A personal injury claimant who was awarded significantly less than he asked for has avoided a fundamental dishonesty finding in court.

Ruling on an appeal in AXA Insurance PLC v Maher Mr Justice Mansfield said the claimant had ‘subjectively believed’ he suffered from certain injuries when he saw a medical expert.

David Maher had been awarded damages of £3,609 following the road traffic accident in 2018 – far below the £50,000 he had originally claimed. The judge accepted that Maher suffered from months of left hand, arm, shoulder and neck pain as a result of the accident. He found that later neck and shoulder symptoms, from the end of 2018, were not caused by the accident.

At-fault insurer AXA had said the information given to a medical expert a year after the accident had been dishonest. The claimant had reported that the problems which developed months later had been linked to the accident: the insurer argued he had ‘concocted’ an account of what happened to explain the injuries he was reporting.

The fundamental dishonesty defence was dismissed by His Honour Judge Pema, sitting at Bradford County Court, who found that the claimant had given a genuinely-held account of his injuries. Maher’s continued assertion of that belief, even if he was wrong, was not dishonest within the meaning of the Criminal Justice and Courts Act.

AXA appealed, saying the judge accepted Maher as a truthful witness, without proper basis or explanation, and then made the documents fit his conclusions rather than assessing the oral evidence against the documentary evidence.

The appeal judgment rejected this suggestion, saying the county court judge properly tested the claimant's oral evidence.

Mansfield also rejected the idea that Maher must have known whether he suffered neck and shoulder pain at a particular time or not. ‘It is not necessarily an easy exercise to look back over a history of more than a year and pinpoint where pain was experienced at any particular time,’ the judge said. The county court was entitled to find that Maher subjectively believed in the account he gave of his symptoms.