Grimes v Service Insurance Company Ltd
Before DJ Scannell
Swansea County Court – 9 March 2017
Section 57 of the Criminal Justice and Courts Act 2015
Section 57 of the Criminal Justice and Courts Act (CJCA) became law on 13 April 2015 and applies to all claims for personal injury, where proceedings were issued on or after their date. The law was introduced in response to what many saw as being the injustice of the outcome in the case of Summers v Fairclough (2012), where a Claimant who had exaggerated the extent of his claim, still went on to recover damages, regardless of that fact.
The first three subsections state:
1.This section applies where, in proceedings on a claim for damages in respect of personal injury (the primary claim) –
(a) The Court finds that the Claimant is entitled to damages in respect of the claim, but;
(b) on an application by the Defendant for the dismissal of the claim under the section, the Court is satisfied on the balance of probabilities that the Claimant has been fundamentally dishonest in relation to the primary claim or a later claim.
2.The Court must dismiss the primary claim, unless it is satisfied that the Claimant would suffer substantial injustice if the claim were dismissed.
3.The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the Claimant has not been dishonest.
This claim arose from a road traffic accident on 15 April 2015. The Claimant suggested she was waiting at a roundabout when the Insured vehicle collided with the rear of her vehicle resulting in her sustaining personal injury. Although the Claimant attended her GP some five days after the date of the accident, she only submitted a Claims Notification Form on 26 February 2016, some 10 months after the index accident. The examination with her medical expert took place on 18 March 2016, some 11 months after the date of the accident.
The Claimant had submitted a claim for vehicle damage to her own insurance company shortly after the accident, but at that time no injuries were reported. The Claimant had told her medical expert that she did not take any time off work as a result of the accident, but had been on restricted duties. She also told her medical expert at the time of his examination, some 11 months post accident, that she was suffering from ongoing travel anxiety as a result of which he recommended further review by a clinical psychologist.
Initial case management directions ordered by the Court required disclosure by the Claimant of her medical records and occupational health records, as well as requiring her to provide replies to Part 18 Questions raised by the Defendant. Although the Claimant successfully varied that order so that she did not have to answer those questions, she was invited by the Defendant to answer the questions nevertheless, which she did not do.
A review of the GP records revealed an entry which confirmed her attendance at her GP some five days post accident was disclosed. It recorded: "Whiplash injury last Wednesday. At round about hit from behind. Developed pain in right trapezius shoulder region since the weekend. Not limiting activities. Has good range of movement of neck and shoulder. Advised typical mild whiplash injury".
In contrast with this record, the Claimant advised her medical expert that she suffered a severe sprain/strain to the neck which resolved three months after the index accident. She complained of pain in the neck which referred into both shoulders stating the severity of the injury as severe. She complained of feeling shocked and shaken, suffering sleep disturbance, travel anxiety and discomfort.
The psychological complications were described as severe. The Claimant also told the expert at the time of her examination that the travel anxiety/discomfort had not resolved and that symptoms had persisted at a severe level since the accident. In terms of effects on her lifestyle the Claimant told the medical expert that she was not incapable of heavy domestic chores and/or cleaning at any stage, but that she was restricted for a period of three months. She said she was not incapable of bending, stretching and lifting at any stage, but that she was restricted in this activity for a period of three months post-accident.
The Claimant subsequently served a witness statement confirming that she intended to rely upon the contents of the medical report, but she then sought to suggest that aspects of the report were incorrect, that, despite what was recorded in the medical report she had not been restricted in her work duties at all, and she had not felt that the psychological symptoms were severe enough to require further treatment. Effectively, the Claimant sought to limit her claim to a three month whiplash injury, abandoning the claim for psychological injury.
As part of the Defendant's case, social media evidence was served showing the Claimant to be on holiday on two occasions within the psychological injury prognosis period, which was 12 months. At the time of putting forward the stage two settlement pack the Claimant's claim had been valued at £3,000 such value clearly taking into account a recovery period beyond only three months.
At trial the Defendant's position was that at best any assessment of personal injury and/or damages would have to be on the basis of the GP medical entry, as the Claimant had effectively challenged the credibility of her own medical expert evidence by seeking to rely upon it only in part. Despite the Claimant choosing to present her evidence in this way, her solicitors had failed to clarify the position with the medical expert or sought to have the medical report amended.
