WITHDRAWAL OF PRE-ACTION ADMISSIONS – JUDGES SHOULD RESIST THE TEMPTATION TO CONDUCT A MINI-TRIAL
Zenith'sBronia Hartley writes:Newham London Borough Council v Arboleda-Quiceno QBD(Lambert J) 31/07/2019The defendant local auth...
Mr Mirajuddin Molodi v (1) Cambridge Vibration Maintenance Service (2) Aviva Insurance Limited  EWHC 1288 (QB)
The problem of fraudulent or exaggerated whiplash claims is well recognised - County court judges have to approach whiplash claims with a degree of caution - Where a claimant's account is demonstrably untruthful or so hopelessly inconsistent as to be unreliable, the court should be reluctant to accept the claim as genuine – The trial judge “adopted a much too benevolent approach to evidence from a claimant which could be demonstrated to be inconsistent, unreliable and, on occasions, simply untruthful”
The Claimant, a 31 year old taxi driver, claimed damages for personal injury and other losses following a road traffic accident on 4 February 2015.
The matter came before HHJ Main QC on 18th April 2016 for trial. HHJ Main QC gave judgment for the Claimant and awarded him damages of £4,397 comprising £2,750 for pain, suffering and loss of amenity together with £1,647 for special damages and interest.
The Defendants appealed against the judgment and order of HHJ Main QC and sought an order that the Claimant’s claim be dismissed.
The brief facts are that the Claimant, driving a VW motor vehicle along Ordsall Lane in Manchester, was passing a Ford Transit van being driven by Mr Daniel Chapman in the course of his employment with the First Defendant when Mr Chapman commenced a “U-turn” in the road. Mr Chapman had failed to check his mirror and did not realise that the Claimant was passing his stationary vehicle. The Claimant sounded his horn and there was then contact between the two vehicles.
Following the commencement of proceedings a defence was served which admitted primary negligence but disputed that the accident had occurred at sufficient speed for injury to occur. The reasons for the Defendants’ denial in respect of causation were particularised. Despite the contents of the defence (and the fact that a compliant Casey v Cartwright statement had been served), standard Fast Track directions were issued, albeit those directions did provide permission for the Defendants to ask Part 35 questions, which they did.
The evidence of the Claimant was that the force of the impact was sufficient to move him about in the car and that he started to experience pain in his back, neck, shoulders and right hand the day after the accident.
The evidence of Mr Chapman was that the impact was so minor he had not been entirely sure whether any contact had been made at all. His passenger gave similar evidence.
Numerous inconsistencies and inaccuracies were drawn out by the Defendants at trial. For example, the Claimant told the medico-legal expert that he had only been involved in one previous accident when in fact he had been involved in at least four. He gave oral evidence that he had recovered from his injuries within six to seven months, whilst his witness statement (signed approximately eleven months after the accident) said that he was still experiencing pain in his neck and shoulders. He had a long history of lower back pain which required medication on occasions and two separate courses of physiotherapy. He was claiming nearly £1,300 in respect of vehicle repairs. His witness statement gave every impression that his vehicle had not been repaired whilst in oral evidence he said that the vehicle had been repaired by a friend for £400, £900 less than the amount being claimed.
Counsel for the Defendants cited these various inconsistencies in his submissions and HHJ Main QC clearly considered the same. The learned judge acknowledged the inconsistencies regarding the Claimant’s recovery period, saying that they “raised a question mark as to his reliability more generally”. He referred to the contradictory evidence regarding the vehicle damage claim. He then said:
“36. Standing back from all this, I do not propose to say anything further on the evidence. I have to establish in my own mind, as a matter of fact, whether the nature of the impact in the course of this collision is such which not just gives rise to a real plausibility of the occupant of the Claimant’s vehicle being injured, but also as a matter of fact, him having actually sustained injury.”
Having then referred to the weaknesses in the Claimant’s evidence the judge stated:
“41. Therefore, to that extent, he has not come across well in terms of the consequences of the accident but I find, as he sought to explain the collision, I thought he was relatively straightforward....
46. The point is, am I satisfied that there is sufficient here from the Claimant’s perspective to bring about plausibility that he may have been injured and that the probability is that he was injured as a consequence of this accident? Let me be clear, I am so satisfied, and there is insufficient evidence here raised by the Defendant and in the Defendant’s account to cause me to have any real concern about that.”
47. The next question is am I satisfied that Mr Molodi suffered the extent and effect of his accident as he has suggested later on to his GP and has continued to suffer the effects of it as the GP had originally suggested. I’m not satisfied that is so and I suspect there has been a measure of exaggeration so far as Mr Molodi is concerned.”
