Engineered to Fail – 50k Claim Dismissed

Insurer Hastings Direct and HF, have succeeded in having a £50,000 claim dismissed due to the questionable evidence of an engineer and the knock-on effects.

The judge found that the evidence of the engineer, Mr James Quigley of Caljam, carried very little weight and set out a number of times, how Mr Quigley’s evidence affected his reliability.

The claim dates back almost 9 years, to October 2015, when the claimant’s motorcycle was struck and knocked off its stand in a golf course car park by a Citroen being driven by a valet company employee.

The claimant initially sued the owner of the Citroen (who was clearly not responsible for the collision). When that claim was struck out, he sued the valet employee (who admitted his fault) and his employers along with Hastings Direct, insurers of the Citroen.

Hastings Direct denied any liability since the collision was not on a road or other public place. The MIB was therefore added as a fifth defendant. They brought an additional claim against the Secretary of State for Transport because the claimant alleged the MIB would be liable if the golf course car park was private land (Lewis v Tindale).

The claim totalled £50,000 – damage to the motorcycle (c. £1,650) which the claimant declared was a total loss, credit hire charges (including additional insurance) and storage and recovery charges (which were dropped without explanation). Given the multitude of parties the losing party stood to face six figure costs.

The key issues were whether the motorcycle was damaged and to what extent; whether it was unroadworthy, and whether the credit hire contracts were now enforceable.

Mr Quigley stated that the motorcycle was unroadworthy – despite the claimant having driven it 12 miles to a repair garage immediately following the collision. Some of the parts, that Mr Quigley had stated caused the motorcycle to be unroadworthy, were not supported by the (lack of) photos appended to his report and the photos he did provide did not support his assertions of unroadworthiness. The judge was further critical of Mr Quigley’s failure to comply with the Civil Procedure Rules.

The cost of credit hire was also not the responsibility of the defendant since the credit hire company, DAML (Direct Accident Management Ltd) issue contracts which have maximum 11 months before the hire charges become due.  Since the incident occurred 9 years ago, the opportunity to sue for breach of contract had passed.

Graeme Mulvoy, said “It’s all too commonplace for vehicles to be declared unroadworthy when they are not. Time and again we see huge claims for credit hire when vehicles with some minor collision damage are capable of being used perfectly legally and safely. The court was rightly concerned with the expert evidence presented in this case and the inconsistencies more generally and it’s encouraging that His Honour Judge Murch dismissed the claim for vehicle damage in its entirety due to the ambiguous evidence regarding repairs; another challenge our clients are faced with all too frequently.”

Morgan Davies, Hastings Direct Client Account Partner commented, “Through close collaboration between the teams at Hastings Direct and HF, we’ve reached the best possible outcome for our client and their customers. An outcome that will benefit the insurance industry going forward.”

Kay Denyer, Head of Claims Fraud at Hasting Direct stated,  “At Hastings Direct, taking care of our good and honest customers is our most important job.  We therefore invest considerably in fraud defences so that we can be sure that fraudsters do not drive-up costs for our customers and the wider motor insurance industry. This case is a great example of how we tackle fraudulent claims, re-enforcing our zero tolerance approach.”

See the full judgment here.

Background and Judge’s Comments

A collision incurred when the Claimant’s motorcycle was struck in the car park of a golf course in October 2015 knocking it off its stand, by a Citroen that was there to be valeted. The valet company employee drove the Citroen into collision with the motorcycle. The Claimant initially sued the owner of the Citroen who was clearly not responsible for the collision. That claim was struck out but not before the Claimant sued the valet employee (who admitted his fault) and his employers – the valet company, along with Hastings Direct (whom HF acted for) who insured the Citroen. Hastings Direct denied they had any liability as either contractual or RTA insurers or that the collision occurred on a road or other public place. This caused the MIB to be added in as a Fifth Defendant.  The MIB in turn brought an additional claim against the Secretary of State for Transport as the Claimant alleged that the MIB would be liable as per Lewis v Tindale in the event the golf course car park was private land.

Hastings Direct’s Defence

The Claimant sought c. £50,000 made up of damage to his motorcycle (c. £1,650) which he claimed was a total loss, credit hire charges (including additional insurance) and storage and recovery charges (which were dropped without explanation).  Given the multitude of parties the losing party stood to face a six figure costs liability.

There were numerous issues for the court to determine but Hastings Direct and MIB jointly focused on these key issues:

1. Has the claimant shown that his motorcycle was damaged on 7 October 2015 and if so, to what extent was it damaged?
2. Was the motorcycle rendered unroadworthy?
3. Are the credit hire contracts now enforceable?

Engineering Evidence

Of crucial importance was the engineering evidence provided by Mr James Quigley of Caljam who had been instructed to prepare a Part 35 report on the Claimant’s motorcycle. Mr Quigley was required to give evidence at trial, not least because there were concerns as to whether he had actually inspected the motorcycle and where he inspected it.

