QUEEN'S BENCH DIVISION
Manchester District Registry
Manchester M60 9DJ
B e f o r e :
| (1) Susan Richards
(2) Zane McGrann
Mr Daniel Wood (instructed by DAC Beachcroft Claims Ltd) for the Defendant/Appellant
Hearing dates: 16 March, 19 March and 26 March 2018
Crown Copyright ©
Mr Justice Martin Spencer:
"Problem other: road vehicle accidents (first)
History: was involved in a RTA few days ago, c/o shoulder pains
Car reversed when stationary
Wearing seat belt
No external trauma
No bleeding/fluid from nose/mouth, no loc
Examination: no obvious external injuries
Slight tenderness trapezius b/l, FROM
Comment adv re analgesia
Review in 2-3 days/sooner if any worse/any concerns
Although the First Claimant was a frequent attender upon her GP, and attended again on 31 July 2014, she did not seek any further medical help in relation to injuries sustained in the index accident.
The Claims Notifications Forms
"I am the Claimant's legal 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."
"3.8 Where a legal representative has signed a statement of truth, his signature will be taken by the court as a statement –
1) that the client on whose behalf he has signed and has authorised him to do so,
2) that before signing he had explained to the client that in signing the statement of truth he would be confirming the client's belief that the facts stated in the document are true
3) that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts."
CPR 32.14, relating to false statements, provides that "proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth."
"I do not find them reliable documents. They are done shortly. They are all very summarised. They are simplistic documents which do not permit there to be details of clinical presentation that can be relied upon by a trial judge and I just ignore them."
On the contrary, in my view they are important documents: they provide the basis for possible proceedings for contempt of court, as seen, and they provide valuable information at an early stage in the litigation process. Endorsed with a statement of truth, as they are, CNFs should be reliable documents and should be taken seriously.
"What type of injury was suffered? Soft tissue.
Please provide a further brief description of the injuries sustained as a result of the incident.
Injuries to neck, middle back and across chest from seat belt.
… 1.4 Has the Claimant sought any medical attention? Yes
If yes on what date did they first do so? 21/07/2014."
It was confirmed that no medical professional had recommended the First Claimant to undertake any rehabilitation, that the First Claimant was claiming damage to her own vehicle and, at Section G, brief details of the circumstances of the accident were provided. At Section K, there is the opportunity for the Claimant to state why she believes that the Defendant was responsible for the accident. Section L provides notification of funding arrangements.
"Q: You never attended a GP about this incident or any alleged symptoms from it did you?
Q: Why, in those circumstances, did you say that you sought medical attention on 2 August 2014, only three days before you're having this conversation with someone at your solicitors' office?
A: Why, did I say I had sought it?
A: I do not know. I do not recall.
Q: But you were telling them something which was not correct?
A: I do not recall."
The Medical Reports
"I've been told that following treatments have been received as a result of the index accident: Mrs Richards did not receive any treatment at the scene of the accident. She attended her GP's surgery two days after the accident. She was advised to use pain-killers and to do mobilising exercises. She took pain-killers. The treatment is on-going. She has been doing self-exercises since the accident."
Section B.3.3 deals with past medical history and states as follows:
"Mrs Richards informed me of the following medical history: Mrs Richards was involved in a road traffic accident five years ago which caused injuries to her neck and lower back. She had fully recovered after few months. Mrs Richards has a history of intermittent low back pain. She has suffered from this over the last six years. It has been exacerbated by the accident."
- Pain, stiffness and discomfort to the neck:
"She developed moderate pain, stiffness and discomfort in the neck on the day of the accident. These improved and are now mild to moderate and intermittent."
- Pain, stiffness and discomfort to the right shoulder.
"She developed moderate pain, stiffness and discomfort to the right shoulder on the day of the accident. These improved and are now mild to moderate and intermittent."
- Pain stiffness and discomfort to the lower back:
"She developed moderate pain, stiffness and discomfort in the lower back on the day of the accident. These improved and are now mild to moderate and intermittent."
- Fear of travel:
"Mrs Richards experienced moderate fear of travel immediately after the accident. This improved and is now mild to moderate."
"Fear of travel problem is solely attributable to the index accident. For this symptom no additional treatment is required. I anticipate this symptom will fully resolve between 10–12 months from the date of the accident."
"I've been told that following treatments have been received as a result of the index accident: Mr McGrann did not receive any treatment at the scene of the accident. He has been doing self-exercises since the accident. He took painkillers regularly for the first three months then as required."
So far as past medical history was concerned, Mr McGrann revealed having been involved in a previous road traffic accident five years previously (which would have been in 2009). The injuries reported by Mr McGrann as having been suffered in the accident were as follows:
- Moderate shock and shakiness immediately after the accident which resolved after a few days.
