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.

Developments since the introduction of Section 26 of The Civil Liability and Courts Act 2004

One of the most significant changes in the Law as envisaged by the Civil Liability and Courts Act 2004 was the introduction of specific provisions in respect of misrepresentation of claims.

Sections 14, 25 and 26 of the Civil Liability and Courts Act 2004 were enacted for the purpose of discouraging plaintiffs in personal injury actions and making false, dishonest and exaggerated claims for damages.

Section 14 of the Act requires all parties to personal injury actions to swear Affidavits verifying the assertions and allegations contained in the pleadings.

Section 14 (5) of the Act provides that it is a criminal offence for a person to swear a verifying Affidavit which is false and misleading in any material respect when the person swearing the Affidavit knows that it is false or misleading.

Section 25 of the Act provides that any person who dishonestly causes to be given or adduces (or dishonestly causes to be adduced) evidence in a personal injury action which is false or misleading in any material sense, shall be guilty of an offence.

Section 26 of the 2004 Act provides as follows:

“26. – (1) If, after 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.

(2) The Court in a personal injuries action shall, if satisfied that a person has sworn an Affidavit under Section 14 of the Act –

(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 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”.

Anecdotally we found that with the introduction of these particulars provisions contained within the Civil Liability and Courts Act 2004, a number of high value special damages claims were withdrawn, or where they were expected, they did not necessarily materialise.

It took a while however for the legislation to bed down and for the Courts to deal with the issue.

The leading reported case were the Court has dismissed the plaintiff’s action where the plaintiff was found to be exaggerating her claim was that of Mary Farrell .v. Dublin Bus [2010] IEHC 327.

In this case there is no doubt the plaintiff was involved in an incident which gave rise to a whiplash injury. The plaintiff claimed ongoing loss of earnings on the grounds that she had been unable to return to former employment as a Housekeeper/Cleaner with Jurys Hotel. An Affidavit of Voluntary Discovery by the plaintiff purported to discover records, notes and memoranda in respect of all of her earnings for a five year period from the 14th June to the date of Trial. The plaintiffs furnished an Actuary Report and based on her instructions the plaintiff had suffered a loss of earnings to trial at €71,000.00 and the future loss of earnings predicted to be between €161,000.00 and €343,000.00.

Because of the amounts involved the defendant successfully applied to adjourn the proceedings to adequately investigate the plaintiff’s claim for past and future loss. Subsequent to that the plaintiff swore a Affidavit in which she had averred that she had earned €280.00 in 2007 and €3,000.00 in 2008 driving a taxi. Her Affidavit was silent in relation to earnings between 2008 and March 2010.

In other words she swore two Affidavits, one in respect of voluntary discovery and one in respect of earnings, which were contradictory. The plaintiff discontinued her claim for future loss of earnings when the case was opened. Notwithstanding that, the Court found that it was satisfied that the plaintiff gave misleading evidence in the proceedings which she knew to be misleading and in material respect and in support of her claim for damages.

“That finding, on its own, requires that the Court must dismiss the plaintiff’s claim unless the dismissal of her action would result in an injustice being done”.

The Court in dealing with this aspect went on to state:

“Where, as in this claim for particular loss, (in this case the sum of €343,000.00), is simply abandoned when challenged, it is inappropriate for a plaintiff to simply proceed with his/her claim as if nothing unusual has occurred. Something unusual has occurred must be satisfied to explain to the Court.

There is an obligation, in such circumstances to the Plaintiff, preferably at the commencement of the hearing to provide the Court with an adequate explanation why the claim was advanced in the first place and whey it was abandoned. Failure to provide such an explanation will often give rise to an inference that the claim was not bone fide”.

In this case no credible explanation had been offered for the plaintiff’s failure to adduce any documentary of other evidence to support her claim for loss of earnings and to contest the defendant’s allegation that a claim had been false and misleading although she had known for some time that it would be challenged on those grounds.

Notwithstanding the plaintiff was likely to have been injured and was likely to have suffered loss of earnings, the entirety of the plaintiff’s claim was dismissed by Mr Justice Quirke.

See also Danagher .v. Glantine Inns Limited [2010] IEHC 214 where the Judge found that the Plaintiff had deliberately misled the Court (as proven by entries on the plaintiff’s Facebook Pages). The plaintiff failed in liability but the Judge indicated that the plaintiff would also have failed under Section 26.

