Mr Jafar Kazemi v Mrs Jayantilal Gohil

This case was defended as a low speed impact in which DACB called the learner driver as a witness to give evidence against his instructor and to support our insured's defence. The case went to trial and a fundamental dishonesty finding was secured with an award of costs.

Background to the Case

The claimant was a driving instructor in the course of giving a lesson when the minor accident occurred. He alleged that the contact caused him to suffer a whiplash type injury. He also alleged that he took time off work but did not bring a claim for loss of earnings.

The insured said that she had pulled into a sanctuary to allow the claimant's vehicle to pass by. She gave evidence that the claimant's vehicle passed by too close to her vehicle but that the contact between the vehicles did not occur until she pulled out of the sanctuary, before the claimant's vehicle had entirely passed hers.

The learner driver, Mr Shah, was witness summonsed and gave evidence that he was not moved in the vehicle by the touching of the vehicles and supported our insured's defence of the claim as a low speed impact.

Dave Mitchell, dealing with the case at AXA instructed DACB to defend the matter to trial.

Judgment

At trial, although District Judge Tomlinson held the insured liable in full for the collision he held:

"What we are concerned with in this case is the causation of the alleged injuries to the claimant. By any stretch of the imagination this was a very, very low impact accident. The scuff marks that I have seen in the photographs show that there was hardly any movement. This was by no means a rear end shunt, although there is some evidence in the medical papers to suggest that the claimant indicated that there had been a rear end shunt. “It was a passing injury”, and we have all had them, whether involved with another vehicle or with a stationary post.

Mr. Shah's evidence, (and I think that it was critical, and unchallenged indeed), was that there was no movement of his body, and he was in the same vehicle as the claimant.

As for the claimant's allegations of movement, he says, and I made a clear note of it, that the actual touching did not cause his body to move but that he turned to his right to see what had happened, because, of course, the touching of the vehicles was behind the driver and passenger seat of both the claimant and the defendant.

As for the “time off” claim, the claimant's evidence was totally and utterly inconsistent. I do not think that he took any time off and I think that in that respect he was dissembling. Of course it is true he was not bringing a claim for “time off”, and that is probably because he could not prove it, at least his solicitor got that right, but when we go on to the evidence about pain, again, totally inconsistent. He told the walk in centre that he was okay; he told the expert a month later that it was much, much worse. You only have to look at paragraph 18 on page 3, where he says that the injury started a few days later, and compare it with the rest of his evidence where he said that it came on after a few hours. It is inconsistent and I do not accept in any measure what the claimant says in that regard. Neither do I think it is acceptable that in a witness statement, sworn at the end of 2016, that he failed to mention that he had had a second accident on 25th July 2016. It was a far more significant accident, and in a world where defendants like to settle claims quickly, for obvious reasons, it is important what you put in your witness statement, it is important what you put in the Particulars of Claim. The quicker you can settle these claims the better. You do not forget that a bus whacked you up the rear end, and if you do not put it in your witness statement I am going to ask questions why. I do not believe the claimant's evidence there. Neither do I believe there was any movement in summary or any significant movement in the claimant's red vehicle caused by the very minor scuff that occurred on the relevant day.

The defendant's two year old grandchild was not moved or discombobulated in any way nor disturbed by this accident, there is no evidence at all that she was, and I find that the impact was far too gentle to cause any injury. This is not a case where I am in doubt as to a level of injury, I simply do not accept what the claimant says. My judgment is that throughout his evidence the claimant was dissembling, I think he was dishonest, I think that he was trying to obtain damages when he has no right to those damages and I not only dismiss his claim but I am open to any application under CPR 44.16 which I think must follow, and the indication from the defendant's counsel is that it will follow."

With regard to the claimant's Barrister's submissions in respect of the defendant's costs the Judge held:

"It must be aware to anyone sitting in these courts that if claimant's solicitors spent half as much time as they do spend considering whether it was worth going ahead in these cases they would save an awful lot of money. It is clear that Mr. Sampson is an experienced litigator. He, rightly, on behalf of a serious insurance company, has spent a serious amount of time considering this case in a way that the claimant's solicitor obviously didn't. That is probably because the claimants employ children to do these cases, and this has to stop.

I have heard many of these cases in the last few years and I am satisfied that the schedule of work done on documents is reasonable, it shows a professional application to the job in hand. Now, it may be said that that is the privilege of a defendant's solicitor, but there we have it. It is not my fault that the claimant's solicitors are restricted to the pathetic costs that they are restricted to, and that is something that someone at some stage will have to take up with the Ministry of Justice, but it is right that in this sort of case, where serious allegations are made against a claiming individual, that serious people give serious amounts of time to what they are alleging. The allegations of fundamental dishonesty are not made lightly and it is right that a message goes out that these courts will not put up with it.

I think that the figures given are reasonable and I propose to order the claimant to pay £8,962."

Summary

The Judge's comments highlight that the Courts are placing significant emphasis on allegations of Fundamental Dishonesty and will not entertain spurious claims and AXA Insurance UK Ltd have no qualms about robustly defending low value claims of this nature on behalf of their policyholders.