An insurer has failed to have a claimant committed for contempt following a dispute over where his injury happened.
Mark Kay claimed for £750,000 after he said he was injured slipping at a shopping centre in St Helens, Merseyside, the day after returning from a summer holiday.
But his former work colleagues appeared to suggest he had slipped and fallen while on holiday, and Kay had downplayed his injuries in a separate unfair-dismissal claim against his employer.
Following a two-day hearing last month in the High Court, Mr Justice Turner said he would probably have thrown out the personal injury claim, as Kay had failed to satisfy the civil burden of proof on the location of the injury.
But he refused an application from Zurich, the insurer of the cleaning company at the shopping centre, to commit Kay for contempt, as the demands of a criminal burden were too high.
‘Despite the adverse view I have formed in respect of the conduct and honesty of Mr Kay,’ said Turner, ‘I am unable to be sure that he lied about where his accident occurred.’
Kay was one of three defendants to the Zurich claim, along with his wife and stepson, who backed his version of events.
The insurer maintained Kay’s case was based on an ‘audacious lie’ and that he and his family had attempted to ‘repackage a vacation mishap as a very valuable claim for compensation’.
Zurich used witness statements advanced in Kay’s subsequent successful claim for unfair dismissal against his employer Charles Evans Shopfitters Ltd. Kay was awarded £13,790 by the Employment Tribunal, but did not contend that his injury had an impact on his ability to work.
In contrast, in the personal injury proceedings, he blamed his injuries entirely for his loss of earnings.
Turner said there was ‘no doubt’ that Kay advanced inconsistent cases to maximise his compensation and was ‘trimming his sails accordingly’.
Kay discontinued his claim in May 2013 after his former bosses said he had told them the accident happened abroad. Kay’s legal expenses insurers between them absorbed their own costs and paid Zurich’s costs of around £120,000.
Turner concluded that Kay’s credibility was damaged by his evidence, particularly after he ‘deliberately presented a misleading picture’ to the doctor diagnosing his injuries.
The judge added that Kay had ‘little or no compunction about telling peripheral lies to serve his ends’. He was more convinced by the credibility of Kay’s wife Karen, who stated categorically that Kay was injured after returning from holiday.
Turner concluded that Kay’s lies on other matters should count against him but were not conclusive proof that he lied on the central issue of location.
The judge added: ‘I cannot be sure that these lies went beyond improper attempts to support and embellish a claim which was otherwise viable.’