It is important to try to avoid making it easier for an insurance company to avoid paying a claim. Where a claim includes a claim for loss of earnings, the insurers will often refuse to pay a claim where a claimant is unable to provide proper evidence of their pre-accident earnings and loss suffered as a result of time off work. Where a claimant is employed it is important to obtain copies of payslips for a period of at least six months prior to the accident to demonstrate average pre-accident income and copies of payslips since the accident to demonstrate a reduction in income as a result of time off work. A claim can be made for the difference between net income after payment of tax/National Insurance prior to the accident and reduced net income received during the period that the claimant was off work or working reduced hours as a result of the injuries sustained. A claimant can also include within the claim loss of stakeholder/employer pension contributions as well as projected loss of overtime earnings. Where an insurance company disputes the calculation for loss of earnings made on the basis of pre and post-accident payslips a letter/email from the claimant’s employer confirming the period off work and net loss of earnings sustained will often result in the defendant’s insurers agreeing to pay a loss of earnings claim in full. I have dealt with a number of claims where claimants have not been able to provide pre and post-accident payslips or where claimants are self-employed and they have been unable to provide documentary evidence of pre and post-accident earnings and in those cases the defendant’s insurers often refuse to pay a loss of earnings claim at all or have offered less than could have been recovered if documentary evidence had been provided. It is more difficult to establish a claim for loss of earnings where the claimant is self-employed as the defendant’s insurers will need to be provided with copies of the claimant’s tax returns and accounts preferably for a three year period prior to the accident and tax returns and accounts following the claimant’s accident. Where accounts are not available tax returns can be sufficient if accompanied by copy invoices proving pre-accident and post-accident earnings so that an accurate calculation of loss can be made.
Where a claim includes expenses such as taxi fares, medical expenses including physiotherapy, osteopathy, chiropractic treatment, private operation costs, painkillers, disability aids and equipment, copy invoices to support those expenses will usually result in obtaining full reimbursement from the defendant’s insurers. A lack of evidence to prove the expenses have been occurred will result in a reduced amount being recovered and in some cases the insurers may refuse to make any payment. Where the claim includes damage to clothing, personal effects, cars, vans, motorcycles and cycles etc, copy invoices relating to purchases, repair costs and repair estimates makes it easier to obtain full reimbursement. Photographs of damaged clothing, personal effects, vehicles and cycles will also help to make it easier to obtain compensation for the cost of repairing, or replacing damaged items.
In all personal injury claims I will obtain medical reports from appropriate medical specialists to confirm the injuries sustained. When a claimant is being medically examined by a medical expert instructed to prepare a medical report it is important that a claimant provides an objective and unexaggerated account of the injuries sustained and ongoing symptoms. Where a claimant exaggerates the severity of ongoing symptoms or where the claimant claims to experience symptoms that were inconsistent with the claimant’s medical records relating to the injuries sustained, the prospects of bringing the claim to a successful conclusion are significantly reduced. If the defendant’s insurers believe that a claimant has substantially exaggerated the extent of their injuries or losses sustained for example loss of earnings, the defendant can raise a defence of fundamental dishonesty. The Criminal Justice and Courts Act 2015 Section 57(1) states as follows.
“This Section applies where in proceedings on a claim for damages in respect of personal injury (a) the court finds that the claimant is entitled to damages in respect of the claim but (b) on an application by the defendant for the dismissal of the claim under this Section the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.”
