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.

Mr Justice Stephens recently pondered alternatives to the customary investment of Minor damages in a Minor personal injury case brought by this firm, Lacey Solicitors. It is understood that this is the first time the Court has considered an alternative to the conventional mechanism in place whereby compensation is paid to the Accountant General and managed by the Court Funds Office. Mr Justice Stephens was minded, if possible, to invest the sum approved into a Child Specific ISA or some other similar type product that would provide maximum security and interest for the Minor’s damages until reaching the age of majority.

The Minor’s legal representatives were asked to assist the Court in assessing whether such a step would be permissible under the current Statutory arrangements and Court powers. Having considered the relevant legislation and the Court of Appeal decision and Judgement of McCloskey J, the Judge at first instance in the case of The Northern Ireland Courts and Tribunals Service –v- The Official Solicitor to the Court of Judicature in Northern Ireland, it would appear that the Court has the power to direct that the monies are invested as they see fit.

In this particular case, on balance, taking in to account the circumstances of this particular Minor Plaintiff, it was found that there would be no benefit in diverging from the Court Funds investment route. As this would appear to be the first time the Court considered alternative routes, some guidance for practitioners will be set out in a publication which will be available on the NI Courts Service website in due course.

Jenna Curran

After four recent Court of Appeal decisions on the assessment of damages in personal injuries cases where the court on each occasion lowered awards of damages, one might be tempted to think that the court had indeed recalibrated damages in personal injury cases in Ireland. In Shannon and Shannon v O’Sullivan, the court was asked to accept that it had. In the judgment delivered by Ms Justice Irvine the court did not accept that it had that saying that the decisions had clarified “the principles to be applied and the proper approach to be taken by a trial judge when making an award for damages for personal injuries so as to ensure that the award made is just, equitable and proportionate”.

If proof was at all needed that there had not been a wholesale recalibration, the case of Murphy -v- County Galway Motor Club Limited & Ors, illustrates that the court is not afraid to raise an award of damages where it deems it appropriate.

Damages Lowered

The Court of Appeal in Nolan v Wirenski reduced a general damages award of €120,000 made by Mr Justice Barr for the plaintiff’s shoulder injury. The award by the trial judge was for €90,000 damages for pain and suffering to the date of trial and €30,000 for pain and suffering in future. The Court of Appeal consisting of Judges Ryan, Irvine and Peart reduced the award for general damages to €65,000 consisting of €50,000 for pain and suffering to date of trial and €15,000 for pain and suffering in the future.

Ms Justice Irvine of the Court of Appeal halved damages awarded to Rita Shannon and Anthony Shannon by Justice Donnelly on the of 25th March 2015 at the High Court, Kilkenny. Justice Donnelly assessment of general damages in respect of Mrs Shannon had been one of €130,000. Justice Donnelly assessed general damages in respect of Mr Shannon at €90,000 in total. Justice Irvine allowed Rita Shannon €40,000.00 in respect of general damages with an additional €25,000.00 in respect of pain and suffering in the future – a reduction of 50%. In respect of Mr Shannon she allowed €25,000.00 in respect of general damage for pain and suffering to date and €15,000.00 in respect of pain and suffering in the future – a total award of €40,000.00 and a variation downwards of €50,000.00.

In In Payne v Nugent (Court of Appeal 2015/67) the court comprising of recently appointed appellate Judges Irvine, Ryan and Peart heard an appeal against the decision and judgment of High Court (Cross J.) dated 15th January 2015. In that case the court assessed general damages for pain and suffering to date in the sum of €45,000and pain and suffering into the future in the sum of €20,000. The Defendant/Appellant sought to argue that the award was excessive. The Court said that “Modest injuries should attract moderate damages” and reduced the award to the Plaintiff to €35000 general damages.

Murphy -v- County Galway Motor Club Limited & Ors

Issues

In this case which concerned an award of the High Court by McGovern J., the court was asked to review the decision on liability, assessment of general damages and the calculation of special damages.

Liability

The plaintiff was a spectator at a motor rally who suffered severe injuries when a car left the road and struck him. McGovern J., held him to have contributed to the accident and found him to be two thirds responsible. The Court of Appeal upheld the appeal of the plaintiff on the liability finding and held that in fact the onus on the organisers was greater and that the plaintiff’s degree of culpability was reduced from two thirds to one quarter.

In considering the issue of contributory negligence the court considered the leading cases of O’Sullivan v. Dwyer [1971] IR 275 and Hay v. O’Grady.

Special Damages

The court considered the assessment of special damages to include the approach in calculating loss of earnings to trial and future loss of earnings (in doing so considering the application in Reddy v Bates). The court held that the trial judge had erred and it raised the award.

Damages for personal Injury

McGovern J, in the High Court had held that damages for the significant injury sustained by the plaintiff be measured at €200,000 being half for pain and suffering to trial and the other half for future pain and suffering. The plaintiff sustained a severe compound fracture to his left lower tibia with disruption of the tibiofibular joint, a dislocation of the left knee with rupture of all of the ligaments around the joint and severe skin loss of the lower left leg. He also sustained a number of small lacerations to his left upper forearm and left hand. Because of the severity of the injury to his leg the plaintiff required an amputation initially at knee level and then later above the knee. He was wheelchair bound for a significant period prior to being fitted with a prosthesis.

