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Published 29 November 2021
In York County Court, in the case of Morris and Rominski v Johnson, James Hogg of Deans Court Chambers, instructed by DAC Beachcroft acting for the Defendant and their insurer Allianz successfully defended a claim by two Claimants and obtained a finding of fundamental dishonesty.
The Claimants were the passenger and driver respectively in a vehicle which was in collision with one driven by the defendant. The fact of the accident was not disputed and the Defence conceded breach of duty to anyone who was able to prove they were in the vehicle at the time; causation was not.
Both Claimants alleged having suffered whiplash together with back, neck, knee and psychological injuries. The claims were rejected and the Claimants issued proceedings. The claims pursued had a combined value in the region of £50,000. The claims were defended, concerns with the claims including there being no contemporaneous entries in their medical records relating to the alleged injuries. The driver made no mention of chest pain, headache or fear of travel, did not take time off work and did not explain how his laptop was damaged. The passenger who alleged a knee injury was unwilling to undergo an MRI scan on her knee
The court found the evidence of both Claimants to be dishonest. Both Claimants were inconsistent during cross-examination as to the sites, severity and duration of their alleged injuries, and had failed to give an accurate account of their previous medical and accident histories.
The passenger had attended her G.P. on several occasions in the immediate aftermath of the accident, but had failed to report any accident-related symptoms. Whilst those attendances primarily related to psychological symptoms, the court found that her alleged accident-related psychological symptoms ought to have been mentioned at those consultations.
The driver had informed the GP medicolegal expert that his neck symptoms were ongoing at 11.5 months post-accident, but later confirmed a 6-month recovery to the orthopaedic medicolegal expert. In cross-examination, having twice confirmed a 6-month recovery period for those symptoms, he then suggested that those symptoms had in fact resolved in between the two examinations. His evidence on that issue was not accepted.
The judge noted that the medicolegal experts had not materially altered their opinions in their evidence / in their report but expressed his surprise at this, given the extent of the new information presented by the Defendant from the documents provided by Claimants to support their cases.
Commenting on the outcome, Partner Georgia Court of DAC Beachcroft said: “Deciding to reject offers to settle which presented cost risks was a tough decision. I am pleased that the Court saw through the level of exaggeration and ultimately made a finding of fundamental dishonesty against both Claimants proving that the right decision and strategy were pursued.”
James Burge, head of counter fraud at Allianz, added: “Not only was the claim dismissed but the Claimants were ordered to pay the costs. This finding of fundamental dishonesty confirms that our zero-tolerance approach is the right way to tackle insurance fraud and protect our customers.”
This case demonstrates the importance of adopting a forensic approach in appropriate cases, identifying and following investigative lines and ensuring that, where appropriate, evidence and claims are robustly challenged and claims taken through to trial. Defendant solicitors working co-operatively with determined insurers can, and do, achieve excellent results in the fight against fraud. The willingness of the courts to dismiss claims and make findings of fundamental dishonesty when the evidence demands such findings is to be applauded. The fight against fraud goes on.
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