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IRL recent cases in PI litigation-part 1
REMOTENESS AND CAUSATION
In the case of Ward .v. Sheridan [2010] IEHC 308 Lavin J dismissed the husband’s claim for damages. The husband underwent a vasectomy because of the injuries to his wife and an accident had made it very dangerous for her to become pregnant (she lost a baby in the accident). The plaintiff’s claim was dismissed.
IRL recent cases in PI litigation- part 3
CONCURRENT WRONG DOER
The very recent case of Lindsay .v. Finnerty and Others [2011] IEHC 403 is interesting. Peart J examined the law relating to concurrent wrong doer. It relates to the so called one per cent rule. In this case there were two impacts in succession. It was difficult to establish which impact was responsible for which injuries in the circumstances notwithstanding the insured party was guilty of having been 20% responsible with the uninsured party being 80% responsible, the insured was considered to be a concurrent wrong doer. In the circumstances the plaintiff was entitled to recover entirely from the insured motorist who was 20% responsible.
IRL recent cases in PI litigation – part 4
PASSENGER IN A DRINK DRIVER VEHICLE
The case of Hussey .v. Twomey and Others [2009] IRSC 1 is a decision of the Supreme Court and very important decision in respect of persons injured whilst passengers in a vehicle driven by driver under the influence of drink or drugs. In that case the Supreme Court upheld the previous decision whereby the passenger was found to be 40% negligent in allowing himself to be carried in the vehicle in the circumstances. The passengers damages were assessed and automatically reduced by 40% in the circumstances. The level of knowledge and the conduct of the parties leading up to the incident will very much determine what level of reduction is to be made. This is a very useful case however.
IRL Developments re cap on General Damages
DEVELOPMENTS IN RESPECT OF THE SO CALL “CAP” ON GENERAL DAMAGES
In Sinnott .v. Quinnsworth Limited [1984] ILRN 523 the Supreme Court in Ireland indicated that when approaching general damages for catastrophic injuries the Court should bear in mind that “A limit must exist, and should be sought and recognised, having regard to the facts of each case and the social conditions which pertain in our society”.
The Court in the Sinnott condemned a Jury award of IR£800.000.00 Punts that the plaintiff had been rendered quadriplegic. General damages had been amended from IR£800,000.00 Punts to IE£150,000.00 Punts.
That was in 1984 and was considered to be an appropriate limit or cap.
In the case of McEneaney .v. Monaghan County Council [2001] IEHC 14 the Court raised the so call cap and was of the view that a new yard stick for general damages in such cases was €300,000.00 although the Court did observe that in this regard it might be erring on the side of conservatism.
In the case of N .v. M which involved sexual assault over an extended period culminating in rape a Jury in the High Court awarded €600.000.00, reduced by the Supreme Court to a lessor sum of €350,000.00 (2005 case).
The Court in N .v. M went to great lengths to examine the factors which must be taken into consideration when dealing with such an award in a catastrophic injury case.
In Myles .v. McQuillan [2007] IEHC 333 the Court held that in assessing general damage in a catastrophic injury case the Court must consider the full award on a global basis taking into account any additional awards of damages (special damages). In that case the Court awarded €125,000.00 for general damages in amongst the total award of €502,700.00 for damages.
A recent decision in the High Court in Yun .v. MIBI and Others is interesting. It involved a road traffic collision where the plaintiff sustained catastrophic personal injuries. The High Court was asked to assess the damages. Quirke J observed that the Courts suggested limit in general damages might more accurately be described as a “guide” rather than an “cap” and further that general damages awards should reflect economical realities. Whilst that might appear to suggest that a sealing be placed in times of economic difficulty it is important to note that the Judge immediately qualified the point by emphasising the importance of life expectancy as a factor to be considered. The Court awarded a figure of €450,000.00 for general damages.
IRL Damages and the Book of Quantum. The Courts approach.
Damages and The Book of Quantum
Section 22 of the Civil Liability and Courts Act 2004 provided that in assessing the level of damages to be awarded the Court was to have regard for The Book of Quantum.
Section 22 is entitled “Matters to be taken into account by the Court when assessing damages.”
It provides:
(1) The Court shall, in assessing damages in a personal injuries action, have regard to The Book of Quantum.
(2) Sub Section (1) shall not operate to prohibit a Court from having regard to matters other than The Book of Quantum when assessing damages in a personal injuries action.
