Isik v Clegg [2007] EWHC 2552 (QB)

[2007] EWHC 2552 (QB)

Case No 5SW03958

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Manchester Civil Justice Centre

Bridge Street

Venue Manchester

M60 9DJ

Date 08/11/2007

Before

MR JUSTICE TUGENDHAT

Between

Mr Ayhan IsikClaimant

Ms Diane CleggDefendant

Mr Rogers (instructed by Keith Park Solicitors) for Claimant

Mr Baldwin (instructed by Weightmans Solicitors) for Defendant

Hearing Hearing dates: Monday 29th October 2007

Judgment

[1]On 3rd April 2005 at about 12.45 pm a road traffic accident occurred in Orrell Road near Wigan. The Defendant, a lady in her early twenties, was driving her Citroen C2 car along that road in the direction of Wigan. There is no dispute that a collision occurred between the front of her car and the rear of the claimant’s car. The claimant was driving a Renault Meganne Coupe. He was stationary at a traffic light when the defendant drew up behind him and stopped. Shortly afterwards, the defendant’s car moved forward and struck the claimant’s car. The defendant admits negligence.

[2]The defendant now faces three claims for personal injuries (one each from the claimant, Ms Gostelow and Mr Taylor), and one claim for damage to the claimant’s car. This trial relates only to the claim by this claimant, Mr Isik, for damages for personal injuries and damage to his car. The amount of damages, subject to liability, has been agreed between the parties at £2,250 in respect of the personal injuries and £450 in respect of damage to the car.

[3]There is no dispute that there was also in the car, sitting in the front passenger seat, a Mr Jeffrey Taylor. In separate proceedings brought by Lesley Gostelow, the claimant’s partner, she claims that she was also present in the claimant’s car, seated in the rear offside passenger seat. The claimant also states that she was also present in the car as she says. However, the defendant states that Ms Gostelow was not in the car.

[4]The defendant’s case is in effect that the claimant is fraudulently making claims for personal injury and damage which he has not in fact suffered. The defendant’s case in respect of Ms Gostleow’s claim is that that too is entirely fraudulent, and that the claimant is also dishonest in supporting her claim.

[5]The account of the collision given by the claimant, so far as material, is as follows. He states that Mr Taylor was visiting his parents’ home near where the claimant lived with Ms Gostelow. Hearing that they were going to visit the Asda Supermarket in Wigan, he decided to accompany them. The claimant states that when his car was stationary at the traffic light immediately before the collision, he and his passengers were all wearing seat belts which were properly secure and adjusted. There were a few cars in front of his. He felt the impact and heard the noise of a collision into the rear of his car. It moved them forwards, but not sufficiently to cause a secondary collision with the car in front. After checking on the welfare of his two passengers, the claimant and Mr Taylor got out, while Ms Gostelow remained in the back seat where she was. Mr Taylor stayed by the car while the claimant approached the driver of the vehicle which had collided with them.

[6]Both the claimant and the defendant drove a short distance forward and parked at the side of the road before the claimant got out of his car. The claimant’s account continues with a statement that he attempted to exchange details with the defendant, that she was very apologetic, but was not inclined to give him any more than his telephone number whilst he noted her registration number. The claimant states that she stayed by her own car and did not approach his. He states that she commented that her car had no damage but that she did not go near his to look to see whether that had any damage. He states that he did note that there were marks on her front bumper.

[7]Later in his statement he recounts that, because of the force of the impact, he was shaken and shocked, and that a day later when he got out of bed, he was stiff in the area of his neck and back. He sought the earliest possible appointment with his GP. That took place on 7th April and the medical notes record “Back sprain RTA 4 days ago pain right lumbar rad to thoracic. hit behind stationary in back of car…” On 9th July 2005 the claimant was medically examined by Mr Adam FRCS MCh Orth Consultant Orthopaedic Surgeon. I shall return to his report at a later stage.

[8]Ms Gostelow’s account of the collision is similar to that of the claimant. She gave evidence, was cross examined, and firmly maintained that she had been present as she said.

[9]Mr Taylor also gave evidence. His account of the collision is similar to that of the claimant. He states that he stayed by the claimant’s car and was unable to hear what passed between the defendant and the claimant. He adds “but I do know that the young lady did not approach our car”. He added in his statement “After attending the Asda supermarket I was driven to my home and thereafter [the claimant and Ms Gostelow] returned to their home”. However, in evidence, he accepted that he left the claimant and Ms Gostelow at Asda and went home on his own. He attempted to explain what was written in his statement by saying he was driven to his home by the bus. I was not impressed by this explanation, nor by his evidence in general. After failing adequately to explain this discrepancy between his written and oral evidence, he answered subsequent questions by saying that he could not remember.

