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The failure to disclose relevant medical history avoids a payout despite admission of liability

Forbes recently handled an RTA claim in which liability had been admitted. The Claimant initially complained of neck, shoulder and lower back pain which radiated into her pelvis, legs and toes. She also complained of knee pain and headaches. She was referred to an orthopod by the original expert. When she saw an orthopedic expert she then alleged that she had also been suffering a right thumb injury since the accident.

Her expert diagnosed an 18-month whiplash injury and referred the claimant to a hand surgeon with regard to the right thumb injury. The Claimant was obtaining further medical evidence and our client made a P36 offer of £6,000 to the Claimant whilst further medical evidence was awaited.

Crucially, the Claimant had denied any relevant pre-accident medical history both to the original expert and to the orthopedic surgeon.

At disclosure stage however we obtained the Claimant's medical records which showed:

• She was diagnosed with De Quervain's tenosynovitis of the right thumb in January 2005. She had three injections in the right thumb over the course of 2005 and was provided with a thumb splint.
• There was a letter in her GP records from a chiropractic clinic which recorded that she had had several sessions of treatment from them. Crucially, the letter recorded that she had presented to the clinic in November 2020, only two months before the index accident, with a history of low back pain and groin pain.
• Her GP records also included an application form for a position with the police dated two weeks before she saw the orthopedic expert. One of the questions on the application form specifically asked, "Do you have any musculoskeletal problems in any part of your body or have you ever been diagnosed with a condition affecting your musculoskeletal system?" to which the Claimant had ticked 'no'.
• An entry from July 2018 recorded that the Claimant had had pelvic pain for three years prior to that entry.

Based on this new evidence we obtained instructions from our client to withdraw the previous offer made and instead made a drop hands offer to the claimant. We put the claimant on notice that if she did not accept the drop hands offer then we would seek a finding of fundamental dishonesty against her, carrying a potential risk to her on costs.

The Claimant has now discontinued the claim in response and is also paying back an £800 interim payment that the client had previously made.

Forbes comment - This case is a useful reminder that, even when liability has been admitted, it may still be possible to defend the claim if there is evidence of exaggeration or a deliberate attempt by the claimant to mislead the court. Forbes' fraud team specialise in such investigations so please do contact us should you have any queries on how we can assist validating your own claims.

For more information contact Warren Smethurst in our Insurance department via email or phone on 01619 180007. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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