to 5 visits to the Westover show room to discuss the purchase of a Range Rover. On all of those occasions, except for one, Mr Noble walked into the premises using crutches. On the occasion when he walked unaided, he asked for some water and took some pain relief medication. Andrew Reeves[66]Andrew Reeves is Mrs Stanton’s nephew. He has known Mr Noble for about 11 years. He visited Mr Noble when he lived at Ferndown and after he had moved to Hillview. On his early visits to Hillview, Mr Noble did not walk unaided but used his wheelchair, and, for short distances and at a slow pace, his crutches. Between September and December 2008, Mr Reeves helped Mr Noble on a number of jobs at Hillview, including the establishment of a home gymnasium. During this period, Mr Noble had good days and bad days. He saw Mr Noble walk between 5 and 15 metres unaided outside. When he was working with him, Mr Noble would often stop for a rest. Mr Wisbey[67]Stephen Wisbey is a salesman with New Forest Farm Machinery. From early 2008 to May 2009, he saw Mr Noble both at the firm’s premises and at Hillview. On his first visit in early 2008, Mr Noble walked to the shop from his car, a distance of about 40 yards, using his crutches. He also used his crutches when he visited in September 2008, although his walking had improved slightly. During the Autumn of 2008, Mr Wisbey saw Mr Noble half a dozen times and on each occasion he used crutches to assist his walking. It was in May 2009 that Mr Wisbey saw Mr Noble walk unaided for the first time when he covered about 20 yards to get from his car to the shop. Mrs Janet Stanton (Mr Noble’s partner)[68]Mrs Stanton says in her witness statement dated 5 June 2009: In summary, Mark has made some improvement since the court hearing last year, but that improvement is limited and has occurred gradually over many months. …. The current position is that Mark has made improvements such that on occasions he is able to walk short distances without his crutches. This is by no means something he can do every day, but on his good days it is manageable. He has also made some limited improvement to his dexterity and is able to bend his back slightly more. However, for longer distances the situation remains as before, in that a wheelchair or buggy is required. On his bad days, no walking takes place and Mark remains laid up in bed for hours and days at a time.[69]Although she accepts Mr Noble has improved to the extent she describes, Mrs Stanton states emphatically that his life essentially remains wrecked by the injuries he received. He remains impotent, continues to need a great deal of personal care and suffers embarrassing instances of urinary incontinence and, when he has overdone the laxatives to counteract the constipation caused by his pain medication, instances of faecal incontinence. He continues to have nightmares and to experience difficulty accepting his disability. The two of them do not go out socially because Mr Noble is uncomfortable at being in a wheelchair and worried he will have an incontinence accident. On bad days he is in bed most of the time.[70]Mrs Stanton also says in her statement that Mr Noble was very emotional after the trial, the slightest thing would set him off. In addition, she refers to Mr Noble taking more medication than he should and looking drawn when he’s pushed himself to do too much. Elsewhere in her statement she asks how normal is it for a 43 year old previously fit man to have to take on average 20 pain killers a day to enable him to have some sort of quality of life?[71]In paragraph 65 she states: I would attribute his improvement to a number of things. The cortisone injection and medication have clearly helped, as have the dexterity exercises (which we were doing before the trial and have continued to do). His sessions in the gym at Hillview have helped and his time in the barn and around the house have not only helped him physically but have also helped him psychologically as well. Settling into his new property has been a great benefit. Last but by no means least is the simple fact that he is an incredibly bloody-minded and determined person who always tries to make the best of the situation. His sole intention is to make every good day count, regardless of the price he then has to pay and the pain and suffering that follows.[72]In the course of her live evidence, Mrs Stanton said that on a good day Mr Noble can go outside for 2 hours but on a bad day he will not get out of bed.[73]Mr Noble would over medicate to try to do more but he paid a high price because the pain killers caused serious constipation. He squirreled away DF 118s because he was worried the prescription might be stopped. He was encouraged to over do things by Simon Goldfinch with whom she had had a row when Mr Noble overdosed on DF 188s. Mr Noble took 20 pain killers a day across the range of his medication. He had only started to take Gabapentin and amitriptyline in the June and had progressed from one tablet a day to two. She had not mentioned these matters in her witness statement because she had not thought they were relevant.[74]In February 2008 she had looked in to arranging night care but their home then was not big enough. Mr Noble had had some sessions with Dr Moffat after the trial and had achieved some pain relief by using the hot tub. The Expert Medical Evidence The Psychiatrists Professor Fahy

The Expert Medical Evidence

[75]Professor Fahy is Professor of Forensic Health at the Institute of Psychiatry. He had not conducted a personal assessment of Mr Noble but gave his opinion as to the role any psychiatric factors may have played in the improvement in Mr Noble’s mobility seen in the surveillance evidence. He was party to a joint statement signed by Dr O’Connell, the expert psychiatrist instructed by Mr Noble, in which the view is expressed in paragraph 8 that it was not considered likely that psychiatric factors, such as alleviation of depression or post-traumatic stress symptoms, can account for the improvement seen in the surveillance evidence, though it is reasonable to conclude that Mr Noble would have felt some relief following the Court settlement at the beginning of 2008.[76]The joint statement also states (para 4) that the psychiatric experts are agreed that the physical symptoms described by Mr Noble fall at the mild end of the clinical spectrum and can be viewed as a proportionate reaction to the effects of the accident.[77]Professor Fahy accepted that depression can reduce a patient’s pain threshold but was of the view that Mr Noble did not suffer from a depressive illness, frustration and sleeplessness falling well short of this diagnosis. He also agreed that alleviation of low mood or anxiety could lead to a modest improvement, but not the dramatic improvement seen in this case.[78]I found Professor Fahy to be an impressive witness.

