Some insurers and their lawyers are using underhand tactics to avoid paying compensation to people who have suffered serious injuries caused by the negligence of others.
There has been a worrying rise in the number of personal injury civil cases in which defendant insurers, without basis, accuse injured people of exaggerating, or lying about, the harm they have suffered, in an attempt to coerce them into dropping their cases.
The tactic is an abuse of what is known as the ‘fundamental dishonesty’ rules, which apply only to injured claimants. This is where a claimant’s entire claim for redress can be thrown out if just one element of the claim is found, on the balance of probabilities, to be inaccurate. The Criminal Justice and Courts Act 2015 gave courts this power. Today, APIL members report seeing more and more instances of unscrupulous insurers taking pot shots at injured claimants.
Defendants face no consequences for making allegations of dishonesty which are then found to be baseless. They are free to use it as a tactic.
The consequences of being found to be fundamentally dishonesty can be severe for an injured person. They could have to pay the defendants’ legal costs for the case as well as their own. An injured person who knows that they are honest is still vulnerable, fearful, and probably a nervous one-time user of the legal system, and the defendant’s tactics play into all of this. The weight of being accused of dishonesty can browbeat an injured victim into dropping their case.
Remember that defendants are usually big businesses with huge resources. They have the money to delay, deflect, and abuse the rules, racking up legal costs as they go. For them, it’s worth a shot.
Claimants usually have little or no financial weight behind them, and everything to lose. Employment and personal lives could be put at risk by such an accusation. Imagine if an employer were to find out that a worker had been found by a court to have committed fraud.
In cases involving the most catastrophic injuries, the victim’s future is heavily dependent on their claim for redress so the consequences of dropping their case or being found to be fundamentally dishonest are severe. It could make the difference between them getting the rehabilitation and support they need to rebuild their lives and get back to contributing to society, or continuing to suffer, existing, and relying on the State for support and survival.
In any case, being accused of lying in a legal process puts an enormous amount of stress on a victim, and could cause indefinable damage for years, if not for the rest of their life.
The Cullen versus Henniker-Major case is an example of abuse of the fundamental dishonesty rules. A woman’s cancer diagnosis was delayed because of negligence, which meant she needed more invasive treatment than would and should have been necessary.
Even though the defendant had admitted liability for the delayed diagnosis, it still alleged that the woman had tried to claim that the level of care she needed was a lie.
She was put through days of stressful and exhausting cross-examination. Thankfully the allegation of fundamental dishonesty was rejected in its entirety by the judge, who noted that the woman was an honest witness.
The experience was no doubt profoundly upsetting and traumatising for the victim.
Legitimate challenges by defendants are completely acceptable, and if a claimant is found to be dishonest they should probably have their claim dismissed.
But the playing field must be levelled in the interests of justice. The rules as they stand are open to abuse. The only way to curtail this unsavoury practise is by introducing sanctions against defendants who use groundless allegations in a calculated attempt to bully honest victims of negligence.