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Traditionally with RTA claims in England and Wales where there has been a clearly heavy impact, claimants have had little trouble proving their injuries. However the law, developed over the past few years surrounding fundamental dishonesty, has been a proverbial game-changer.
The application of Section 57 CJCA 2015 has continued to evolve when it comes to fundamental dishonesty in personal injury claims, with judges approaching such claims with a degree of caution, if not suspicion. However, it is worth remembering that the older settled law remains to capture those claims which S57 CJCA does not apply to.
Summers & Fairclough Homes Ltd [2012] UKSC 26 remains the leading authority for the court’s ability to strike out a genuine claim which is found to be tainted by fraud, although the threshold for this is high.
In two recent decisions we have secured dismissal of the personal injury claims, for findings of fundamental dishonesty, despite the judge finding that the claimant was injured following a sizeable collision. The outcome of these cases serve as a reminder that Section 57 CJCA 2015 is not the only route to a dismissal of a claim with a fundamental dishonesty finding.
Spoiler: dishonestly exaggerating any part of a personal injury claim or related claim can lead to a claimant being found to be fundamentally dishonest.
Case study
Background
The claim in question arose out of a road traffic accident on the M1. The Mercedes in which the claimant was a passenger was effectively sideswiped by an HGV. The Mercedes driver lost control and struck the central reservation head on, with photographs showing a moderately severe frontal impact.
The concerns
The concerns, most of which were held previously but some of which manifested themselves more clearly during the trial, were as follows:
- The claimant attended A&E the day after the accident yet the only positive finding was chest tenderness with deep breathing; there was no reference to any other alleged accident-related symptoms.
- The medical expert confirmed the claimant was accompanied by his sister, with the claimant stating he was not. It was highly unlikely the doctor would have been mistaken and this pointed to the claimant being a poor historian.
- The claimant told the expert he had sought physiotherapy when this was not the case.
- The injuries did not prevent the claimant continuing in his heavy manual job.
- The claimant alleged in court that he had injured his left shoulder by banging it on the door, yet had not reported this previously.
- At trial the claimant launched a verbal attack on the doctor whom he suggested had not examined him properly, despite the full record of an examination.
- He subsequently suggested his symptoms only came about two-three days later, which was wholly inconsistent with what he reported to his expert.
- The claimant alleged back injury, which was not mentioned in A&E or to his expert.
What did the judge decide?
The first question the judge asked was whether the claimant sustained some injury. He found that the claimant did most likely suffer symptoms in his chest and probably some tenderness to his trapezius, yet the claimant’s account was found to be “hopelessly inconstant and contradictory”, with his evidence as to resolution of symptoms considered “deeply unsatisfactory”.
The judge therefore refused to accept the claimant’s evidence as being reliable, was unable to make any findings as to the nature and extent of the injury to be compensated, and as such the claim was dismissed. Section 57 CJCA 2015 did not apply as the claimant’s dishonesty was in relation to the personal injury claim itself and not a “related claim” as defined in the Act.
The next question was whether QOCS should be set aside under Part 44.16 of the Civil Procedure Rules 1998 (the fundamental dishonesty exception). The inconsistencies were to do with the claimant being a poor historian, or more the sign of dishonesty going to a substantial part of the claim, as described by HHJ Moloney in Gosling v Screwfix Direct (2014) Cambridge CC.
The judge found that the claimant was dishonest in the way he presented the history, and that he had “deliberately and knowingly exaggerated his claim in a way going to the root of the action”. Applying Gosling, the dishonesty related to large part of the claimant’s personal injury claim, which clearly went to the root of the action. A finding of fundamental dishonesty was the outcome, with the claimant ordered to pay our client’s costs in the sum of £5,854.