In contrast, however, the Defendant had raised very specific Part 35 questions of the Claimant's medical expert, specifically seeking to tie the Claimant to her to the account she had provided the expert at the examination. The expert had confirmed in Part 35 replies that the Claimant's symptoms were described to him as severe. He also confirmed that the travel anxiety symptoms she had said she was experiencing at the time of his examination were also described as severe. He confirmed furthermore that the Claimant had told him that she had suffered symptoms while working and the expert accepted that the symptoms identified in the contemporaneous GP record entry differed from what was documented within his report.
The Claimant's account at trial was that she had suffered a "quite severe" injury to the neck and shoulders, albeit the right shoulder was worse. She also said she suffered psychological symptoms and, significantly, had accepted that her pain was at its worse when she saw her own GP five days after the accident. She explained in cross examination that she had first noticed the pain two days after the accident and that the right shoulder had been worse when she saw her GP which is why she didn’t mention other symptoms at the GP attendance. The trial judge accepted that the Claimant's version of events was not consistent within her evidence and that the GP record entry gave a different account of injury in that it confirmed no limitation of movement and the GP had concluded a mild injury.
The Claimant sought to explain away discrepancies by saying that she had only been asked to move her head left to right and not up and down and this explained why no restriction had been noted by her GP. The Claimant couldn’t explain why her CNF in contrast referred only to a neck injury and that she wasn’t sure what she had said to her solicitors. The Claimant denied exaggeration. She suggested any discrepancy was simply because two different individuals (her GP and her expert) had interpreted her account differently. She was asked why she had refused to provide replies to Part 18 questions and indicated that she considered them too personal. Having been asked to identify which questions thought too personal, she revised her answer and said that she had thought some of the questions were irrelevant.
The District Judge accepted that the Claimant had been injured and found that there was strong evidence that she had been suffering to some degree. She found however it was a minor injury limited to her right shoulder/trapezius for a period of one month. The Judge paid particular reliance upon the Claimant's acceptance that her symptoms were at their most acute around the time of her consultation with her GP. The Judge found it was most unlikely that the Claimant would have failed to mention any symptoms that were in fact present.
The Judge also rejected the Claimant's suggestion that the "good range of movement" observed by the GP was recorded as a result of the GP only asking her to rotate her head, not bend it forward. The Judge found that the Claimant exaggerated her symptoms to the expert. The suggestion that the pain was severe at the time of the subsequent examination by the medical expert was not consistent with the fact that the Claimant only consulted her GP once, nor the fact that the Claimant didn’t report any symptoms to her employer. The Judge also concluded that if the psychological symptoms were really so serious so as to lead the expert to recommend a further referral, then it was unlikely that the Claimant would not have followed this up.
The Judge also found that the Claimant had exaggerated in her oral evidence given at trial. The Claimant had said she was unable to lift her infant nephew for a month or two post-accident, however, in her medical report she had said she was never unable to complete tasks which involved lifting, only that they had been restricted.
The Judge concluded that this was a minor injury which lasted for one month with, if anything, only nuisance level symptoms beyond that point. Any award would have been in the sum of £1,000.
Despite Claimant's counsel inviting the judge to find that the exaggeration was a function of lapsing memory and/or that this was not the type of case which section 57 was designed to deal with, the Judge accepted that the Claimant's case was fundamentally dishonest, finding that the outcome of the trial had led to a substantially different valuation being arrived at from the one pleaded - the claim was worth one third of the pleaded claim. The Judge found that the extra injuries complained of meant that the exaggeration went to the root of the personal injury claim and therefore the root of the entire claim.
This was not minor or self-contained exaggeration. The Judge found the Claimant's claim to be fundamentally dishonest and dismissed the claim pursuant to section 57 of the Criminal Justice and Courts Act. The judge went on to disapply QOCS pursuant to CPR Part 44.16.
Whilst fundamental dishonesty has been with us in the context of QOCS and CPR r.44.16, there is still little case law involving Section 57 of the Criminal Justice and Courts Act and any judicial interpretation of the legislation is to be welcome, especially in the context of a claim where an attempt has been made to exaggerate the extent of an injury.
It is welcoming to see Claimants who seek to exaggerate their symptoms in the hope of achieving a higher damages award, leaving court with nothing but an order to pay the Defendant's costs.
Furthermore it highlights the importance of tying a Claimant to the evidence throughout the life of the claim and limiting any opportunities to explain away inconsistencies, in this case through carefully framed Part 35 questions of the expert.