Swift v Mar City PLC
Allianz Insurance Plc
Although the Claimant was found to have genuinely fallen and to have genuinely sustained serious injuries, the judge found she had not fallen due to a defect as claimed. Her dishonesty on that issue went to the heart of the claim.
The Claimant had brought a claim for damages valued at around £100,000, with an associated claim for costs at around £50,000.
The Defendant is now entitled to enforce its costs of up to £19,000.
Ms. Swift brought a claim resulting from a tripping accident outside of her home. She provided a photograph of a defect on the pavement to insurers, together with measurements to show the extent of the tripping hazard.
She had sustained an unstable fracture of her left foot which required surgery and required continued treatment at the time of trial. She brought a claim seeking around £100,000 in damages and legal costs of approximately £50,000.
Liability was initially admitted by the Defendant on the basis the defect was accepted to be present.
Following litigation, the Defendant successfully applied to withdraw the admission in respect of causation. The Claimant's medical records contained references to falling over a laundry basket and losing her footing in a variety of other circumstances which were inconsistent with what had been suggested.
The court agreed to a preliminary trial to deal with the question of whether or not the accident occurred as alleged, and whether the injuries were caused in the manner suggested by the Claimant.
The trial was heard before HHJ Walsh at the County Court at Exeter on 7 September 2023. Ross Olson of Deans Court attended on behalf of the Defendant and cross-examined the Claimant.
During cross-examination, the Claimant conceded she could not have fallen as a consequence of the defect. She suggested that the photograph of the defect was taken as an "illustration" of the state of the pavement.
The Claimant also conceded that she could not remember the mechanism of the loss of footing, and eventually indicated she lost her footing some 18 inches away from the photograph provided to insurers.
The judge was also asked to consider that the Claimant's mechanism of a "trip" was not the cause of fall given contemporaneously at hospital or to the majority of medicolegal experts.
HHJ Walsh accepted that the Claimant had a genuine fall, and that this fall genuinely resulted in a fractured ankle. However, he commented that "The positive assertion that she had tripped in the particulars of claim and the witness statement was not, I am satisfied, a genuinely held belief. It was, moreover, an assertion that was fundamental in character and went to the heart of the claim that she had suffered serious injury by reason of a trip. It was, in the circumstances, fundamentally dishonest."
Applying the test in Ivy v Genting it followed that the Claimant had been dishonest in the presentation of her claim. This dishonesty was 'fundamental' and went to the heart of the claim pursuant to LOCOG v Sinfield.
The judge accordingly dismissed the claim and disapplied QOCS so that the Defendant will be entitled to enforce its costs. The claim will now be passed to DWF's dedicated recovery team to pursue those costs from the Claimant.
James Burge, head of counter fraud at Allianz Commercial, commented: “We are seeing an increase of claimants exaggerating their claims in the hope of obtaining more money from the insurer and pulling our customers into disrepute. At Allianz we take a zero tolerance to claimants taking this route and I am pleased to see the result of this case.”
William Stobart, Solicitor with DWF, said: "This is a significant judgment for Casualty insurance teams and those who work with them to prevent fraudulent claims. Is is important to appreciate that fraud does not only encompass exaggerated injuries, but also claims where a Claimant fraudulently tries to misrepresent circumstances that could give rise to a claim."
A copy of the judgment is available on request.