The judge also referenced the following paragraph in Molodi v Cambridge Vibration Service [2018] EWHC 1288 (QB):
| “...The problem of fraudulent and exaggerated whiplash claims is well recognised and should, in my judgment, cause judges in the County Court to approach such claims with a degree of caution, if not suspicion. … Of course, I recognise that claimants will sometimes make errors or forget relevant matters and that 100% consistency and recall cannot reasonably be expected. However, the courts are entitled to expect a measure of consistency and certainly, in any case where a claimant can be demonstrated to have been untruthful or where a claimant's account has been so hopelessly inconsistent or contradictory or demonstrably untrue that their evidence cannot be promoted as having been reliable, the court should be reluctant to accept that the claim is genuine or, at least, deserving of an award of damages.” |
In other words, inconsistencies cannot necessarily be put down solely to poor recollection of events and in this case, as with Molodi, the likelihood of some injury being caused did not prevent the claim being found to be fundamentally dishonest. This was notwithstanding the heavy nature of the impact (unlike in Molodi, where the defendant perceived the impact to be minor).
Many fundamental dishonesty findings have their roots in section 57 of the Criminal Justice and Courts Act 2015; where the court finds that a claimant is entitled to damages, but that the claimant has been fundamentally dishonest in relation to “the primary or a related claim”, it must dismiss the entire claim unless the claimant would suffer substantial injustice.
Yet in terms of this case, whilst there was no “related claim” as such, the judge still went further than simply finding that the claimant failed to prove his injuries – he was able to dismiss the claim whilst also making a fundamental dishonesty finding under CPR Part 44.16. The advantage of this outcome is that the defendant’s costs are not reduced by any genuine value of the claim.
Another example – genuine injuries but dishonestly exaggerated:
A similar decision was given in quick succession to the one discussed above. A claim was brought following a 2018 accident in London. The claimant was the driver of a Vauxhall Corsa that was hit by the defendant’s vehicle, which emerged from a side road.
The claimant sought damages for personal injury, physiotherapy, vehicle damage, policy excess and a damaged mobile phone. He attended his GP post-accident and completed a full course of physiotherapy.
Liability had been conceded by the insurer client pre-issue and a number of passenger claims were settled. However, concerns remained with regards to this particular claimant’s claim as it was suspected his claim had been exaggerated.
- The claimant attended his GP two days post-accident. However the symptoms reported were inconsistent with the accounts provided to the medical experts.
- The claimant advised his GP he only suffered pain to the knee following the accident with “no other external injury”. This was inconsistent with his account to the medical experts that he suffered neck pain, lower back pain and upper right arm/shoulder pain within 24 hours of the accident.
- The claimant provided inconsistent accounts as to whether he attended A&E.
- The claimant’s claim for general damages included a claim for psychological injury. The medical records did not support such symptoms.
- Part 35 Questions were raised of the experts. One of the experts accepted that the claimant had failed to disclose his previous road traffic accident and these were relevant to the assessment of the claimant’s symptoms. He also accepted that the symptoms reported to the GP were inconsistent and many of the symptoms included within his original diagnosis could be omitted.
- Both experts agreed that questions had emerged regarding the accuracy of the account provided by the claimant.
- Inconsistent mechanics of movement were reported. The claimant advised the experts he was thrown “forwards and backwards” by the impact. However his witness statement advises his vehicle was “shunted sideways”. The claimant advised at trial that his vehicle had been shunted “360 degrees”.
- The claimant was provided with a hire vehicle following the accident. He advised the medical expert he was unable to drive however for two weeks post-accident (which was the bulk of the hire period).
- The claimant sought compensation for alleged damage to his mobile phone caused by the accident but failed to provide any evidence of this damage (save for an invoice created two months post-accident).
- The claimant made no claim for loss of earnings despite insisting he missed two weeks of work.
The judge found that the accident was genuine and the claimant most likely suffered a knee injury. However, it was held that the remaining symptoms claimed were not suffered and the claimant had therefore exaggerated his injury claim.
The judge interestingly also found that the hire claim had been exaggerated. The claimant had not needed a hire vehicle yet his pleaded case in relation to hire was one of need. The exaggeration in relation to the hire claim meant that Section CJCA 2015 did apply.
The claim was dismissed in its entirety and the claimant was ordered to pay the defendant’s costs. The claimant had been fundamentally dishonest in relation to his personal injury and hire claim and section 57 of the Criminal Justice and Courts Act 2015 should apply.
Conclusion
The moral of these stories is that judges have more than one route to ensuring that dishonest claimants do not profit from their dishonesty, and that defendants will not be left out of pocket in the costs of defending their claims.
Insurance and reinsurance
United Kingdom