[10]The statements for the claimant which I have referred to are all dated April 2006. The defendant’s statement is dated December 2005.

[11]The defendant gives the following account of the collision. She states that there were no other cars at the traffic light in front of the claimant’s car. She states that she braked her car to a stop and estimated that it was about a foot from the rear of the claimant’s car. She continues as follows:

“I did not apply my handbrake but I was holding my car by the footbrake. I was also depressing my clutch preparing to engage first gear in order to move off when the lights changed. I then heard a slight bump and I initially thought that someone had run into the back of my car. I then realised that my car had rolled forwards into the rear of the Renault and that I must have released the pressure on my footbrake. I did not stall my car and it did not jerk forwards in gear. It literally rolled gently forwards down the hill in Orrell Road. I did not feel any impact and I only realised I had hit the Megane because I heard the slight bump. The radio in my car was playing in the car but it was not loud. I was not jerked in my seat and my seat belt did not lock.”

[12]After describing how the cars moved forward and the claimant got out, she states that she too got out of her car. She states that the claimant was initially quite pleasant and they stood between their two cars to examine them. She states that there was no damage whatever to either of them and the claimant agreed there was no damage. She asked him if he was alright and he said he was. She describes Mr Taylor getting out of the front passenger seat of the Renault and standing by that door. She states that while she was examining the cars she was standing immediately to the rear of the Renault and could see into the car and was 100% sure that there was no one else in the vehicle.

[13]She continued her statement, saying that in view of the claimant agreeing there was no damage to either vehicle, she started to walk back to her car but he then called her back and asked her for her name and registration number. She argued with him and asked him why he wanted those details if there was no damage to the cars. He said he had some back problems and had been off work for a while. He told her he wanted her details because he would need them if he wanted to get a doctor’s note for more time off work. He mentioned that he was a bus driver.

[14]On 20th June 2006 the claimant made a second statement as he describes it “in response to the inaccuracy of the statement of the defendant.” He makes many points, most of which are not material. One point he makes is “She claims to have rolled down a hill – there is no perceptible slope at the scene of the accident”. In evidence he admitted that that statement by him was incorrect. There is a downward slope in the road at that point and he agreed that was so. He knows the road well. He said in cross-examination “it is not a slope it is a hill. I don’t know why I said there was no hill”. He agreed that his car would roll forward on that hill if the handbrake was not in place, but said that the collision was not a roll but a shunt.

[15]He then lists a number of other points in which he states that the defendant’s evidence is inaccurate. He states that when he and she spoke they conducted the exchange of particulars on the bonnet of her car, but she stayed by her car and did not approach his. He states that he did not agree that there was no damage to either vehicle. He states that there were marks on her front bumper. He agrees that she was reluctant to exchange details. He states “She alleges that I said “that I had some back problem” and therefore wanted her details so I could get a doctor’s note for more time off work. This is totally untrue. I never had any time off work with back problems. I had no conversation whatsoever with [her] about my medical history”.

[16]The claimant engaged accident investigators on 1st June 2005. The claimant’s vehicle was examined on 21st June 2005, over two months after the collision, and a report of that examination is contained in a letter dated 22nd June 2005. The document appears to be in the form of a template. Full details of the claimant’s vehicle are set out in a table. There is what appears to be a standard heading “Impact Direction and Area of Damage”. Under this is an image of a car seen from above. There is a mark and an arrow indicating the point of impact at the rear of the car slightly to the offside. There is no narrative or description of any damage. There then follows a paragraph:

“in our opinion the vehicle is economically and physically repairable. We would suggest settlement be sought of the reserve of £375….”

There follows a page setting out a list of new parts and the rates for labour. There are a number of photographs taken by the assessor and further photographs of the claimant’s car taken by himself or on his behalf. The writer of the report was not called to give evidence.

[17]In none of the photographs can I see any sign of any damage at all. In two of the photographs taken by the assessor there is a close up image of the rear bumper of the claimant’s car with a ball point pen pointing to part of the bumper. What it is pointing to appears to be a narrow gap, perhaps one or two millimetres wide, between the bumper and the rest of the body work, or between two parts of the bumper. However, in each of the close up photographs where that gap can be seen, it appears to be perfectly straight and even.