- "He developed moderate pain, stiffness and discomfort in the neck on the day of the accident. These improved and are now mild to moderate and intermittent."
- "He developed moderate pain, stiffness and discomfort in the right shoulder on the day of the accident. These improved and are now mild to moderate and intermittent."
"Mr McGrann experienced moderate fear of travel immediately after the accident. This improved and is now mild to moderate."
"The First Claimant refers the Defendant to the medical report of Dr Mohammed Iqbal dated 10 December 2014 which is annexed hereto and served herewith"
Exactly the same reference to Dr Iqbal's report was made in relation to the injuries sustained by the Second Claimant. Thus, by the Particulars of Claim, both Claimants were asserting, through their legal representative, that the reports of Dr Iqbal were true and accurate. The schedule of loss on behalf of the Second Claimant claimed £6 special damages for travel costs to/from medical appointments (£2), postage/phone call charges (£2) and medication costs (£2). The schedule of loss in relation to the First Claimant claimed £711, being the same amounts for the same reasons as the Second Claimant but, in addition, £705 being the value of the First Claimant's vehicle damaged beyond economical repair net of salvage. This reflected an engineer's report from Laird dated 12 August 2014 which found damage to the front of Mrs Richards' Suzuki motorcar which the expert estimated would cost £957.40 to repair. He estimated the value of the vehicle at £755 less salvage value of £50. He described the impact magnitude as "medium", the status of the vehicle as "total loss" and the claim in the schedule thus reflected the engineer's valuation of the vehicle less the salvage value.
The assessment report contained the following:
"Please outline below the areas injured following the accident and range of movement:
Neck full range of movement – minor pain
Right shoulder full range of movement – major pain."
The assessment report recommended weekly treatment with an expected discharge date of 14 May 2015. In fact, Mr McGrann did not attend for any physiotherapy treatment at all. In due course, an invoice for the assessment on 19 March 2015 was issued in the sum of £90 on 5 April 2016 but no other invoice was raised for physiotherapy as Mr McGrann did not have any. However, on 12 November 2015, an updated schedule of loss was served on Mr McGrann's behalf in which the previous items were abandoned but the claim was now for £570 in relation to "physiotherapy treatment (on-going – final charges will be £570 as long as the Claimant recovers as anticipated)". This updated schedule was endorsed with a statement of truth signed again by Mr Laiolo on the Second Claimant's behalf indicating that the Second Claimant believed the contents of the schedule to be true.
"Please outline below the areas injured following the accident and range of movement:
Lower back restricted range of movement – major pain".
In answer to the question "Did the client have any pre-existing conditions prior to the incident?" The answer given is "No". However this seems inconsistent with the next question and answer:
"If yes, please provide the full details below
Previous RTA five years ago and intermittent back pain with activities this has increased the LBP [lower back pain] from VAS 5 to a level 8/10."
Thus the answer to the question "Did the client have any pre-existing conditions prior to the incident" appears to have been an error by the assessor and should have been answered "Yes". Again, the treatment recommended was weekly and the expected discharge date was 6 August 2015.
The Witness Statements
"13. I started to feel discomfort in my neck, towards my lower back area and shoulder later that day. I also [had] minor discomfort across my chest where the seat belt was. I did however immediately feel shocked and shaken at the accident scene due to the collision. The pain and discomfort increased over the next day or so, so I decided to get checked out by my GP just in case. I saw my GP on 21st July and I was advised to take painkillers.
14. The pain and discomfort did not ease and I continued to take painkillers. I had a pre-existing problem with my back which the accident worsened. When I saw Dr Iqbal in December 2014 he recommended physiotherapy treatment. …
17. Since the medical examination by Dr Iqbal I've been having physiotherapy treatment. That treatment is on-going. …
19. As a result of the injuries I suffered in this accident I also seek to recover the cost of the physiotherapy treatment that my solicitors arranged for me. The total costs are anticipated to be £570."
However, as we know, 12 days later on 24 November 2015, the First Claimant was discharged from any further physiotherapy. Furthermore if, as she appears to have thought, the effect of the accident was spent within 8 months, that is by March 2015, it is difficult to understand how she could honestly and truthfully have said that the physiotherapy treatment was "as a result of the injuries I suffered in the accident."
"16. I've been involved in three previous accidents, on the 27/7/7, 12/7/10 and 5/6/12. I did sustain some injuries in these accidents but have fully recovered from those injuries by the time of the index accident. My lower back was painful at the time of the index accident, but this was constitutional, not accident related."
