When expert engineering evidence in a vehicle damage and credit hire claim is not what it seems

Mhammad Murtada Hodroje v Storm of London Ltd & Ageas Insurance

Background

The claim arose out of a minor incident in January 2019 when the first defendant’s driver bumped the claimant’s parked Mercedes car causing what appeared, at most, to have been two tramline scuffs to its rear bumper. Despite the trivial nature of the incident, the claimant claimed for the pre-accident value of the Mercedes, credit hire, recovery and storage charges.

The claimant instructed Evans Harding Engineers (CG) Ltd (‘EH’) to produce a report, which was created following an inspection by Mr Simon Levitt (‘SL’) of the Mercedes in February 2019. That report (‘the report’), which carried a CPR r. 35 expert declaration, ostensibly verified by SL, declared the Mercedes an undriveable write-off with a pre-accident value (less salvage) of £2,394.

The first day of the trial took place in April 2021 and, under cross-examination, the claimant contended, inter alia, that following the incident, the Mercedes was repaired by his employer at a cost of in the region of £2,000.

SL also attended the trial for cross-examination, and whilst giving evidence, it transpired that he did not have the report before him, but only his handwritten notes and photographs taken on his inspection. The judge adjourned the case to allow service of the written notes and the photographs.

Once the trial re-started, SL confirmed that he carried out about 10 inspections a day, about 75% for claimants and mainly for Evans Harding. He also conceded that:

• He had not seen the report before the trial date;
• Some of the contents of the report differed from his handwritten notes. For instance, the salvage figure in the handwritten sheet was £665 but in the typed report was £266 (so increasing the amount claimed for vehicle damage);
• The two signatures on the report were his signatures but they were electronic signatures which had been put on the report by EH;
• His usual practice was to carry out an inspection and send the notes to EH, who then produced a report in his name but which he did not see prior to it being sent to the defendants.

In addition, SL accepted the following:

• Whereas his handwritten notes indicated that the boot lid on the Mercedes would not open, upon his inspection of the Mercedes, the battery was in fact flat. He had therefore not been able to attempt to open the boot as it operated electronically. The comment in his handwritten notes that the boot lid would not open was only from his 'instructions';
• The exhaust muffler, which was recorded in the report as needing replacement, was not tested directly by him as the engine was never started; it was purely an observation from the exterior that it might be too loud to drive or otherwise unsafe;
• The view that the Mercedes was undriveable was only as a result of the boot and exhaust muffler conclusions, but neither of these were from direct examination.

The trial was adjourned enabling the defendants to locate the Mercedes at an address occupied by the claimant’s wife. It was apparent from photographs obtained that no repairs had been undertaken. In the light of the evidence which had been given at the earlier trial and this fresh evidence, the court made a further order for directions.

The claimant served a supplementary statement in which he sought to explain away the new evidence by claiming the Mercedes had undergone just partial repairs. He also disclosed the instructions to Evans Harding and SL and these did not suggest the engineer had been directed that the boot lid on the Mercedes would not open.

The case returned to trial at the end June 2021, and despite being afforded opportunity by the court to do so, neither the claimant nor SL attended to give evidence.

Judgment

The judge found SL’s evidential concessions at trial to be surprising. Whilst he commended him for his candour at the first hearing, he remarked that candour was one thing and credibility was another. He did not find him, at trial, to be a dishonest witness, but he did conclude that the engineer conducted the most superficial inspection and he put forward findings which could not have been caused by a proper examination. At best, his findings were speculative assertions upon which the court could not rely.

As a consequence of the findings in respect of the evidence of the claimant and SL, the judge found that the claim for PAV was not proven and, as the Mercedes remained roadworthy, the claim for hire and recovery and storage fell away. The claimant was ordered to pay the defendants’ costs of the action on the indemnity basis and to repay an interim payment he had received in respect of the Mercedes.

Most significantly, given the findings regarding SL’s evidence and the apparent manner in which EH had altered his notes and produced a report which was not signed off by him, the judge indicated an intention to join both SL and EH to the proceedings for the purposes of costs. The claimant’s ATE insurers have agreed subsequently to pay the costs, thus rendering the non-party costs application unnecessary.

Comment

The manner in which the evidence is this case unfolded was extraordinary. It is worth remembering that a claim for credit hire is a claim in mitigation for the loss of use of a vehicle. As a general proposition, a claimant will only recover hire charges if they had a reasonable need to mitigate that loss by hiring an alternative vehicle.

In a PAV/total loss case, that effectively means that the starting point is that the vehicle involved in an accident must be undriveable and that is what makes an engineer’s inspection of a vehicle so important.

Against that background, insurers often assess claims involving seemingly superficial damage to a vehicle and associated credit hire and wonder how it is possible an independent engineer could reasonably declare that vehicle to be an undriveable total loss.

Therefore, the significance of this case cannot be overstated. SL made findings that could not have been supported by a proper expert examination, whilst EH produced a report which did not reflect the findings of SL’s inspection or the actual state of the claimant’s Mercedes and that report was not signed off by SL.