[18]In his oral evidence the claimant said this as to the damage. He says the paint was scratched and that he saw a gap between the valance under the number plates and that the back bumper was at an angle. He said he pointed out the scratches to the defendant when they were standing by her car, but she did not look at it. He said he was on his knees. Nothing of this is apparent to me from the photographs taken whether by the assessor or by others.

[19]Given the absence of any statement in the text identifying or describing damage, together with the defendant’s evidence that there was no damage, and my own inability to see any sign of damage in the photographs, I find that there was not any damage to the claimant’s car at all. The claimant’s statement of April 2006 adds nothing to the assessors report to which it refers.

[20]I turn now to the issue as to whether Ms Gostelow was in the car. This is not an issue upon which I need to make a finding of fact in this action. I do not doubt that the defendant was sincere in stating that there were only two people in the claimant’s car. The claimant’s car has headrests. It is possible that the defendant might have remained unaware that she was there so long as Ms Gostelow stayed still in the back seat, as she says she did. Whether the defendant was in fact mistaken or not may be an issue that arises in any action brought by Ms Gostelow. A judge who tries that action will be likely to have to before him other evidence relating to Ms Gostelow. Accordingly I make no finding on this point.

[21]On the other points upon which the evidence of the claimant differs from that of the defendant I prefer the evidence of the defendant. The claimant admitted that the defendant was correct about the slope and that his statement that she was inaccurate about that was in itself inaccurate. The claimant was also inaccurate to say that he had never had any time off work with back problems. There is in the file a “Return To Work Interview” prepared by his employers Arriva dated 17 December 2001. That records that he was off work, starting 26th November 2001 and resuming 10th December 2001. The reason for his absence was given as a road traffic accident, resulting in a back injury with pain in the lower back rising to the top. Although the document records the duration of his absence as two days, the printed form has the words “days/weeks” and the writer has crossed out the word “weeks”. Although the claimant would not accept this, it is clear that that is an error and the claimant was absent from work for two weeks. The defendant could not have known of these matters if the claimant had not told her. I accept that he did tell her.

[22]In the light of these matters to which I have referred, upon which I am quite satisfied that the defendant’s evidence was accurate and the claimant’s inaccurate, I conclude that I should and do prefer the defendant’s evidence on other matters in respect of which they differ. In particular, I accept the defendant’s evidence that she did look at the back of the claimant’s car, that she saw no damage, and that she and the claimant agreed that there was no damage to either car. In reaching this finding, I derive support from the fact that I have already found, namely that there was no damage to the claimant’s car.

[23]I turn now to the medical evidence. Before considering that, it has to be noted that the claimant has been involved in numerous traffic accidents. During the trial attention focussed mainly on five accidents in which he had been involved before 3rd April 2005 and one in which he was involved a few days afterwards on 18th April 2005. I have already referred to the accident in November 2001. In respect of this there is also a record that he was seen in hospital on 26th November 2001.

[24]On 8th January 2002 the claimant was driving his bus when a vehicle crashed into the back of it. There is a medical report by Dr Rosen dated 18 March 2002 in which it is concluded that as a result of this accident the claimant suffered acute neck sprain.

[25]On 23rd May 2003, while the claimant was driving his bus, an oncoming car suddenly turned right across his path. The claimant had to slam on the brakes in order to avoid an impact. There is a medical report dated 20th August 2003 also by Dr Rosen. That report refers to what Dr Rosen describes as “a” road traffic accident when the claimant suffered back and neck injuries, thus conflating the two previous collisions into one. In this report Dr Rosen states that the claimant suffered acute neck sprain and a right thumb injury as a result of the accident on 23rd May 2003.

[26]On 28th January 2004 the claimant was driving his bus when a car came from a junction across his path causing a collision. The claimant described suffering immediate pain in his shoulders and pain developing in his neck and lower back within the first day or two. This collision gave rise to the first of three reports upon the claimant by Mr R Adam. The report refers to the claimant having been involved in “a few previous road traffic accidents”. The report states that although he was in quite severe pain he carried on working. The report gives a detailed description of his present complaints to his neck and lower back. The report concludes with a prognosis. It might take as long as twelve to eighteen months from the date of the accident before he will make a full recovery. Twelve to eighteen months from 28th January 2004 spans the date of the accident with which I am concerned on 3rd April 2005.