HHJ Main QC made his findings as follows:
“51. I’m satisfied that it is more probable than not that Mr Molodi did suffer some relatively short term injury to his right hand, that he did have some relatively short term issue relating to his right shoulder and also suffered in respect of his neck and, to an extent, his upper back. I’m not satisfied in the event, given the concerns I have over the lack of the history presented to the GP, Dr Idoko and the failure on the part of the Claimant to give a consistent account in his later evidence, that in fact he had suffered for the length of time which is presented as part of his claim, as part of the medical evidence and in the Claimant’s statement.
52. Mr Wood effectively invites me to find, even if I find there is some cause as to some injury, that I should effectively reject it on the basis that he is so otherwise inconsistent that I simply cannot reliably find what his injuries are and, therefore, he has not proved his case. I do not take the view that is appropriate from the facts here because I’m satisfied that there was sufficient here because I take the view that Daniel Chapman probably did turn more into that vehicle which did cause some more sideways movement on the vehicle that could easily explain and does explain on balance the fact of the soft tissue injury in this accident.
53. The fact that the Claimant has now refined his evidence, as I have stated, when he talks about neck and shoulder, six to seven months, I’m satisfied that that should be in fact be his ceiling in respect of all his injuries. In so far as the fact, it is a fact as he presented that he had a longer period of discomfort in his upper back, I’m not going to award him that and that reflects the fact he is inconsistent witness.”
The Learned Judge then went on to make an award of £2,750 for pain and suffering together with some small sum for interest, £400 in respect of the vehicle costs, the physiotherapy costs as pleaded and £35 for out-of-pocket expenses, a total judgment in the sum of £4,397.
On appeal the Defendants argued that this was one of those rare cases where the weight of the other evidence, and in particular the inconsistencies and the failure truthfully to account to the medical expert in relation to previous medical history and previous accidents and the dishonesty in relation to special damages was such as to justify overturning the finding of HHJ Main QC.
Mr Justice Spencer agreed.
He reminded himself that by CPR 52.21 an appeal is limited to “a review of the decision of the lower court” and that the Appeal Court will allow an appeal where the decision of the lower court was either wrong or unjust because of a serious procedural or other irregularity in the proceedings. However by 52.21 (4) the Appeal Court “may draw any inference of fact which it considers justified on the evidence.”
As regards the scope of the appellate court Mr Justice Spencer cited from the judgment of Viscount Simmonds LC in Benmax v Austin Motor Company Limited  AC 370 in which the judgment of Lord Cave LC in Mersey Docks and Harbour Board v Proctor  AC 253 was referred to:
“It is the duty of the Court of Appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted, and to decide accordingly.”
“This does not mean that an appellate court should lightly differ from the finding of a trial judge on a question of fact, and I would say that it would be difficult for it to do so where the finding turned solely on the credibility of a witness. But I cannot help thinking that some confusion may have arisen from failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts.”
Applying these principles to the case at hand, Mr Justice Spencer said as follows (with emphasis added):
“42. In my judgment, Mr Wood was correct in submitting that, given it is for the Claimant to prove his case and that case depended very largely upon his credibility and reliability, it was open to the Defendants to submit that, by reason of demonstrable untruths, inconsistencies and general unreliability, the claim should be dismissed. If I am satisfied that no reasonable judge, in the position of HHJ Main QC, could have failed to accede to the submission that the Claimant had failed to prove his case, then I would be entitled to allow this appeal and overturn the Judge’s order. However, where the trial judge has heard the evidence and has not concluded that the claimant was dishonest, I direct myself that it would require a very clear case indeed for an appellate court effectively overturn the trial judge’s conclusion in that respect and find that the claimant was dishonest despite not having seen the witnesses give evidence.
43. It seems to me that there are four possible courses which I can take on this appeal:
i) Dismiss the appeal and uphold the decision of HHJ Main QC;
ii) Allow the appeal and remit the case for re-hearing;
iii) Allow the appeal and dismiss the claim on the basis that the Claimant failed to prove his case;
iv) Allow the appeal, dismiss the claim and make a finding of dishonesty or fundamental dishonesty on the part of the Claimant.
44. Before considering the particular issues in this case, it is also pertinent to recognise the problem that fraudulent or exaggerated whiplash claims have presented for the insurance industry and the courts. This was recognised in March 2018 when the Ministry of Justice published a Civil Liability Bill which aims to tackle insurance fraud in the UK through tougher measures on fraudulent whiplash claims, proposing new, fixed caps on claims and banning the practise of seeking or offering to settle whiplash claims without medical evidence. 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, where a vehicle is shunted from the rear at a sufficient speed to cause the heads of those in the motorcar to move forwards and backwards in such a way as to be liable to cause “whiplash” injury, then genuine claimants should recover for genuine injuries sustained. The court would normally expect such claimants to have sought medical assistance from their GP or by attending A & E, to have returned in the event of non-recovery, to have sought appropriate treatment in the form of physiotherapy (without the prompting or intervention of solicitors) and to have given relatively consistent accounts of their injuries, the progression of symptoms and the timescale of recovery when questioned about it for the purposes of litigation, whether to their own solicitors or to an examining medical expert or for the purposes of witness statements. 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.
