QUEEN'S BENCH DIVISION
Manchester District Registry
Manchester M60 9DJ
B e f o r e :
| Mr Mirajuddin Molodi
|- and –
|(1) Cambridge Vibration Maintenance Service
(2) Aviva Insurance Limited
Mr Daniel Wood (instructed by DAC Beachcroft LLP) for the Defendant/Appellant
Hearing dates: 16 March, 19 March and 26 March 2018
Crown Copyright ©
Mr Justice Martin Spencer:
"There was a minor collision between the vehicles. It was so minor that I did not even flinch in the van and I would not have even known there had been a collision but for the clipping noise and the Claimant beeping his horn. … I stayed in the vehicle while my brother spoke to the other driver because it was something and nothing. As I say, it was so minor and therefore I had not even thought about anybody being injured. … I'm adamant that no injuries were suffered in this collision; it was too minor for there to have been."
"The impact of the accident was enough to move me about in the car. I cannot remember how I moved in the car. I do recall that loose items such as my keys, money and other loose items became out of place. … The accident caused me pain and suffering. The next day I started to experience pain in my back, neck and shoulders. My right hand also started to hurt. As a result, I decided to see my GP. I explained these circumstances to my GP and was told to take painkillers."
"Problem RTA – road traffic and other transport accident (first)
History He was driving the car doing taxi/customer was on back/only one seat belt was on
Someone come in red light in front of car tried to do U-turn
Had whiplash injury
Police was inform as third party accepted the fault
Not been to hospital
Examination low back pain
Pain at neck, shoulder and back
Medication Naproxen 500mg gastro-resistant tablets 1 to be taken twice a day 28 tablet
Ibuprofen 5% gel apply up to 3 times a day 50g
Comment advised not to take Paroxetine for time being
Suffering with ejaculation problem/awaiting for appointment from MRI
Advised to return if problem persists or deteriorates."
Although the Claimant attended his GP regularly, he did not seek any further advice or treatment for the injuries said to have been sustained in the accident.
"I'm the Claimant's representative. The Claimant believes that the facts stated in this claim form are true. I'm duly authorised by the Claimant to sign this statement."
"Present condition – cervical pain with a restriction end of range. Lower back pain and shoulder pain.
Limited range of motion in thoracic region
Right shoulder ache and stiffness
Pulp – tenderness in upper limb region and left cervical C2 - C5 region
Tenderness in C2 – C5 region
Upper fibres of trapz tightness."
The details of treatment to be provided were: manual therapy, soft tissue mobilisation and home exercise programme. The number of treatment sessions recommended was 12. The first treatment session was that day and there were then weekly treatment sessions which ended with the 12th on 18 June 2015.
"Taxi driver time off: Yes
He is currently self-employed as a taxi driver
Had taken 3 days off because of the accident
He had reduced his hours for 2 weeks."
He reported suffering on-going moderate discomfort with mild to moderate restriction of sleep. He told the doctor that he had been unable to do gym activities since the accident:
"He usually does this activity few times a week before the accident. It has not improved."
"He had stated only one previous accident details when asked about previous accidents and injuries." (emphasis added)
Dr Idoko predicted recovery in relation to the right hand and shoulder within six months of his examination (that is by about the end of September 2015) and full recovery from the pain in the neck and upper and middle back within 12 months of the examination (that is by the end of March 2016).
"6 … Details of the Claimant's personal injuries are set out in a medical report prepared by Dr Emmanuel Idoko dated 30 March 2015, a copy of which is served and attached therewith.
7. The Claimant particularises his injuries as follows:
i) Pain stiffness and discomfort to right hand for 7 months;
ii) Pain, stiffness and discomfort to the right shoulder for 7 months;
iii) Pain stiffness and discomfort to the neck, upper and middle back for 13 months."
Special damages of £2,513 were claimed including £1,293 for vehicle damage and £1,160 for the cost of physiotherapy.
"8.1 No visible damage was caused to the First Defendant's vehicle and no repairs were, or required to be, carried out.
8.2 The Claimant stated to the medical expert that he made GP visit, which contradicts his Claims Notification Form.
8.3 The Claimant stated to the medical expert that he had three days off work (as well as reducing his working hours) which contradicts his Claim's Notification Form. There is also no claim for loss of earnings.