Dr O’Connell

[79]In his first two reports produced for the quantum trial Produced in July 2006 and February 2007. , Dr O’Connell expressed the opinion that Mr Noble was suffering from an Adjustment Disorder. However, in a third report produced on the first day of that trial (14 January 2008), he changed the diagnosis to Post Traumatic Stress Disorder, and I accepted his conclusion.[80]Dr Connell explained that he had departed from the joint views expressed in paragraphs 4 and 8 of the joint report with Professor Fahy because he had subsequently seen:(i) what Mr Worlock said in the joint report with Mr Carew about the contributions pain relief and the reduction of anxiety and stress may have made to the improvement seen in Mr Noble’s mobility;(ii) Mr Dunlop’s observation that he was not surprised that Mr Noble’s pain levels had increased as a result of the malingering allegation; and(iii) what Mrs Stanton said in her witness statement about Mr Noble’s depression following the quantum trial. He shared Mr Worlock’s view that there is a distinct relationship between the levels of stress and the perception of pain.[81]In cross-examination, he agreed that Mr Worlock’s comments about the effect of the reduction of anxiety and stress was a statement of what we all know from our experience of life. And when asked what the relevance of Mr Dunlop’s statement was to his withdrawal from the joint statement, he lamely replied that he was just making an observation. Finally, he told the court that now he was not sure that he was indeed qualifying what was said in paragraph 8 of the joint statement (O’Connell/Fahy).[82]I am afraid that in contrast to the high opinion I formed of Dr O’Connell at the quantum trial, I was distinctly unimpressed with the way he equivocated over the question of whether alleviation of depression or post traumatic symptoms could account for the improvement in Mr Noble’s functionality. In the result, I accept Mr Fahy’s conclusions on the psychiatric issues raised in this trial, particularly the conclusions expressed in paragraphs 4 and 8 of the joint report. The Orthopaedic Surgeons Mr Carew

The Orthopaedic Surgeons

[83]Mr Carew is a Consultant Orthopaedic, Trauma and Spinal Surgeon. He was appointed in 2002 at the Basildon and Thurrock University Hospitals Trust. His main interest is spinal injury but there are weeks when he deals with patients whatever their orthopaedic injury. He does not do pelvic re-construction surgery of the sort carried out by Mr Bircher who operated on Mr Noble at St Georges. Such operations are carried out at specialist tertiary referral centres. Thus, if Mr Carew has a case requiring reconstructive pelvic surgery he refers the patient to a specialist centre which also undertakes the follow-up care.[84]In his first pre-trial report dated 8 March 2005, Mr Carew stated that:(i) he found Mr Noble to be a reliable historian; and(ii) Mr Noble remained significantly disabled and there was a distinct possibility that he would be permanently disabled as a consequence of the accident.[85]Mr Carew next examined Mr Noble on 8 September 2007. His notes of this meeting include the words “Walk few steps, no aids. Stick/further crutch.” In his second report dated 5 October 2007, Mr Carew noted that Mr Noble was reporting an improvement in his condition: he now felt able to undertake perhaps 10%-20% more physical activities than in 2005 and was able to transfer independently and to take a few steps with the aid of a stick. However, he remained dependent indoors on walking aids and was wheelchair dependent out of doors. Mr Noble also reported that it was continuing pelvic and groin pain and problems with his left leg – altered sensation in the left foot and ankle, stiffness in the ankle joint and restricted ankle movement -- that prevented him from walking without aid.[86]I accept Mr Carew’s evidence that the words “take a few steps with the aid of a stick” in his second report is the definitive record of what Mr Noble told him as to his walking capacity when he examined him on 8 September 2007.[87]In a letter dated 9 November 2007 dealing with questions raised by the Defendant, Mr Carew stated that when he examined Mr Noble in 2007, he found him “much improved upon his original condition in 2005”.[88]In their joint report dated 5 January 2008, Mr Carew and Mr Worlock said: We agree that Mr Noble is significantly and permanently disabled as a result of the injuries he sustained in the index accident, particularly from the sequelae of his pelvic, wrist and left leg injuries. Although there has clearly been improvement in Mr Noble’s function between March 2005 (when Mr Carew first saw Mr Noble) and October 2007 (when Mr Carew last saw Mr Noble), we think it unlikely there will now be further improvement and consider that his present level of significant disability is established. We do, however, accept [that] Mr Noble will see a seasonal variability in his symptom pattern, with more marked symptoms during the winter months.[89]Mr Carew produced three post-trial reports. In his report dated 8 April 2009, he states that he had seen the surveillance footage and that this “shows Mr Noble to be engaged firstly in a far greater range of activities than he reported himself as being capable of undertaking and it also observes him undertaking those activities for substantial periods, again periods far greater than he reported himself as being able to undertake any single type of activity.” There were two explanations for this: there had been a further substantial reduction in the ongoing effects of the physical injury; or Mr Noble was at the time of the last consultation in September 2007 far less disabled than he reported himself to be. In Mr Carew’s opinion, the second explanation is the more probable. Mr Carew also expresses the opinion that based on his reported level of disability in September 2007, Mr Noble would never have been expected to have improved sufficiently to drive the off-road 4x4 vehicles seen in the surveillance evidence.[90]In his second post-trial report dated 10 June 2009, which took account of various witness statements filed on behalf of Mr Noble in the Court of Appeal proceedings, including statements made by Mr Noble and Mrs Stanton, Mr Carew states that the level of Mr Noble’s disability as reported by him in September 2007 would not have been expected to improve to the level seen in the surveillance footage either with the passage of time or with further treatment. In his opinion the substantially reduced level of disability cannot be attributed to spontaneous improvement given the period of time that had elapsed from the time of the accident to the last consultation in September 2007. Further, the steroid injection in the soft tissue in Mr Noble’s left ankle performed by Mr Noble’s treating orthopaedic surgeon, Mr Douglas Dunlop, would not, on the balance of probability, have been expected to have had any effect on Mr Noble’s ongoing levels of disability. Thus, in the absence of evidence of further substantial medical treatment, the only explanation for the improvement in Mr Noble’s disability would be that he has not given a truthful and accurate description of his levels of disability to Mr Worlock or to Mr Carew.[91]In a much fuller third report dated 3 November 2010, for which he had been provided with all the post-trial statements, Mr Carew repeats his view that the steroid injection in Mr Noble’s ankle in April 2008 could not explain the improvement in Mr Noble’s disability and that the only explanation for this improvement was that Mr Noble was not accurate in his description of his on-going disability given to the Care Experts and to Mr Carew.[92]In contrast to the words he used to described Mr Noble’s improvement between 2005 and 2007 in his letter of 9 November 2007 (“I found him much improved”), Mr Carew states in para 101 of his third report:
“Mr Noble reported at the second consultation there had been a small improvement in his condition in the two and half year period since I had previously seen him.”