45. In the present case, in my judgment, HHJ Main QC adopted a much too benevolent approach to evidence from a claimant which could be demonstrated to be inconsistent, unreliable and, on occasions, simply untruthful. The most glaring example of this relates to Mr Molodi’s clear lie to Dr Idoko, confirmed by Dr Idoko in his Part 35 answers, that he had been involved in only one previous accident when, as conceded by Mr Sweeney, there had been five or six previous accidents or, on Mr Wood’s submissions, some seven previous accidents. Not only had the Claimant lied to Dr Idoko in this regard, but he had also maintained that lie in his witness statement, endorsed with a statement of truth. Even when he gave evidence before HHJ Main QC, the Claimant confirmed that he was happy to rely on the contents of Dr Idoko’s report even though he must have known that it was wrong in a fundamental respect.
46. The medical evidence is at the heart of claims for whiplash injuries. Given the proliferation of claims that are either dishonest or exaggerated, for a medical report to be reliable, it is essential that the history given to the medical expert is as accurate as possible. This includes the history in relation to previous accidents as this goes to fundamental questions of causation: whether, if there are ongoing symptoms, those are attributable to the index accident or to previous accidents or to some idiopathic condition of the claimant. Furthermore, the knowledge that a claimant has been involved in many previous accidents might cause a medical expert to look rather more closely at what is being alleged on the incident occasion to see whether the claimant is being consistent and whether his reported injuries are in accordance with the reported circumstances of the accident. Once, as here, the Claimant could be shown to have been dishonest in respect of a fundamental matter and then to have maintained that dishonesty through his witness statement and into his evidence before the Court, it is difficult to see how the Learned Judge could have accepted any other part of the Claimant’s evidence or the medical report itself – and, without these, there was nothing left.
47. However, the Claimant’s dishonesty did not stop there: Mr Wood demonstrated clearly that £1,300 special damages were claimed in respect of a loss which, when investigated in cross-examination, turned out to have been only been £400. There were fundamental inconsistencies between what the Claimant was saying in his witness statement and evidence, and what he had said in the Claim Notification Form. There were inconsistencies in relation to the period before recovery from the injuries. Finally, it appeared that the Claimant had undergone a course of physiotherapy more for reasons to do with his claim rather than for genuine medical reasons.
48. Mr Wood submits that, pursuant to Section 57 of the Criminal Justice and Courts Act 2015, I should allow this appeal and dismiss this claim for personal injuries on the basis that I am satisfied that the Claimant has been fundamentally dishonest in relation to the claim. I agree with this submission. As in LOCOG v Sinfield  EWHC 51 (QB), so here, the Defendants have proved on the balance of probabilities that the Claimant acted dishonestly “in relation to the primary claim and/or a related claim, and that he has thus substantially affected the presentation of his case, either in respect of liability or quantum, in a way which potentially adversely affected the Defendant in a significant way, judged in the context of the particular facts and circumstances of the litigation” (see paragraph 83 of the judgment of Julian Knowles J.) In my judgment, there was fundamental dishonesty here on the part of Mr Molodi in the respects I have identified and, on that basis, the Judge should have dismissed the entire claim by reference to Section 57 (2). Indeed, I go further and, irrespective of the provisions of Section 57, in my judgment the Learned Judge should have dismissed the claim because, as Mr Wood submitted, the Claimant had failed to prove his case.
49. In essence, I agree with, and adopt for the purposes of this judgment, the arguments and submissions made by Mr Wood on behalf of the Defendants/Appellants, as set out at paragraphs 28 to 33 above. Although I have not seen the witnesses, and bearing fully in mind the strictures of Lord Reid as set out in Benmax (see paragraph 36 above), I nevertheless consider that this is one of those rare cases where the weight of the other evidence, and in particular the inconsistencies and the failure truthfully to account to the medical expert in relation to previous medical history and previous accidents and the dishonesty in relation to the special damages are such as to justify overturning the finding of Judge Main QC that, having heard the Claimant, he could rely on his evidence as to the fact that he had been injured and as to the duration of his symptoms. On the basis of matters which were either admitted by the Claimant or were shown beyond peradventure to be the case, it also seems to me that a finding of fundamental dishonesty should have been made on the part of the Claimant.
50. For these reasons, I allow the appeal and dismiss the claim.
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