"12. I started to feel discomfort in my neck and right shoulder later that day. At the accident scene I did feel immediately shocked and shaken by the collision. I took painkillers on a regular basis for the first few months, then as and when needed as my symptoms improved.
13. When I saw Dr Iqbal in December 2014 he recommended physiotherapy treatment. That physiotherapy treatment is on-going at the moment"
This was untrue. There was no ongoing physiotherapy treatment and there had been none at all, in Mr McGrann's case. Mr McGrann indicated that, after the accident, he struggled with swimming, exercising and helping Mrs Richards look after her horse, Harvey. He stated:
"15. I've been involved in two previous accidents, on 27/7/7 and 12/7/10. I did sustain some injuries in these accidents, but have fully recovered from those injuries by the time of the index accident.
16. I have incurred some financial loss as a result of this accident, as set out within my updated schedule of loss, dated 12th November 2015, which I claim reimbursement of within this claim. These are estimated at £570 for physiotherapy treatment anticipated final costs."
Mr McGrann did not indicate in his witness statement that, contrary to the impression conveyed, despite the assessment on 19 March 2015, he had not undergone a single session of physiotherapy and, it would appear, did not intend to.
"15. [The driver of the vehicle behind] was angry and was shouting.
16. She told me that she was not injured but that she could get whiplash in the future and also commented that structural damage could have been caused to the underneath of her vehicle.
17. Karen informed her that this would not have been possible, we were not travelling fast enough to cause any damage and that insurers will not pay out for these types of claims. The driver made a comment in reply that she had received compensation from a similar incident earlier that year."
This account was confirmed by Karen Morris in her statement.
The Part 18 Answers to Requests for Further Information
|1. How long had you been stopped before the collision and what was the distance between your vehicle and the Defendant's vehicle in centimetres or metres?||Less than 1 minute. About 3 feet|
|2. As to paragraph 9 of your witness statement, at what speed do you estimate that the Defendant reversed?||10-15 mph|
|3. Was your vehicle shunted backwards? If so, please confirm the distance between the two vehicles in centimetres or metres immediately after the collision.||Yes. About 1 foot|
|4. Please confirm whether the vehicle you were travelling in had any pre-accident damage, and if so what damage and where?||Yes, scrape at rear nearside.
Dent to rear left, just below window
Left rear light case smashed
|5. How would you describe the force of the collision between the two vehicles, on a scale of 1 to 10 (1 being non-existent and 10 being severe)?||5|
|6. Have you been involved in any previous accidents involving the Second Claimant or a relative before?
If so, please provide full details of the traffic accidents with the particularity to be relied upon at Trial.
27/07/2007 – passengers in car rear end
12/07/2010 – my car hit side of another vehicle – my fault
|7. For each of the accidents referred to at paragraph 16 of your witness statement, please confirm
a) which of the listed accidents resulted in injury?
b) which part of your body was injured in each occasion?
c) how long did each injury take to resolve?
d) have you recovered from each injury?
Neck and back, I think
Do not remember
|8. Have you been in any other accidents apart from those listed in your witness statement?
If so, please provide full details of the accidents, with the particularity to be relied upon at Trial.
|Do not recall|
|9. Please explain why you did not tell the medical expert about all your accidents.||I thought I only needed to inform him of any accidents that were my fault.|
|10. Why did you not mention your middle back and chest injuries to the medical expert?||I stated it was an injury to the middle of my lower back, not my middle back area. My chest injury was very minor and resolved in a few days from accident.|
|11. In your Claim Notification Form dated 11 August 2014, why did you not report your lower back and shoulder injury?||Lower back long term and accident just exacerbated it so just extra pain to what I was already having.|
|12. In your witness statement, you mention that later that day you started to feel discomfort in your neck, towards your lower back area and shoulder and went to the GP. The GP records make no mention of the lower back injury or chest pain.
Please answer the following:
(a) Did you injure your lower back that day?
(b) Please explain why you did not mention this injury to your GP.
(c) Did you injure your chest that day?
(d) Please explain why you did not mention this injury to your GP.
As 10/11 above.
As 10/11 above.
|13. Have you recovered from your injuries?||Yes|
|14. Prior to the index accident has your Suzuki Wagon registration W124 GUG ("the Suzuki") been involved in a previous accident?
If so, please:
(a) Confirm the nature of the incident (eg hit third party in the rear, hit from the rear etc);
(b) Provide the dates of these accidents;
(c) Confirm whether any damage was sustained.