[93]Mr Carew also comments in this report on an accident Mr Noble suffered whilst driving a Land Rover over his land on 20 July 2009. The resulting injuries were a fracture to the superior part of the left scapula, a subluxation of the acromioclavicular joint, fracture of cervical vertebra 7 and thoracic vertebra 1,3,4,5,6,7&8 and fracture to the heads of the 2nd, 3rd, and 4th, ribs. The Consultant who examined Mr Noble on 10 August 2009 noted that the accident happened when Mr Noble was wearing a restraining belt and his Land Rover suffered a mechanical fault that caused it to roll over at very low velocity on to its left side. In Mr Carew’s opinion, given the injuries suffered, either Mr Noble cannot have been a restrained driver if the vehicle was moving slowly, or, if he was restrained, the accident must have occurred at a higher speed or with a higher energy.[94]In a Joint Report signed by Mr Carew and Mr Worlock on 1 December 2010, it is agreed that:(i) the repeat prescriptions issued by Mr Noble’s GP on a monthly basis during 2008/09 for Paracetamol, Dihydrocodeine, Diclofenac, Temazepam, Amytriptyline, Gabapentin and Butrans patches was a potent combination of pain medication and that improved pain control can explain part of the observed difference in function between 2006/07 and 2008/09; and(ii) it is probable that in 2006/07 Mr Noble was emphasizing his pain/disability (either unconsciously or consciously) both to his medical advisors and to those experts carrying out independent assessments for the purposes of his compensation claim.[95]Under the heading “Areas of disagreement”, it is stated in the joint report:(1) that Mr Worlock considers that the improvement in Mr Noble’s function can be explained on a multi-factorial basis: better pain control, reduced perception of pain/a more positive outlook/better function, less emphasizing of his disability and the inevitable natural variability in symptoms; and(2) Mr Carew considers that it is not possible to explain the improvement in Mr Noble’s function on this multi-factorial basis; instead the improvement can only be explained on the basis that Mr Noble was deliberately consciously exaggerating his residual symptoms and disability in 2006/07 for financial gain.[96]In the witness box, Mr Carew said that when Mr Noble presented to Mr Bircher, a further operation had the potential for improving the outcome of his injuries but there was no prospect of restoring Mr Noble to anything like normal. The surgery carried out by Mr Bircher was not wholly successful. Bony union had not been achieved in the front of the pelvis. Improvement in mobility could be expected following Mr Bircher’s intervention, but he would not expect to see any further improvement beyond that reported to him in September 2007.[97]Mr Carew also expressed the view that the analgesics that had been prescribed to Mr Noble, including amitriptyline and Gabapentin might have contributed to a wider range of activity but would not have made him less dependent on walking aids, because these drugs had no effect on the underlying pelvic malfunction. In his view, if Amitriptyline and Gabapentin had had a beneficial effect, this would have been within three months and would not have caused an improvement after nine months. If there had not been a beneficial response within a few weeks, the medication would have been stopped because of its side effects.[98]Mr Carew said that exercise may have helped Mr Noble’s endurance, but not his practical ability.[99]In his experience, after one year the healing process after injuries like those suffered by Mr Noble “plateaued off”, after which some improvement might be achieved but then there comes a stage when improvement ceases. In his opinion, that stage had been reached when he last examined Mr Noble in September 2007. Further recovery could not be expected after three years. The improvement seen in the surveillance footage was beyond his experience.[100]Mr Carew accepted that when commenting on Mr Noble’s accident in July 2009 he had not realised that there was evidence in the quantum trial that Mr Noble did off-roading as a hobby in 2007. He denied that his comments on this accident showed that he had taken against Mr Noble.[101]In re-examination, Mr Carew said that the removal of the trouble Mr Noble was having with his left ankle in 2007 would not explain the improvement seen in the surveillance evidence.

Mr Dunlop

[102]Mr Dunlop is a Consultant Trauma & Orthopaedic Surgeon at Southampton General Hospital and is also an Honorary Senior Clinical Lecturer at the University of Southampton. He is Mr Noble’s treating Consultant. Unlike Mr Carew, Mr Dunlop manages complex pelvic injuries and is involved in the follow-up care. He examined Mr Noble on 3 August 2004 before the surgery performed by Mr Bircher and reviewed him in May 2005 and October 2006. The next time he saw Mr Noble was in April 2008 when Mr Noble presented with crutches and said that he was trying to wean himself off them: he wanted to walk down the aisle unaided with Mrs Stanton. At this consultation, Mr Noble complained of pain in his left ankle and an x-ray was taken which Mr Dunlop interpreted as showing early arthritis within the ankle joint. Mr Dunlop accordingly gave Mr Noble a steroid injection in his left ankle and Mr Noble left the appointment carrying one of his crutches.[103]Mr Dunlop saw Mr Noble again in June 2009 when he was mobilising with 2 crutches with little focus of discomfort in his left foot and ankle, but with continuation of his left, deep-seated pelvic pain which was constant and exacerbated by activity. Mr Noble reported 50% pain relief in the left ankle for around 9 months.[104]In a report prepared for the fraud trial, Mr Dunlop says that he has watched the surveillance high lights “which do not come as a great surprise to me, as I know that Mr Noble is a motivated individual and on good days would be able to achieve the sort of activities which are demonstrated”. Later in his report, Mr Dunlop said: I find Mr Noble an entirely credible and reliable witness and have always found his level of disability, expression of symptoms and ability to be consistent. I am pleased that he has a positive mental attitude, which has significantly improved his overall outcome and would not wish to dampen this.[105]It is clear from this report that Mr Dunlop considers that Mr Noble has variable symptoms.[106]The substance of his report is repeated in a witness statement signed by Mr Dunlop on 16 November 2009.[107]In his oral evidence, Mr Dunlop said that Mr Noble has sudden discomforts from the instability of his pelvis and the loss of feedback from his left leg due to nerve damage to the soft tissue in the pelvic region, thereby affecting his proprioception vizthe unconscious perception of movement and spatial orientation arising from stimuli within the body itself. Asked how he would describe Mr Noble’s approach to rehabilitation, he said:
“He has a fairly no-nonsense approach. He probably stores up medication. Tends to maybe do things that we would not suggest.”
[108]Mr Dunlop agreed with Mr Worlock that a lightening of mood could reduce pain and have a potential beneficial impact.[109]In Mr Dunlop’s view, the cortisone injection administered in Mr Noble’s left ankle was a significant factor in the achievement of the improved mobility seen in the surveillance footage.[110]In cross examination, Mr Dunlop said that in his experience the degree of improvement seen in the surveillance footage was very uncommon but he had seen it on one occasion in a case of pelvic injury and on several occasions in cases of other comparable orthopaedic injuries. Mr Noble was a happy example of the occasional patient who improves beyond what was predicted.[111]Mr Dunlop also said that Mr Noble had told him that he stores up his pain relief medication and has side effects from it. He further stated that a change in mood on its own could explain a modest degree of improvement.

