PI Brief Update

Nothing in the notes: PI claim succeeds despite gap in records - Michael Brooks Reid, Temple Garden Chambers

12/06/26. Michael Brooks Reid discusses the decision of Mr Justice Mansfield in AXA Insurance PLC v Maher [2026] EWHC 1365 (KB), a case which demonstrates that an absence of contemporaneous records need not always be fatal to a PI claim.

Facts

The claimant was injured in an RTA on 11 July 2018. It was accepted that he sustained a soft tissue injury to his left hand and lower arm. It was not accepted however that he suffered - as claimed – a 5-year acceleration of a degenerative condition in his neck and shoulder.

It was agreed that the claimant suffered from neck and shoulder pain around December 2018; 5 months after the accident. The claimant claimed to have suffered neck and shoulder pain immediately following the accident, but none of the contemporaneous records – A&E notes, GP records, a claim notification form, an incident report, a police witness statement, and the report by a treating orthopaedic surgeon – made any mention of neck or shoulder pain.

The defendant relied on the silent records to assert that the claimant did not in fact experience any neck and shoulder pain before December 2018, and that the December 2018 onset was entirely independent of the accident. The claimant’s claim to the contrary – including the account he gave to his medico-legal expert – was said to be (fundamentally) dishonest.

First instance decision

The trial judge, HHJ Pema, found that the claimant had experienced minor soft tissue symptoms in his left neck and shoulder following the accident, notwithstanding their absence from the contemporaneous records. However, he found that those symptoms would have resolved within three months, so that the more significant neck and shoulder problems from December 2018 were not caused or accelerated by the accident.

Damages were assessed in respect of the other injuries with a modest uplift for the minor neck and shoulder injury, resulting in an award of £3,609.83, a far cry from the pleaded claim of £50,000 to £70,000.

High Court decision

AXA appealed on two grounds: first, that the judge was wrong to find that the claimant had experienced neck or shoulder symptoms in the period between the accident and December 2018; and secondly (contingent on succeeding on the first ground) that the judge should have therefore found the claimant to be fundamentally dishonest within the meaning of section 57 of the Criminal Justice and Courts Act 2015, resulting in the dismissal of his claim.

Mansfield J began by setting out the well-established principles governing appeals on questions of fact. He cited the summary of Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, which identifies – in quite fun language - reasons why appellate courts should be slow to interfere with trial judges’ findings of fact – this included that the trial is “the first and last night of the show” and that the appellate court is “island hopping” whereas the trial court is surveying the whole sea of evidence.

AXA’s primary submission was that as the contemporaneous documents were uniformly silent as to neck and shoulder pain, the claimant could not prove those injuries.

The judge rejected that submission. The Court should not fall into the trap of “slavish adherence” to the documentary record, and the absence of a reference to a particular fact contemporaneously does not of itself establish that the fact did not exist. Where there is a significant absence in the records, a range of questions must be asked: was the matter not mentioned, or mentioned but not recorded; and if not recorded, was that due to error, or to the maker’s view of relevance? The trial judge had the advantage of seeing the claimant cross-examined on the documentary record and was entitled to accept that neck and shoulder symptoms may have been overlooked in the initial months as the less significant complaint, with the hand and arm injuries dominating.

Comment

It is not uncommon to find cases where there are glaring silences in the contemporaneous records in relation to claimed injuries. There is plentiful case law which assists defendants in such circumstances; the judgment of Martin Spencer J in Molodi v Cambridge Vibration Maintenance Service [2018] EWHC 1288 (QB) comes to mind. The judgment in this case may provide some helpful ammunition for claimants in response, seeking to persuade the court that the absence of contemporaneous records need not be fatal to their claim.

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