The Christmas Tree that put her on the Naughty List…

As RDJ head of Insurance Fraud and in collaboration with Insurer clients I have had oversight over many successes before the courts in fighting fraudulent claims, many of which go unreported.

It can be argued that the tide is certainly turning in the ability to defend such claims with the introduction of stronger statutory provisions making fraudulent behaviour in civil claims a criminal offence. Recently the Courts have increased the armory available to defendants, allowing discovery of post-accident medical records, and awarding both costs orders and cost differential orders in the High Court.

Lastly, yet not to be underestimated, the media holds a powerful role in the fight against insurance fraud.

Last week, I acted for RSA Insurance in the defence of a claim taken by Ms. Kamila Grabska following a road traffic accident which occurred in February, 2017.

The Facts

It is important to note that this was not a low velocity impact collision and whilst airbags did not deploy, the matter was proceeding by way of assessment only, as it was accepted that a credible injury could have been sustained by the Plaintiff.

In 2021, the Plaintiff’s Solicitor issued a motion to transfer the Plaintiff’s claim to the High Court where the Plaintiff and/or her legal team believed that the claim was worth more than €60,000. At that juncture, they were alleging that the Plaintiff had ongoing symptomology and that her injuries were in fact deteriorating with time.

The Plaintiff had trained as a Beauty Therapist prior to the accident, albeit she had never been employed as a therapist until 3 weeks post the accident. She was working over 35 hours per week in 2019, at which point she alleged her injuries became so debilitating that she had to stop work. She received Illness Benefit for a period and thereafter qualified for Disability Allowance, which she was still receiving when the matter was listed before the High Court sitting in Limerick last week.

Until the case opened, the Plaintiff was alleging that as a result of the accident she required 4 hours of home care per week and that she would never work again and was therefore maintaining a future loss of earning claim in excess of €500,000. Her total claim for Special Damages amounted to in excess of €700,000, a figure which the plaintiff had verified on affidavit.

The court heard that the plaintiff was a 36 year old woman who was now undergoing injections every 6 months as a result of her injuries and who had engaged a number of medical experts in support of her claim including a GP, Orthopedic Surgeon, Neurosurgeon, Radiologist, Pain Specialist, Vocational Assessor and an Actuary.

There was no doubt but this was a case where there was significant risk to the Insurer should the Plaintiff’s experts and her evidence be accepted. However, evidence had been obtained of this woman undertaking a physical act that most of us could not do, even in the fullness of our health.

A photograph, published by the Irish Independent on the 8^th January, 2018, had shown Ms. Grabska partaking in the Clare Annual Christmas Tree Throwing Competition where Ms. Grabska had won the women’s competition.

Just two days later the Plaintiff had attended a medical expert at which she had said she was in constant pain in the base of her neck and thoracic spine. She reported discomfort lifting heavy shopping, reaching overhead and difficulty sleeping. She reported that she cannot play a lot with her children, cannot kick a ball or swim with her children.

Furthermore, surveillance undertaken in 2023 was shown to the court of her partaking with her Dalmatian in a dog training session for 1.5 hours. The session was physical, active and showed her having the physical capacity to grapple with the dog, bend, stretch and constantly wrestle a thick rope toy from the dog’s mouth without difficulty.

In light of the evidence available to the defence team, this was undoubtedly a case we felt we had to run to trial, however to do so still took courage by RSA Insurance given that if we did not succeed the Plaintiff was promoting a claim in excess of €760,000.

The case ran and was ultimately dismissed by Ms. Justice Carmel Stewart after a Section 26 application (an application to dismiss on the basis of fraudulent evidence) by Murray Johnson SC assisted by Sandra Barnwell BL and an Order for the Defendant’s Costs was made against the Plaintiff.

Whilst it was disappointing that the Court made no recommendation of a referral to the DPP, this is not required in order for the matter to be investigated by the Gardaí under the Civil Liability and Courts Act, 2004. Just this week, the fraud prevention provision under this Act had its teeth significantly sharpened, after Judge Sinead Behan sitting in the Circuit Criminal Court sentenced a man, with no previous convictions, to 18 months (suspending 9 months) in prison after he pleaded guilty to two charges of making false and misleading statements under the 2004 Act and also pleaded guilty to a deception charge contrary to Common Law in attempting to make a gain by way of compensation for personal injury.

The widely publicised “Christmas Tree Case” coupled with the news of this criminal prosecution must surely now serve as a significant deterrent to any of those claimants pursuing fraudulent or exaggerated claims.

A custodial sentence is not something one would like to find wrapped up underneath the Christmas Tree!

Picture: Eamon Ward Photography