(3) In this section “Book of Quantum” means the Book of Quantum required to be prepared and published by The Personal Injuries Assessment Board under the Act of 2003.
Notwithstanding the provision of Section 22, one notes that from a negotiation
Perspective, it is hardly referenced when attempting to settle cases and further it is
extraordinarily broad in its sweep of categories and of awards per injuries making it
difficult to follow.
One case of interest in this area is that of O’Brien .v. Derwin and Other [2009]
IEHC 2.
In the case Judge Charleton rejected the notion that The Injuries Board Book of Quantum was out dated, where the plaintiff representatives tried to assert that inflation should apply to the Book of Quantum. Charleton J went further and noted the prevailing economic circumstances and suggested that those circumstances may indeed have a deflationary affect upon compensation figures.
The obvious difficulty with the Book of Quantum is that it is broad and sweeping and this was brought to focus in the case of Allen .v. Trabolgen Holiday Centre Limited [2010] IEHC 129 again, Charleton J. was the Judge. In this case he felt that the ankle injury was more significant than what identified at a certain level in the Book of Quantum and yet less significant than the one just above that.
NEGLIGENCE AND THE BURDEN OF PROOF
In Mokom .v. Dublin Bus [2010] the High Court dismissed a claim for damages against Dublin Bus taken by a pedestrian who suffered life threatening brain injuries after she was struck by a bus.
In this action the plaintiff appears to have stepped onto the road and been struck by the bus. She claimed that Dublin Bus was negligent in that the bus was travelling an excessive speed that it failed to stop, swerve or slow down to avoid the collision. She also further claimed that the bus failed to keep a safe distance from her and that there was a failure to keep a proper lookout for her presence on the roadway.
Dublin Bus argued the plaintiff was the author of her own misfortunate and pleaded contributory negligence, that the plaintiff walked into the bus, failed to look before stepping off the footpath and onto the road, gave no indication of her intention and had no reasonable regard for her own safety. Notwithstanding the very serious injuries (the plaintiff suffered a brain injury) Mr Justice Quirke in agreeing to dismiss the action said it was inescapable that the plaintiff had been walking along a path when she suddenly turned and walked into the side of a bus within the space of three seconds, that it was regrettable that she could not remember the accident.
The plaintiff’s claim was dismissed.
The enactment of the Civil Liability and Courts Act 2004 marked a significant shift in the landscape of personal injury claims in Ireland, with specific provisions aimed at curbing fraudulent claims and preventing dishonest conduct in the litigation process. The introduction of Sections 14, 25, and 26 has had particular importance in tackling the issue of misrepresentation in personal injury actions.
These provisions were designed to enhance transparency, deter dishonest practices, and ensure that claims made in court are legitimate. Section 26, in particular, has had a significant effect on how personal injury cases are litigated in Ireland.
Section 14:
Section 14 requires all parties involved in personal injury litigation to swear an affidavit affirming that the statements made in their pleadings are true and correct. This affidavit must substantiate the facts and allegations contained in the claim. Notably, Section 14(5) makes it a criminal offence for an individual to swear a false affidavit knowingly. This provision aims to promote the integrity of the claims process and hold individuals accountable for making dishonest or exaggerated claims.
Section 25:
Section 25 extends the liability to any individual who dishonestly introduces or causes false or misleading evidence to be presented in a personal injury case. This includes misleading medical reports, witness statements, or any other evidence relevant to the case. This provision helps to prevent parties from attempting to mislead the court through fraudulent means.
Section 26:
Section 26 is perhaps the most significant provision in the Act for preventing fraudulent claims. It mandates that if a plaintiff knowingly introduces or causes to be introduced evidence that is materially false or misleading, the court must dismiss the claim unless, for reasons stated in its decision, doing so would result in injustice. This provision places the onus on plaintiffs to prove the veracity of their claims, and failure to do so can lead to the dismissal of the action.
Since the implementation of Section 26, the volume of Personal injury fraud in Ireland has decreased, as claimants are now more cautious about presenting false or misleading evidence. Several high-value claims, particularly those involving special damages, have been withdrawn or dismissed after inconsistencies or false evidence was uncovered.
The application of Section 26 has also forced legal practitioners to adopt a more rigorous approach when investigating personal injury claims, ensuring that only valid claims proceed to trial.
Several landmark cases have clarified the application of Section 26 and highlighted the consequences of presenting fraudulent or exaggerated claims.