8.4 The Claimant now claims for 12 sessions of physiotherapy despite the CNF stating there were no rehabilitation needs.
8.5The First Defendant's driver and his passenger were not injured and have not intimated claims. The First Defendant's driver refers to a passenger in the Claimant's vehicle who has also not made a claim. Additionally, the Claimant's CNF refers to him being the only occupant."
"The other side are taking issue with the fact that I had not provided a repair invoice. I do not understand why this is such an issue. I don't understand why I should repair something out of my own pocket when the accident was not my fault."
Thus, the Claimant appeared to be saying in this witness statement that he had not had his vehicle repaired.
"I was involved in a previous accident which has been settled and for which I recovered, the date of which I cannot recall. I can confirm that the injuries sustained in that accident were not affecting me at the time of the index accident."
Thus, the Claimant, having told Dr Idoko that he had only been involved in one previous accident, confirmed this in his witness statement, which he signed and was endorsed with a statement of truth. This was, in fact, not true. The Defendant insurance company has uncovered details of previous accidents: an accident on 10 June 2014 involving Esure Motor Insurance; an accident 2 May 2013 involving Haven Insurance Company Limited which was settled; an accident on 4 April 2013, again involving Haven Insurance Company Limited, which was settled; an accident on 28 February 2013 involving Ageas Insurers which was settled; an accident 27 November 2012 involving Haven Insurance Company Limited which was settled; and an accident on 18 November 2009 involving Axa Insurance which was settled. Mr Wood submitted that the Claimant had been involved in at least five previous accidents, probably more, but he had failed to tell Dr Idoko, he lied in his witness statement and he failed to make any disclosure of documents relevant to the previous accidents.
"Q: Would you confirm that there is also a medical report in this bundle which you do not need to read now, it is at page 49 if you want to glance at it?
Q: Have you read that before today?
Q: Are you happy to rely on the contents?
Mr Wood therefore asked Mr Molodi why he had adopted the medical report and not pointed out it was wrong when it referred to only one previous road traffic accident to which Mr Molodi answered:
"A: I don't know I actually told him on the first place when I had been examined by him.
Q: It is not the question Mr Molodi.
"How long did you say the symptoms from this incident lasted?"
To which Mr Molodi answered:
"The shoulder and the neck and upper back, about six to seven months."
However, he then said that was only in relation to the shoulder and neck and the pain in the upper back had been 12 – 13 months. He was asked how it was that, in his witness statement dated 12 January 2016, some 11 months after the accident, he had stated that he was still experiencing pain in his neck and shoulders. He was understandably unable to give a coherent answer to that question.
"I've been recovered. I had that time for back pain. If you are looking at, I never complaining after it too much."
"Q: Let us move on from that. The final point, why, if it only cost you, you now say, £400 are you claiming for nearly £1,300.
A: My friend repaired it, if I could take into the other garage it probably cost me that £1,300 including VAT.
Q: So you are happy to put that additional money in your pocket even though it did not cost you that?
A: I did not get that money anyway, I mean …
Judge Main: You are claiming it.
Q: You are claiming £1,300 for a loss of £500: why?
A: The engineering actually gave that statement …
Q: I know where the evidence has come from, the question is, why are you claiming it?
A: I mean because of his damage my car I spend this £400. Probably, if I take in the garage, not my friend that could have cost £1,300."
Again, Mr Molodi was unable to give any coherent explanation for why he had claimed £1,300 in respect of repairs which had only cost him, on his evidence £400.
The evidence for the Defendants
The judgment of HHJ Main QC
"28. Accordingly, there are grounds for Mr Wood to be critical of the Claimant, that he has given an incomplete and rather tailored and limited history on its face, if the account of Dr Idoko is to be relied upon. I accept that there are instances that doctors can be told something and they do not report. Indeed, I've not heard from the relevant doctor to confirm in the witness box the accuracy, for example, of section D of the past medical history, but in part his evidence has been substantiated and supported by some Part 35 questions which he answered on 16 February 2016 when he, in replying to questions put to him, stated that he did request the history and the only account that was given to him is that which has been recorded."
Having referred to answer 7. in the Part 35 answers, the Judge went on to say:
"30. It is not just that. The fact is that in the course of his evidence, as Mr Wood has also observed, he has given inconsistent accounts. In the course of his evidence when seemingly answering a straightforward question as to how long his symptoms lasted in respect of his shoulder, his neck and his back, Mr Molodi stated that he had basically recovered from those injuries within six to seven months of his accident, but that so far as the report was concerned and opinions expressed by Dr Idoko, he changed that very quickly to say that a six to seven months recovery period was correct in so far as his right shoulder and his neck was concerned, but overall his upper back did not resolve until 12 – 13 months after the accident which, to that extent, fitted in with the time frame which at least in part had been set out by Dr Idoko.
