Stacey Walker v West Midlands Police – Coventry County Court 19 February 2018

Fraud, LVI, Exaggeration and a finding of fundamental dishonesty

Executive summary

His Honour Judge Gregory has found claimant to be fundamentally dishonest in a claim for personal injuries where the claimant had discontinued prior to trial. The defendant was awarded their costs on the standard basis to be assessed if not agreed. Permission was granted to enforce the order for costs.

Facts

The claimant was a front seat passenger in a vehicle driven by her partner, when the defendant’s serving police officer collided into the rear of their vehicle, causing the claimant to sustain personal injury. The Defendant admitted liability for the accident but  disputed the claim for injury, as the impact was at a very low speed of 3 mph, there was minimal impact between the vehicles and the replacement parts to the third party vehicle was in the sum of £67.96.

The claimant attended her GP and was referred for physiotherapy.   At the physiotherapy assessment on 17 June 2015, 3 weeks post accident the claimant who was a self employed hairdresser complained of neck injury, upper back pain, also an injury to her left shoulder preventing her from raising her arms up over her head and causing her to struggle in her employment.

On 20 June 2015, three days post medical assessment the claimant completed a “reaper run” which is a 10k run with 40 obstacles (at midnight).  The claimant posted on social media details of her completing the entire course with photographs in support.  Four days later she attended her first physiotherapy appointment.

The Claimant subsequently relied on the medical report of Dr Fiona Ritchie following an examination on 27 July 2015.  On examination the claimant had advised the medical expert that she was experiencing pain and stiffness to the neck, left shoulder, upper left limb, upper back with headaches and paraesthesia.   Dr Ritchie provided a prognosis of 4 months from the date of the accident for a full recovery.

Within the claimant’s subsequent witness statement, signed by a statement of truth, she confirmed that she did not attend the gym for 3 months post accident and that it hurt to lift her arms over her head.   She advised this resolved after her last session of physiotherapy.

It was established that a week prior to exchange of witness statements the claimant hid the “reaper run” posts on her social media account.  Intel evidence had been obtained prior to removal of the social media post.  The witness statement that accompanied the Intel evidence explained that the social media posts were available for 19 months post “reaper run” but then hidden. The defendant made an application to amend their defence to plead fundamental dishonesty and to rely on the social media posts.  The claimant discontinued prior to the hearing of the defendant’s Application. Her solicitors also applied to come off record.

Judgment

The claimant attended the trial as a litigant in person.  The trial judge told the claimant at the beginning of the trial that she appeared to be in “hot water” in light of the evidence of the “reaper run”.  The defendant’s witnesses, to include a serving police officer and the Intel analyst gave evidence.   The claimant declined to cross examine either witness despite her insistence of their attendance.   

The judge noted that the defendant’s evidence as to the accident circumstances was unchallenged and together with the lack of damage to the claimant’s car (which he considered inconsistent with the alleged shunt), he specifically found that the collision was so minor that any significant injury was unlikely as a result of it.

There was particular emphasis placed on the “reaper run” and the claimant’s explanation that she did not want to let her sponsors down.  However, the judge found that if she had been experiencing the symptoms she alleged it would have been impossible for her to run.   In addition the claimant had failed to mention the “reaper run” to the physiotherapist, to Dr Ritchie and within her statement. It was relevant to the extent of her loss of amenity and the judge would have expected her to ask the physiotherapist whether it was sensible to undertake the run.  

The trial judge concluded that the claimant’s only reason for failing to mention the run to anyone was to conceal her involvement in it.  He also found her evidence on cross examination for deleting the posts (which she claimed was because she was reminded on the Timehop feature of facebook and wished to delete them because she had fallen out with the salon she had worked in at the time of the accident) was unconvincing as she had left the salon 18 months prior to the posts being located by the defendant’s Intel analyst. His Honour Judge Gregory found the claimant to be fundamentally dishonest and awarded the defendant their costs on the standard basis to be assessed if not agreed. Permission was granted to enforce the order for costs.

Comment

The Judge commented that various first instance authorities and the court of appeal case of Howlett v Davies and Ageas [2017] EWCA Civ 1696 (another Weightmans’ case) that this claim was so exaggerated as to be fundamentally dishonest.  The effect of fundamental dishonesty was the loss of the QOCS protection for the claimant and costs being awarded to the defendant. 

This case highlights that notwithstanding the low value of such claims, and an admission of liability there are significant savings by taking a robust stance in defending exaggerated/low velocity claims. It is clear that a strategy for low value claims based on the claimant’s lack of credibility and inconsistencies in their evidence rather than incurring expensive expert evidence can be very successful.

If this case raises any questions, please speak to your normal Weightmans contact or get in touch with Sandra Macmichael, Associate on 0151 242 6879 or email Sandra.macmichael@weightmans.com.

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