[27]On 2nd August 2004 the claimant was driving his bus. He was struck by a tipper truck along his rear nearside and his bus was shunted forward and sideways. That is the description given by Mr Adam in his report dated 20th November 2004. Mr Adam records having been provided with hospital and GP records for the claimant. He refers to the claimant having been involved in two previous road traffic accidents, writing that “the latest one was about two years ago, he had neck and back pain from which he made a full recovery”. Given the information which was available to Mr Adam, the inaccuracy as to the date of the latest accident is puzzling. It was not two years before but seven months. And there were not two previous accidents but four.

[28]Mr Adam describes the claimant as not having taken any time off work but having missed four to five days overtime. He describes the present complaints as being pain to the chest which had settled down, and residual ache and swelling of the right ankle. Later in the report there is a list of incidents appearing in the GP records, including the incidents in November 2001 and January 2002. So the full and true information was available to Mr Adam.

[29]The next report of Mr Adam is dated 9 July 2005 in respect of the incident with which I am concerned which occurred on 3rd April 2005. Mr Adam states that on this occasion the information he had included just the instruction letter and a copy of the GP records, which he said he had reviewed. Under the heading Past History he recorded that the claimant had been involved in a few previous road traffic accidents. He stated that the latest accident was about August 2004 when the claimant sustained an injury to his neck and lower back from which he made a full recovery prior to the accident under review. This was inaccurate, in that the August 2004 accident had resulted in injury to the claimant’s ankle, as Mr Adam had recorded in his report relating to that matter. The injury to his neck and lower back had been the result of the accident on 28th January, as Mr Adam had also recorded in his own report on that accident. This report dated 20 November 2004 also refers to the accident on 18th April 2005 in which the claimant was involved.

[30]Mr Adam later did a report in relation to that accident. The report being dated 1st October 2005, which was also the date of examination. In the July report Mr Adam records the claimant as informing him that following the accident of 18th April the main injury was to his neck and he described no injury to his lower back. Mr Adam refers to the GP note of 20th April 2005. That note records “bus driver hit when stationary by lorry hitting rear shunting forward [complained of] disk base of neck and low back work in painful neck worse in am main disk lower back when twists”. Mr Adam records that the claimant told him that he had taken odd days off work in total about three to four days.

[31]Mr Adam recorded the results of his examination of the claimant’s neck, shoulders and back. The report includes: “An examination of the back confirmed he has quite severe generalised tenderness in his lumbar- sacral region. Lumbar spinal mobility was limited to about half of normal range. A straight leg raising test was 70 degrees on the right and 90 degrees on the left with negative sciatic stretch test. There is no gross abnormal neurology in the lower limbs. There is no evidence of any non-organic or inappropriate signs”.

[32]Mr Adam then lists the previous incidents, including those of November 2001, January 2002 and August 2004 with brief and, in this instance, accurate statements as to the injuries suffered. Mr Adam concludes in his “summary and opinion” that the claimant appeared to have sustained lumbo-sacral musculo- ligamentus strain. He suggested eight sessions of physiotherapy and anticipated that the claimant’s residual lower back symptoms would gradually improve and settle down with the passage of time, but it might take as long as nine to twelve months from the date of the accident before he would make a full recovery. He noted that the main injury from the subsequent accident on 18th April was whiplash injury to his neck and not injury to his lower back.

[33]Mr Adam’s report of 1st October 2005 in relation to the 18 April 2005 accident is consistent with his July 2005 report.

[34]The 18th April 2005 collision is the subject of a claim in the St Helens County Court number 6SW0427. It appears there is a further claim by the claimant in the Liverpool County Court 5SW03958 in which the defendant is named as Karen McNicholas. Solicitors for the defendant addressed detailed questions to Mr Adam pursuant of CPR Part 35 in documents bearing the headings of both these actions, in the former in relation to his report dated 1st October 2005, and in the latter in relation to a number of reports namely those dated 3rd April 2005, 28th January 2004, to August 2004 and 18 April 2005. Those are in fact not the dates of the report (as stated in the questions), but the dates of the collisions in respect of which the reports were written.