Sub-section (2) states that the court must dismiss the primary claim sub-section (3) states that the obligation to dismiss the claim includes any other element of the claim that has not been dishonest. If a claim is found to be dishonest the claimant would be liable to pay the defendant’s costs associated with the claim in addition to their own costs and expenses. It is important to note that if a court does make a finding of fundamental dishonesty against a claimant, the legal expenses insurance policy that would provide costs protection to the claimant in the event of an unsuccessful claim will be invalidated in those circumstances and would not provide any insurance cover. It is therefore very important to prevent the defendant from relying on a fundamental dishonesty defence as that could result in the dismissal of a claimant’s claim including that part of the claim which is entirely genuine. If a court made a finding of fundamental dishonesty against a claimant then the defendant’s insurers can potentially bring a separate claim against the claimant for contempt of court in respect of that dishonesty. In the case of Howlett v Davis and Another (2017) EW CA Civ 1969 the court concluded that the definition of fundamental dishonesty was dishonesty that went to the root of a claim or a substantial part of it and which ought to expose a claimant to costs liability whereas dishonesty in respect of some collateral or minor part of the claim would not amount to fundamental dishonesty. In the case of London Organising Committee of the Olympic and Paralympic Games (in Liquidation) v Haydn Sinfield (2018) EW HC51 the claimant Mr Sinfield had been working as a volunteer at the London Olympic and Paralympic Games in September 2012. Liability was admitted by the defendant. The claimant claimed that prior to the accident he had looked after his garden with his wife but as a result of his injuries had to employ a gardener. The gardening claim amounted to some £14,000 and represented about 42% of the total value of the claim for out of pocket expenses. The court found that Mr Sinfield had falsified the invoices in support of his claim and found that on the balance of probabilities he had acted dishonestly in respect of part of the claim, therefore dismissed the whole of the claim. In the case of Ogden Walkden v Drayton Manor Park Limited (2021) EWHC 2056 QB the claimant was a former company director and claimed that he suffered severe chronic pain syndrome which resulted in the loss of his business. He also claimed that he required daily personal care from his wife. The trial judge HHJ Murdoch held that the claimant had exaggerated his symptoms giving misleading evidence on a number of matters. He noted that the presentation of his symptoms to medical experts was not consistent and the defendant had obtained surveillance footage of the claimant showing that his symptoms were less serious than claimed. The judge concluded that the claimant was not a credible witness and had exaggerated the extent of his injuries to the medical experts. The court also found that the claimant had lied to support a large loss of earnings claim. The claimant appealed the decision but the appeal was dismissed. On appeal it was found that the trial judge could not be faulted on his assessment of the evidence and that the claimant had been fundamentally dishonest and it had been right to dismiss the claim. In the case of Woodger v Hallas (2022) EWHC 1561 QB the claimant was awarded a total of £49,000 at trial despite the fact that he had claimed more than £500,000 for loss of earnings, that part of the claim was held to be dishonest. The court concluded that the claimant would suffer substantial injustice if he was denied the valid part of his claim. The defendant appealed and the decision was overturned as the court concluded that the dishonesty was serious and outweighed any injustice suffered by the claimant in depriving him of his compensation in respect of the valid part of his claim. In the case of Haywood v Zurich Insurance Co plc (2016) UKSC 48 the claimant claimed compensation for personal injuries sustained as a result of an accident at work. He contended that he had sustained a serious back injury which made him fit for only light work, therefore he was unable to continue his pre-accident work. He also suffered a moderately severe depressive disorder as a result of the accident. The claimant accepted an offer of £134,973 in settlement of claim. The insurers became aware that the claimant had in fact recovered before he settled his claim and had exaggerated the extent of his injuries. The insurers made a claim to the court claiming damages for deceit. The defendant’s claim was successful and the award set aside on the basis that the claimant had dishonestly exaggerated the extent of his injuries as the assessed value of the claim was only £14,720. In the case of Hughes Kinden and Jones v KGM (2016) two claimants were involved in a road traffic accident and were awarded £750 compensation for whiplash injuries that cleared after two weeks whereas the claimants had claimed that they didn’t recover until one year after the accident. The defendant’s insurers appealed the decision and were successful as they were able to establish that the claimants had been fundamentally dishonest and were exaggerating the extent of their injuries. The claimants were ordered to pay the insurers £6,100 in costs. In the case of Claire Thomas v LV Insurance (2023) [Law Society Gazette] the claimant was involved in a road traffic accident when her stationary car was hit from behind by another vehicle. The claimant sustained soft tissue injuries to her neck, head, shoulders and back as well as a psychological injury. The claimant claimed that she suffered ongoing symptoms that affected her mobility and all aspects of her daily living. The defendant’s solicitors obtained surveillance evidence and reviewed her social media and obtained evidence that she attended a concert, did volunteering work at a music festival and undertook a strenuous four waterfalls walk in the Brecon Beacons National Park. In his judgment Judge Harrison at Cardiff County Court concluded that on the balance of probabilities the claimant had not been truthful in her account of her symptoms or in her account of the symptoms to the medical experts and that her untruthfulness went to the heart of the claim and she had therefore been fundamentally dishonest and her claim was dismissed.
In the case of Williams Henry v Associated British Ports Holdings (2024) Law Society Gazette Mr Justice Ritchie dismissed the claim of Kirsty Williams-Henry after concluding that she had lied about the extent of her injuries in a claim that had been valued at £2.5M. The Judge concluded that the genuine part of the claim amounted to £600,000. The Judge noted that it would not amount to a substantial injustice to dismiss the claim and concluded that when passing the Criminal Justice and Courts Act 2015 parliament had intended to stamp out dishonesty which was fundamental in personal injury claims and in this case the claimant had breached the law. In this case the claimant had sustained a brain injury when she fell from Aberavon Pier in July 2018. The claim was against the pier owner. Liability was established on the basis of a one-third deduction for contributory negligence. The claimant who was an insurance worker claimed £1.6M for loss of earnings, £1M for care and £338,000 for other past losses and £246,000 for various treatments. The claimant’s symptoms did however improve during the months after her accident and she started a phased return to work in late 2018. The defendant’s insurers obtained her social media posts and the trial judge noted that she attended a Spice Girls reunion concern in May 2019 when she was noted to be screaming, singing and dancing. In 2019 she went on a holiday to Zante where she went on beach walks and a boat trip and there was no photographic evidence of her using a walking stick or having any problems with her balance during that holiday. In 2020 the claimant filled in an insurance form about never drinking alcohol and claimed that she had no lasting psychological, emotional or memory loss problems and her employer praised her performance at work and she confirmed to her employer that her condition had massively improved.