Mr Worlock

[112]Mr Worlock is a Consultant Trauma and Orthopaedic Surgeon at the Royal Victoria Infirmary in Newcastle. He has been involved in treating pelvic and acetabular (socket of the hip joint) fractures since the early 1980s having worked for a year in Toronto in 1986/87 with Professor Tile, one of the world’s authorities on pelvic and acetabular fractures. The two units that do most pelvic and acetuabular work in England are at the John Radcliffe Hospital in Oxford and St Georges Hospital in London. Mr Worlock worked with two other consultants at the former unit in the years 1991-2004, during which time about 50 to 60 major pelvic and acetabular fractures were treated each year. By the end of his 13 years there, he and the other two consultants would have treated 300 to 320 patients with major pelvic fractures both operatively and post operatively.[113]The unit in Newcastle which Mr Worlock joined in 2005 (where there are 3 Consultants) treats 20 to 30 such cases a year.[114]In his first report dated 18 July 2006, Mr Worlock noted and credited the following matters reported by Mr Noble:(i) a constant ache in his left groin;(ii) reduced movement of the left hip;(iii) both hips felt “loose”;(iv) an intermittent pain on the medial side of the left ankle approximately 45% of the time; (vi) anterior pain in the left knee; and(v) the left ankle was giving away once or twice a day on average.[115]In his second report dated 26 February 2007, Mr Worlock noted that there had been little change in the matters reported by Mr Noble in 2006, although there had been no giving way of the left ankle. On the other hand, Mr Noble was now experiencing pain deep inside the left ankle which was sharp if he walked barefoot over a cold floor. Mr Worlock also stated that Mr Noble was using 8 Paracetamol tablets and 8 to 10 Dihydrocodeine tablets (“DF118s”) a day for pain relief.[116]In both his reports, Mr Worlock described Mr Noble’s mobility in terms similar to those used in Mr Carew’s second report.[117]In his post-trial report dated 2 November 2009, Mr Worlock states that the post-trial surveillance evidence shows a different picture from the level of disability reported to him pre-trial by Mr Noble. Mr Noble is clearly able to walk around out-doors, without any walking aids, although he walks stiffly and slowly and with a slight limp. He is able to use tools and fix planks to a garage and operate a mechanical digger.[118]In Mr Worlock’s view there are a number of factors involved here. It was possible that there could have been a natural improvement in the sequelae of Mr Noble’s injuries, although it would be unusual for there to be significant spontaneous improvement in symptoms as distinct from some minor spontaneous improvement so long after the accident in September 2003 and the last time he had seen Mr Noble in January 2007. Secondly, the “cocktail” of analgesia and anti-inflammatory medication Mr Noble had been taking was more extensive than in January 2007 and it was likely that this medication regime had produced better control of the physical symptoms of pain. Thirdly, it was highly likely that with the conclusion of his claim in March 2008, Mr Noble would have experienced a significant reduction in his stress/anxiety levels and this would have contributed to a reduced perception of pain, a more positive outlook and better function. Fourthly, it was possible that, although the surveillance was undertaken in the winter months, the days in question were sunny and dry and this may have been a factor in why Mr Noble was functioning well on these days. Fifthly, whilst it was possible that Mr Noble had consciously exaggerated his disability in 2006/2007, this was not compatible with the subjective improvement in many of his symptoms recorded in Mr Worlock’s second report.[119]Mr Worlock’s conclusion reads: In summary, therefore, I think the observed improvement in Mr Noble’s level of function is probably multi-factorial. I do not think that there has been any major spontaneous improvement in the sequelae of his injuries. I do, however, think that he has better pain control now, that he has less stress and anxiety (because he now has financial security) and that there probably was some emphasizing of his disability in 2006/2007 (although I cannot tell if this was conscious or unconscious).[120]In his oral evidence, Mr Worlock said that following surgical intervention, a plateau of recovery is normally reached after between 2 to 3 years. In Mr Noble’s case the clock started after the major reconstruction surgery performed by Mr Bircher. Moreover, in Mr Noble’s case, he had not plateaued in 2007, but had gone on to improve a bit more. Out of 300 to 320 patients with major pelvic fractures he and the other two consultants had treated in Oxford, he could think of maybe five or six who showed some improvement after three years. He was not surprised to see Mr Noble doing what is shown in the surveillance footage because he recognised that such an improvement could happen. The improvement seen in this case was “unlikely” (the word used in the Carew/Worlock joint report), but it is recognised that this kind of improvement can occur.[121]Mr Worlock also said that he agreed with Mr Dunlop that there was subchondral scelerosis of Mr Noble’s left tibia when Mr Dunlop examined him in April 2008 and that that was consistent with osteoarthritis, but this is unlikely to be secondary to the tibia fracture. That said, both he and Mr Carew were agreed that Mr Dunlop was not correct to rely on the gap between the two bones in the x-ray as a diagnostic criterion.[122]The pain Mr Noble was suffering in his left ankle was due both to the original fracture of the tibia and to osteoarthritis.[123]Mr Worlock said that the predominant problem for patients with major pelvic fracture is pain because they are left with both anterior and posterior pain.[124]As for the contribution of the reduction of stress and anxiety to Mr Noble’s improvement, over the 29 years he had been treating patients from injury to recovery, it had become clear to him that the reduction of financial and other social anxieties does contribute to a more positive outlook and better function.[125]In cross examination, Mr Worlock was invited to agree that, since the last time Mr Noble’s pain medication was changed was in March 2007, when he was prescribed Gabapentin and amitriptyline, that change cannot have contributed to the improvement seen at the end of 2008 because if those drugs were going to make a difference to Mr Noble’s level of disability, that would have happened before January 2008. Mr Worlock said that it was difficult to answer this question without knowing the exact dose regime and this does not appear in the records; if the dose had been increased steadily over the year, that may well have been a factor in Mr Noble’s improvement. Better pain control is likely to have played a part.[126]Mr Worlock agreed that the cortisone injection administered by Mr Dunlop in April 2008 could not explain the difference in Mr Noble’s mobility at trial and as shown in the surveillance evidence. He said he would describe Mr Noble’s improvement as seen in the surveillance footage as “significant”. He walks stiffly and with a limp, but his mobility has definitely improved; and he is certainly able to do more in terms of manual work than he reported in 2007.