Claimant ordered to pay £10,085 following fundamental dishonesty finding at Trial heard virtually

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Claimant ordered to pay £10,085 following fundamental dishonesty finding at Trial heard virtually

Published 6 septiembre 2021

In Andreiciuc v Futaba Manufacturing UK Ltd, the Claimant alleged that he suffered a back injury whilst attempting to undertake a torque test as part of his employment as a quality control inspector. He alleged the injury was due to the negligence and/or breach of statutory duty of his employer and he claimed compensation for the injury and subsequent losses suffered.

The Claimant alleged there was no chisel check table upon which he could have fixed the part being tested to enable him to perform the torque test safely and in accordance with his training. He claimed that he and his colleagues had raised the lack of chisel check tables with their supervisors prior to the accident.

The Claimant alleged that in the absence of a chisel table he attempted to hold the part in place with one hand and perform the torque test by turning the torque wrench with the other. In doing this he alleged that the part slipped, causing him to twist and suffer a back injury.

The Claimant alleged he was unable to report the injury at the time because his supervisor was unavailable but said that following his return to work after the injury he did report it.

The Defendant denied that any accident was reported and it maintained there was at all material times a chisel check table in place upon which the Claimant could have undertaken the torque test. In addition to evidence supporting the presence of the chisel check table, the Defendant adduced evidence that the supervisor to whom the Claimant alleged that he reported the incident following his return to work was not on site at that time, after first confirming the Claimant’s evidence on this point through Part 18 requests.

In addition to this, following review of the Claimant’s medical records, through questions to the medical expert relied upon by the Claimant, the Defendant’s Solicitors highlighted further inconsistencies in relation to the way the injury had been reported to various medical practitioners.

At a Trial at the Derby County Court heard virtually by way of Court Video Platform, the Judge found on the balance of probabilities that whilst some incident had occurred that caused an injury it was not an accident as described by the Claimant, and the chisel check tables required for the Claimant to undertake the torque test safely were in place. On this basis the claim was dismissed.

Following on from these findings it was found that the Claimant had been fundamentally dishonest and consequently the Qualified One Way Costs Shifting protection provided to him was removed and he was ordered to pay the Defendant’s costs. At a later summary assessment hearing the Defendant’s costs were assessed at £10,085.

The case highlights that where there are concerns over the veracity of the claim put forward insurers will, in appropriate cases, support their policyholders in maintaining full denials of liability and press for findings of fundamental dishonesty. Previously where trials were held virtually (which is now of course more common in light of the COVID-19 pandemic) Judges had been reluctant to make findings of fundamental dishonesty where they were not able to assess the credibility of those giving evidence in person.

Andrew Dodd, Head of Claims at Mitsui Sumitomo Insurance Company (Europe) Ltd confirmed, “This case shows that fundamental dishonesty findings do not always rely on video surveillance evidence. This case hinged on early and detailed investigation of the allegations, and preservation of documentary and witness evidence by our claims team, in collaboration with our insured”.

DAC Beachcroft acted on behalf of the Defendant on instructions from their insurers, Mitsui Sumitomo Insurance Company (Europe) Ltd.

Authors

Richard Rowe

Richard Rowe

Birmingham

+44 (0)121 698 5356

Tania Sless

Tania Sless

London - Walbrook

+44 (0)20 7894 6097

Claire Laver

Claire Laver

Birmingham

+44 (0)121 698 5730

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