This case concerned a claim by the applicant, Garda Kampff, for compensation in respect of a soft tissue injury to his hand. Counsel for the applicant relied on the Book of Quantum to urge the Court to an award of circa €21,700. Despite the Book of Quantum expressly providing that minor injuries to a hand have led to awards of up to €21,700, the High Court ruled that the award of anything even close to this magnitude could not be justified for what was, in essence “bruising to the hand” and awarded the applicant €5,000.

This amount is a fraction of the maximum damages of €15,000 that can be awarded in the District Court. Yet this matter had to be heard in the High Court under the Garda Compensation Act as currently drafted. Since this case is a common example of the type of case that is heard in the High Court under the Garda Compensation Acts on a weekly basis, it highlights, in this Court’s view, the need for a reform of this area.

It is clear from the judgment of Barton J. in Murphy v. Minister for Public Expenditure and Reform [2015] IEHC 868 that in dealing with compensation claims under the Garda Compensation Acts that the High Court is not obliged to have regard to the Book of Quantum:

“For the sake of completeness, it is considered appropriate to refer to the provisions of s. 22 of the Civil Liability in Courts Act 2004 (the Act of 2004) which imposes on the Court a requirement, when assessing damages in a personal injuries action, to have regard to the Book of Quantum. Although reference to the book is sometimes made by counsel in the course of submissions on the hearing of the application under the Acts, the Court is not bound to have regard to it since, by virtue of s. 2(1) of the Act of 2004, an application for compensation under the [Garda Compensation Acts] and certain actions for damages are expressly excluded from its scope. However, there is no prohibition on the Court from doing so.”

It was concluded that in calculating damages, the court is obliged to be ‘fair’ to both parties and that any award must be ‘proportionate’ within the structure of damages for personal injury and any such award must be objectively ‘reasonable’ in light of the “common good and social conditions.”

The Wirenski case sets out that the relevance of ‘social conditions’ in the State and in particular the ‘average earnings principle’ is to be used in addition to the ‘proportionate principle’ when calculating general damages. Thus, in this case the High Court was obliged to apply both principles as well as the fairness principle which states that the final award must be fair to the injured party and the payer of the compensation. In applying these principles, the Court concluded that the appropriate figure for pain and suffering is €5,000, which is over a month’s salary based on average earnings in Ireland.

It is hoped that even if there is no reform of the Garda Compensation system, these principles of fairness, proportionality and reasonableness may assist parties who are involved in Garda Compensation and other personal injury litigation to make and accept settlement offers and thus decrease the amount of court time essential to deal with these cases, in light of the current strain on court resources.

The recent Court of Appeal judgment of Platt v OBH Luxury Accommodation Limited & Anor [2017 IECA 221] concerned an exaggerated claim and the Plaintiff was found to have lied.

Case Overview:

Mr Jason Platt, (known as the plaintiff) had travelled to Kinsale for a Valentine’s weekend break and he and his partner were staying at the Old Bank House, Pearse St, Kinsale where he claims the accident took place on February 15, 2009. The plaintiff alleged he fell from a windowsill in a room in the defendant’s hotel. As a result, his ribs, spine and hip were severely damaged. Mr Platt had sued OBH Luxury Accommodation Ltd with offices at Pearse St, Kinsale and company director Ciaran Fitzgerald.

Nevertheless, the hotel owners contended that Mr Platt threw himself from the window of his guestroom following a heated argument with fiancée.

Mr Platt sought compensation for his injuries and was presented through his testimonies as a poor man suffering chronic pain and discomfort. The plaintiff had also submitted under oath, an affidavit verifying a schedule of special damages and future loss claiming almost £1.5 million. It became apparent that he was found to have intentionally deceived the court and overstated the level of his agony and the degree of his incapacitation.

High Court:

Regardless of finding the Defendants 60% responsible, Barton J. discharged the Plaintiff’s claim after video evidence submerged of him going shopping, driving, carrying bags, and walking unassisted. (a clear disparity to the testimony from the Plaintiff who emphasized how extremely incapacitated he was as the Plaintiff had previously specified that he was now duty bound to use a wheelchair, crutches or a commode.)

Court of Appeal:

Irvine J. dismissed the appeal, relying on Section 26 of the Civil Liability and Courts Act 2004 to discharge the whole claim.

The Court of Appeal specified that the 2004 Act was designed to ensure that incorrect or deceptive declarations, accusations or evidence would “not lightly be tolerated”.

Section 26 of the Civil Liability and Courts Act 2004:

Section 26 states:

“If, after the commencement of this section, a plaintiff in a personal injuries action 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,

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 being done.”

