AXA Insurance Plc v David Maher

An appeal on a question of fact is a review, not a rehearing. The appellate court must not interfere merely because it might have reached a different conclusion. Intervention is justified only where the trial judge misunderstood the issue or evidence, made an identifiable error, or reached a conclusion outside the range of reasonable disagreement.

Contemporaneous documents are an important means of testing oral evidence, but the absence of a reference to an alleged symptom does not establish that the symptom did not exist. The significance of an omission must be assessed in context. Whether particular accident mechanics could cause symptoms in a particular anatomical area is ordinarily a medical question. A claimant who genuinely believes the account of symptoms advanced has not acted dishonestly merely because the account is later rejected.

AXA Insurance Plc appealed against a judgment of HHJ Pema following a personal injury claim arising from a road traffic accident. The County Court found that David Maher sustained injury to his left hand, arm, shoulder and neck, but that later neck and shoulder symptoms were not caused by the accident. Damages of £3,609.83 were awarded.

AXA challenged the findings that Mr Maher experienced neck and shoulder symptoms in the months after the accident and argued that he was fundamentally dishonest for the purposes of section 57 of the Criminal Justice and Courts Act 2015. The central issues were whether the findings of fact were plainly wrong and whether the evidence established fundamental dishonesty.

1. Appeal dismissed. AXA had to succeed both on its challenge to the findings about neck and shoulder symptoms and on fundamental dishonesty. It failed on both limbs.
2. An appeal under rule 52.21(3) of the Civil Procedure Rules 1998 is a review, not a rehearing. The appellate court should not substitute its own assessment of disputed facts merely because it might have evaluated the evidence differently. The guidance in Fage UK Ltd & anor v Chobani UK Ltd & anor [2014] EWCA Civ 5, Clin v Walter Lilly & Co Ltd [2021] EWCA Civ 136 and Cook v Thomas [2010] EWCA Civ 227 was applicable.
3. The trial judge had considered the oral evidence, contemporaneous documents and expert evidence together. He was entitled to find that the absence of recorded neck and shoulder symptoms could be explained by the emphasis on the more obvious hand and arm injuries. Contemporaneous records are important, but they may be incomplete or inaccurate. The court must ask why an alleged fact was absent and whether the omission resulted from non-recording, error, misunderstanding or lack of relevance.
4. Whether the accident could have caused pain in the neck and shoulder was a medical question. The evidence did not establish that the accident, as found, could not have caused those symptoms. The judge was therefore entitled to accept the finding of minor accident-related symptoms.
5. For section 57, the judge was entitled to find that Mr Maher genuinely believed the account of his symptoms. A genuinely held belief was inconsistent with dishonesty, even if the factual account was wrong. The appeal was dismissed.

• High Court (King's Bench Division): appeal from the County Court judgment dismissed.
• County Court at Skipton, sitting at Bradford County Court: HHJ Pema, judgment dated 11 July 2024, found for the claimant on liability and awarded damages of £3,609.83 plus costs.