31. Now that is not consistent with the statement that the Claimant has provided in his proof of evidence and particularly the provisions that he set out in paragraph 17 of that statement."
The Learned Judge acknowledged the inconsistency between the Claimant's witness statement, his evidence in court and what he had told Dr Idoko and said:
"32. … either way, it clearly inconsistent with what he is saying now in the witness box and that has raised the question mark as to his reliability more generally.
33. Not just that, turning to the special damages, it is submitted that on any basis, although the claim for special damage, so far as the losses arising from the accident are concerned, are particularised in the schedule as to some small sum for out of pocket expenses for painkillers and for travelling expenses which I will turn to briefly later, the cost of repairs in respect of his vehicle as set out by a firm of motor assessors in the form of Davies and Grey in respect of damage which was seen on inspection of that vehicle in February 2015 of £1,293 including [VAT] are claimed. Whereas, in the Claimant's statement he implies, if not suggests outright, that the vehicle had not been repaired, paragraph 11 states:
'The other side are taking issues with the fact that I have not provided the repair invoice. I do not understand why this is such an issue. I don't understand why I should repair something out of my own pocket when the accident was not my fault.'
34. The implication was that the vehicle had not been repaired and there was no repair invoice as a consequence of there being no funds which the insurers had paid to repair the vehicle. However, in the course of his evidence, the Claimant stated that in fact he had had his vehicle repaired. He had taken it to a friend who had undertaken the repair for him for a cost of £400. He had done it after Davies and Grey had reported, following their inspection of February 2014 shortly afterwards and therefore, by the time he came to make his statement in January 2016, it had been repaired (presumably for many months), yet the statement is entirely silent on it – it does not refer to the amount that was paid, how it was paid, to whom, when the work was done and what work was done – there are no documents disclosed – there is no confirmation of any payment because those are all cash transactions which have not been otherwise evidenced."
"36. Standing back from all this, I do not propose to say anything further on the evidence. I have to establish in my own mind, as a matter of fact, as to whether the nature of the impact in the course of this collision is such which not just gives rise to a real plausibility of the occupant of the Claimant's vehicle being injured, but also as a matter of fact, of him having actually sustained injury."
The Learned Judge then referred to the fact this was not a case where the special directions applicable to "Low velocity injury" had been applied so that he only had the report from Dr Idoko, who had admittedly been given an incomplete history and which was in part misleading and no engineering evidence. He said:
"I liken it to dealing with the evidential issues with 'one hand tied behind my back!'".
Having then referred to the weaknesses in Molodi's evidence, the Judge stated as follows:
"41. Therefore, to that extent, he has not come across well in terms of the consequences of the accident but I find, as he sought to explain the collision, I thought he was relatively straightforward and gave me an account which was relatively straightforward – as an example and not least, when he sought to explain with reference to the photographs where the point of impact was, which presumably was the bumper area of the front nearside of the van and how it did cause crazing damage, at least scratching the wheel trim and some minor scratches around the wheel arch. The Claimant's account does I find explain consistently how he was struck, as he sought to overtake a vehicle that he thought was effectively pulling into the nearside, but then turned across his path with a glancing sort of blow. …
46. The point is, am I satisfied that there is sufficient here from the Claimant's perspective to bring about plausibility that he may have been injured and that the probability is that he was injured as a consequence of this accident? Let me be clear, I am so satisfied, and there is insufficient evidence here raised by the Defendant and in the Defendant's account to cause me to have any real concern about that.
47. The next question is am I satisfied that Mr Molodi suffered the extent and [effect] of his accident as he has suggested later on to his GP and has continued to suffer the effects of it as the GP had originally suggested. I'm not satisfied that is so and I suspect there has been a measure of exaggeration so far as Mr Molodi is concerned."
"I have hardly seen a Claim Notification Form in the last number of years where the detail of the accident as I found it on the evidence, often on objective evidence, is properly recorded in the Claims Notification Form. The process itself is often, because of its nature, littered with inaccuracy, partly because the forms are filled out by relatively lowly junior people in the office who are not qualified, partly because they do not take sufficient care over setting out the details and sometimes as they type it up they make mistakes. I see it in almost every case. The fact that there is no mention made of the right hand does not of itself concern me. The other injuries are broadly referred to."
