In Richards & Anor v Morris [2018] EWHC 1289 (QB) the defendant was successful in appealing on the grounds that the trial judge should have made more robust findings from the lack of credibility on the part of the claimants. There are important points made in relation to assessing witness credibility. Also a reminder to defendants that there is an appropriate procedure to follow when dishonesty is being alleged.
Once again we see witness statements saying things that are simply not true, and schedules claiming losses that have not been incurred. There is also the question of whether cases such as this should be placed on the Fast Track. The judgment refers to an “unedifying” exchange when matters were being rushed because the courts were closing.
“In my judgment, through the evidence produced in this case to the court below, whether documentary or cross-examination of the Claimants, the Defendant presented an unanswerable case that the Claimants had failed to prove their case.”
THE CASE
Two claimants had been awarded damages of £2,500 each by the trial judge in a trial following a road traffic accident. The defendant appealed, arguing that there should have been findings of fundamental dishonesty.
ERRANT WITNESS STATEMENTS
Once again we have witness statements that were stating things that were simply not true.
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On 12 November 2015, both Claimants also served witness statements. So far as the First Claimant is concerned, she described the accident, stating it was not a gentle reverse by the Defendant but “she reversed sharply to avoid the cars coming towards her on the main road.” She referred to the assessment of her motorcar by Laird. She then said this:
“13. I started to feel discomfort in my neck, towards my lower back area and shoulder later that day. I also [had] minor discomfort across my chest where the seat belt was. I did however immediately feel shocked and shaken at the accident scene due to the collision. The pain and discomfort increased over the next day or so, so I decided to get checked out by my GP just in case. I saw my GP on 21stJuly and I was advised to take painkillers.
14. The pain and discomfort did not ease and I continued to take painkillers. I had a pre-existing problem with my back which the accident worsened. When I saw Dr Iqbal in December 2014 he recommended physiotherapy treatment. …
17. Since the medical examination by Dr Iqbal I’ve been having physiotherapy treatment. That treatment is on-going. …
19. As a result of the injuries I suffered in this accident I also seek to recover the cost of the physiotherapy treatment that my solicitors arranged for me. The total costs are anticipated to be £570.”
However, as we know, 12 days later on 24 November 2015, the First Claimant was discharged from any further physiotherapy. Furthermore if, as she appears to have thought, the effect of the accident was spent within 8 months, that is by March 2015, it is difficult to understand how she could honestly and truthfully have said that the physiotherapy treatment was “as a result of the injuries I suffered in the accident.”
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In her witness statement, the First Claimant also volunteered further details in relation to previous accidents. She said:
“16. I’ve been involved in three previous accidents, on the 27/7/7, 12/7/10 and 5/6/12. I did sustain some injuries in these accidents but have fully recovered from those injuries by the time of the index accident. My lower back was painful at the time of the index accident, but this was constitutional, not accident related.”
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So far as the Second Claimant, Mr McGrann is concerned he stated in relation to his injuries as follows:
“12. I started to feel discomfort in my neck and right shoulder later that day. At the accident scene I did feel immediately shocked and shaken by the collision. I took painkillers on a regular basis for the first few months, then as and when needed as my symptoms improved.
13. When I saw Dr Iqbal in December 2014 he recommended physiotherapy treatment. That physiotherapy treatment is on-going at the moment”
This was untrue. There was no ongoing physiotherapy treatment and there had been none at all, in Mr McGrann’s case. Mr McGrann indicated that, after the accident, he struggled with swimming, exercising and helping Mrs Richards look after her horse, Harvey. He stated:
“15. I’ve been involved in two previous accidents, on 27/7/7 and 12/7/10. I did sustain some injuries in these accidents, but have fully recovered from those injuries by the time of the index accident.
16. I have incurred some financial loss as a result of this accident, as set out within my updated schedule of loss, dated 12th November 2015, which I claim reimbursement of within this claim. These are estimated at £570 for physiotherapy treatment anticipated final costs.”