Another example where the Court dismissed a case which was misleading can be found in a decision of Boland .v. Dublin City Council and Others [2011] IEHC 176. In that case Mr Justice Peart did not mention Section 26 but dismissed the plaintiff’s claim nevertheless and said “If a Court accepts … that the plaintiff’s account is false and deliberately so … this claim must be dismissed”. In this circumstances the plaintiff’s account in relation to the circumstances of the accident itself and special damages claim was found to be less than truthful, notwithstanding the fact that the Court accepted an incident occurred where the plaintiff had suffered a nasty injury.

One must be cautious however. In the case of Dunleavy .v. Swann Park Limited trading as Hair Republic [2011] IEHC 232, O’Neill J. when faced with a number of particular anomalies in the plaintiff’s claim the Court sought from the plaintiff an explanation and that the Judge was satisfied with the plaintiff’s explanation and accepted the plaintiff’s evidence on face value.

The Judge went on “I wish to observe that Section 26 of the Civil Liability and Courts Act 2004, is there to deter and disallow fraudulent claims. It is not and should not be seen as an opportunity to seize upon anomalies, inconsistencies and unexplained circumstances to avoid a just liability. Great care should be taken to ensure in an discriminating way that clear evidence of fraudulent conduct in a case exists before a formal Defence is launched which could unjustly do grave damage to the good name and reputation of a worthy plaintiff”.

In this particular incident the plaintiff had claimed that she could not play golf although there was photographic evidence to suggest that she had been playing. She failed to properly disclose a previous road traffic collision in her medical evidence. She failed to disclose a history of psychiatric problems but in each single allegation that was put to her which on the face of it did appear to be allegations of false or misleading evidence, the plaintiff impressed the Judge, which is clear from the Judgment.

A very important case in respect of Section 26 and its application is that of Aherne .v. Bus Eireann [2011] IESC 44. The Judgment was delivered last Friday the 2nd December 2011, and the decision was published yesterday.

It is the Supreme Courts first reported decision on the interpretation of the Law on Section 26.

The plaintiff is a 78 year old lady who was injured whilst a passenger on a bus. Liability was not at issue.

The nature and extent of the injuries suffered by the plaintiff was disputed as was the need for a Carer as the result of the accident which formed a special damages claim of €177,000.00.

At the conclusion of the plaintiff’s claim for special damages, the claim for care into the future was withdrawn after cross-examination of the plaintiff.

The plaintiff succeed in her claim against the defendant, the High Court assessing damages and awarded general damages of €25,000.00 and pain and suffering in to the future in the sum of €15,000.00.

The High Court Ordered that the plaintiff receive costs on the basis of the Judgment however it was Ordered that the costs of the Actuary Report upon which the future care claim was illustrated and the report of the Nursing Specialist be refused.

The defendants in the action have proceeded on the basis that the conduct of the claim was fraudulent within the terms of Section 26 of the Civil Liability and Courts Act 2004 and that the claim should be dismissed. They did so on the basis they felt the plaintiff did not require the assistance of a Carer and that there was certainly no requirement as a consequence of the injuries she received as a result of the incident, that she had provided a false and misleading evidence and that an Affidavit of Verification sworn by her was false and misleading.

The plaintiff was 78 years of age. It was accepted by the Court that due to the history of her stress that she was a fragile candidate for an accident even given her age and pre-existing conditions.

The main area for contention was in respect of Care. The Court was satisfied that the plaintiff’s deterioration in her health was not accident related but did not draw any adverse findings in forming that view.

It appears that the plaintiff had noticed a deterioration in her condition and had blamed it all from the accident. The Judge sitting in the High Court did not dismiss the claim. The claim came before the Supreme Court.

The Supreme Court held that it is for a plaintiff in a Civil Action to prove their claim but where there is an allegation under Section 26 in such circumstances the onus of proof on the balance of probabilities was upon the defendant.

The Supreme Court found that the High Court Judge having heard all of the evidence and the lady’s demeanour held her to be an honest woman. The Court recognised it was bound by well-established principles in those circumstances (see Hay .v. O’Grady [1992] 1IR 2010 as to the findings of fact of a Trial Judge. The Court said “A claim under Section 26 (1) of the Act of 2004 requires that several elements be proved, including that if a plaintiff gives or adduces, or dishonestly causes to be given or adduced, evidence that is false or misleading in a material way and she knows it to be false or misleading, the Court shall dismiss the plaintiff’s action unless, there are stated reasons, that dismissal of the action would result in injustice being done. In this case there is no case for an appeal to succeed in relation to the appellant’s personal evidence, the Learner Trial Judge having held her to be an honest witness.”