[127]In re-examination, Mr Worlock said there was no reason why Mr Noble should not be able to bend as shown in the surveillance footage because he has enough movement of his hips and knees to allow him to squat down, and he’s probably got enough movement of his hips to allow him to flex forward in his hips. Discussion[128]Mr Hogarth QC for the Defendant reminded the court that the improvement in Mr Noble’s mobility seen in the surveillance footage was on any view significant and submitted that, whilst Mr Worlock had expressed the view that there was a credible medical explanation for the improvement, this possibility was outweighed by the following factors:(i) Mr Noble had a propensity to be dishonest, as shown by his false accounting to the Revenue revealed in the first trial and his admission that he paid his buddies in cash;(ii) Mr Noble had testified that he intended to engage full time care, acquire numerous aids and receive various treatments and yet he done none or virtually none of these things; instead he had bought a large property and spent money on fencing it, excavating a carp pond, installing security gates, CCTV and making an off-road track;(iii) Mr Noble and his friends, Messrs Duthie, Batty and Grigg, had given false evidence on various matters; and(iv) Mr Noble had changed his case from one where he was asserting he made no real improvement and what he had achieved had been due to hard work and prescription pain medication to one where he accepted that he made a significant improvement with the help of bingeing on painkillers.[129]Mr Noble gave his evidence in a lack-lustre and at times lachrymose fashion. He presented as someone who regarded the defendant’s allegations as so outrageous they did not merit clear and detailed answers. On the other hand, save for his evidence in rebuttal to Mr Bendall’s testimony (as to which see below), his demeanour in the witness box did not indicate that he was lying. That he has cheated the Revenue and has not used his damages on acquiring the services and facilities for which they were awarded counts against him, but it does not follow from these matters that he is guilty of dishonestly misrepresenting the true extent of his disability. Once compensation is in the hands of an injured claimant, I can see how he might decide, contrary to his previous attitude, to forgo some or most of the aids and assistance for which he claimed and spend the money instead on other things which in his mind compensated him for his loss of amenity.[130]Did Mr Noble’s friends give false evidence on his behalf? I am suspicious about the evidence of Mr Noble and Mr Duthie in rebuttal to that of Mr Bendall. As I have observed above, Mr Bendall’s evidence, including his account that Mr Noble was walking unaided and picked up his dog when he visited about the water supply, was not substantially challenged, although Mr Bendall did accept that he could not say how Mr Noble had got up the bank on the occasion of the conversation concerning the dropping of horse manure over the fence. It is also to be noted that Mr Noble says nothing in any of his witness statements about either of the two conversations he had with Mr Bendall. Yet when he went into the witness box, Mr Noble claimed a clear recollection that during the first conversation his dog stayed in the Land Rover and during the second, he was not up a bank but had driven across a field in a digger and from which he lent out to speak to Mr Bendall. Mr Duthie also did not mention Mr Bendall’s visit in his witness statement but in evidence gave an account corroborating Mr Noble’s version of events. I cannot accept his assertion that no-one had related to him Mr Bendall’s evidence about the first conversation. In my judgement, there can be no doubt that Mr Duthie and Mr Noble did confer over their evidence on this matter. This does not necessarily mean that their evidence was knowingly false. Mr Noble accepted that he was capable at the relevant time of picking up his dog and placing it on his shoulder. However, I remain distinctly uneasy about accepting this part of these witnesses’ testimony.[131]Mr Hogarth submitted that Mr Grigg had given a deliberately false account in his witness statement of what occurred when Mr Noble took delivery of the digger he had bought, in particular his account of Mr Noble being unable to lean into the cab of the digger to reach a manual and his (Mr Grigg’s) inability to recall whether Mr Noble needed crutches on this occasion. I reject this submission. Mr Grigg struck me as a transparently honest witness who had done his best to recall events when composing his witness statement.[132]Mr Hogarth also suggested that Mr Noble had given a false account of Mr Evan’s visit to investigate fireworks. He based this suggestion on the fact that when Mr Evans was recalled there was no suggestion that Mr Noble was some considerable distance away when Mr Evans inspected the barn, yet this was Mr Noble’s evidence. Mr Hogarth also sought to contrast Mr Noble’s evidence with what Mr Goldfinch (who was not called) says in his witness statement. Whether Mr Noble was close to the barn during Mr Evans’ inspection is of very little relevance and I do not think much if any weight should be given to Mr Goldfinch’s witness statement when he was not called, the reason for which may be because he fell out with Mrs Stanton. Accordingly, I give but little weight to Mr Hogarth’s criticism of Mr Noble’s evidence concerning Mr Evans.[133]As for Mr Batty, Mr Hogarth argued that when viewed against the backdrop of the surveillance footage, his evidence that whenever Mark is on crutches or trying to freewalk, he (Mr Batty) is close at hand in case of a stumble was obviously an attempt to help support a case that Mr Noble has hardly improved. In my judgement, this is going somewhat too far. It is true that Mr Batty is not seen in the footage keeping close to Mr Noble in case he falls but in his witness statement he is dealing as much, if not more, with Mr Noble’s progression to walking unaided than with what Mr Noble is seen to do in the video. Thus, whilst there might be an element of exaggeration in Mr Batty’s evidence, I do not find that he was dishonestly trying to bolster Mr Noble’s defence to the charge of fraud.[134]Mrs Stanton was an important witness since she has lived with Mr Noble since the accident in September 2003. In my judgement, she gave her evidence in a straightforward and convincing way. I deal with the veracity of her evidence below. Suffice it to say that if she really was a party to a conspiracy to defraud Direct Line, she was a most practised and accomplished liar.[135]Has Mr Noble changed his case to fit with the medical evidence as it emerged and, if so, is his evidence about hoarding and overdosing on DF118s to be disbelieved? A key question here is whether the assertion made by Mr Noble and Mrs Stanton in their evidence that Mr Noble took extra large doses of pain killers was truly a new allegation. In my judgement, it was not. As we have seen, in his statement dated 5 June 2009, Mr Noble says:
“I have worked hard to make the most of my situation….. This hard work, together with strong pain medication and a cortisone injection in my leg, has got me to the place where, on a good day, I can walk short distances.”
