On the rise - casualty fraud
Fraud Aware March 2019
Post-LASPO it was anticipated that the industry would see a migration of claims from the motor to casualty arena and, indeed, there has been a steady increase of fraudulent casualty claims, both in Public and Employer Liability and more recently Product Liability, as a result. With the impending Civil Liability Bill, this trend is set to continue.
The reason for bringing any fraudulent personal injury claim is financial gain and, in anticipation of the whiplash tariff, it is expected that many fraudulent claimants will look to move into the casualty arena. It’s not hard to see why when we consider that a two year whiplash injury in a motor claim would only receive £3,725, compared to £6,920 for a similar two year injury from a Public or Employer’s Liability claim in accordance with the JS Guidelines.
Claimants are now becoming smarter and, as Ruth has already mentioned, the trend has shifted from fabricated accidents to exaggeration. This could take the form of exaggerated levels of symptoms unsupported by medical evidence or an inflated schedule of loss particularly in relation to care and loss of earnings claims. This last example could be a prolonged absence as a result of injury or, in extreme cases, having to leave a job completely, and are often seen in warehouse agency or temporary workers.
Casualty claims allow for the ability to exaggerate injuries, particularly subjective soft tissue, due to the variable forms and levels potentially sustained in a PL or EL accident, with a common feature in EL claims being a manual handling injury in the presence of pre-existing symptoms. It is our view that the driving force behind this exaggeration is not only to increase a claimant’s damages but also the level of costs for their solicitors.
In the case of Wright v Satellite Information Services Limited  EWHC 812 (QB), the High Court found that:
"whilst the claimant was only entitled to £2,100 out of his £73,000 care claim, the fault for the inaccurate and misleading schedule of loss was attributed to the claimant’s advisors rather than the claimant himself."
As a result our team have to closely scrutinise key dates throughout the lifecycle of a claim and cross refer to evidence such as medical records, social media, employment history and DWP benefits, with a view to building an exaggeration chronology. We can then illustrate to the court the number of occasions the claimant has consciously inflated his losses. The key to succeeding in these defences is to ensure without any doubt that the exaggeration is claimant-led as opposed to advisor-led.
The Keoghs Casualty Fraud team have successfully defended a number of these claims resulting in discontinuances and findings of Fundamental Dishonesty under Section 57 of the Civil Justice and Courts Act 2015.
From the Public Liability side, there has been an increase in beauty claims where claimants are seeking psychological injury as a result of hair damage caused by the use of bleach. These claims, whilst difficult to defend on liability arguments, may be successfully defended under Section 57 CJCA particularly when social media is utilised to undermine the claimant’s reporting of symptoms to the expert.
These strategies have seen the Keoghs Casualty Fraud team recognised at the 2018 Insurance Fraud Awards, winning Fraud Investigation Team of the Year – Independent. Over the past 12 months alone, we have recorded 100 combined trial wins and discontinuances and over half a million pounds in costs ordered following findings of Fundamental Dishonesty, with savings in excess of £15 million since 2014.
Tackling fraud is now a key focus for the insurance industry and our team work closely with insurance clients in devising strategies to obtain the best results on each claim. The approach is to find the right case to challenge, focus on the appropriate investigations and evidence, and fight the case to trial, proactively pushing for findings of fundamental dishonesty against the claimant to ensure the right message is delivered and fraudsters deterred.
For more information, please contact Emma Welsh