Keoghs and AXA UK have successfully defended a sizeable claim for personal injury and loss of earnings, obtaining a finding of fundamental dishonesty following a two day multi track trial. Investigations had uncovered inconsistencies and misleading evidence from a claimant who had been made redundant prior to bringing his claim.
At trial the judge found that the accident didn’t happen and the claimant knew his version of events was false. The claim was dismissed for a total saving of £116,000 with permission for the defendant to enforce their costs on an indemnity basis.
The claimant initiated a claim against his ex-employer following an alleged accident where he tripped over boxes left on the floor in the company’s storeroom. He supposedly fell and struck his right shoulder on a steel shelving unit. The primary allegation was that the defendant placed too many items on the floor of the storeroom, creating a chaotic and difficult environment to work and move around in, something the claimant said he had previously complained about.
The claim was for frozen shoulder (adhesive capsulitis) with persisting symptoms and restrictions, in addition to past and future loss of earnings in the sum of £76,500.
Concerns were raised at the outset, as the defendant had no knowledge of the incident and there had been no previous complaint about the condition of the storeroom. Given the defendant was a small business with just three employees, it was extremely unlikely for an accident to have occurred without anybody being made aware. The claimant also continued working for the defendant for 11 months without issue, only bringing the claim following his redundancy.
The primary concern however was the contemporaneous A&E record confirming the claimant’s attendance six days later which read “heard a pop when moving boxes…5 days ago lifting heavy bulky box and felt pop in right shoulder. Painful and dropped box”.
In light of the above concerns, fundamental dishonesty was pleaded at the outset. Specifically Keoghs and AXA UK set out that the pleaded claim was a trip and fall which contradicted the lifting injury in the A&E record.
As the claim progressed the claimant disclosed photographs of the storeroom in differing states of disarray. However metadata behind the images confirmed they had been taken some time prior to the accident when the business had just moved into the unit, and some months post-accident when there were deliveries (there were none on the day of the alleged incident). Even worse, the latter was taken whilst the business owner was in hospital recovering from heart surgery, during which the claimant was responsible for the unit and business.
Four witnesses (two each for the claimant and defendant) and two experts attended trial to give evidence over two days.
When reaching a decision His Honour Judge P Burns reminded the parties that demeanour alone may not be an accurate guide and that he would look to contemporaneous documentation and inconsistencies as he was confident witnesses can be dishonest. He stressed that the workplace was a small one with small premises and people being very close to each other on a personal and social basis. He also mentioned that this was a sad case as the claimant and defendant Director were best friends at one time.
HHJ P Burns made the significant observation that at the time of the defence the claimant and his advisors knew the allegation of fundamental dishonesty, saying that very often in these cases the claimant may not have been put on sufficient notice regarding dishonesty.
In conclusion he preferred and accepted the defendant’s witnesses at trial, finding that the accident didn’t happen and the claimant knew the version of events advanced was not correct. HHJ concluded that if an accident of some kind was sustained in the workplace or elsewhere, it was not as alleged in the claim.
Emma Welsh, Partner and Director of Casualty Fraud at Keoghs, said:
“Whilst there is an increased risk of running multi-track cases to trial on a pleading of dishonesty, value alone should not be a reason to settle. This was a clear case whereby contemporaneous medical records contradicted the pleaded case and the correct and robust decision to plead dishonesty was made at the very outset. The joint approach between Keoghs and AXA UK resulted in a significant saving for the client and a lesson to the claimant and his representatives of our approach to these types of claims”.
Alison Young, Liability Claims Handler at AXA UK, said:
“This was an obvious case of fundamental dishonesty where the claimant had tried to make a claim against his employer but was later found to have manipulated evidence to support his claim. We are pleased with the outcome of the trial as we were able to successfully protect our customer against a fraudulent, and potentially very costly, claim”.
“Fraudulent claims cost insurers money which in turn impacts the price for all customers, meaning that innocent customers will ultimately end up footing the bill for opportunistic fraudsters. The outcome of this trial sends a clear message that all claims are investigated thoroughly by our claims handlers and that the consequences of making a fraudulent claim are serious.”
Director of Casualty Fraud
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