[35]By letter dated 2nd January 2007 Mr Adam replied at length to the questions concerning the accident of 3rd April 2005. He maintained opinions he had previously expressed in his report. Question 7 addressed to him was “Is it unusual for an individual to sustain purely a lower back injury in a rear end impact?” Mr Adam replied:

“I do not accept that it is unusual for an individual to sustain purely lower back injury in a rear end impact. However, I accept that back injury is less common than neck injury. In fact in this particular case Mr Isik did mention minor neck symptoms following his accident of 3rd April 2005. However, he reported his main injury following his accident was to his lower back. It is noted that following the accident under review he attended his General Practitioner on 7th April 2005 and there is a clear statement from his General Practioner that he sustained sprain to his neck and that the patient had tenderness in his thoracic and lumbar spine. In fact there was no record by his General Practitioner that he sustained an injury to his neck following the accident of 3rd April 2005. ”

[36]Mr Adam stated that the main objective sign regarding soft tissue injury to the neck and back will be local tenderness in the local musculature and/or spine range of spinal mobility, any abnormal neurological findings, straight leg raising test, as well as examination for non-organic or inappropriate signs. As he had stated in his July report, he had carried out these tests. He stated that back injury is not an uncommon type of injury following rear end impact. He concluded: “10. You have enclosed several medical reports regarding previous road traffic accidents. It is noted that Mr Isik was not trying to hide any previous road traffic accidents. I refer to my report with the accident of 3rd April 2005 under the section Past History. He stated very clearly that he was involved in a few previous road traffic accidents. His General Practitioner records also confirm the previous accidents. I do also read my previous medical reports regarding any previous accidents. I would like to stress that although Mr Isik was unlucky to have been involved in several previous road traffic accidents the opinion given in my report of 9th July 2005 regarding the accident of 3rd April 2005 is very fair and consistent with his injuries”.

[37]Mr Adam was not required to attend for cross-examination and no expert evidence was called for the defendant.

[38]Mr Baldwin for the defendant cross-examined the claimant to put the case that his claim was fraudulent. He suggested that the injuries of which the claimant had complained to Mr Adam had not in fact occurred and that was the reason why in Mr Adam’s report there are the inaccurate statements about past accidents to which I have already referred.

[39]Given the fact that Mr Adam does correctly set out in the Past History of his reports the various accidents and injuries suffered on each occasion, I find it impossible to attribute to the claimant responsibility for the inaccurate statements to which counsel referred. I cannot exclude the possibility that the explanation may be that Mr Adam was responsible for the confusion. I cannot accept the submission on behalf of the defendant that the claimant’s memory of his injuries is so poor that the only real conclusion is that he has not been honest to the doctors.

[40]I asked Mr Baldwin in the course of his closing submissions whether he was taking any point other than the point as to the credibility of the claimant. Mr Baldwin confirmed that he was not. So I do not have to consider whether assuming the information given to Mr Adam and the GP’s by the claimant was given honestly, nevertheless the claimant might have failed to prove on the balance of probability that the symptoms that he suffered were a result of the collision on 3rd April 2007. That point was expressly disallowed.

[41]I have disbelieved the claimant in respect of a number of issues where he differed from the defendant. It is difficult to attribute those inaccuracies to honest mistakes. The claimant knew the road into Wigan very well, and he cannot have been mistaken when he stated falsely that there was no slope. Nor do I accept that he was mistaken when he said in his second statement that what the defendant had described as the content of the conversation between them including a reference to his back problem was “totally untrue”. Nor can I see any room for honest mistake in the description of damage to his car which is not visible on the photographs. Accordingly I find that the claimant has deliberately made false statements in order to exaggerate the damages.

[42]The question remains whether he has also deliberately deceived the doctors.

[43]In approaching this issue I bear in mind two matters. The first matter is that the burden of proving, on a balance of probabilities, that the claimant suffered the damage he claims as a result of the defendant's negligence, is and remains throughout on the claimant. Although it is open to the defendant to suggest and seek to prove that the claim is fraudulent, as she does, there is no obligation on her to do so. Moreover, if she chooses to do so, there is no obligation on her to prove the truth of her case.

[44]The second matter I bear in mind is that it is always open to a court to conclude, at the end of the day, that whether the claimant has suffered the damage he claims, even on a balance of probabilities, remains in doubt, with the consequence that the claimant has failed to discharge the burden of proof which lay upon him.

[45]It appears that Mr Adam does believe that the claimant has suffered the injuries to his back described in the report. I give weight to that conclusion by an experienced orthopaedic surgeon. But I have to decide the question for myself. Moreover, I have heard evidence, tested in cross-examination that Mr Adam did not hear. And I have found that the claimant has given false evidence in relation to the points to which I have referred above.

[46]Having regard to the report of Mr Adam and to his answers to questions I do not find that the claimant’s evidence about his back injury is dishonest. But in the light of the points upon which I have found the claimant to be untruthful, I am in doubt as to the truth of what he states about his injury to his back. It follows that the claimant has not discharged the burden of proof lying upon him on this issue, and the claim must fail in its entirety.