The Claimant, a 58 year-old office worker, sought damages from the University for which she worked as a result of injury sustained during an accident at work in March 2014.
The Claimant, a 58 year old office worker, sought damages from her employer (Insured by QBE) as a result of injury sustained during an accident at work in March 2014.
The Claimant slipped on a wet floor and suffered a serious injury to her right hip which resulted in her undergoing a total hip replacement. Following that procedure, she alleged ongoing, significant pain and restriction in her daily activities and was eventually retired on the grounds of ill health on the basis she would not be fit to return to work in her role as an Office Administrator.
Liability was admitted pre-proceedings and the claim proceeded on the basis of quantum only.
Mark Abdy, Assistant Claims Manager at QBE, investigated the claim pre-proceedings and obtained surveillance evidence which demonstrated that the Claimant was able to go about her day to day business without any real restriction or visible pain and discomfort – in contrast to the levels of pain and disability she was describing.
Proceedings were subsequently issued and the Claimant served a Schedule of Loss which totalled circa £690,000. The Schedule was pleaded on the basis she would not return to any form of employment, had significant care needs and required adaptations to her home due to her limited mobility.
On behalf of the employer, expert evidence was obtained from an Orthopaedic Consultant. The Consultant engaged was surprised that the Claimant had made such a poor recovery from her hip replacement and questioned the veracity of the Claimant’s account of her ongoing symptoms. Further surveillance evidence was commissioned which evidenced the Claimant jogging to her car with her walking stick under her arm, shopping alone for lengthy periods, lifting and carrying large items from her car boot and attending a strenuous boxercise class at her gym.
The surveillance evidence was used to bring an application on behalf of the employer to amend the Defence to plead Fundamental Dishonesty and to bring a Part 20 claim seeking exemplary damages from the Claimant pursuant to the Tort of Deceit.
Prior case law authorities have considered claims for exemplary damages arising from fabricated accidents but the Courts have not yet considered such claims for ‘pure exaggeration’ where an individual had suffered a legitimate accident and injury.
It was the employer’s case that there was no reason why a claim for ‘pure exaggeration’ could not give rise to a claim for exemplary damages and the defence was prepared for Trial on that basis.
The Court was not, however, ultimately required to adjudicate upon the issue as the parties reached a settlement prior to Trial. The case was concluded on the basis that the Claimant consented to her claim being dismissed and she agreed to repay to QBE their financial outlay (to include an interim payment made to the Claimant) totalling approximately £110,000 and a further payment of £65,000 in satisfaction of the Insurers’ claim for exemplary damages.
The case is thought to be the first case of its kind resulting in a significant sum being paid to an Insurer for exemplary damages arising from a genuine accident giving rise to a serious injury.
The employer was represented by Mark Abdy, Assistant Claims Manager for QBE, and Katriina Bennett Partner in the Plexus Evesham office.
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Mark Abdy, Assistant Claims Manager, QBE
T: 0113 290 6676 | E: firstname.lastname@example.org
Katriina Bennett, Partner
T: 01368 578 873 | M: 07500 781 177 | E: email@example.com