Mary Farrell v. Dublin Bus [2010] IEHC 327:
In this case, the plaintiff, Mary Farrell, was involved in a whiplash accident and sought compensation for ongoing loss of earnings, claiming damages amounting to €343,000. However, after further investigation, the defendant discovered inconsistencies in the plaintiff’s sworn affidavits regarding her earnings. Farrell had made contradictory statements about her income, and the court found that she had knowingly provided false evidence to support her claim. As a result, the court dismissed the plaintiff’s claim, applying Section 26 of the Civil Liability and Courts Act.
Danagher v. Glantine Inns Limited [2010] IEHC 214:
This case involved a plaintiff who had been found to have misled the court by presenting false evidence, including social media posts that contradicted the claim of injury. The court held that the plaintiff had violated Section 26 by intentionally providing misleading evidence, and the claim was dismissed. This case serves as an important reminder that courts now scrutinise evidence carefully, including digital evidence, in personal injury claims.
Boland v. Dublin City Council and Others [2011] IEHC 176:
The plaintiff in this case was found to have fabricated aspects of the accident and the special damages claim. Despite the injury being acknowledged, the plaintiff’s dishonest account of the facts and misrepresentation of the special damages led to the dismissal of the claim under Section 26. This case reinforces the importance of honesty and consistency in presenting a personal injury claim.
While Section 26 is an important tool for combatting fraud, the courts have consistently stressed the importance of ensuring that genuine claimants are not unjustly penalised. Judges have indicated that small inconsistencies or unexplained anomalies in a claimant’s evidence should not automatically lead to a dismissal of the claim. In cases where there is no clear evidence of fraudulent intent, courts have been willing to allow claimants to explain any discrepancies before dismissing their cases.
For example, in the case of Dunleavy v. Swann Park Limited trading as Hair Republic [2011] IEHC 232, the court found that, while there were inconsistencies in the plaintiff’s evidence, it was important to consider the claimant’s explanations before deciding to dismiss the case. In this instance, despite the plaintiff’s failure to disclose a previous accident and psychiatric history, the judge accepted the plaintiff’s explanations and concluded that there was no deliberate intention to mislead the court.
As stated by Judge O’Neill in this case:
“Section 26 of the Civil Liability and Courts Act 2004 is intended to deter fraudulent claims. However, it should not be used as a pretext to dismiss a claim based on minor anomalies or unexplained inconsistencies without proper scrutiny.”
This cautious approach demonstrates the court’s desire to avoid wrongful dismissal of claims and ensure fairness to claimants who may have made innocent mistakes or overlooked certain details.
The most recent case interpreting Section 26 is Aherne v. Bus Eireann [2011] IESC 44, where the Judgment was delivered last Friday 2nd December 2011 by the Supreme Court. The plaintiff, a 78-year-old woman, claimed to need a carer after a bus accident. While the issue of liability was not contested, the need for future care was disputed, and the plaintiff later withdrew this aspect of her claim. The defendant argued that the plaintiff had provided misleading evidence and that the claim should be dismissed under Section 26.
The Supreme Court upheld the High Court’s ruling, stating that there was no evidence of fraudulent conduct. The court noted that the plaintiff’s linking of her deterioration to the accident, rather than to her pre-existing conditions, was understandable and did not constitute deliberate misrepresentation. The Supreme Court emphasised that the burden of proof rests on the defendant to demonstrate that the evidence was false or misleading. The appeal was dismissed as the Court found no basis to interfere with the High Court’s finding of fact.
Section 26 of the Civil Liability and Courts Act 2004 plays a critical role in preventing Personal injury fraud in Ireland in Ireland. It places the onus on plaintiffs to provide truthful and accurate evidence, with severe consequences for those who attempt to deceive the court. However, the courts have made it clear that this provision must be applied with care, ensuring that genuine claimants are not unjustly penalised.
For insurance defence firms in Ireland and the UK, understanding Section 26 is crucial in defending against fraudulent claims. It is essential to investigate claims thoroughly, identify inconsistencies or false evidence, and present a well-reasoned defence to avoid unjust compensation. However, it is equally important to avoid prematurely dismissing claims based solely on minor anomalies or discrepancies without carefully considering the context and the claimant’s intentions.
At Lacey Solicitors, we specialise in insurance defence and are committed to tackling personal injury fraud in Ireland. With extensive expertise in fraud prevention, Damian McGeady, Partner in Charge of Fraud Prevention, leads our efforts to protect clients from fraudulent claims and ensure a fair legal process.
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