That was the first aspect of the appeal based upon the evidence the lady gave at Court. The second aspect was in respect of the Affidavit evidence that she had given prior to hearing. The Supreme Court upheld the High Court Judge’s decision where he stated “The Court is also of the view that in relation to Section 26 Sub Section 2, that it has not been established that the Section 14 Affidavit was false or misleading in a material respect, or that it has been shown that the plaintiff knew it to be false or misleading. The Court must recognise in assessing the factual position, not only its view as to the plaintiff’s truthfulness but also that the accident herein unquestionably had an effect on the plaintiff’s confidence and perceived independence. As indicated above that independence was likely to be reducing even without the accident and the plaintiff’s linking of it to the accident is both understandable and in no way could be taken a deliberate intention to tell a non truth or misled. The plaintiff showed herself to be highly determined to contain her independence and it is both understandable and human that she might wish to attribute some of that loss of independence to the accident rather than the passage of time”.

The Supreme Court concluded that they were satisfied that the Learned Trial Judge approached the case correctly and considered overall that the appellant was an honest woman and did not knowingly mislead the Court. “Knowingly” is a matter to which the test is subjective. The Supreme Court will not interfere with a High Court Judge’s finding on fact in the circumstances and the Appeal was dismissed.

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 case of Fanning .v. Myerscough and Myerscough concerned an accident at work where the Plaintiff sued for personal injury which occurred as he alighted from a tractor during the course of his employment at a Stud Farm.

The Court found that the tractor door had slammed on the Plaintiff and on balance that it was due to a defect. The Court considered the issue of contributory negligence (the Plaintiff having alighted from the tractor by walking forwards as opposed to backwards).

The Court said:

“The onus on an employer seeking to establish contributory negligence is higher when the employee has proven breach of statutory duty as compared with common law negligence. There is of course a duty on every employee to take care of his own safety”.

The Plaintiff’s own engineer acknowledged that the Plaintiff had alighted from the tractor the wrong way. This left the Plaintiff in a precarious unbalanced position. The Plaintiff was aware the door was defective and was further aware of the correct way to go down the stairs. On that point the Court said:

“The latter point is so obvious that I believe an experienced man like Mr Fanning might well have considered it to be insultingly patronising if he had been told how to get down out of a tractor”.

The Court assessed contributory negligence at 50%, which in this writers experience is a very high degree in terms of Contributory Negligence in an Employers Liability case.

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.

The following blog concerns the case of Carr v Olan & Doran [2012] IEHC 59 is authored by Adam Shaw.

Adam has been on work experience at Lacey Solicitors from Portora Royal School Enniskillen. Portoras past pupils include Oscar Wilde and Samuel Beckett, both famous past bloggers.

Aggressive driving sparks ‘road rage’ catastrophe! Plaintiff’s personal injury claim dismissed by Mr Justice Hogan in High Court hearing held on 15th March 2012.

The plaintiff Mr Carr, a keen motorcyclist and musician, suffered extensive injuries as a result of a dispute with another road user. The incident unfolded at midday on Tuesday 22nd January 2008, as the plaintiff made a chance encounter with the first defendant on a major roundabout. Mixed claims from both parties suggest careless driving from the other which resulted in evasive action required to avoid a collision. However, following both the plaintiff and the first defendant leaving the roundabout at their respective exits, the plaintiff took the decision to turn around his motorcycle and head in pursuit of the first defendant. Under these circumstances, one can only speculate why the plaintiff took such evasive action, despite already having given the defendant a few hand gestures to remember whilst at the roundabout!

That aside, evidence suggests, the plaintiff, foot to the floor, caught up with the first defendant who was already 250 metres in the opposite direction. Yet despite two lanes of oncoming traffic on the other side of the road, the plaintiff maintained pursuit of the first defendant and allegedly ‘thumped’ the driver’s window, as described by a witness, and banged on the wing mirror.

What happened next is how the accident occurred. As found by Mr Justice Hogan, in an attempt by the defendant to recoil away from the direction of the blow to the window of the car, the defendant may have inadvertently veered right in the heat of the moment. Evidence gathered from the Gardai accident report show evident damage to the right hand side of the defendant’s vehicle which strongly suggests that the defendant’s vehicle came into contact with the plaintiff’s motorcycle, causing it to bank and spin out of control.

Unfortunate was the second defendant, who was in an oncoming lane of traffic when the plaintiff’s motorcycle struck her car. In favour of the first defendant, she perhaps provided the most accurate witness account. She stated how prior to the accident there were no signs of aggression from the first defendant towards the plaintiff whilst driving. The first defendant explained himself that; at the time he was more confused and, indeed, scared by the sudden sequence of events. Therefore, conclusions can be drawn, as indeed like that of Mr Justice Gerard, that the defendant did not intentionally steer into the motorcycle and orchestrate the accident in an act of aggression.

