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Published 13 November 2018
In proceedings successfully defended by DAC Beachcroft's Motor Fraud team on behalf of Aviva Insurance Limited, a claimant's claim was found to be fundamentally dishonest and the claimant was ordered to pay costs exceeding £9,000.
This case was interesting on several fronts, not least the audacity of the claimant who was filmed skydiving three days before a medical examination with a medical expert: an event he did not disclose to his doctor and yet maintained that he had ongoing symptoms.
Aviva's policyholder had reversed his vehicle, at low speed, from the driveway of his home in a relatively quiet housing estate, colliding with a stationary van that was parked adjacent to the driveway. Aviva was presented with two claims for personal injury, one from the driver of the stationary van and one from a purported passenger. Whilst the occupancy of the driver was admitted, Aviva vehemently denied that any passenger was present. Both the driver and the passenger maintained that they were injured as a result of the collision and pursued claims for personal injury.
The driver of the parked van initially intimated a claim to Aviva via a Claim Notification Form but did not issue proceedings – despite it being accepted that he was an occupant. The alleged passenger issued proceedings.
An invoice for the repairs to the parked van was sent to Aviva in the sum of just £391.10 and their policyholder provided images of his vehicle which showed no visible damage, both of these pieces of evidence assisting the causation aspect of the defence.
DAC Beachcroft acted for Aviva in defending the proceedings, and during the course of investigations it was established that the claimant had undertaken a skydive just three days before a medico legal examination with his medical expert and just three months after his alleged accident. Despite the close proximity of this to his medical examination, the claimant failed to disclose this activity to his medical expert.
On the basis of the claimant's history of the accident circumstances and the alleged symptoms presented to him, the medical expert provided a prognosis of 10 months in respect of the claimant's neck, right shoulder and upper back injuries. The claimant alleged that his symptoms were ongoing at the time of the examination.
This allegation was undermined by video footage obtained by DAC Beachcroft's intelligence team which the claimant had posted on social media. This footage showed the skydive in significant detail. Photographs of the event are below.
The claimant's solicitors did very little to prepare this matter for trial and no trial bundle was ever prepared on behalf of the claimant. In the absence of this, the claim was eventually struck out by the court.
Interestingly, from a tactical point of view, the claimant never filed a notice of discontinuance and allowed the case to drift to a strike out – a tactic which clients and practitioners will be all too familiar with.
A hearing was then listed by the court following an application by DAC Beachcroft to determine the issue of fundamental dishonesty. At this hearing the judge was satisfied, based on the evidence which included the video footage of the claimant's skydiving exploits, that the claim was fundamentally dishonest. In addition to the claim being dismissed, the claimant was ordered to pay over £9,000 in costs which are fully enforceable given the lack of qualified one-way costs shifting resulting from the finding of fundamental dishonesty.
Commenting on this outcome which was dealt with at DAC Beachcroft by Mark Kelly, Peter Ward, Associate, said, 'This was a very interesting case from the outset and one that Aviva should take credit for tenaciously defending. It is pleasing that the court took a robust approach towards the claimant in this matter, resulting in a finding of fundamental dishonesty. This tremendous result was achieved by a number of our teams working collaboratively together
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