For her part, Mrs Stanton in her witness statement talks of seeing “the spaced out look when [Mr Noble] has taken more medication than he should”; and Mr Batty says in his statement dated 4 June 2009 that he had often known Mr Noble to over medicate due to pain. Further, Mr Dunlop said in evidence that he had been told by Mr Noble that he saved up pain killers and took large quantities to help him but these produced side effects. The last time Mr Dunlop saw Mr Noble before the fraud trial was on 8 July 2009. He had previously seen him on 28 April 2008. In my view, given this state of the evidence, it would not be right to conclude that the evidence Mr Noble and Mrs Stanton gave at trial as to his overdosing on painkillers is a recent invention. On the contrary, I accept their evidence on this matter, supported as it is by the evidence of Mr Dunlop.[136]What is the extent of Mr Noble’s improvement between January 2008 and mid November 2008? I accept Mr Worlock’s use of the word “significant” when describing this improvement. However, it does not follow that Mr Noble was capable of doing what is seen in the DVDs every day or most days. Mr Grigg, whose evidence I accept, described Mr Noble as walking with crutches when he visited him in the Autumn of 2008 and stated that it was he, rather than Mr Noble, who made the coffee. Mr Wisbey, the farm machinery salesmen, an independent witness, testified that in the period September, October and November 2008 he saw Mr Noble a half dozen times and on each occasion he used at least one crutch when walking. I also accept the evidence of Mr Noble, Mr Batty and Mrs Stanton that Mr Noble has good days and often has bad days when he does not walk unaided.[137]I turn to the medical evidence. I found Mr Worlock to be an impressive and authoritative witness. Unlike Mr Carew, he is a specialist in major fractures to the pelvis, including reconstruction surgery such as that performed by Mr Bircher, and has extensive experience in the follow up care of patients who have had such treatment. He was also measured and considered in his approach and I find his conclusion that Mr Noble’s improvement was probably multi-factorial rather the result of a fraudulent misrepresentation of the true extent of his disability in January 2008 cogent and persuasive. The factors noted by Mr Worlock are recited in paragraphs 118-119 above. In summary they were: spontaneous recovery (in small measure); the effect on the perception of pain of a lessening of anxiety and stress after the damages award; the effect of better pain control; the fine weather conditions on the days the surveillance was undertaken; and the possibility that Mr Noble was consciously or unconsciously emphasising some of his disability at the time of the quantum trial, cogent and persuasive. I should add that, it was clear from Mr Worlock’s evidence as a whole that he considered Mr Noble’s overdosing on pain killers as constituting “better pain control”.[138]Mr Worlock’s view about the effect of the lessening of stress and lightening of mood is in accord with the common sense and common experience. It also chimes with Professor Fahy’s evidence.[139]I regard Mr Worlock’s evidence that occasionally patients with injuries comparable to Mr Noble’s achieve improved mobility more than three years after surgery as being of considerable significance. This evidence was corroborated by Mr Dunlop who, like Mr Worlock but unlike Mr Carew, specialises in treating patients with major pelvic fractures and follows up their progress as part of the consequential after-care.[140]Mr Worlock and Mr Carew were agreed that the cortisone injection in Mr Noble’s left ankle in April 2008 would have played but a small, if any, part in the improvement in Mr Noble’s mobility between January 2008 and the post trial surveillance. I accept this evidence, but that is not to say that the injection played no role in Mr Noble being able to walk unaided from around November 2008. Thus, even if Mr Noble’s underlying condition (apart from the pain in his ankle) had improved to the point he could walk unaided in mid November 2008, the pain in the ankle might well have prevented him from benefiting from this improvement unless it was alleviated by medical intervention. It is therefore not surprising that Mr Noble and Mrs Stanton should have regarded the injection as a factor contributing to his improvement.[141]Mr Carew was a learned and articulate witness but, as I have remarked, he does not have the specialist experience that Mr Worlock and (to a lesser extent) Mr Dunlop have in the treatment and after care of patients suffering from major pelvic fractures. I also think that he moved to the conclusion in his second report that Mr Noble was a fraudster in a somewhat dogmatic way and then closed his mind to reasonable possibilities and explanations. In this connection I think that it was unfortunate that he:(i) drew an adverse inference on the mistaken basis that Mr Noble was not “off-roading” at the time of the quantum trial;(ii) called into question the veracity of Mr Noble’s account of how the 20 July 2009 accident occurred when he is not a specialist in bio-mechanics; and(iii) stated in his third report that Mr Noble had reported at the second consultation that there had been a “small improvement”, when he had described in a letter of 9 November 2007 Mr Noble’s improvement between 2005 and 2007 as “much improved”.[142]There are other factors in addition to Mr Worlock’s evidence that supports the evidence given by Mr Noble and Mrs Stanton. These are:(1) The surveillance footage shot on 8 days between 15 October and 9 December 2007 before the quantum trial which does not show Mr Noble walking unaided.(2) The testimony of Mr O’Donegan, the Land Rover salesman, Mr Wisbey, the farm machinery salesman, and Mr Warmington, the architect, that on various occasions in 2008 before mid November, Mr Noble used crutches when meeting them.(3) Mr Noble reported that he was improving on each of the occasions he was seen by Mr Worlock and Mr Carew pre-trial, the last occasion being 8 September 2007, four months prior to the quantum trial.(4) Both Mr Carew and Mr Worlock thought that Mr Noble was a reliable historian when they examined him pre-trial.(5) It is clear that Mr Noble is a proud and determined man and he had a powerful motivation to mobilise unaided in: he wanted to walk Mrs Stanton down the aisle unaided.(6) If Mr Noble really did dishonestly conceal the true state of mobility, he would have had to have spun an extremely wide and complicated web of deception.[143]In the light particularly of the expert medical evidence given by Mr Worlock, Mr Dunlop (in part) and Professor Fahy, and:(i) the factors identified in paragraph 142 above;(ii) the demeanour of the lay witnesses (other than Mr Duthie) called by Mr Noble; and(iii) the pretty limited extent to which I am prepared to accept Mr Hogarth’s submissions concerning the veracity of Mr Noble and his witnesses (paragraphs 128-135 above) I have come to the conclusion that the Defendant has failed to prove the allegation of fraud they have advanced in this trial. Although I have reservations about some aspects of Mr Noble’s evidence I find overall that he is telling the truth when he denies that he misstated the extent of his disability at the quantum trial. I also find that Mrs Stanton’s evidence was truthful throughout.