Hastings Direct and the MIB jointly submitted that any damage suffered to the motorcycle was cosmetic and would not have rendered it unroadworthy. The Claimant gave evidence to say that he was able drive the motorcycle to its repair garage, which was about 12 miles from the golf course seemingly without any concerns as to its safety/roadworthiness. Mr Quigley’s opinion was that it was unroadworthy albeit his report failed to particularise why.  He did not comment on the fact the motorcycle was shown without a drive chain in the inspection images (which meant it could not have been driven).

During cross examination Mr Quigley admitted that he would have made some brief notes, but he did not have access to them. He suggested that the photographs were his notes.  He asserted forcibly in cross examination that the handlebars had been twisted on impact and despite the photographs taken by Mr Quigley not showing any measurements (or indeed him having measured the motorcycle itself), he said that “a difference of a few millimetres would be safety critical”.   He was adamant that images which might be said to show misalignment of the parts of the motorcycle were simply down to the perspective of the motorcycle in the images.  Mr Quigley was also unable to identify where the inspection of the motorcycle took place.

In summing up his evidence, His Honour Judge Murch found that “the report of Mr Quigley did not comply with the requirements of the Civil Procedure Rules” and “I cannot overlook the fact that he was called to give evidence on points of expertise. While I do not doubt that he had the experience to which he pointed, the lack of a CPR compliant report was not something which I am able to overlook. In my judgment, the failure to comply with the requirements of the CPR do affect his reliability. The failure also to make available his notes or show that a proper search had been conducted, in circumstances where his report had from an early stage been called into question was also a point which affected his reliability.”

When considering his assessment of the damage, HHJ Murch stated “His assertion that the fuel tank had been damaged was an example of where there was no direct evidence in support: it not being the subject of a photograph or a contemporaneous note. In my judgment this affected his reliability. Although he told me that the photographs showed a lack of alignment in certain respects, the absence of measurements having been taken meant that it was not possible for this to be confirmed. The photographs made it difficult to confirm the assessment which Mr Quigley had reached. Mr Higgins was correct, in my view, when making the observation that the absence of contact marks on the photographs was instructive. When the photographs were said to disclose the damage which had been observed, this evidential gap was important.”

Upon review of whether the motorcycle could have been driven 12 miles as stated by the Claimant, HHJ Murch’s considered “what was important in my view is how the motorbike reached the location in circumstances that it did not have a drive chain. The failure of Mr Quigley to refer to this in his report was surprising. In circumstances where he was not told the mechanics of the accident, his assertion in the witness box that it would have been unlikely to have come off from a sideways collision was of only limited assistance. If he did not know how the accident occurred, it is difficult to see how he could have formed a view of assistance to me as to how the chain had come away or indeed how any damage which he observed had been caused.”

He went on: “It strikes me as important that the claimant’s evidence to me was that he had driven the motorbike to the garage. On that point he was credible. The difficulty it presented to his case was that self-evidently the chain must have been on the motorbike for him to have been able to do so over a 12 mile journey. It was only during the evidence of Mr Quigley that I was told that the condition in which he concluded the handlebars to have been would have affected the stability of the bike and the overall sensation of riding it….”

In summing up, it was established “that the report of Mr Quigley can be given very little weight. Of itself the failure to comply with the CPR does not mean that I can or indeed would purport to reject it out of hand. I believe however that it undermined the weight which could be attached to it. The reliance upon photographs which did not readily demonstrate the damage for which he contended also undermined his report against the background of the other difficulties to which I have referred. I cannot conclude that the claimant has shown even on the balance of probabilities that damage was sustained or more particularly what damage was sustained.”

Additional Submissions

Against the backdrop of Mr Quigley’s report being picked apart, the Claimant was unable to establish what, if any, damage was caused. Despite orders for specific disclosure, the Claimant was not able to produce evidence of what aspects of repairs were carried out by the repairing garage or by his father. Agreeing with the Defendants’ submissions, HHJ Murch stated “I accept the submissions of the defendants. There is no evidence before me as to the cost of attending to the repairs which were actually carried out for the purposes of rendering the bike apparently roadworthy. As a result, I conclude that the defendants are correct when they submit that the claim must fail. The absence of reliable evidence as to whether, or to what extent, the bike was damaged on 7 October 2015 is fatal.”

Perhaps unusually, the Claimant’s case came before the Court nearly nine years after the collision. The limitation period for bringing a claim for breach of contract is a strict six years from breach and the credit hire organisation’s (Direct Accident Management Limited) (“DAML”) hire agreements provided for a maximum period of 11 months before the hire charges became due (such that the Claimant breached the contracts by not paying 11 months after each agreement’s date).  Accordingly, were DAML to sue the Claimant for breach of contract, the Claimant would have an absolute unarguable defence.  We argued that the Claimant was duty bound to take such a limitation defence (to mitigate his loss) and therefore he could never have a liability for the hire charges. Agreeing with the Defendants, HHJ Murch found that it was the Claimant’s duty to mitigate loss and it was open to him to argue that limitation applied to his hire agreement, thus absolving him of any liability to DAML and in turn it meant that he would not be able to recover them from the Defendants come what may.

Hastings Direct were represented by HF and Paul Higgins of Crown Office Chambers.