Barton J stated, the standard of proof that is essential to effectively appeal Section 26 was the balance of probability, nonetheless the seriousness of the matter being alleged must be taken on board as well as the gravity of the issue and the consequences in considering the evidence essential to discharge the onus of proof.

Importantly, it was verified by the court that if a Section 26 application is successful the entire claim must fail. This was confirmed in Meehan v BKNS Curtain Walling Systems Ltd. [2012] IEHC 441. Irvine J. went on to state that “the plain and ordinary meaning of the words make clear that if the evidence is false and misleading in a material respect “the action” shall be dismissed. The section is simply incapable of any other construction”.

Secondly, before dismissing a claim under Section 26 the Court must also look at the consequences for the plaintiff where a claim is discharged under Section 26.

However, although adverse penalties must not be the only influence considered, the Court continued that it can be considered amongst other relevant factors. A failure by a court to do so would conflict against the Court’s obligations to interpret legislation in accordance with the legitimate principles of fairness and proportionality.

Nevertheless, the Court of Appeal maintained that the finding of Barton J. in the High Court was correct. The Court of Appeal agreed with the defence that a claim such as this was “indeed the type of case the Oireachtas had in mind when the (Section 26) legislation was enacted”.

Conclusion:

This is a very significant judgement.

Firstly, it reiterates the transparency of the law. If a Plaintiff is found to have exaggerated his or her claim, the entire case will be dismissed and he or she may be prosecuted.

Dismissing a fraudulent claim like this is a victory for the defendants and insurers. As a result, the compensation money that would have gone to the plaintiff, can now be used to compensate the numerous honest victims of personal injury when required.

Moreover, any claim that goes in favour of the injured party has been supported by comprehensive medical records, expert reports, widespread evidence and cross examination.

It is hoped the courts judgement will mark the beginning of a change in attitude from the courts when considering Section 26 applications in the future.

BY COLLEEN WARD – TRAINEE SOLICITOR

The article illustrates the difficulties arising from pursuing an order under Section 26 of Civil Liability and Courts Act 2004. Outlined below is a recent High Court highlighting the difficulty insurers have on pursuing a case dismissal under Section 26.

Section 26 states that “if a plaintiff claiming injury does not tell the truth on affidavit or does not tell the truth in Court, then the Court has discretion to either dismiss the claim in its entirety or penalise the plaintiff in respect of any damages made. Even on the occasion where a plaintiff has done so unwittingly or even innocently. Where a Court is satisfied that the requirements of Section 26 have been met, then the provisions of Section 26 are binding.

Buncrana Circuit Court awarded seven plaintiff’s damages between €5,050 and €9,550 as a result of a collision on 28 June 2011 involving two cars on a roundabout in Lifford, County Donegal.

The plaintiff’s each claimed for soft tissue injury. Firstly, against the driver of the vehicle responsible for the accident and secondly, against Ryan’s Investments NI Ltd trading as Hertz Rent-A-Car whom the negligent driver’s car was hired.

Ryan’s investments insurers appealed the award made by the Circuit Court branding the accident as a “fraud.” They claimed those involved knew each other via membership of Republican commemoration groups and that the accident had been fabricated with the sole purpose of extracting the maximum compensation from the driver’s insurance company.

Mr. Justice Charles Meenan, who delivered the High Court judgement in July rejected this claim. He maintained the most that was admitted by the plaintiffs was that some of the men knew each other in an only “to see” capacity.

Though the evidence, in some instances, concerning prior knowledge of each other, was “less than forthright” he remained unconvinced that such evidence went so far as to establish the collision was a ‘set up.’

The Circuit Court understood that the negligent driver had contacted one of the injured men by telephone when returning his car to the Hertz office. The call was overheard by a Hertz employee, who stated, that the ‘friendly manner’ of the discussion was evidence that the collision was a complete fraud.

Yet, Judge Meenan maintained the awards made by Buncrana Circuit Court. Referring to the phonecall, he believed that if the accident was staged “the communication during the telephone call would previously have been decisively fixed in the negligent driver’s mind previous to returning the hire car.”

The defendants’ lawyers relied on the plaintiffs’ medical evidence which was disclosed during the hearing. All seven reports indicated that a complete recovery was made within a short time frame.

Unfortunately, Mr. Justice Meenan rejected the allegation the accident was a ‘set up.’ affirming there was not sufficient evidence adduced to make an order pursuant to Section 26. Total damages of €52,350 were awarded against the Defendants.

Farrell v Dublin Bus is an illustration of the court exercising its discretion on Section 26.

Mr. Justice Quirke held that Ms. Farrell, had, given evidence which she knew was false and she did so to support her claim that her injuries deprived her of any income from the date of her accident.

