Background

A 19-year-old university student was temporarily employed in the insured’s packaging factory and suffered crush injuries to her dominant, right hand, when it was drawn into the in-running nip of an unguarded folding machine. Liability was established and admitted in full, with proceedings issued and served on limitation grounds.

According to the claimant’s medical experts, the right-hand pain and restrictions seemingly spread to the left hand, which allegedly developed a sympathetic Carpal Tunnel Syndrome. The claimant argued that her university results were adversely affected by her hand restrictions. It was claimed that both her coursework and examination results were impeded, potentially affecting her current and future employment prospects. This originally resulted in a highly aspirational Schedule of Loss valued at £1.2m. This was later moderated to a total claim of £250,000 damages, plus costs.

How we helped

Our casualty claims team suggested avenues of enquiry leading the defence team to commission further medical reports, in conjunction with an intelligence report, and covert surveillance footage from an enquiry agent. From this they were able to establish evidence indicative of exaggeration and malingering, sufficient to support an allegation of fundamental dishonesty. The claimant maintained that she was unable to work, which was contradicted by video footage and social media posts, confirming that she was working in childcare. We advocated a Part 36 offer of £40,000.00 damages, to impart pressure on the claimant, and to provide protection on costs, whilst encouraging the defence team to maintain a robust stance, despite the reservations of Counsel, who was concerned that the intelligence report and surveillance footage fell somewhat short of proving “fundamental dishonesty”.

Results

Shortly before the scheduled hearing date, the claimant yielded and accepted the Part 36 offer of £40,000, which had been on the table for over 2 years. The claimant’s After the Event (ATE) insurer subsequently withdrew indemnity, possibly because of the allegation of fundamental dishonesty, and the adverse costs implications of the claimant’s late decision to accept the offer.

Defence solicitor’s recoverable costs, incurred post Part 36 offer, were agreed at £31,000, and funded from the claimant’s damages award. The claimant received a mere £9,000 of the damages awarded and her solicitor’s recoverable costs were restricted to some £16,000.

The case could have potentially settled for damages of £250,000, plus 2 sets of legal costs had the claimant’s medical evidence and Schedule of Loss claim been unopposed. However, the case was ultimately settled for a total of £71,250 with a potential damages saving of £178,750 for the insurer, plus severe restrictions on recoverable costs. The client was delighted with, what they described as “a great result”.

To find out more about the support our casualty claims team can provide, contact our Managing Director of Casualty Claims, Stephen Kavanagh on stephen.kavanagh@davies-group.com.