The Court of Appeal raised the award for injury to €275,000, agreeing that the award for pain and suffering to trial would amount to an award of €100,000, but taking issue with the award for future pain and suffering.

The court said “To achieve proportionality the judge ought to have regard to the entire spectrum of personal injury claims which includes everything from the most modest type of injury, such as soft tissue injuries, to those which can only be described as extreme or catastrophic and which tend to attract damages of in or about €450,000. It is helpful for a trial judge to endeavour to locate where, within that spectrum, the injuries of any particular plaintiff would appear to lie: see, e.g., Nolan .v. Wirenski, judgment of Irvine J. 25th February 2015. After all, damages are only fair and just if they are proportionate, not only to the injury sustained by an individual plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. There must be a rational relationship between awards in personal injury cases. That said each case must turn on its own facts.

Applying these principles to the present case, it is undoubtedly the case that the plaintiff’s injury must be viewed as a very serious and significant one when considered in the context of the overall spectrum of personal injuries claims. Any amputation, and particularly the amputation of a leg at a young age, will have permanent and irremediable consequences for the victim. It is an injury destined to adversely influence every area of his life”.

“When I think of the entries that might be made by this plaintiff in a diary to be kept by him over the next 50 years or so concerning his pain, distress, disadvantage, embarrassment and upset deriving from his injuries, I am quite satisfied that the sum awarded by the trial judge in respect of future pain and suffering was wholly inadequate by way of compensation and that it must be set aside. It does not fall within what I consider to be the acceptable parameters for future pain and suffering for this particularly significant injury. I would propose a sum of €175,000 be substituted to replace the sum awarded in respect of this category of loss“.

The Court set aside the order of the High Court of damages €199,166 and in its place made an award of €564,682

Comment

The writer agrees that the original decision on the assessment of damages for injury was too low for such an appalling injury, just as I agree that the original decisions in the cases mentioned above were clearly too high. These decisions illustrate that, at last plaintiffs and defendants have a quick and accessible means of appealing judgements such as these. It should not be lost on us that on each of the five cases the court upheld the appeals; that they found for the appellants. Parties do not appeal decisions lightly, given the significant costs implications, but when a decision is clearly too generous or quite the opposite the Court of Appeal is an effective remedy and a welcome addition to the Irish court system.

The decision can be read in full here.

Awards of appeal costs have been made against plaintiff’s whose damages awarded by the High Court were reduced by the Court of Appeal.

Appeal

In Anthony and Rita Shannon v Debbie O’Sullivan the Court of Appeal significantly reduced High Court damages awards. The Appeal Court accepted that the Plaintiff’s were entitled to the costs of the High Court proceedings.

Costs

There was contention regarding the costs of Appeal. During the Appeal the defendant had made Calderbank offers which were not accepted and which were remarkably close to the awards given by the Court of Appeal, each being just above the amount awarded.

Defendant case

The Defendant contended that as per Ord. 99 r. 1(4) of the Rules of the Superior Courts, costs should follow the event. That being so, it was contended that the defendant’s costs of both appeals should be set off against the orders for costs made in favour of the plaintiffs in the High Court. In addition, Mr. Fox S.C., on the defendant’s behalf relied upon the two letters of offer in support of his application. These, he submitted, may be taken into account by the court under the provisions of Ord. 99 r. 1A (b) when considering the costs of the appeal.

Plaintiff’s case

Mr Treacy S.C., for the Plaintiff’s asked the court to note that the Calderbank offers represented 55% of the award made to Rita Shannon and 40% of that made to Anthony Shannon and that the Calderbank offers were less than the amounts which the defendant was required to pay to the plaintiffs as a condition of the stay granted by the trial judge, i.e. €80,000 in the case of Rita Shannon and €55,000 in the case of Anthony Shannon. These amounts, he said were accordingly considered unappealable by the High Court judge. Plaintiff counsel noted that the awards of the Court of Appeal were a multiple of the original tenders made by the defendants, i.e., €24,600 in Mrs. Shannon’s case and €14,600 in Mr. Shannon’s case. He argued that the Calderbank offers lacked certainly as they did not specify that the defendant would discharge the plaintiffs’ costs incurred between the date of judgment and the date upon which the offer was too close. Certainty was a prerequisite to penalising the plaintiff for non acceptance of such an offer and there was no certainty in the offers made by reason of the lacunae identifie.

Counsel for the Plaintiffs sought to advance the argument that they were wrong footed by the judgments of the same court in Payne v. Nugent [2015] IECA 268 and Nolan v. Wirenski [2016] IECA 56, decisions which Mr Treacy S.C., said had led to a recalibration of damages in personal injuries actions. He further argued that the Court of Appeal had endorsed the views expressed by the trial judge as to the good character of both plaintiffs.

The Decision

“The starting point for the court’s consideration must be Ord. 99 of the Rules of the Superior Courts which provide that costs shall, unless otherwise ordered, follow the event. Hence, without ever engaging with Calderbank letters the costs should, having regard to the fact and extent of the defendant’s success on each appeal, be awarded to the defendant”.

The Court rejected that the Calderbank offers were defective. Further the court denied that the previous recent cases cited had recalibrated damages in personal injuries. The Court awarded the costs of appeals against the Plaintiffs to be set off against the High Court costs orders.

The full decision is here