On this foundation, the judge held Dublin Bus was entitled to a Section 26 Order dismissing the claim.

We understand relying on Section 26 can sporadically miscarry. However, it is one of the limited provisions of the 2004 Act that can be used to discourage dishonest and exaggerated claims.

In our experience, we have found that the leading reasons for discharging cases under Section 26 are often one or more of the following: –

• Prior injuries to the accident not revealed during the course of the case.
• False loss of earnings claims as one of the reasons in Farrell v Dublin Bus.
• Articulate fabrications in evidence of a severe and substantial nature.

At Lacey Solicitors, our team of legal professionals are highly trained in dealing with fraudulent and exaggerated claims. We can ensure all clients, both plaintiff and defendant are given full professional directions throughout the entire claims process.

BY COLLEEN WARD – TRAINEE SOLICITOR

Mr. Justice Barr delivered his judgement on the 31st day of May 2017 in the matter of Duffy v Lyons. The action involving a road traffic accident which took place on 8th September 2014 at the junction of Crumlin Road and Rafters Road, Dublin 12. This High Court case centred around liability and contributory negligence.

The plaintiff stated that he was in the process of making a right-hand turn on his bicycle, he was collided into by the defendant’s car, which was proceeding along Crumlin Road coming in the opposite direction. The plaintiff’s case was, had the defendant been driving with reasonable care, he ought to have seen the plaintiff’s bicycle on the junction and should have avoided the collision.

The defendant (Mr Lyons) case was that the plaintiff emerged suddenly onto his side of the road, from between a line of traffic that was backed up on the opposite side of the road and that he had no chance to avoid the collision.

Mr Justice Barr favoured the evidence given by the defendant because the plaintiff had contributed to his own misfortune. The judge explained, the accident was predominantly caused by the negligence on the part of the plaintiff in failing to yield right of way to the defendant’s vehicle and in failing to keep a proper lookout to his left before crossing onto the far carriageway on Crumlin Road.

The judge found that Mr Duffy was clearly negligent in relation to his own safety in failing to wear a helmet. While the failure to wear a helmet had no causative effect in relation to causation of the accident, it is nevertheless indicative of a somewhat cavalier attitude on the part of the plaintiff as to his own safety. While there was no expert evidence as to the extent to which they can reduce the level of head injuries suffered by a cyclist, Mr Justice Barr was prepared to take judicial notice of the fact that by wearing a cycle helmet, a cyclist can greatly reduce the risk of suffering a serious head injury.

Furthermore, Mr Duffy’s admitted failure to have any lighting on his bicycle on the night in question was relevant to causation of the accident. Mr Justice Barr stated, “when cycling in the city, or in the country during the hours of darkness, a cyclist is obliged under the law to have front and rear lights on his bicycle.”

Mr Justice Barr held that the plaintiff in this case, as a grown man, was highly negligent to cycle from the city centre to his home in Drimnagh without any lights on his bicycle. Thus, failure to have such lighting was highly negligent behaviour on the part of a cyclist.

High Court judgement can be found here:

By Colleen Ward – Trainee Solicitor

The Irish government has agreed upon the outline of the insurance amendment bill 2017. Minister for Finance, Mr Paschal Donohoe outlined yesterday “The failure of Setanta and the ambiguity that followed over the compensation arrangements for claimants emphasised weaknesses with the current insurance compensation framework.”

The new legislation will implement the recommendations of the report written by the Framework for Motor Insurance Compensation, therefore greater certainty for both consumers and industry will be provided, concerning the insurance compensation framework in Ireland.

As well as seeking clarity on the insurance compensation framework in Ireland, the Bills key objective, when enacted, will be to increase the level of cover to clients of insolvent insurance companies to 100 per cent instead of the existing level, currently at 65 per cent.

This will bring it into line with the compensation levels paid out by the Motor Insurer’s Bureau of Ireland (MIBI).

In addition, this increase will be backed by the insurance industry with safety measures implemented to protect the industry in the unfortunate event a motor insurer finds itself in liquidation. A legal basis will also be delivered for motor insurers functioning in the Irish market to contribute an amount equal to 2% of gross written motor premiums to an ex-ante fund which will be held by MIBI enabling the industry to meet its 35% commitment.

The Central Bank of Ireland and the State Claims Agency will now have an official role regarding administering the funds if any insurance company finds itself in financial difficulty.

A time limit for making applications to the High Court for payments from the ICF will also be amended to any 3-month period, enabling payments to be made more frequently.

The press release which can be found here, summaries main changes which the Bill will follow.

By Colleen Ward -Trainee Solicitor.