Mr McGrann did not indicate in his witness statement that, contrary to the impression conveyed, despite the assessment on 19 March 2015, he had not undergone a single session of physiotherapy and, it would appear, did not intend to.”
THE JUDGMENT ON APPEAL
Mr Justice Martin Spencer observed.
67. In my judgment, the first point to make is that, this being a case where the Defendant is alleging that this was a “low velocity impact” case where the nature of the impact was such that it was impossible or very unlikely that the Claimants suffered any injury or any more than trivial injury, it is unfortunate that the usual procedure for such cases was not pursued. In Casey v Cartwright [2006] EWCA Civ 1280, the Court of Appeal gave guidance for Defendants who wished to raise causation as an issue. It was said that if a Defendant wished to raise the causation issue, he should satisfy certain formalities:
i) To notify the other parties in writing within three months of receipt of the Letter of Claim that he considered the matter to be a low impact case and that he intended to raise the causation issues;
ii) The issue should be expressly identified in the defence, supported in the usual way by a statement of truth;
iii) Within 21 days of serving such a defence to serve on the court and the other parties a witness statement which clearly identified the grounds on which the issue was raised, and which dealt with the Defendant’s evidence relating to the issue, including the circumstances of the impact and any resultant damage.
iv) Upon receipt of the witness statement, the court would, if satisfied that the issue had been properly identified and raised, generally give permission for the Claimant to be examined by a medical expert nominated by the Defendant. If upon receipt of any medical evidence served by the Defendant following such an examination, the court was satisfied on the entirety of the evidence submitted by the Defendant that he had properly identified a case on the causation issue which had a real prospect of success, then the court would generally give the Defendant permission to rely on such evidence at trial.
In the present case, by his order dated 18 August 2015, District Judge Baker made the following order by consent:
“1. The LVI directions hearing on 11 August 2015 be vacated as the Defendant does not seek to appoint her own medical expert.
2. The case be allocated to the fast-track.
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6. The Claimants do have permission to rely upon the medical reports served with the Particulars of Claim.
7. In the event that, following the disclosure of medical reports, the Defendant does not agree with the Claimants’ medical reports the Defendant shall, not later than 4pm on 3rd November 2015, serve upon the Claimants’ medical expert a list of questions under Part 35 CPR, with a copy to be served on the Claimant’s solicitors. The responses to be served no later than 21 days from the date of receipt.”
Despite these directions, it does not appear that Part 35 questions were served on Dr Iqbal. The implication of paragraph 7 of District Judge Baker’s order is that, in the absence of such Part 35 questions, the Defendant was to be taken to agree with the Claimants’ medical reports. However, at trial, it appears clear that the Defendant sought to pursue a case which involved significant challenge to Dr Iqbal’s reports even though Dr Iqbal was not called to give evidence and the Defendant did not call her own medical evidence. That challenge raised the very issues which the Court of Appeal addressed in Casey’s case: the suggestion that the velocity of the impact was too low to have caused the damage alleged and significant challenge to the assertions by the Claimants that they had either been injured at all or suffered injury for the length of time which they claimed. In the circumstances, one can only have sympathy with HHJ Main QC where he said:
“7. The way this case has been presented in fact – shows the Defendant wants to have his ‘cake and eat it’ – he asserts a low velocity impact incapable of causing injury to either Claimant but does not want to go to the trouble and expense of collating and provide the relevant expert evidence to establish it, even though [she] was given the opportunity to do so. The court therefore in the absence of the relevant evidence has been dragged into the technicality of the collision and whether the forces at play plausibly give rise to injury.”
The second general point to make is that it seems clear from a transcript of the hearing that, if for no other reason than shortage of time, the case was unsuitable for the Fast Track. Thus, when Mr Wood, for the Defendant, sought permission from HHJ Main QC to appeal, there was the following (rather unedifying) exchange:
“Judge Main: You’ll have to say in the next three minutes, otherwise I will not be in the building.
(a short break)
Mr Wood: Your honour, I’m very sorry about the lateness of the hour.
Judge Main: So am I, because the building [is] closing in 11 minutes.”