Conclusion

[144]At the time of the quantum trial, Mr Noble was determined to try to walk unaided and may have been confident that somehow he would succeed in doing so, but he did not dishonestly conceal from the court or the expert witnesses his then true state of disability or dishonestly emphasise his disability. The claim that he dishonestly misled the court at the quantum trial is accordingly dismissed. ANNEXE AGREED ANALYSIS OF SURVEILLANCE FOOTAGE 18 November 2008• film lasting about 1 hour 15 minutes was obtained over a period of 4 hours 31 minutes (with one of the gaps in filming lasting about 2 and a half hours).• the Claimant is filmed sitting in the digger for nearly all of the film• the Claimant is filmed on his feet for a total of about 90 seconds• at 12:24:54 -12:40 the Claimant is operating then sitting in digger talking to adult male/eating lunch the digger.• at 12:40:48 the Claimant got out of the digger, walked around briefly and got back in it again at 12:41:54• at 12:55 the Claimant is seen standing and leaning out from the within the digger (between 12.55.48 - 12.56.07 and then 12.56.25— 12.56.32)• he was then filmed in the digger until 12.58.26; then from 13.01:49 — 13:09:35 (with a 2 minute break) and between 13.30— 13.34 when he went out of view• between 13:34 and 16:01 no film was taken (NB 32 seconds of film at 13:38:48 of various vehicles but no film of the Claimant).• 16.01 — 16.32 the Claimant is seen operating the digger up a bank (with several short breaks in the footage, with the camera zooming in and out)• the digger is driven back to the barn in the dark at 16.40. . , [• at 16:51 when it is completely dark someone, who might or might not be the Claimant, is seen walking a few steps towards the barn. 19 November 2008• film lasting around 1 hour 23 minutes was obtained over a period of about 4 hours 38 minutes (with one of the gaps in filming lasting 1 hour 45 minutes)• the Claimant is filmed on his feet for about 7 minutes in total• from 12:08:29 — 12:08:39 there is 10 seconds of footage when C is using a chain saw and pulling the chain with his left hand• from 12:20:35 - 12:21:44 the Claimant was filmed standing and then taking a few steps, C is out of sight behind the Land Rover for some of the clip• virtually continuous film from 12:33 — 13:47• from 12:3 3 — 12:46 the Claimant was in and operating a digger• at 12:46:15 the Claimant was filmed getting down from a digger and walking a few steps to behind the Land Rover• at 12:47 :40 the Claimant is bending down• from 12:47:45 — 12:51 the Claimant was on his feet, holding/using a chain saw, walking around and bending down so that he could reach the ground with the chain saw• at 12:51:17 the Claimant lifts his dog into a digger and at 12:51:55 he gets into the digger himself• from 12:52 — 13:47 he is in and operating a digger whenever filmed• from 13:47 — 14:08 no film was taken• from 14:08 — 14:11 the Claimant was in and operating a digger• from 14:11:23 — 15:56:03 no film was taken• from 15:56— 15:58 the Claimant was in and operating a digger• from 16.14-16.46 the Claimant is filmed operating the digger 22 December 2008• film lasting about 1 hr 18 minutes was obtained over a period of about 2 hrs and 40 minutes• the Claimant was filmed on his feet for 6 periods’, none lasting longer than 15 minutes, totalling about 36 minutes• the Claimant was first filmed at 13:52 in and operating a digger until he drives it into the barn at 14.07.• there is film from 13.52 to 14.36 (44 minutes) but there is a 2 minute gap between 14.07— 14.09 when the Claimant drives the digger into the barn and is then next seen standing behind a different digger in the yard walking a short distance and then getting back into the digger around 14.10.• from 13:52 -14:21 the Claimant was seated in/operating a digger• from 14:21 — 14:28 the Claimant was on his feet, seen using a wheelbarrow, rolling a wheel/tyre, carrying a section of metal piping, a gate, dragging a plastic orange bucket2 and leaning over/scraping the ground with a stick.• from 14:28 — 14:34 the Claimant is partially out of view behind a tree for a short period but is standing on a dumper and then operating the dumper with one hand whilst standing on it (dog in driving scat).• from 14:34 — 14:36 the Claimant gets off the dumper, moves small pieces of timber into the bucket on the dumper and walks alongside it operating the controls• from l4:36—15:29 there is no film• from 15:29 — 15:36 the Claimant was in the truck. He reverses the truck and then manoeuwes himself across the front seats within the cab from the driver’s seat to the passenger seat• from 15:36 — 15:46.03 the Claimant was on his feet before going into the barn, he bends down and crouches to put something around the wheel area of the truck, puts a gate on the back of a trailer, and rolls a wheel/tyre• from 15:48.37 — 15.52.48 the Claimant was in/operating a digger.• 15:52.48 — 15.53:04 the Claimant gets out of the digger and walks over and into the barn there is just over a 2 minute gap before 15.55:21 when the Claimant was seen in and operating a digger and then drove it into the barn at 15.59.06.• from 16:03 — l6:1l the Claimant was on his feet, walking around, bending down/loading a skip with another male and then dragging wire to the other end of the yard, walking back through the yard and kicking something with his foot on the ground• at 16:11 the Claimant is seen going into the barn The Claimant then takes a few steps here and there whilst loading the dumper and remains standing. At 16.08 the Defendant counts that he walks in the region of a further 166 steps to the end of the yard and back.• from 16:11:31 — 16:32:05 there is no film, presumably because C was in the barn• 16: 32 - 16:34 film is obtained but it is almost pitch black 23 December 2008• the Claimant is filmed for 2 minutes from 13:29:58 — 13:31 the Claimant is filmed standing in the yard and then walking to the house 9 March 2009• surveillance took place all day and there was no film of the Claimant 10 March 2009• film lasting about 64 minutes was obtained over a period of about 1 hour 28 minutes• the longest consecutive period that the Claimant was filmed was on his feet was for about 17 minutes from 13:16 — 13:32• he was filmed on his feet for a total of about 38 minutes interspersed with additional time sitting in his digger and sitting on a bench• from 12:04 —12:17 the Claimant was filmed in and operating a digger• at 12:17 the Claimant got out of a digger and walked out of view. He climbed back in at 12:19 and was filmed in the digger to 12.25• from 12:25—12:48 no film was takèn• from 12:48 — 12:50 the Claimant was in and operating digger• from 12:50 — 12:57 the Claimant was on his feet; opens gates; walks through large wooden gates towards house• from 12:57 new digger is delivered by lorry driver accompanied by Mr Grigg• from 12:57 — 13:01 the Claimant is seen standing by the delivery truck and standing / walking around his yard whilst talking to Mr Grigg• from 13:01:32 — 13:06:14 the Claimant is sitting down on a bench (Mr Grigg sits down on the bench as well from 13:04)• at 13:06 the Claimant gets up from the bench and climbs into the new digger and out of it at 13:07 and thereafter stands around in the vicinity of the digger.• at 13:13 the Claimant measures the bucket on the new digger. The Claimant then bends down/rubs front of the cab on the digger.