Both actions were presented by the same firm of solicitors, questionable claims for tinnitus and psychological injury were presented arising from what appeared to be straightforward rear end shunt motor collisions where liability had been admitted pre-issue.

We succeeded in defeating the claims, achieving significant savings, as well as disrupting a psychological 'expert'.

Somerset Bridge claim

The facts

Two claimants presented injury claims against Watford Insurance Company Europe Limited. Claimant one claimed to have sustained tinnitus, whereas claimant two claimed to have suffered a psychological injury. The claims were multi track in value.

Psychological 'expert'

The psychological 'expert' assessed claimant one for the purposes of preparing a medico-legal report and undertook the treatment recommended by the ENT expert in relation to claimant two. The psychological 'expert' was not HCPC registered, so a referral was made to the HCPC. A subsequent concession was received from the 'expert' that she had been contacted by the HCPC to advise she did not have the requisite credentials to produce clinical psychological assessment reports and was asked to cease producing further reports indicating that she would waive her fee in respect of the report in question.

We challenged our opponents in relation to their ability to rely upon the psychological report given that their 'expert' did not meet the criteria set out within the pre-action protocol; the individual in question could not therefore be considered an 'expert.' The claimant's solicitors maintained that they would be relying upon the report given that the court had granted permission for them to do so.

Nick Thornsby of 8DB attended a hearing before HHJ Walsh in Leeds County Court and secured an order withdrawing permission to rely upon the psychological report. The claimant's solicitors later secured a report from an alternative psychologist, but following carefully worded Part 35 questions to the expert, she confirmed her report could not be relied upon. She also made a number of concessions, which included:-

• The assessment was undertaken via telephone with no video, as this is what the claimant requested; and
• She was limited to two hours of time, including assessment and report writing (presumably by the medical agency).

The claimant was left without psychological expert evidence.

Tinnitus claim

Claimant two chose to maximise his claim by adding a tinnitus rather than psychological claim. At the same hearing dealing with the psychological expert evidence, HHJ Walsh commented that the court was aware of whiplash claims where claimants were now claiming tinnitus, calling it a 'controversial area.'

Our intelligence professionals undertook searches which revealed adverse credibility evidence, including Facebook posts, that undermined his claim for credit hire.

As part of our robust tinnitus strategy, it was clearly drawn out that there is no objective evidence of tinnitus. Consequently, if a claimant is found to be unreliable and/or lacking credibility, this enables a trial judge to confidently conclude that the claimant did not suffer with the claimed injuries.

Outcome

As we approached trial, the claimant's solicitors asked about the possibility of discontinuing on a 'drop hands' basis. It was eventually agreed that Watford Insurance Company Europe Limited would allow the claimants to discontinue, subject to the claimants paying £2,000 towards their costs.

Savings of over £80,500 were achieved.

Deborah Railton, Fraud Controller at Somerset Bridge, commented:

"Somerset Bridge has a robust strategy in place to identify injury layering claims. Our expert fraud team operate a zero-tolerance approach when it comes to exaggerated claims and we are thrilled we were able to successfully defend the claim and obtain a substantial saving."

AXA claim

Brief facts

Proceedings were staggered in respect of two claimants, with one having proceeded through directions before the other issued. Claimant one claimed to have suffered psychological injury, but unlike the Somerset Bridge claim, both claimants claimed to have suffered with tinnitus following the motor collision. Whilst tinnitus is accepted to spontaneously occur in a minority of whiplash victims, it appeared suspicious that 100% of the occupants of the vehicle alleged to have sustained tinnitus.

The combined value of the claims were within multi track territory. It was considered that it would be beneficial to have the claims ultimately heard together, but given one claim had progressed through directions, it was argued that the claims should remain on the fast track. An order was secured confirming the claims would stay in the fast track, but would be listed to be determined at trial together. AXA's cost exposure was therefore minimised.

Psychological claims

Claimant one also pursued a credit hire claim. Despite presenting this, he advised the psychological expert that:-

• He was unable to return to driving following the accident; and
• He had not returned to driving by the time of assessment i.e. after hire had ceased!

Expensive CBT was commissioned, upon the psychological expert's recommendation. The discharge report also recorded that the claimant had not yet had the opportunity to drive a car.

Part 35 questions were put forward to secure clear confirmation that this is what the claimant had said, thereby eliminating the risk of him trying to distance himself from the content of the report.

It was clear that the credit hire claim would fall away. It also appeared that the claimant deliberately misled the psychological expert and CBT therapist in order to maximise his damages.

Claimant one had also been inconsistent in relation to his tinnitus claim.

Tinnitus claim

Although claimant two did not claim to have suffered with psychological injury, she did claim to have suffered with tinnitus. A number of inconsistencies were also drawn out in investigations.

She advised both the MedCo and ENT experts that she left her employment as a food packer due to the accident related injuries. When pressed to disclose her personnel and occupational health records, she changed her story to confirm that she was unemployed at the time, but was due to return to work. She then claimed that her return to work was delayed by nine months, yet no loss of earnings claim was presented.

Despite the alleged immediate onset of tinnitus and the described impact of the symptoms, the alleged tinnitus was only documented once within the GP records. The reporting to the GP was delayed and appeared to be an attempt to validate the claim.

Although she wasn't referred to a psychological expert, she claimed she did not proceed with the recommended physiotherapy as she did not want to leave the house due to flashbacks. A review of her GP records revealed that she had been referred for physiotherapy via the NHS during the prognosis period, yet there was no mention of any physical injuries sustained.

Outcome

Neither claimant would have the means to discharge an enforceable cost order if the matter was pursued to trial and fundamental dishonesty findings were secured. It was therefore agreed that the claims could be discontinued on a 'drop hands' basis, resulting in over £80,750 in savings and a significantly lower costs spend for AXA.

Discussion

Both of these claims were transferred to our expert lawyers who specialise in injury layering and who, are led by Caroline Bigos. They deployed effective counter-strategies to defeat the claims and secure the desired outcome for Somerset Bridge and AXA, resulting in much lower legal costs.

With the recent increase to damages in the Judicial College Guidelines, an intrinsic understanding of tinnitus and recognised psychological injuries is more important than ever. The moderate tinnitus bracket now starts at over £18,000 and moderate PTSD bracket's upper limit is over £28,000, so effective strategies and specialist knowledge are key.

Part 35 questions remain powerful tools in fraud investigations and were utilised to enhance investigations in these claims.

The updated counter-schedules were also used as a platform to set out the defendants' fraud concerns following investigations.

As part of our counter injury layering strategy, the decision in TUI UK Limited v Griffiths is being utilised to secure permission for oral evidence from experts in the right claims. Whilst it is hoped that the experts will be disrupted and discredited at trial, in some cases, the best outcome and form of disruption is simply ensuring that neither the claimants, nor those representing them, benefit financially from bringing these claims.

Experts can also be disrupted along the way, as demonstrated by securing withdrawal of permission to rely upon a psychological report and the psychologist being requested to 'cease and desist' by the HCPC.

If you would like to know more about our layered injury strategy, please contact one of our experts below.