1) Painted when vehicle scraped rear side (cement wagon I think)
2) I reversed into a post with regards to rear dent
|15. What happened to the Suzuki after the index accident? For example, was it repaired, (if so
for how much)? Was it scrapped? Was it sold or still in use without any repairs?
|I still drove it in its damaged state. It was stolen in December 2015|
|16. Did you report the index accident and the damage to the Suzuki to your insurers?||No|
|17. Do you agree that you have had episodes of back pain since around 2004? If you do not agree, please explain why you disagree.||Yes|
|18. We note that you had physiotherapy, please confirm which areas of your body were treated. Please provide details to include the therapist attended and number of sessions.||3 sessions at Beechwood Health Centre.
Inductions and then lower back/shoulder
|1. Immediately before the incident, when you were stationary, what was the distance between your vehicle and the Defendant's vehicle (in centimetres or metres)?||3-4 feet|
|2. As to paragraph 7 of your witness statement, at what speed do you estimate that the Defendant reversed?||10-20 mph|
|3. Was your vehicle shunted backwards? If so, please confirm the distance between the two vehicles in centimetres or metres immediately after the collision.||Yes it was shunted. Cannot remember distance.|
|4. Please confirm whether the vehicle you were travelling in had any pre-accident damage and if so what damage and where?||Do not know|
|5. How would you describe the force of the collision between the two vehicles, on a scale of 1 to 10 (1 being non-existent and 10 being severe)?||5-6|
|6. Have you been involved in any previous accidents involving the First Claimant or a relative before?
If so, please provide full details of the traffic accidents, with the particularity to be relied upon at Trial.
27/7/2007 – passenger in car rearwards
12/7/2010 – Susan was driving and I was a passenger when the side of her car hit another car
|7. For each of the accidents referred to at paragraph 15 of your witness statement please confirm
a) which of the listed accidents resulted in injury?
b) which part of your body was injured on each occasion?
c) how long did each injury take to resolve?
d) have you recovered from each injury?
2007 – neck, chest, left shoulder
2010 - do not remember
|8. Have you been in any other accidents apart from those listed in your witness statements?
If so, please provide full details of the accidents, with the particularity to be relied upon at Trial.
|9. In your Claim Notification Form dated 11 August 2014, why did you not report your right shoulder injury?||I did tell my solicitors|
|10. Why did you not mention your back injury to the medical expert?||It was not injured.|
|11. Did you injure your back in the index accident?||No|
|12. We note that symptoms to your neck and right shoulder presented later on the day of the accident. Please explain why you did not seek any medical attention.||I just took Susan's strong painkillers that she used for her pre-existing back pains.|
|13. We note that you had physiotherapy, please confirm which areas of your body were treated. Please provide details to include the therapist attended and number of sessions.||Neck and right shoulder|
|14. What happened to the Suzuki you were travelling in after the index accident? For example, was it repaired (if, so for how much)? Was it scrapped? Was it sold or still in use without any repairs?||Susan still drove it|
The Updated Schedules of Loss
The Claimants' Medical History and Records
- 7 February 2002: she saw her GP complaining of neck sprain radiating into the shoulder
- 15.12.03: she consulted her GP with a four week history of low back pain
- 1.02.04: she saw her GP complaining of back pain after a fall
- 4 October 05: she suffered an episode of acute back pain in the thoracic area
- 30 July 07: she consulted her GP for neck pain radiating into the trapezie since a road traffic accident on 25 July when she was the passenger in the back seat of a vehicle which was hit from behind whilst stationary. I assume that this is the same accident as that which the First Claimant claimed in the Part 18 response had been on 27 July 2007;
- 23 July 2010: consulted GP with discomfort on the left side of the neck and left trapezius after motor vehicle accident the previous week when she was the driver of a car and hit a car in front;
- 13 May 2014: consulted GP complaining of a four day history of pain in the right side back of the neck radiating to the shoulder: on examination the GP found mild muscular tenderness to the right side back of the neck and shoulder with pain on turning the neck to the left.
- 17 July 07: consulted GP (Dr Mawdsley) complaining of neck pain after a road traffic accident five days previously when the back seat passenger wearing a seat belt and was shunted from behind whilst stationary, thrown backwards and forwards. On examination the doctor found slightly tender trapezius, good flexion and extension and rotation reduced 50% and prescribed co-codamol tablets.
- 28 July 2010: consulted GP (Dr Mukherjee) complaining of stiffness and pain in the left upper shoulder and back following a road traffic accident one week previously when the front seat passenger, wearing a seat belt.
The judgment of HHJ Main QC
"Three to six months, something like that."
However, when the discrepancy between this and what is contained in Dr Iqbal's report was pointed out she said:
"Well then I'm wrong about the three to six months obviously, am I not? I did say I cannot remember dates, times and numbers.
