Burt Neil v Cheshire West & Chester Council – Chester County Court 26 January 2018

Recorder Searle held that the claimant had fabricated the accident and that his claim was fundamentally dishonest.

Executive summary

Mr. Neil (“the claimant”) presented a claim for injury and other losses arising from an alleged road traffic collision.  Cheshire West & Chester Council (”the Council”) alleged that the claimant’s claim was fundamentally dishonest and defended the claim to trial in the Chester County Court on 26 January 2018.  Recorder Searle held that the claimant had fabricated the accident and that his claim was fundamentally dishonest.

Facts

The claimant alleged that whilst he was sitting in his parked vehicle on Rostherne Avenue, Ellesmere Port on 22 September 2015 his vehicle was struck by a passing school bus, causing him to sustain personal injury and vehicle damage. The bus was part of the Council’s fleet and was used daily to transport children to Rossmore Primary School. It was admitted that the bus had travelled past the accident location on the day in question. 

The claimant posted on social media about the alleged accident and attended at Rossmore school soon after to complain. 

Suspicions were raised when a personal injury claim was presented, particularly as the Rossmore employees on the bus had no recollection of the incident having taken place. These concerns increased when the insurers for the Council, Zurich, instructed engineers to conduct a survey of the consistency of damage between the two vehicles. This report (using the claimant’s own engineering report as a basis as the claimant’s vehicle was no longer available for inspection) raised serious concerns that the reported damage did not match the accident description provided. In particular there was no visible damage to the Council’s bus commensurate with how the accident related damage was alleged to have occurred. 

Weightmans LLP were instructed by Zurich Insurance on behalf of the Council when the claimant subsequently issued proceedings in the County Court.  Notwithstanding the unavailability of the school bus driver, wider evidence gathering and sourcing of intelligence was sufficient to positively plead fundamental dishonesty and maintain the denial of liability.  Key aspects of the defence included:

  1. The school’s teaching assistant who was a front seat passenger did not recall any collision;
  2. Despite the school’s employee exiting the bus a short distance away to collect a child, she was not approached by the claimant.  In contrast, the claimant alleged that he chased the bus on foot;
  3. The Head Teacher at Rossmore met with the claimant when he attended the school to report the alleged accident. She provided a straightforward and unequivocal account of their meeting and importantly she was not made aware of any alleged personal injury claim. She also denied making any admission of liability for the accident, contrary to the claimant’s account, which had also included an allegation that the Head Teacher had offered to pay for the vehicle damage;
  4. The claimant’s vehicle was said not to be available for inspection when he visited the school, despite another member of staff seeing an identical van near the school at that time. No damage was seen at that stage to the claimant’s vehicle;
  5. The claimant instructed solicitors just three days post accident despite not attending at his GP for medical assistance;
  6. The claimant stated that he could not participate in his hobby of fishing due to his injuries, but a review of his social media accounts proved that the claimant was actively fishing during the time he was allegedly injured; and
  7. The claimant failed to tell his GP, during his subsequent visit about his alleged injuries until he had been involved in a subsequent accident. 

Judgment

At the trial the court accepted the evidence of the school’s witnesses even in the absence of evidence from the bus driver. In respect of the claimant the court found that he had consistently lied and was not a credible or honest witness in respect of his account of the alleged incident, his interactions with the Council’s employees or his own losses. Instead, the claimant was found to have fabricated the accident and brought a fundamentally dishonest claim.

Comment

A multi-faceted approach was taken to investigate the suspect claim including engaging with the lay witnesses at an early stage, obtaining robust expert evidence, conducting a full intelligence review and securing specific court directions to secure disclosure of key documents within the claimant’s control. 

The judgment of the court reinforced the decision to bring the claimant to trial to justify his alleged claim given the evidence and intelligence collected.
 
This case also demonstrates that the courts continue to be highly conversant with the principles of fundamental dishonesty and willing to carefully consider the evidence presented, irrespective of claim value (when appropriate findings of fundamental dishonesty will and should be made).

This decision shows that, subject to individual case details, the absence of a key figure such as the driver does not automatically mean that the defence is deemed to fail.
    
Weightmans LLP acted for Zurich Insurance on behalf of their policyholder, Cheshire West & Chester Council. 

For further information about Weightmans LLP or to discuss any aspect of this update please contact Suzanne Milne or Emmett Boyce.

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