The High Court in the case of Peter Kelly .v. Groupama was asked to assess damages which the Plaintiff suffered whilst on holiday in Cannes and struck a van, the property of the Municipality of Cannes (insured by Groupama).

The Defendant was the insurer of the van and was sued by directly under the Provisions of the European Communities (Fourth Motor Insurance) Directive incorporated into Domestic Law by Statutory Instrument Number 651 of 2003.

By virtue of Regulation 864/2007 EC, better known as Rome II which came into force on the 11th January 2009 and which introduced general principles applicable to non contractual obligations, the substantive law applicable to the assessment of damages in this case is French Law.

O’Neill J had the daunting task of assessing damages, applying French Law where the Plaintiff had suffered a nasty fracture of the head of the femur where necrosis had led to a total hip replacement for the Plaintiff who was in his seventies.

The Court, whilst bound by having to assess the matter in French Law noted that French Judges enjoyed an unfettered discretion contained within the methodology of assessment of damages and that reference to a Book of Quantum was merely a non obligated practice. The Court heard evidence from a French medical expert who had suggested that general damages would be worth €38,706.00. The Court in exercising its discretion could not subscribe to that view and made an award of €63,500.00 in respect of general damages.

As a foot note, although the Court had an unfettered discretion, it does appear that notwithstanding the fact that the award was higher than the French expert had suggested, it was significantly lower than what the Plaintiff would have enjoyed had the Court been asked to assess the matter in accordance with Irish Law.

The recent decision of Judge Smyth in the case of Nolan .v. Mitchell and Another [2012] IEHC 151 is yet another decision which examined the applicability of Section 26 of the Civil Liability & Courts Act 2004.

Section 26 of the 2004 Act provides as follows:

“26-(1) If, after the commencement of this section, a plaintiff in a personal injuries gives or adduces, or dishonestly causes to be given or adduced, evidence that
(a) is false or misleading, in any material respect and
(b) he or she knows to be false or misleading,
(c) the court shall dismiss the plaintiffs action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done
(2) the court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under Section 14 that-
(a) is false or misleading in any material respect, and
(b) that he or she knew to be false or misleading when swearing the affidavit, dismiss the plaintiffs action unless, for reasons that the court shall state in its decision the dismissal of the action would result in injustice being done.”
(3) for the purpose of this action, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court.”

In this case, under normal circumstances the Plaintiff would have been entitled to have recovered damages on the basis that the Defendant was found to be 60% culpable for a road traffic collision which gave rise to significant injury to the Plaintiff. The Judge, in a lengthy Judgment, made awards in respect of general damages to date and into the future, loss of earnings and loss of opportunity.

At the close of the case Counsel on behalf of the Defendants made an Application under Section 26 of the 2004 Act raising questions about the truthfulness and credibility of the Plaintiff’s case and whether evidence given or adduced by the Plaintiff was deliberately false or misleading in a material way. The Court drew on the increasing body of case law that has arisen since the provision came into being.

On the issue of the standard of proof to be applied the Court was referred to the passage of Peart J in Carmello .v. Casey [2008] 3 IR 524 when he said:

“Section 26 was introduced by the Oireachtas for the very clear purpose of avoiding injustice to, inter alias, defendants against whom false or exaggerated claims are mounted in the hope of recovering damages to which such Plaintiffs are not entitled. Such actions are also an abuse of the process of the Court. It has always been a very serious criminal offence to knowingly give false evidence under oath. The proof of such an offence is required to be beyond reasonable doubt. The Court is not so constrained, and makes its findings on the balance of probability. This Section is certainly of a draconian nature, but it is deliberately so in the public interest, and is mandatory in its terms, once the Court is so satisfied on the balance of probability, unless to dismiss the action would result in injustice being done.”

The Court was also referred to the recent Supreme Court decision in Aherne .v. Bus Eireann and indeed the earlier Supreme Court case of Shelly Morris .v. Bus Atha Cliath [2003] IR 232 which is of course a case which predated the application of Section 26 where the credibility of a Plaintiff had been so undermined that the burden of proof was not discharged and a case in its entirety had been dismissed.

In the case at instant of Nolan .v. Mitchell and Another the Court discussed in some detail the third part of Section 26 (1) which states:

“The Court shall dismiss the Plaintiff’s action unless, for reasons that the Court shall state in its decision, the dismissal of the action would result in injustice.”

In this particular case, the Plaintiff had proffered a substantial future loss of earnings claim which ultimately appeared to be on the basis of figures (he had been working for the family firm) which the Court found to be of a misleading nature and further which the Court found the Plaintiff ought to have known were false and misleading. The Court also found that the Plaintiff in this action had lied to the Vocational Assessor when he told her that he had given up his hobby of “car drifting”. That was clearly not the case given the amount of internet based video evidence available to the Court.

In her Judgment, Smyth J referred to the decision of Quirke J in Higgins .v. Caldark, when dealing with the issue of possible injustice the Court stated

“For instance it may be unjust if the claim of a catastrophically injuries claimant for the cost of ongoing care is dismissed because he or she has knowingly adduced some (perhaps trivial) misleading evidence in respect of some other category of damages. Similarly the dismissal of a fatal injuries claim based upon misleading evidence knowingly adduced by an adult Plaintiff, may unjustly penalise infants or incapacitated dependents.”

Judge Smyth in the case at hand in conclusion stated

“This is a case where the Plaintiff has been successful in part of his claim. However, in view of my findings as to the Plaintiff’s falsehoods, I am satisfied that this is not a case where the successful parts of the Plaintiff’s claim can be rescued from the provisions of Section 26 and, I am also satisfied that no injustice will result from a dismissal of the Plaintiff’s action, then this is the order that I must make.”

Interestingly in her Judgment in the penultimate paragraph which preceded the decision the Judge went out of her way to restate that it is part of the everyday function of Judges in contested cases to resolve anomalies and inconsistencies, to accept or reject evidence, or to attach greater weight to some part of the evidence than other parts, and to interpret and apply the law. Given the approach of the Supreme Court in these cases not to interfere with the Trial Judge’s findings the penultimate paragraph of Judge Smyth’s Judgment is illustrative of why that would be. It is clear that the Judge gave a lengthy, detailed and reasoned judgement, fitting of its importance, that would leave The Supreme Court in no doubt as to the Judge’s reasoning in the event of an Appeal.