Q: How long do you say it is then?
A: It would have been six to twelve months. I cannot rightly remember. Sorry.
Judge Main: If you cannot remember, why say for one moment three to six months and then a minute later it is six to twelve months?
The witness: Because he's getting me all confused with his numbers and figures.
Q: I'm not sure this is confusion that counsel's creating. It is a straightforward question.
A: It is yes.
Q: You are being asked that your report from the doctor is suggesting it might go on for 12 to 14 months you volunteered actually it was three to six months. Now a minute later you're saying six to twelve months. That is not confusion caused by counsel that is obviously your …
A: Sorry. Six to eight months.
Q: Six to eight months now?
Q: So that is a third different answer, which am I to take?
A: Six to eight months.
Q: Any improvement on six to eight months?
A: No sorry.
Q: That is your final answer?
This prompted the Judge to find at paragraph 17 of his judgment:
"The Claimant was hopelessly inconsistent. Whether she was confused by the process, whether she was very nervous, whether she just has a very poor memory, maybe all those matters together, but she seemed to be suggesting in the first instance that she had recovered from her neck and shoulder problems within three to six months of the accident. Then when she was questioned further on it, and taken to the projection of 12 to 14 months by Dr Iqbal she revised that evidence to a period between six to twelve months then when she was taken to that yet further, she sought to stand back from that and reduce to between six to eight months.
As seen now this is all done in the space of a minute from the witness box. All it does is to underline the point Mr Wood makes that in fact the First Claimant is an inconsistent witness. She does not have a good recollection and because she does not have a good recollection of the true nature of her condition she gives an inconsistent answer repeatedly. And even that is inconsistent with the information she has given to Dr Iqbal."
"33. Ultimately I'm satisfied – I can only take a broad common-sense view about it – that there has been a sufficient collision to give rise to a potential injury to those in the vehicle behind."
"[I] find it more probable than not that she has sustained a relatively short-lived neck injury which was still symptomatic albeit only mildly so by the time Dr Iqbal saw the First Claimant 4 ½ months after the accident. But when she says that it settled within 6-8 months of the accident, that seems to me to be probably about right. The fact that she needed a couple of sessions plus the original assessment session of physiotherapy, I do not think is unrealistic. Ultimately, it seems to me, she quickly recovered"
On the basis of an 8 month injury, he assessed her damages at £2,500. He disallowed the claim for special damages: the physiotherapy treatment was outside the 8 month period of her recovery and he disallowed the claim in respect of the vehicle because Mrs Richards had accepted that, in accordance with her Part 18 response, she had been paid the insured loss of the vehicle due to its theft and not because of the damage to it. Thus, in the result there had been no loss in relation to the damage to the vehicle.
"He said in the witness box that he had experienced it two or three days or so after the accident whereas again, like the First Claimant, he stated to Dr Iqbal that it was immediately after the accident and on the day of the accident not later. He accepted he did not take any treatment at the scene, he did not receive any treatment or therapy in any way and appears only to have gone to take up the recommended physiotherapy a day after the 8 month period has ended – he himself saying that his symptoms lasted for about 8 months. That therefore gives rise to the fact that not only has he given an inconsistent account, an account not given to Dr Iqbal, he appears to have started on a therapy regime at a point when his injuries had, if not improved, were almost better. He only had one session even though he has permitted the claim to be presented and to be extended until very late in the day when it has been withdrawn seeking physiotherapy over repeated therapy treatments which is not consistent with the account he now presents, he being well aware that this has been undertaken because it is referred to in respect of the information in his statement."
"42. … I do not believe he did have a back injury. I'm not at all surprised; I see it all the time in Claims Notification Forms. I do not find them reliable documents. They are done shortly. They are all very summarised. They are simplistic documents which do not permit there to be details of clinical presentation that can be relied upon by a trial judge and I just ignore them.
43. The fact is there was a complaint. He did make a consistent complaint in respect of the neck injury. He did still have, at the time of examination by Dr Iqbal, a spasming in the neck, albeit an improving position. He accepts that he had recovered by 8 months after the accident. I do not believe that there was any basis for him to seek to go to see physiotherapy at that point in time when he had almost completely recovered. He was doing so, I suspect, because a complaint had been made by his solicitors and it was all part and parcel to present the most advantageous claim. I'm not satisfied that is referable to the accident and it is not recoverable. But I am satisfied he's entitled to damages to reflect the soft tissue injuries he sustained to his neck.
