horwich farrelly

Justice for Aviva policyholder after trial defeat overturned

November, 22, 2017

Horwich Farrelly has further underlined its focus on tackling fraud on behalf of insurers by successfully overturning a court’s original decision to award damages, where there was compelling evidence that the claimant was not injured. At the appeal hearing, HHJ Freedman dismissed an earlier court’s decision to award a woman £2,100 following a minor car incident, after ruling the original judgment was “not sustainable on the evidence”.

The accident took place on 13 August 2015 in the car park of Northgate Hospital in Morpeth, Northumberland. The claimant, Christine Caldow, was in her parked Kia Picanto, when Aviva’s policyholder reversed out of a parking bay coming into contact with the driver’s side of the Kia. The main point of impact was on the wing mirror, with some transfer of paint. The defendant said she was travelling slowly, and had only reversed a few feet before the collision occurred.

Close up of wing mirror

The only damage caused by the incident was to the claimant’s wing mirror, therefore, it seemed unfeasible that the impact could have caused her alleged injuries.

In her witness statement the claimant said she had developed pain in her neck and shoulder the following day. However, when cross-examined at the original hearing in February 2017, she said that she thought her injuries could have been caused at work. Despite the apparent discrepancy the judge found her to be a credible and honest witness and awarded her £2,100 in damages.

However, Horwich Farrelly felt that the judge had not considered the accident circumstances at all – including the fact that the claimant’s car was parked at the time – nor the chronology of events, such as her failure to visit her GP until more than three months after the incident. Horwich Farrelly appealed on the basis that the judge’s ruling was wrong and that Aviva’s policyholder was entitled to justice.

At the appeal on 5 June 2017 at Newcastle-upon-Tyne County Court, Judge Freedman said the original judge “did not consider a number of matters which he should have done”.

The first was the circumstances of the incident, which Judge Freedman said “should have been at the forefront of the judge’s mind”. This included the incident taking place at low speed, which was confirmed by the claimant’s evidence at trial that the accident had not caused her vehicle to move. Judge Freedman said the alleged injuries were “unlikely to be occasioned by that type of impact”.

Second was evidence that the original judge had not properly observed the order of events. The claimant said in her witness statement that she only went to see her GP more than three months after the incident because her symptoms were not improving.

However, Judge Freedman considered this “disingenuous” as she had admitted in cross-examination that she had only consulted her GP on the advice of her solicitor “no doubt in an attempt to provide some independent support for her injuries”. Further, the claimant had in fact told her doctor that her symptoms were improving – in contradiction of her claim – something which the District Judge “should have had firmly in his mind”.

Doctor checking medical records

At the appeal, HHJ Freedman described the claimant’s three month delay in seeing her GP as “disingenuous” as medical advice was only sought after her solicitor suggested she seek independent support for her alleged injuries.

In addition, Judge Freedman heard the claimant had been in contact with her own insurers to discuss the damage to her vehicle, but at no point had she disclosed her alleged injuries. He added, “It was only after she had been contacted by solicitors that there was any suggestion of any injury”.

In his written judgment, Judge Freedman said the previous ruling “lacks rigorous analysis…and proper reasoning”. As a result HHJ Freedman overturned the original court’s decision and dismissed the claim.

Richard Hiscocks, Aviva’s director of casualty claims comments: “Aviva has zero-tolerance when it comes to fraud and we will do whatever it takes to defend our customers against such spurious claims. It’s clear all the evidence hadn’t been properly considered in this case and the great work by Horwich Farrelly helped gain the right result for our customer.  Everyone pays for fraud and we will do everything we can to prevent it.”

“This case sends a clear message to claimants who may be tempted to twist the truth,” added Jared Mallinson, Partner at Horwich Farrelly. “We believed the first judge had made the wrong decision and hadn’t considered all the evidence, which is why we appealed. This was a fair outcome for Aviva and their policyholder, and one which will help ensure consumers and insurers benefit from the costs saved on unmerited claims.”

Special mention goes to Holly Andrews, Litigation Executive in our Manchester office, for helping secure this result.

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