Despite the above, Mr Wood was correct in submitting that it remained for the Claimants to prove their case, that their cases depended very largely upon the credibility and reliability of their evidence, including the contents of Dr Iqbal’s reports which were mainly derived from what he was told by the Claimants when he examined them on 2 December 2014 and it was open to the Defendant to submit to the Judge that, by reason of demonstrable untruths, inconsistencies and general unreliability, the claims should be dismissed. If I am satisfied that no reasonable judge, in the position of HHJ Main QC, could have failed to accede to the submission that the Claimants had failed to prove their case, then I would be entitled to allow this appeal and overturn the order made in this case. However, where a trial judge has heard the evidence and has not concluded that the Claimants were dishonest, I direct myself that it would require a very clear case indeed for an appellate court effectively to overturn the trial judge’s conclusion in that respect, and find that the Claimants were dishonest despite not having seen them give evidence.
Thus, it seems to me that there are four possible courses which I can take on this appeal:
i) Dismiss the appeal and uphold the decision of HHJ Main QC;
ii) Allow the appeal and remit the case for re-hearing;
iii) Allow the appeal and dismiss the claim on the basis that the judge should have found that the Claimants had failed to prove their case;
iv) Allow the appeal, dismiss the claims, and make a finding of dishonesty or fundamental dishonesty on the part of the Claimants.
Before considering the particular issues in this case, it is also pertinent to recognise the problem that fraudulent or exaggerated whiplash claims have presented for the insurance industry and the courts. This was recognised in March 2018 when the Ministry of Justice published a Civil Liability Bill which aims to tackle insurance fraud in the UK through tougher measures on fraudulent whiplash claims, proposing new, fixed caps on claims and banning the practise of seeking or offering to settle whiplash claims without medical evidence. The problem of fraudulent and exaggerated whiplash claims is well recognised and should, in my judgment, cause judges in the County Court to approach such claims with a degree of caution, if not suspicion. Of course, where a vehicle is shunted from the rear at a sufficient speed to cause the heads of those in the motorcar to move forwards and backwards in such a way as to be liable to cause “whiplash” injury, then genuine claimants should recover for genuine injuries sustained. The court would normally expect such claimants to have sought medical assistance from their GP or by attending A & E, to have returned in the event of non-recovery, to have sought appropriate treatment in the form of physiotherapy (without the prompting or intervention of solicitors) and to have given relatively consistent accounts of their injuries, the progression of symptoms and the timescale of recovery when questioned about it for the purposes of litigation, whether to their own solicitors or to an examining medical expert or for the purposes of witness statements. Of course, I recognise that claimants will sometimes make errors or forget relevant matters and that 100% consistency and recall cannot reasonably be expected. However, the courts are entitled to expect a measure of consistency and certainly, in any case where a claimant can be demonstrated to have been untruthful or where a claimant’s account has been so hopelessly inconsistent or contradictory or demonstrably untrue that their evidence cannot be promoted as having been reliable, the court should be reluctant to accept that the claim is genuine or, at least, deserving of an award of damages.
In the present case, in my judgment, HHJ Main QC adopted a much too benevolent approach to evidence from Claimants which could be demonstrated to be inconsistent, unreliable and, on occasions, downright untruthful. Indeed, the Judge himself recognised the problems with which he was faced by the evidence of these Claimants. Thus, in the case of Mrs Richards, he said in terms that she was “hopelessly inconsistent” and I refer again to paragraph 17 of his judgment cited earlier in this judgment at paragraph 37. Despite these remarks and these findings, the Learned Judge did not, in my view, reflect them in his overall decision and approach to these claims, as he should have done. In my judgment there is force in the submission which Mr Wood makes based upon the decision of the Court of Appeal in Yaqoob v Royal Insurance [2006] EWCA Civ 887: see paragraph 43 above in this judgment. I refer again to paragraph 25 of the judgment of Chadwick LJ. There, the Judge had identified a conflict of evidence in circumstances where he was bound to say why, if he did not believe the claimant on one matter, he was able to accept the evidence of the claimant that he had nothing to do with the fire. So too, here, the Judge, having found that Mrs Richards’ evidence was “hopelessly inconsistent”, was duty bound to explain why he could nevertheless accept that evidence in relation to both the fact of injury and also the length of the time that the injury was suffered. The Learned Judge failed to give effect to the adverb he himself used, namely “hopelessly”. How, if the evidence was hopelessly inconsistent, was the Judge nevertheless able to rely on it and find that the injury had been suffered for a period of eight months? Equally, there were similar problems with the evidence of the second Claimant.