The Law Society Gazette published a case summary on 6 June 2024 relating to a claim brought by a claimant who had made a clinical negligence claim in respect of injuries arising out of a bowel operation. The claim which was presented to the defendant amounted to a total of £2.6M. The claim included £867,000 for future care costs, £487,000 for aids and equipment and £857,000 for past and future loss of earnings. The claimant contended that she suffered debilitating bowel symptoms causing significant fatigue and reduced mobility and therefore required substantial care and support with activities like cooking, cleaning and home maintenance. She stated that she needed help when walking but the defendant’s solicitors commissioned social medial searches and video surveillance footage. The footage showed the claimant swinging a golf club as she underwent a golf lesson and carrying a large golf bag without difficulty. Social media posts confirmed that the claimant was a representative of her golf club playing in at least three tournaments since 2022 with a handicap of 23. The defendant’s solicitors submitted an application to the court to strike out the claimant’s claim on the basis that the claimant was fundamentally dishonest. The claimant discontinued her case five days before the start of the trial and agreed to pay the defendant’s costs which amounted to a total of £323,000.
In the case of Shaw v Wilde {2024] High Court. The claimant was involved in a serious motorcycle accident. Proceedings were issued in the High Court in July 2019 and the claimant claimed a total of £6.5M plus the cost of future disability aids and equipment. In his witness statement Mr Shaw stated that he could only walk two hundred metres without using a walking stick and that for longer trips he had to use a mobility scooter. He claimed to have difficulty standing for more than ten minutes and needed two handrails to climb stairs. He was injured as a result of a serious motorcycle accident. Liability for the accident was admitted by the insurers acting for the driver responsible for the accident and he received interim payments from the defendant’s insurers to cover expenses amounting to a total of £150,000. Mr Shaw made an interim payment request for £1.5M. The defendant’s insurers, Hastings Direct obtained video surveillance evidence of Mr Shaw walking more than nine hundred metres without a walking stick and the defendant’s solicitors wrote to the claimant’s solicitors stating that they believed that Mr Shaw had not been truthful in his description of the severity of his injuries. Mr Shaw however proceeded with his application for an interim payment of £1.5M. He was subsequently videoed by a surveillance company walking without walking aids, shopping and using a mountain bike. He was also seen driving an SUV vehicle and riding his mountain bike at a remote location. Further enquiries revealed that he’d been certified by his GP as fit to make a tandem skydive and had undertaken a base jump on holiday in Italy and had participated in indoor and outdoor climbing in the UK. The defendant was able to obtain records showing that Mr Shaw had tried to climb Mount Snowdon with a friend on an electric mountain bike. When the trial took place, the defendant applied to have the claim struck out on the basis that the claimant was fundamentally dishonest as he’d exaggerated the extent of his ongoing symptoms. The court allowed the defendant’s application, the claim was dismissed. When the claim was dismissed the Judge stated that the genuine value of the claimant’s claim without exaggeration would have been £1.2M but the claimant received nothing because he had substantially exaggerated the symptoms he was suffering from and had put forward a significantly exaggerated claim. Mr Shaw was ordered to repay the interim payments of £150,000 received. Although the claimant was deprived of a large compensation award as a result of his exaggeration, the court concluded that this did not amount to a substantial injustice as the court was entitled to deprive Mr Shaw of the whole of his compensation as that decision was entirely consistent with the provisions of the Criminal Justice & Courts Act 2015 Section 57. In this case if the claimant had not exaggerated his ongoing symptoms and disability, this claim would have been successful and he would have been awarded a total of £1.2M. Unfortunately because the claimant scored an own goal as a result of his exaggeration, he was awarded nothing.
In the above claims the claimants would have recovered compensation and would not have been liable for the defendant’s costs if they had been honest about the extent of their injuries and losses. It is therefore important that in all cases claimants are honest about the injuries sustained and do not significantly exaggerate their symptoms or any aspects of their claims for out of pocket expenses so that defendant’s insurers do not have the opportunity to successfully challenge claims. Where claimants are honest and are able to substantiate claims by providing appropriate documentary evidence to support a claim, their claims will often succeed in full.