45. … The fact that the spasm has to be explained in some way; it is a clinical finding, it is not a subjective malingering or exaggeration. I find that reflects an objective finding of an actual nerve root irritation and it is more probable than not that has been caused as a consequence of this accident. "
The Appellant's submissions
i) The claim for special damages which was untrue both in relation to the physiotherapy and also the value of the motorcar;
ii) The untrue account given by Mrs Richards to her medico-legal expert, Dr Iqbal, in relation to her past medical history, an account endorsed by her (or on her behalf) by virtue of the reliance on it in the Particulars of Claim endorsed by a statement of truth signed on her behalf and with her authority;
iii) Mrs Richards' inaccurate identification of involvement in previous accidents and previous litigation.
With a low velocity impact claim, where, Mr Wood submits, the impact between the vehicles would not be expected to result in physical injury, and where the account of physical injury is wholly reliant upon the First Claimant's subjective evidence, in a context where claims for whiplash injuries are rife and claimants are all too ready to jump on the bandwagon and seek compensation where none is due, Mr Wood submits that the Learned Judge should have been significantly influenced by any aspects of the claim which indicated dishonesty or lack of candour on the part of the First Claimant. Mr Wood submits that the evidence in the present case was such that the Judge should have been driven to the conclusion that he could not accept that the Claimant had sustained the injuries which she claimed to have sustained and therefore the whole claim should have been dismissed. Mr Wood further submitted that the Learned Judge had gone significantly wrong in the course of his judgment. Thus, whilst the Learned Judge had correctly identified conflicts of evidence and elements in respect of which the First Claimant was wholly to be disbelieved, he had failed to resolve those conflicts or correctly to assess the effect of findings of untruthfulness or dishonesty, as he was obliged to do. He referred me to the decision of the Court of Appeal in Yaqoob v Royal Insurance UK Limited  EWCA Civ 887 where, in relation to an insurance claim arising out of a fire where it was the defendant's case that the claimant had set the fire himself, Chadwick LJ said:
"25. Unfortunately although in that passage the Judge identified the conflict of evidence, he did not resolve it. In my view he was required to do so. … That is not to say that Mr Yaqoob could not be believed on other matters. But the Judge was bound to say why, if he did not believe him on this matter, he was able to accept the evidence that he had nothing to do with the fire."
Mr Wood submits that, analogously, if the Judge disbelieved the First Claimant in relation to matters as important as her previous medical history, her involvement in previous accidents and her claim for special damages, he was bound to resolve those matters and explain how he could accept her evidence in relation to the fact that she had suffered personal injury which deserved compensation.
i) So far as special damages were concerned, a claim had been made for physiotherapy which had not been and was not intended to be undertaken, the updated schedule of loss of 12 November 2015 being signed and served at a time when Mrs Richards had been discharged from further physiotherapy. Furthermore, a claim was made for the value of the motorcar when Mrs Richards knew perfectly well that the motorcar had been stolen and she had been fully compensated for its value already, a fact that was only elicited shortly before trial as a result of the serving and answering of a request for further information under Part 18 of the Civil Procedure Rules.
ii) In relation to her past medical history, Mrs Richards had given a seriously misleading account to Dr Iqbal, an account which was then adopted by her in the Particulars of Claim. Thus, in relation to her past medical history, Dr Iqbal recorded Mrs Richards as telling him that she had been involved in a road traffic accident five years previously which caused injuries to her neck and lower back from which she had fully recovered after a few months. Otherwise she had a history of intermittent low back pain from which she had suffered for six years and which had been exacerbated by the accident. The records reveal a different picture with a neck sprain suffered in 2002, radiating into the shoulder, a four week history of low back pain in December 2003, a complaint of back pain after a fall in February 2004, an episode of acute thoracic back pain in December 2005, a complaint of gradually worsening neck pain radiating into the trapezii muscles in July 2007 after she had been the back seat passenger in a car hit from behind, a further injury in July 2010 when the driver of a car and had hit a car in front and when she had suffered discomfort in the left side of her neck and complained of a tender left trapezius muscle and, finally, an attendance upon her GP just two months before the index accident when she complained of a four day history of pain in the right side of the back of her neck radiating into her shoulder.
iii) Allied to the previous medical history and overlapping with it, Mr Wood referred to the First Claimant's inconsistency and lack of candour in relation to her involvement in previous accidents and previous litigation. Contrary to the single previous accident revealed to Dr Iqbal, in her witness statement Mrs Richards revealed that she had been involved in three previous accidents but she did not disclose that she had received £2,500 in compensation as a result of the accident in 2007. Thus, in cross-examination, there was the following exchange:
"Q. Which one were you referring to when you told him that you had been involved in one five years ago?