In my judgment, through the evidence produced in this case to the court below, whether documentary or cross-examination of the Claimants, the Defendant presented an unanswerable case that the Claimants had failed to prove their case. The following points were all, to some extent, individual and collective nails in the coffin of these claims:
The First Claimant, after seeing her GP on 21 July 2014 (three days after the accident), sought no further treatment for the injuries allegedly sustained in the accident, despite being a frequent attender upon her GP;
The Second Claimant never sought medical attention at all whether at the time of the accident or later in relation to the injuries allegedly sustained in the accident;
The Second Claimant’s CNF falsely stated that he had sought medical attention on 2 August 2014, which the Second Claimant accepted in his evidence was untrue;
Dr Iqbal was given inaccurate information by both Claimants in relation to previous medical history and previous accidents;
The Second Claimant’s CNF asserted that he had sustained a back injury when he had not;
The Second Claimant asserted that he had sustained an injury to his right shoulder, yet this was not mentioned in his CNF;
The First Claimant, in her evidence, said that the onset of discomfort was within two – three days of the accident, but told Dr Iqbal that the onset was on the day of the accident;
Both Claimants, through their witness statements, relied upon and affirmed the truth and accuracy of Dr Iqbal’s medical reports and yet they were demonstrated to be inaccurate;
The schedules of loss in relation to both Claimants made claims which were not sustainable and, in the case of the Second Claimant, demonstrably dishonest in claiming for the cost of “on-going” physiotherapy when the Second Claimant never had any physiotherapy treatment and never intended to;
In the physiotherapy assessment on 19 March 2015, the Second Claimant asserted that he had “major pain” in the right shoulder. The Judge found that the effects of the accident were spent by eight months from the accident, which would coincide with the date of the physiotherapy assessment. How then could the Second Claimant still be suffering from “major pain” in the right shoulder at the time of that assessment? Either the assertion of such pain was false or (perhaps implausibly) it was true but not associated with the accident. In reality, it should have been found that the assertion of “major pain” in the right shoulder on that occasion was false;
The First Claimant’s physiotherapy attendances were similarly at a time which was inconsistent with her evidence as to how long the effect of the accident had lasted and with the Learned Judge’s findings in respect of the causative effect of the accident: if the accident’s effects were spent within eight months (by March 2015), either the First Claimant was having physiotherapy unnecessarily or, alternatively, she was having physiotherapy for a condition which was nothing whatever to do with the index accident, in which case no claim for the cost of such physiotherapy should have been made: either way: the claim for the costs of the physiotherapy appears to have been false;
In her witness statement, the First Claimant said that she felt discomfort later on the same day as the accident, but, in her evidence, she said that the discomfort came on within two – three days of the accident and she did not attend to her GP until three days after the accident;
In her witness statement, the First Claimant claimed the on-going cost of physiotherapy, but was discharged from physiotherapy 12 days later;
The First Claimant maintained a claim for the total loss of her motorcar in the sum of £705 even though it had been stolen in December 2015 and she had recovered its value so that she had no loss in respect of the motorcar by the time of trial. An updated schedule of loss endorsed with the statement of truth, continued to claim for the value of the motorcar in April 2016;
The First Claimant made a claim for a chest injury in her witness statement, but no such injury had been mentioned to Dr Iqbal;
The GP note of the First Claimant’s attendance on 21 July 2014 made no mention of any lower back injury;
The First Claimant had consulted her GP on 13 May 2014 complaining of a four day history of pain in the right side back of the neck radiating to the shoulder, this being only three months before the index accident: no mention of this attendance was made to Dr Iqbal;
In his Part 18 reply, the Second Claimant, when asked the question “13. We note that you had physiotherapy, please confirm which areas of your body were treated” replied “Neck and right shoulder”. This was plainly untrue;
The First Claimant’s evidence at trial was, on the Learned Judge’s findings, “hopelessly inconsistent”;
The Second Claimant gave a similarly inconsistent account in his evidence: see paragraph 22 of the judgment of HHJ Main QC (see paragraph 40 above).
