Fundamental Dishonesty £176,000 induced accident claims dismissed

Published 13 junio 2016

Kapoor and Kapoor v Fluid Air Conditioning [2016]

Judgment was handed down on 1 June 2016 by Recorder Bellamy QC in dishonest claims made against the Defendant and its insurer, MS Amlin Limited following a two day trial which had commenced in the Mayor's and City of London County Court on 31 May 2016. The claims being made included credit hire which was valued at £147,360.00.

Recorder Bellamy QC found that the Claimants had both been dishonest in bringing their claims, including a finding that the First Claimant, with the knowledge and acquiescence of the Second Claimant, had braked at a time when there was no reason to do so with a view to causing a rear end shunt for the purpose of bringing a fraudulent claim.

Summary

A road traffic collision occurred on 29 July 2013 on the M4 slip road involving a Mercedes vehicle being driven by the First Claimant and a Citroen van being driven by the Defendant's employee. The Claimants each brought claims for personal injury, physiotherapy and other special damages including credit hire and storage.

The Claimants alleged that the accident was a straightforward rear end collision for which the Defendant's employee was liable. The Defendant asserted a Defence of fraud and dishonesty, alleging that this was a deliberately engineered collision.

The Defence also alleged that this was a fraudulent claim on the basis that the First Claimant was seeking to claim for vehicle damage which did not occur in the accident and accordingly, seeking to claim that their vehicle had been rendered unroadworthy as a result of the collision, thus attempting to justify inflated credit hire and storage charges. In addition, it was alleged that the collision had occurred at a low speed such that injury could not have occurred.

The Court accepted the Defendant's forensic engineering evidence which asserted, inter alia, that there was no consistent damage between the vehicles. The First Claimant actually accepted in evidence that there was no damage to the rear of his vehicle but attempted to claim for damage to the rear nearside of the vehicle despite stating that this was a square-on collision.

Further issues arose during the course of the evidence and within cross-examination, influencing the decision, which included:

• The Defendant's driver had been of the view from the outset that this was a potentially fraudulent claim and he and his company director had asserted as such in a witness statement;
• A third occupant of the Claimants' vehicle did not take any part in proceedings and no reasonable reason was given for his absence. Adverse inferences were therefore drawn;
• There was no objectively justifiable reason for the First Claimant to execute the emergency stop manoeuvre;
• The Claimants both knowingly presented fraudulent claims for damages;
• The absence of rear damage and the engineer's findings made the Claimants' assertions about being thrown forwards thus causing injury inconsistent;
• The Claimants failed to properly identify pre-existing damage when submitting their claims, the reports of injuries were false for the purpose of claiming damages and physiotherapy charges were dishonestly claimed despite knowing they had not had the treatment and having fully recovered at the time it was claimed.

The Court dismissed the claims, finding no negligence on the part of the Defendant's driver and proceeded to make a finding of fundamental dishonesty, thus ordering the Claimants to jointly and severally pay the Defendant's costs in accordance with CPR 44.16. An Order was additionally made pursuant to section 51 of the Supreme Court Act and Farrell v Direct Accident Management Services [2009] EWCA Civ 769 that the hire company be joined to proceedings for the purposes of payment of costs.

This case was defended by Gary Orritt who is a technical supervisor in the Credit Hire Fraud team based in Birmingham.