"51. I'm satisfied that it is more probable than not that Mr Molodi did suffer some relatively short term injury to his right hand, that he did have some relatively short term issue relating to his right shoulder and also suffered in respect of his neck and, to an extent, his upper back. I'm not satisfied in the event, given the concerns I have over the lack of the history presented to the GP, Dr Idoko and the failure on the part of the Claimant to give a consistent account in his later evidence, that in fact he had suffered for the length of time which is presented as part of his claim, as part of the medical evidence and in the Claimant's statement.
52. Mr Wood effectively invites me to find, even if I find there is some cause as to some injury, that I should effectively reject it on the basis that he is so otherwise inconsistent that I simply cannot reliably find what his injuries are and, therefore, he has not proved his case. I do not take the view that is appropriate from the facts here because I'm satisfied that there was sufficient here because I take the view that Daniel Chapman probably did turn more into that vehicle which did cause some more sideways movement on the vehicle that could easily explain and does explain on balance the fact of the soft tissue injury in this accident.
53. The fact that the Claimant has now refined his evidence, as I have stated, when he talks about neck and shoulder, six to seven months, I'm satisfied that that should be in fact be his ceiling in respect of all his injuries. In so far as the fact, it is a fact as he presented that he had a longer period of discomfort in his upper back, I'm not going to award him that and that reflects the fact he is inconsistent witness."
The submissions on behalf of the Defendant/Appellant
"There is no substantive obligation on the Defendant to plead fraud so long as his reasons for resisting the claim are clearly stated in accordance with CPR 16.5".
He also referred to the decision of the Court of Appeal in Howlett v Davies EWCA Civ 1696 where Newey LJ said at paragraph 31:
"31. Statements of case are, of course, crucial to the identification of the issues between the parties and what falls to be decided by the court. However, the mere fact that the opposing party has not alleged dishonesty in its pleadings will not necessarily bar a judge from finding a witness to have been lying: in fact, judges must regularly characterise witnesses to have been deliberately untruthful even where there has been no plea of fraud. On top of that, its seems to me that where an insurer in a case such as the present one, following the guidance given in Kearsley v Klarfeld, has denied a claim without putting forward a substantive case of fraud but setting out 'the facts from which they would be inviting the judge to draw the inference that the plaintiff had not in fact suffered the injuries he asserted', it must be open to the trial judge, assuming that the relevant points had been adequately explored during the oral evidence, to state in his judgment not just that the claimant has not proved his case but that, having regard to matters pleaded in the defence, he has concluded (say) that the alleged accident did not happen or that the claimant was not present. The key question in such a case would be whether the claimant has been given adequate warning of, and a proper opportunity to deal with, the possibility of such a conclusion and the matters leading the judge to it rather than whether the insurer had positively alleged fraud in its defence."
"Orders for costs made against the claimant may be enforced to the full extent of such powers with the permission of the court where the claim is found on the balance of probabilities to be fundamentally dishonest."
That was the issue in Howlett's case. Mr Wood also referred me to the decision of Julian Knowles J in London Organising Committee of the Olympic and Paralympic Games (in liquidation) v Haydn Sinfield which concerned an allegation of fundamental dishonesty for the purposes of Section 57 of the 2015 Act.
• The claim for £1,300 damage when in fact the Claimant had had his vehicle repaired by a friend for about "£400";
• The contradiction between the CNF and the Claimant's evidence in relation to whether the Claimant was the only occupant or whether he had a male passenger;
• The CNF stating that the Claimant had no rehabilitation needs when the Claimant then made a claim for 12 sessions of physiotherapy;
• The Claimant's assertion that he had time off work in his evidence when the CNF stated there was no time off work and the fact that the Claimant had made no claim for loss of earnings despite stating in his witness statement at paragraph 15 that as a result of the accident he had been unable to work his normal hours for about two weeks and for three days after the accident did not work at all;
• The fact that the Claimant told his medical expert that he had only had one previous accident, confirmed in his witness statement at paragraph 18 when in fact he had been involved in at least four previous accidents and probably more, possibly as many as seven (in fact, Mr Sweeney, for the Claimant, conceded there had been five and perhaps six) previous accidents.
