3 mai 2019
Claimant gives court plenty of options to find him to be fundamentally dishonest
Calvin Samuel v Gregarious Limited 
In 2017, AXA received a claim for a laceration injury to the claimant’s lower lip and tongue, requiring plastic surgery, together with psychological injury, requiring cognitive behavioural therapy treatment. The claimant also claimed special damages in excess of £6,000. The total amount being claimed exceeded £11,000, plus costs.
It all proved to be a work of fiction, in every aspect possible. Following a successful investigation by Kennedys and AXA, the claimant was found to be fundamentally dishonest and ordered to pay costs of £9,793.75.
The claim related to alleged injuries sustained whilst the claimant was drinking with friends in the defendant’s premises. It was claimed that the injury was caused when drinking from a chipped glass.
The claimant was clever. He knew what to do and made sure that:
– The incident was reported to the defendant’s staff at the time.
– He provided contemporaneous evidence (photograph) of a defective glass.
– The medical evidence supported the claim.
However, notwithstanding the claimant’s efforts to present an open and shut case there were a number of questions.
The case against
There was reason to question the mechanism of the injuries that were said to have been inflicted to both the outer lip and tongue. Together as the claim progressed we conducted investigations and challenged the claim, building a compelling case against the claimant on all aspects:
– Enquiries with the defendant confirmed that none of the staff recall being able to see any injury at the time.
– CCTV footage from the defendant showed the claimant had remained in the bar until closing time, drinking without any difficulty. The CCTV also captured the claimant pouring out his own drinks under a table.
– The claimant attended his GP by telephone consultation only.
– The claimant had numerous historical facial scars.
– The first schedule of loss signed and served by the claimant proved to be a work of fiction:
– Loss of earnings
– Damaged clothing
– Travel expenses
– Dental treatment (the claimant did not receive any dental treatment or, due to being in receipt of income support, pay for dental work in any event);
– The second schedule of loss tried instead to suggest that the claimant suffered loss in respect of:
– Loss of enjoyment of a holiday
– Cognitive behavioural therapy treatment costs
– Scar revision surgery (the only surviving loss from the first schedule).
The claimant and the allegations presented lacked any credibility and were demonstrably false. AXA maintained a strong stance in defence of their policyholder.
The judge hearing the trial found for the defendant entirely on the basis that the claim was fundamentally dishonest, commenting she could not even be sure that the defect was on the glass when it had been handed to the claimant.
The judgment also confirmed that had there been a finding in the claimant’s favour in relation to liability and causation, she would have dismissed the whole claim under section 57 of the Civil Justice and Courts Act in any event, as his claim for dental treatment and loss of earnings were dishonest.
There was clearly an intention to bring a fraudulent claim with obvious planning and forethought. Even when his claim started to unravel, the claimant tried to change his story by dropping and changing heads of loss that were starting to cause him problems. A well-managed investigation and litigation strategy ensured the claimant was not able to succeed, a finding of fundamental dishonesty was made and a recoverable costs award secured.
Fundamentally Honest blog
This is a great result, both in terms of the finding of Fundamental Dishonesty as well as the attention to detail and collaborative work between our claims handler and Kennedys.
Andy Williams, Technical Strategy Manager – Liability Claims, AXA Insurance