High Court upholds judge’s acceptance of injury evidence despite gaps in records

The High Court has held that a trial judge was entitled to accept a road accident claimant's evidence of neck and shoulder pain despite gaps in the records, in AXA's appeal seeking a dishonesty finding.

In AXA Insurance Plc v David Maher [2026] EWHC 1365 (KB), Mr Justice Mansfield, sitting in the King's Bench Division of the High Court, considered an appeal from the County Court at Skipton, sitting at Bradford. Judgment was handed down on 5 June 2026 after a hearing on 21 May 2026.

Background

Mr Maher was injured in a road traffic accident on 11 July 2018. AXA was the defendant in his claim in respect of its insured driver, Mr Grogan. After a trial on 12 and 13 March 2024, HHJ Pema found for Mr Maher on liability and awarded £3,609.83 plus costs. The sum claimed was said to be in the region of £50,000 to £70,000.

The trial judge accepted that Mr Maher had several months of left hand, arm, shoulder and neck pain caused by the accident. He found that neck and shoulder symptoms from the end of 2018 were not caused by it.

The question

AXA argued that the judge was wrong to find that Mr Maher had neck and shoulder pain in the months straight after the accident. It also argued that the judge should have found him fundamentally dishonest under section 57 of the Criminal Justice and Courts Act 2015. AXA needed to succeed on both points. The amount of the award was not challenged, so the purpose of the appeal was to obtain a finding of fundamental dishonesty.

The decision

Mansfield J did not accept that the trial judge was wrong to find that Mr Maher had neck and shoulder pain in the months after the accident. That finding was the essential first step in AXA's dishonesty argument.

The reasoning

The court explained that an appeal is a review, not a rehearing. Findings of fact by a trial judge will be overturned only if plainly wrong.

AXA relied on records that did not mention neck or shoulder pain, including A&E notes, GP records, the claim notification form, an incident report, a police witness statement and an orthopaedic surgeon's report. Mansfield J accepted that testing oral evidence against contemporaneous documents is important. But he said contemporaneous documents are very often the best guide to the true facts, though not necessarily so, and may be incomplete or inaccurate. A missing reference raises questions: why was it not recorded, and was it because it was not mentioned, or because the author did not think it relevant?

The trial judge had these documents and the differing expert evidence in mind. He was satisfied the absence of a record could be explained and accepted Mr Maher's oral evidence that he had neck and shoulder symptoms and complained of them at the time. Mansfield J noted that he had not seen the witness give evidence and had no transcript. He held that the trial judge was best placed to make the assessment and was entitled to reach his conclusion.

Sources

• AXA Insurance Plc v David Maher [2026] EWHC 1365 (KB), High Court (King's Bench Division), 5 June 2026: https://caselaw.nationalarchives.gov.uk/ewhc/kb/2026/1365