68. Despite the above points, HHJ Main QC was prepared to accept the accounts of the Claimants and to award them general damages, essentially on two bases: his finding of “separation” between the vehicles after impact and Dr Iqbal’s reported finding of “spasm” in relation to both Claimants. In my judgment these were wholly insufficient bases upon which to ignore, forgive or reject the substantial matters referred to in paragraph 66 above.
69. So far as the impact is concerned, in my judgment HHJ Main QC should have been deeply suspicious of the evidence of the Claimants by reference to their Part 18 responses. In the case of the First Claimant, she had suggested that the Defendant reached a speed of 10 – 15 mph when reversing a distance of 3 feet. In the case of the Second Claimant, he estimated that the Defendant had reached a speed of 10 – 20 mph over a distance of 3-4 feet. Judge Main QC should have recognised that these were impossible speeds to have reached over such a short distance and it is difficult to understand why he rejected the evidence of the Defendant and her passenger in relation to the nature of the accident. It was submitted on behalf of the Appellant that, in relation to his findings about the physical and mechanical aspects of the collision, the Judge went outside the scope of the evidence and his own proper “judicial knowledge”: see paragraphs 46 and 47 above. I agree with those submissions and, in my judgment, HHJ Main QC fell into a similar trap as the judge at first instance had done in Hughes’ case.
70. So far as the finding of spasm is concerned, a similar point can be made. In my judgment, the Learned Judge should have treated Dr Iqbal’s reports with a degree of circumspection, if not suspicion, in any event. First, a critical element of the case for the Claimants was Dr Iqbal’s finding that the Claimants’ condition was attributable to, and caused by, the index accident. However, in my judgment his findings on causation were invalidated by the fact that he had not been given an accurate medical history or history in relation to previous accidents. He might well have taken a wholly different view if he had been told that, just a few weeks before the index accident, Mrs Richards had consulted her GP for a problem to her shoulder.
71. Furthermore, Dr Iqbal’s reports were extremely formulaic and did not adequately distinguish between the two Claimants. In both reports he used similar wording (“these are now mild to moderate and intermittent) and, most importantly, he made identical recommendations for physiotherapy (eight sessions) and gave an identical prognosis (for resolution between 12 and 14 months from the date of the accident”). In respect of both Claimants he diagnosed “fear of travel” with an identical opinion in respect of the existence of this effect and the prognosis. However, this does not appear to have had a basis in reality in respect of either Claimant. In the circumstances, it is difficult to see how HHJ Main QC could have placed any proper reliance on these medical reports in view of the inconsistency and unreliability of the factual basis which lay behind them. A single finding of “spasm” was, in my judgment, an inadequate basis for HHJ Main QC to find that the Claimants had proved their case.
Conclusion
72. In conclusion, in my judgment the appeal should be allowed. I do not think that it would be right to order a re-trial: on my finding, the claims should have been dismissed. However, I am not going to make a finding of fundamental dishonesty: I have not seen or heard the Claimants for myself, nor had an opportunity to assess them as witnesses and I do not think that the matters referred to in paragraph 66 above are sufficient for me to make such a finding at an appellate level (HHJ Main QC could have done so, but declined to do so). In my judgment the correct course is to adopt course number 3 referred to in paragraph 63 above and to allow the appeal and dismiss the claims, but without a finding of fundamental dishonesty.
73. For the above reasons, the appeal will be allowed and there will be judgment on both claims for the Defendant.
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