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PI Practitioner, August 2020

16/08/20. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.

Pegg v Webb (1) Allianz Insurance Plc (2) [2020] EWHC 2095 (QB)

The Claimant made a claim for damages for soft tissue injuries to his neck, left elbow and left knee, which he claimed were sustained in a road traffic accident with the First Defendant, Mr Webb. The collision was entirely the fault of Mr Webb. The Second Defendant ("the Defendant") argued that the claim was based on a staged or contrived collision. HHJ Rawlings found that there had been a genuine accident and that the claim had not been dishonest. The Defendant also contended that the Claimant had exaggerated his injuries and so misled his medico-legal expert, Dr Shakir. It was accordingly argued that he had been fundamentally dishonest even if there had been a genuine collision.

HHJ Rawlings found that the Claimant had failed to provide Dr Shakir with relevant information and that what he had reported about the duration of his symptoms was inconsistent with his own evidence at trial. As such, no reliance could be placed on Dr Shakir's report, and the claim for personal injury was therefore unsupported. HHJ Rawlings dismissed the claim, but ordered for the Defendant to pay 60% of the Claimant's costs. The reason for the order was that the Defendant had pursued allegations of fundamental dishonesty, which had turned the case into a two-day multitrack claim rather than a one-day fast-track. The Defendant appealed the order, and was granted permission to appeal by Martin Spencer J. The Defendant argued that HHJ Rawlings had erred by failing to make a finding of fundamental dishonesty and that in any event, the costs order made was wrong in principle.

To understand the Defendant's case, Martin Spencer J considered that it was necessary to explore the history of the claim. The accident occurred on 2nd June 2016. The Claimant sought no medical help of any kind at the time. He did, however, instruct Winn Solicitors and they arranged a medical examination and physiotherapy. The Claimant had an initial assessment and three sessions of physiotherapy, and was discharged in July 2016. On 2nd July 2016, the Claimant had a fall on his quad bike. Four days later he was lifting his quad bike and experienced a sudden onset of pain in his lower back. He attended A&E complaining of lower back and left leg pain. He was discharged with analgesia and a physiotherapy referral. On 8th July he attended a Walk-in clinic and reported his quad bike injuries. The medical records also showed a pre-existing knee injury from 2014 and a previous foot and ankle complaint. The accident was not mentioned at any of his post-accident medical attendances. At the examination with Dr Shakir some two months post-accident, the Claimant reported that his symptoms were continuing and that his physiotherapy treatment was ongoing. He also told Dr Shakir that there was no relevant medical history. In his witness statement, the Claimant stated that his accident symptoms worsened over the first few weeks and that ongoing ache significantly restricted his movements. After the first month, his symptoms levelled out for another month before they started to improve. At trial, the Claimant initially confirmed the accuracy of is statement and the medical report, but then changed his account in cross examination and conceded that he had recovered from his neck and elbow injuries approx. one-month post-accident. He was unable to say how long his accident related knee injuries lasted, due to his pre-existing knee injury.

Martin Spencer J found as follows:
• In a case where the damages claimed are confined to pain, suffering and loss of amenity and physiotherapy costs, dishonesty as to the extent of the injuries is fundamental "because the extent of the claimant's injuries is not merely incidental or collateral but forms the very basis of the claim".
• There were factors in the case which "pointed strongly, if not inexorably" to the conclusion that the Claimant had been dishonest in the presentation of his injuries:
o The fact that the Claimant had not sought any medical assistance at all after the accident, but did instruct solicitors, should "immediately have raised at least a suspicion in the mind of the judge".
o He had not mentioned the index accident at any of his unrelated visits to clinics and hospital post-accident. His silence in this regard was "inexplicable" and "deafening".
o The Claimant had failed to mention his quad bike accident to Dr Shakir, notwithstanding the fact that it happened only weeks earlier. "No-one in the position of the Claimant could have failed to have appreciated the significance of the quad bike accident and the only reasonable inference to be drawn is that the Claimant deliberately failed to tell Dr Shakir about it in order to mislead Dr Shakir about the effects of the index accident."
o Based on his evidence at trial, the Claimant must have deliberately misrepresented his injuries to Dr Shakir, by telling him that there were ongoing symptoms and that physiotherapy treatment was ongoing when he had in fact been discharged a month earlier.
o The Claimant's dishonesty was compounded by continued lies as to the duration of his symptoms on the claim form, his witness statement and by adopting Dr Shakir's report at trial.
• Accordingly, no judge could reasonably have failed to conclude that the Claimant's claim was fundamentally dishonest.

The appeal was accordingly allowed. The Claimant was ordered to pay 70% of the Defendant's costs on the indemnity basis. The Defendant had failed to prove that the accident was bogus, and accordingly a 30% reduction in costs liability was appropriate to account for the fact that a significant part of the evidence and court time had been directed towards the question of whether the accident was genuine.

Olivia Rosenstrom
Temple Garden Chambers

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