Cycling claimant found to be fundamentally dishonest at trial

09 Sep 2020

The claimant, Mrs Green suffered injuries to her back in a road traffic accident on 9 December 2015. Liability was not in dispute and proceedings were issued limiting damages to £75,000. This sum was increased to £700,000 in December 2019 with a schedule of loss amounting to £545,000.

Both BLM and Allianz had concerns as to the progression of the case as the records and initial evidence served suggested the claimant’s symptoms were recovering, with the G.P describing pain as moderate with no time taken away from work. In April 2015 the physiotherapy report described symptoms as 80% resolved. The claimant’s medical condition deteriorated in October 2015 although it was only in 2018 and 2019 that her evidence suggested a more serious back complaint with the need for pain treatment and a description of constant care being provided to the claimant by her husband. Due to concerns on inconsistency and increasing valuation, intelligence evidence was obtained which showed the claimant was very active in April 2016 and was seen riding a bike on several occasions, walking and socialising. This contradicted her statement from February 2019 in which it said she was unable to do any of these activities.

The trial

The claim for care amounted to £290,000 and earnings (as extra staff were brought in) totalled £200,000.

At trial the Judge considered the inconsistencies in the following sections :-

  • Doctor and physiotherapy records – clearly showed initial improvement with no time away from work

  • Claimant’s first statement – constant care provided by husband for 12 months with severe pain

  • Intelligence evidence – showed an active lifestyle

  • Claimant second statement – showed her living her best life and not the struggles encountered to attempt to be active

  • Oral evidence – poor answers from the claimant and her husband when faced with the inconsistencies

  • Expert evidence – orthopaedic experts stated any symptoms were limited to 2/3 years and the claimant’s expert couldn’t address the inconsistencies. Our orthopaedic consultant stated care was needed for two months and this was supported by our pain evidence. The Judge preferred our accountancy evidence which stated additional staff were needed due to an upturn in sales; not because the claimant couldn’t work.

The judge stated it was difficult to rely on the claimant’s witness evidence but as this can sometimes be unreliable more weight was attached to the contemporaneous documentary evidence. There were limited symptoms until October 2015 and then a relapse which was not related to this accident.

Fundamental dishonesty was established based on symptomatology as varying between the claimant’s description, open source intelligence  and medical opinion. The care claim was not in any way supported due to contradictory evidence as to the husband’s activities throughout the claim.

The claimant had exaggerated the severity of her symptoms, was dishonest and this was fundamental to the claim. The genuine element of the claim was £4,665 to be set against the costs the claimant was to pay the defendant.

The order included provision for the defendant to receive indemnity costs with interest on costs at 7.5% from 21 days after the defendant’s part 36 offer of £30,000 made in September 2018.

What this means for you?

This case highlights how inconsistencies in various areas of the case can be sufficient to amount to a fundamental dishonesty finding.  Fundamental dishonesty was not pleaded here although the claimant and her solicitors were well aware of our stance in proceeding to trial.

It is worth keeping a close check on all records, reports and statements as supplemented by intelligence evidence to highlight discrepancies. The claimant, in producing a second statement, didn’t assist her or the validity of her claim.

Counsel – James Hogg/ Solicitor- Luisa Lamb & Rachel Markham /Allianz – Simon Hennigan

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Luisa Lamb

Luisa Lamb

Partner and head of office,
Manchester


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