The submissions on behalf of the Claimant/Respondent
"Standing back from all of this, I do not propose to say anything further on the evidence. I have to establish in my own mind, as a matter of fact, as to whether the nature of the impact in the course of this collision is such which not just gives rise to a real plausibility of the occupant of the Claimant's vehicle being injured, but also as a matter of fact, of him having actually sustained injury."
Mr Sweeney submitted that the Judge was entitled to decide that, despite the inconsistencies, the Claimant was a credible and straightforward witness and that his findings as reflected in paragraph 41 of his judgment are unimpeachable. Mr Sweeney submitted:
"Judge Main has given sufficient weight to the inconsistencies in coming to his conclusion he's entitled to do so in a robust manner without half an eye on an appeal at court. This is something which happens all the time. There are always inconsistencies, but they are not necessarily sinister. The inconsistencies were acknowledged by the Judge and were taken into account."
"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as given by the District Judge. These reasons should be read on the assumption that unless he has demonstrated the contrary, the Judge knew how he should perform his functions and which matters he should take into account. … An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself. "
In addition, Mr Sweeney drew to the court's attention the dictum of Lord Reid in Benmax v Austin Motor Company Limited  AC 370 at 375 where he said:
"But the trial judge has seen and heard the witnesses, whereas the appeal court is denied that advantage and only has before it a written transcript of their evidence. No-one would seek to minimise the advantage enjoyed by the trial judge in determining any question whether a witness is or is not trying to tell what he believes to be the truth, and it is only in rare cases that an appeal court could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness. But the advantage of seeing and hearing a witness goes beyond that: the trial judge may be led to a conclusion about the reliability of a witness' memory or his powers of observation by material not available to an appeal court. Evidence may read well in print but may be rightly discounted by the trial judge or, on the other hand, he may rightly attach importance to evidence which reads badly in print. Of course, the weight of the other evidence may be such as to show that the judge must have a formed a wrong impression, but an appeal court is and should be slow to reverse any finding which appears to be based on any such considerations."
The Appellate Jurisdiction of the High Court
"It is the duty of the Court of Appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted, and to decide accordingly."
Viscount Simmonds went on to say:
"This does not mean that an appellate court should lightly differ from the finding of a trial judge on a question of fact, and I would say that it would be difficult for it to do so where the finding turned solely on the credibility of a witness. But I cannot help thinking that some confusion may have arisen from failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts."
Thus, in the present case, it is submitted on behalf of the Appellant that it is in relation to the evaluation of the facts which he found that Judge Main QC principally went wrong although there is also a challenge to his perception of facts.
i) To notify the other parties in writing within three months of receipt of the Letter of Claim that he considered the matter to be a low impact case and that he intended to raise the causation issues;
ii) The issue should be expressly identified in the defence, supported in the usual way by a statement of truth;
iii) Within 21 days of serving such a defence to serve on the court and the other parties a witness statement which clearly identified the grounds on which the issue was raised, and which dealt with the Defendant's evidence relating to the issue, including the circumstances of the impact and any resultant damage.
iv) Upon receipt of the witness statement, the court would, if satisfied that the issue had been properly identified and raised, generally give permission for the Claimant to be examined by a medical expert nominated by the Defendant. If upon receipt of any medical evidence served by the Defendant following such an examination, the court was satisfied on the entirety of the evidence submitted by the Defendant that he had properly identified a case on the causation issue which had a real prospect of success, then the court would generally give the Defendant permission to rely on such evidence at trial.
"3. The defendants aver that the vehicles merely touched as a result of the accident. This statement is made in accordance with the case of Casey v Cartwright .
4. Without prejudice to the assertions in the defence, the defence allege that this was a low speed impact case …
6. On the basis of the above the defendant avers that this was a low speed collision and challenges the claimant that the accident was such that any and/or the extent of the alleged injuries could have been caused in the collision."
Despite the above, by his order dated 26 November 2015, the District Judge allocated the claim to the fast track and issued standard directions for fast track cases. These included provision for the Defendants to raise written questions of the expert report of Dr Idoko but stating:
"No other permission is given for expert evidence."
i) Dismiss the appeal and uphold the decision of HHJ Main QC;
ii) Allow the appeal and remit the case for re-hearing;
iii) Allow the appeal and dismiss the claim on the basis that the Claimant failed to prove his case;
iv) Allow the appeal, dismiss the claim and make a finding of dishonesty or fundamental dishonesty on the part of the Claimant.