• at about 13:13:52 the Claimant climbs into the digger but he does not settle down in the digger until 13:14:31 (he climbs onto the track of the digger and appears to be adjusting something inside, he climbs in and sits down, then climbs out again and bends over into the digger before sitting down again. He repeats this but standing up and bending over and then sitting down)• he is then sitting down until he manoeuvres the digger so that it is in an elevated position and then he stands up to get out I climb down at 13:16:38• he is then standing in the area of the digger until 13.30• from 13:30 — 13:32 the Claimant walks from the yard to the house with Mathew Griggs. The Claimant walks on the grass and Mr Grigg on the path. There are steps on the path.• the Claimant was not filmed again that day 11 March2009• film lasting about 2 hours 16 minutes was obtained over a period of about 4 hours 12 minutes• the longest consecutive period that the Claimant was on his feet lasted 28 minutes5 from 13:49:29 — 14:17:11 when he leant against then sat on the bench (14:17:11-14:19:50) and then immediately thereafter another 20 minutes to 14.34.• the Claimant was filmed on his feet for a total of about 55 minutes• there is no film of the Claimant prior to 11:34• from 11:34 — 12:36 the Claimant was in and operating a digger (11.35.17 — 11.37.57 no film was taken)• from 12:36:17 — 13:37:32 no film was taken The Claimant thinks that on this occasion he took about 65 steps as he walked from the gate to the back door. The Defendant is of the view that the Claimant walked about 23 steps to the gate prior to around 67 from when he set off having waited for Mr Grigg. The Defendant notes that on 11 March, there is 50 minute passage made up of 28 minutes on his feet, followed by 2 minutes 39 seconds when he is leaning against a bench and then sitting on it briefly and followed immediately by a further 20 minutes on his feet.• from 13:37 — 13:43 the Claimant was in and operating a digger• at 13:43 the Claimant got out of a digger, walked to the side of the barn and urinated• at 13:44 the Claimant walked about into the barn• from 13:44:17 — 13:49:29 no film was taken• from 13:49 — 13:59 the Claimant is on his feet hosing down a digger. At 13.58.34 he bent down for 30 seconds to look at something on the digger.• at 14:02 the Claimant walked from the barn to the shed carrying an electric drill and a saw, he put them by the shed he then walked back to the barn• at 14:02:56 the Claimant carried an aluminium bench from barn to shed• from 14:03 — 14:17 the Claimant was on his feet working on the shed, reaching up above his head, lifting panels above head height, screwing and unscrewing panels (with electric screwdriver), removing panels, walking around, carrying a single panel from the barn to the shed, using a hand saw• from 14:17:11-14:19:50 the Claimant leant against and then briefly sat on the bench• from 14:19 — 14:34 the Claimant was on his feet working on the shed, reaching above his head, using hand saw and standing around• at 14:34 the Claimant moved out of shot, he appeared to sit down• at 14:38.53 he was filmed walking back to the barn• at 14:39.48 he walked from the barn to the quad bike carrying an empty or not heavily laden bucket• from 14:40:30 — 14:42 — he rode the quad bike to a field• from 14:42 — 15:11 no film was taken• from 15:22 — 15:23 the Claimant was on his feet leaning into a mini digger, took a bag from the digger and put it in the back of the quad bike• from 15:23:15 — 15:33:32 the Claimant was in and operating a mini digger• at 15:33 he got out of first digger, walked a few steps to another mini digger and climbed into it• from 15:34:20 — 15:37:09 the Claimant was in a digger• at 15:37 he got out of the digger and walked to the fence• 15.38 the Claimant picked up a piece of wood from the floor and threw it. The Defendant counts that the Claimant walked about 82 steps in walking from the barn to the shed with a saw and an electric drill and back to the barn then back to the shed carrying the aluminium steps• from 15:38 15:43 he stood still leaning against the fence (some of this talking to an adult male)• from 15:43— 15:45 he stood still at the gate• at 15:45:25 he walked slowly back to the house 12 March 2009• film lasting about 1 hour 40 minutes was obtained over a period of about 2 hours 7 minutes• the longest consecutive period that the Claimant was filmed on his feet was 24 minutes from 11:30—11:54• the Claimant was on his feet and working on the shed for about 78 minutes in total• from 10:43 — 10:56:56 the Claimant was on his feet working on the construction of the shed, using a circular saw, carrying single shiplap planks and bending down• from 10:56:56 — 11:06:08 the Claimant was sitting down in a chair talking to 2 men (one of the men was also sitting down, the other man was intermittently sitting down/having a drink/hand rolled cigarette and intermittently working on the shed).• from 11:06 -11:19 the Claimant got up and is out of shot behind the shed for a few seconds (11.06.46 and filming recommences 11.07.20). He was then was on his feet working on the shed (including repeatedly bending down to pick up single planks and working on the circular saw)• from ll:19:30—l1:28:54 there was no film• when filming resumed at 11:28 the Claimant was sitting down and the film does not therefore show when he first sat down. He got up at 11:30:09.• from 11:30 — 11:54 the Claimant was standing whilst working on the shed including repeatedly reaching to the top of the side wall positioning a short plank of wood, using the circular saw and lifting planks one at a time but at times was holding onto the bench, to a pair of step ladders and also a piece of wood• from 11:54:10 — 11:57:43 the Claimant was sitting down generally looking in the direction of the shed• from 11:58 —11:59 the Claimant got up and worked on the shed• from 11:59:00 — 12:03:09 the Claimant was sitting down The Claimant has counted that on this occasion he took about 80 steps as he walked hack to the house• from 12:03 — 12:12 the Claimant worked on the shed (including repeatedly bending down to pick up a plank), working on it and then the planks being taken by one of the males to the other side of the shed.• from 12:13:34—12:18:33 there was no film taken• from 12:18 — 12:29.58 the Claimant worked on the shed (including crouching down several times to do something under the work bench)• from 12:29:59 — 12:31:28 there was no film taken• the Claimant is not seen properly from shortly after 12:29 until 12:45 - from 12:34 — 12:45 no film was taken• from 12:45 the Claimant worked on the shed until he walked out of shot at 12:49.23• he came back into shot as 12,49.52• at 12:50 — 12.51.09 the Claimant walked from the shed area through the yard back to the house on the grass. On passing through the gate he bent down to stroke the dog and then threw something underarm for the dog The Claimant is filmed as he walks back to his house on 4 occasions (23 December 2008 - 13:3 1; 10 March 2008 - 13:32; 11 March 2009 15:45:25; 12 March 2009 -l2.50). On the three other days that filming took place (18 November 2008, 19 November 2008 and 22 December 2008) it is too dark to enable the Claimant to be identified and or to see the Claimant.

Cited in 2 later judgments