Robin Selley

A recent news article from across the Irish Sea has found its way to us of a failed whiplash type injury claim, in which the Claimant had alleged that he had suffered life changing injury as a result of a minor road traffic accident.

Mr Justice Michael Twomey had dismissed the claim brought by Desmond McDonagh following the accident in which he alleged that a truck being driven by James Dominick Dent, had reversed into his car while it was stationary. McDonagh had maintained that “the accident ruined his life because he later got a heart attack, depression, anxiety and nightmares”.

It was accepted that there was some minor damage to McDonagh’s car with scraping of the driver’s door, right wing mirror and front wing.

Although Mr Justice Twomey went on to find that McDonagh’s car was reversed into, he awarded a very modest sum for damages, before going on to state;

Claims such as this, seeking damages for alleged life-changing injuries resulting from minor accidents, bring the whole system of personal injuries’ litigation into disrepute”.

The full article on this claim can be found here; https://www.irishexaminer.com/breakingnews/ireland/personal-injury-litigation-being-brought-into-disrepute-by-certain-claims-suggests-judge-906146.html

This article follows on from the case of David Pinkus v Direct Line [2018] EWHC 1671 in which a preliminary issue was raised as to whether the Defendant should be allowed to argue that the claim was dishonest, having not expressly pleaded fraud / dishonesty in the Defence. In Pinkus it was of course held that there was no need for the Defendant to expressly plead fundamental dishonesty as the Defence had set out the Defendants position at length and in detail, so the Claimant could not have been in any doubt that his credibility as a witness was in question.

So, as previously set out in Howlett v Davies [2017] EWCA Civ 1696 provided the Claimant is given fair warning of matters in dispute and which are likely to be explored at trial, there is no requirement on a Defendant to expressly plead dishonesty in order for the court to make such a finding. We see this frequently when LVI is raised in particular following the guidance given in Kearsley v Klarfeld (2005) EWCA Civ 1510.

It is vital that claimants are made well aware of the risks involved in pursuing such claims when a defendant is able to put forward a positive defence to a claim, in particular where dishonesty is clearly being suggested. Fundamental dishonesty does not need to be expressly pleaded but if such a finding is made, an After the Event Insurance policy is unlikely to provide any cover for the costs that subsequently arise.

Bringing Personal injury Claims into Disrepute