Those who defend personal injury claims are increasingly used to seeing rehabilitation based special damages claims. Insurers and policymakers should be aware of dishonest layering of rehabilitation special damages. Being alert to this is important because they can be relied upon to damage the claimant’s credibility, challenge legal advisors on wasted costs and support arguments of dishonesty and fraud. In this article Roger André discusses three cases in which he was instructed for the defence, where these different rehabilitation scenarios were successfully raised.
Malik & other v Aviva Insurance 17-18.11.17, 17.7.18, 17.7.19 (approved Judgment) Birmingham County Court, Mr Recorder Khangure QC (“pro-forma” invoices – unauthorised Statement of Truth).
Following a trial regarding an RTA on 27.3.16 and subsequent costs hearings, wasted costs under S51 Senior Courts Act 1981 were ordered against the claimant’s solicitor’s firm. During the substantive trial, it was established that physiotherapy claimed for in invoices for “treatment” had not in fact occurred. The claimant’s solicitors claimed the invoices were “pro-forma” for intended treatment and were mistakenly not withdrawn until part through trial. In a written Judgment, Recorder Khangure QC ordered wasted costs on the basis that (i) the invoices were on the face of them not pro- forma, but appeared to be for services already incurred; (ii) they were persisted with up to trial; (iii) the senior partner had not been initially frank about the relationship between his firm and its employee, who was also a director of the physiotherapy company; (iv) in signing the Schedule of Loss, there was a clear breach by the solicitor of CPR Part 22, as he had no authority to do so and had not explained the Statement of Truth and consequences to the claimants.
Elvidge v Covea Insurance plc 9.7.19, 27.2.20, 13.1.21 Skipton County Court, DJ Skalskyj-Reynolds (fraudulent invoices for “treatment” – home exercise pack is not treatment).
Following an RTA on 5.11.17, a claim was issued for damages for personal injury, including £319 for physiotherapy “treatment”, comprising six treatment sessions and an initial assessment. Under cross examination, the claimant denied having seen a physiotherapist; he had a “Home Exercise Pack”; and he agreed that to claim for six “treatment” sessions was false. The alleged treating physiotherapist and director of the rehabilitation provider at relevant times, was called in for cross examination at an adjourned hearing. In a written Judgment, DJ Skalskyj-Reynolds rejected the physiotherapist’s explanation that being sent a leaflet of exercises with instruction to do them on specific dates amounted to “treatment” sessions. He acted dishonestly in authorising the issue of a fraudulent invoice, intended to mislead the defendant. A copy of the judgment was ordered to be sent to the HCPTS Conduct and Competence Committee.
Ghani v Advantage Insurance 1.10.20, 26.3.21 Burnley County Court, DDJ Reynolds (Fundamental Dishonesty – invoiced physiotherapy dates discrepancies and alleged CBT).
This claim included damages for personal injuries, credit hire and physiotherapy treatment, arising from an RTA on 2.5.17. Amongst the reasoning for a fundamental dishonesty finding were (i) the claimant presented an invoice for physiotherapy treatment both pre-dating and on the day of his medical-litigation examination which was inconsistent with the fact that the expert made no mention of treatment having taken place in the report, but recommended he commence treatment. (ii) The judge was not satisfied that the claimant had six (orally the claimant could only remember one) or any CBT sessions – he had exaggerated his psychological symptoms.
Instructed exclusively for insurers Roger André has been at the forefront of highlighting to the judiciary the issue of rehabilitation special damages fraud and dishonesty. If you would like to discuss any of the matters arising from this article with Roger, please contact him via email@example.com
This article first appeared in The Voice, the monthly newsletter of the Forum of Insurance Lawyers (FOIL).