A. It would have been in 2007, which stands out in my mind because my back was injured badly.
Q. That this is the one you had £2,500 compensation?
A. It was, yes.
Q. How long did those symptoms last?
A. I'm still having intermittent pain in my lower middle back and I have done ever since then.
Q. That is from 2007?
Mr Wood submitted that this history, had it been revealed to Dr Iqbal, might well have had a significant effect upon his opinion in relation to causation arising out of the index accident and, if any injury was suffered in the index accident at all, for how long symptoms were attributable to that accident as opposed to the effects of the previous accident (further exacerbated in 2010 and again in 2012) and Mrs Richards' inherent constitution.
"Here, the hernia might be due to natural causes, or to some strain outside his work, and I cannot accept the evidence of the two medical witnesses to the effect that the use of the machine contributed to the onset of the hernia as it is merely a matter of their opinion and is contrary to the volume of medical evidence I have had in previous cases."
Tucker LJ said:
"There again the judge clearly went wrong, as he was not entitled to reject the uncontradicted evidence before him by reason of his preference for other evidence that had been given by other witnesses in other cases, although, no doubt, he is perfectly entitled to use the knowledge that he has acquired in this class of case in order to understand and test the evidence of the witnesses who were called before him."
Mr Wood submitted that the findings of HHJ Main QC in relation to the accident and the medical evidence were procedurally and substantively unfair.
The Respondents' submissions
"7. The way this case has been presented in fact – shows the Defendant wants to have his "cake and eat it" – he asserts a low velocity impact incapable of causing injury to either Claimant but does not want to go to the trouble and expense of collating and providing the relevant expert evidence to establish it, even though he was given the opportunity to do so. The court therefore in the absence of the relevant evidence has been dragged into the technicality of the collision and whether the forces at play plausibly give rise to injury."
"When vehicles come together and collide, there is a dissipation of energy. There is an absorption of the forces where one mass strikes the other. Where this happens there is very little force impacted or absorbed as between the vehicles, they do not separate. … There is no restitution as the consequence of the absorption of the energy. In contrast, where the vehicles do separate, they separate with equal forces – the mass of the respective vehicles do not stay together, they pull apart from each other due to the energy that is not absorbed."
Thus, the Learned Judge was entitled to gauge, at least to some extent, the degree of force from the fact that the vehicles had separated after the collision and conclude that the force had been sufficient to cause whiplash type injuries. Mr Sweeney submitted, and the Judge said, that this was inevitable where a Defendant had not chosen to follow the "LVI protocol" and commission its own engineering evidence. Of course, the Judge was limited in how far he could go: thus, it would probably have been too far for the Judge to reach a specific conclusion as to the force of impact or the probable speed of the vehicles from physical findings at the scene but the Judge was aware of his limitations. A "broad brush" approach was within his judicial knowledge and discretion.
The relevant law
"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.
"Apart from cases where appeal is expressly limited to questions of law, an appellant is entitled to appeal against any finding of the trial judge, whether it be a finding of law, a finding of fact or a finding involving both law and fact. 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's 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 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."
This is said to be one of those rare cases where the weight of the other evidence, and in particular the inconsistencies and the failure truthfully to account to the medical expert in relation to previous medical history and previous accidents and the dishonesty in relation to the special damages are such as to justify overturning the finding of Judge Main QC that, having heard the Claimants, he could rely on their evidence as to the fact that they had been injured and as to the duration of their symptoms.
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.
"1. The LVI directions hearing on 11 August 2015 be vacated as the Defendant does not seek to appoint her own medical expert.
2. The case be allocated to the fast-track.
6. The Claimants do have permission to rely upon the medical reports served with the Particulars of Claim.
7. In the event that, following the disclosure of medical reports, the Defendant does not agree with the Claimants' medical reports the Defendant shall, not later than 4pm on 3rd November 2015, serve upon the Claimants' medical expert a list of questions under Part 35 CPR, with a copy to be served on the Claimant's solicitors. The responses to be served no later than 21 days from the date of receipt."
Despite these directions, it does not appear that Part 35 questions were served on Dr Iqbal. The implication of paragraph 7 of District Judge Baker's order is that, in the absence of such Part 35 questions, the Defendant was to be taken to agree with the Claimants' medical reports. However, at trial, it appears clear that the Defendant sought to pursue a case which involved significant challenge to Dr Iqbal's reports even though Dr Iqbal was not called to give evidence and the Defendant did not call her own medical evidence. That challenge raised the very issues which the Court of Appeal addressed in Casey's case: the suggestion that the velocity of the impact was too low to have caused the damage alleged and significant challenge to the assertions by the Claimants that they had either been injured at all or suffered injury for the length of time which they claimed. In the circumstances, one can only have sympathy with HHJ Main QC where he said:
"7. The way this case has been presented in fact – shows the Defendant wants to have his 'cake and eat it' – he asserts a low velocity impact incapable of causing injury to either Claimant but does not want to go to the trouble and expense of collating and provide the relevant expert evidence to establish it, even though [she] was given the opportunity to do so. The court therefore in the absence of the relevant evidence has been dragged into the technicality of the collision and whether the forces at play plausibly give rise to injury."
"Judge Main: You'll have to say in the next three minutes, otherwise I will not be in the building.
(a short break)
Mr Wood: Your honour, I'm very sorry about the lateness of the hour.
Judge Main: So am I, because the building [is] closing in 11 minutes."
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 judge should have found that the Claimants had failed to prove their case;
iv) Allow the appeal, dismiss the claims, and make a finding of dishonesty or fundamental dishonesty on the part of the Claimants.
- The First Claimant, after seeing her GP on 21 July 2014 (three days after the accident), sought no further treatment for the injuries allegedly sustained in the accident, despite being a frequent attender upon her GP;
- The Second Claimant never sought medical attention at all whether at the time of the accident or later in relation to the injuries allegedly sustained in the accident;
- The Second Claimant's CNF falsely stated that he had sought medical attention on 2 August 2014, which the Second Claimant accepted in his evidence was untrue;
- Dr Iqbal was given inaccurate information by both Claimants in relation to previous medical history and previous accidents;
- The Second Claimant's CNF asserted that he had sustained a back injury when he had not;
- The Second Claimant asserted that he had sustained an injury to his right shoulder, yet this was not mentioned in his CNF;
- The First Claimant, in her evidence, said that the onset of discomfort was within two – three days of the accident, but told Dr Iqbal that the onset was on the day of the accident;
- Both Claimants, through their witness statements, relied upon and affirmed the truth and accuracy of Dr Iqbal's medical reports and yet they were demonstrated to be inaccurate;
- The schedules of loss in relation to both Claimants made claims which were not sustainable and, in the case of the Second Claimant, demonstrably dishonest in claiming for the cost of "on-going" physiotherapy when the Second Claimant never had any physiotherapy treatment and never intended to;
- In the physiotherapy assessment on 19 March 2015, the Second Claimant asserted that he had "major pain" in the right shoulder. The Judge found that the effects of the accident were spent by eight months from the accident, which would coincide with the date of the physiotherapy assessment. How then could the Second Claimant still be suffering from "major pain" in the right shoulder at the time of that assessment? Either the assertion of such pain was false or (perhaps implausibly) it was true but not associated with the accident. In reality, it should have been found that the assertion of "major pain" in the right shoulder on that occasion was false;
- The First Claimant's physiotherapy attendances were similarly at a time which was inconsistent with her evidence as to how long the effect of the accident had lasted and with the Learned Judge's findings in respect of the causative effect of the accident: if the accident's effects were spent within eight months (by March 2015), either the First Claimant was having physiotherapy unnecessarily or, alternatively, she was having physiotherapy for a condition which was nothing whatever to do with the index accident, in which case no claim for the cost of such physiotherapy should have been made: either way: the claim for the costs of the physiotherapy appears to have been false;
- In her witness statement, the First Claimant said that she felt discomfort later on the same day as the accident, but, in her evidence, she said that the discomfort came on within two – three days of the accident and she did not attend to her GP until three days after the accident;
- In her witness statement, the First Claimant claimed the on-going cost of physiotherapy, but was discharged from physiotherapy 12 days later;
- The First Claimant maintained a claim for the total loss of her motorcar in the sum of £705 even though it had been stolen in December 2015 and she had recovered its value so that she had no loss in respect of the motorcar by the time of trial. An updated schedule of loss endorsed with the statement of truth, continued to claim for the value of the motorcar in April 2016;
- The First Claimant made a claim for a chest injury in her witness statement, but no such injury had been mentioned to Dr Iqbal;
- The GP note of the First Claimant's attendance on 21 July 2014 made no mention of any lower back injury;
- The First Claimant had consulted her GP on 13 May 2014 complaining of a four day history of pain in the right side back of the neck radiating to the shoulder, this being only three months before the index accident: no mention of this attendance was made to Dr Iqbal;
- In his Part 18 reply, the Second Claimant, when asked the question "13. We note that you had physiotherapy, please confirm which areas of your body were treated" replied "Neck and right shoulder". This was plainly untrue;
- The First Claimant's evidence at trial was, on the Learned Judge's findings, "hopelessly inconsistent";
- The Second Claimant gave a similarly inconsistent account in his evidence: see paragraph 22 of the judgment of HHJ Main QC (see paragraph 40 above).