Further to the defendant’s rescue came the court’s decision to use inter alia, the doctrine of ex turpi causa non oritur actio. In layman’s terms, this meaning that; on the assumption that the plaintiff did cross the constant white lines on the road, marginally or not, when pursuit of the defendant, then he was in breach of the Road Safety Act. This would mean the defendant would no longer have liability for the plaintiff’s sustained injuries as the plaintiff was already in breach of the law in the first place and is no longer, by law, entitled to compensation for his personal injuries.

All this taken into account, the court ruled that the plaintiff’s claims for personal injuries, which included a permanent loss of use in one arm, would be dismissed.

Finally, a long story cut short; the plaintiff displayed an uncharacteristic, sightless act of ‘road rage’ where the blame could only be laid firmly at his doorstep. As for the first and second defendants, their intentions were of the prevention of any such incident to occur.

Adam Shaw

KELLY .V. BON SECOURS HEALTH SYSTEM LTD [2012] IEHC 21 HIGH COURT AWARDS PLAINTIFF PERSONAL LITIGANT €90,000.00 IN PERSONAL INJURY ACTION AGAINST EMPLOYER

The Plaintiff who represented herself in these proceedings claimed damages for personal injury in respect of an incident in August 2004 when she twisted her back at work whilst carrying files. In addition the Plaintiff’s claim for injury included the loss caused by harassment, bullying, abuse, intimidation and discrimination in the course of her employment.

On the issue of the incident causing low back injury the Plaintiff claimed that she was forced to carry bundles of charts which were excessively weighty. The Defendant did not call evidence from the employer but from an Engineer who gave evidence that the volume in weights being carried by the Plaintiff was not excessive. The Engineer did agree however that the Manual Training Regulations were mandatory and that it was a breach of the statutory duty not to adhere to such Regulations (it appears that they did not so adhere).

Mr Justice Cross held that the Defendant was negligent and in breach of statutory duty in respect of this part of the claim. In terms of the claim for bullying and harassment the Court first sought to clarify some terms. It acknowledged that there was no separate tort of bullying or harassment and that the Defendant as an employer of the Plaintiff owed a duty of care not to expose their employee to injury and that one of the sub-aspects of this may be a question of bullying and harassment. The Court referred to the Judgment of Fennelly J. in Quigley .v. Complex Tooling and Moulding Limited [2009[ 1 IR where it was agreed between the parties to adopt the definition of “workplace bullying” contained at paragraph 5 of the Industrial Relations Act 1990 (code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 which states:-

“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying”.

The Court also referred to the helpful decision of Herbert J. in Sweeney .v. Board of Management Ballinteer Community College (Unreported High Court, 24th March 2011) in which the Judge analysed a number of the instants which the Plaintiff relied on in her claim for personal injuries. Some were upheld and others not. The analysis which Cross J. in this case found to be most helpful was the following passage:-

“In my judgment a particularly vicious form of bullying involves isolating the victim in the workplace by influencing others by actual or suggested threats to their own interest and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references. In my judgment this was the first indication of a firm determination on the part of Dr C to brook no positive interference, as he saw it, by the Plaintiff in his management of the College”.

The Court also considered the United Kingdom Court of Appeal decision in Sutton .v. Hatton [2002] 2 AR 1, where the Court placed considerable emphasis on the employees obligations to inform the employer of difficulties being experienced and set out sixteen propositions for dealing with cases of bullying and harassment.

The sixteen propositions were adopted by Laffoy J in the case of McGrath .v. Trintech Technologies Limited [2005} IR 382.

In conclusion in setting out the law to be adopted when dealing with bullying and harassment cases Mr Justice Cross in this case found the best summary of the questions to be addressed where set out by Clarke J in Maher .v. Jabil Services Limited [2005] 16 ELR 233 which states as follows:-

“(a) had the Plaintiff suffered an injury to their health as opposed to ordinary occupational stress; (b) If so, was that injury attributable to the workplace and; (c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances”.

The Court in this instance then examined the Plaintiff’s work history, her grievances, the grievance procedure and how it was dealt with by the employer to include post-suspension grievance procedures and ultimately mediation between the parties. The Court found and concluded that the Plaintiff believed that virtually every step taken by the Defendant was an attempt to bully, harass and intimidate her and that her view was coloured by her personality but that the Defendant’s were aware or ought to have been aware of this fact from a very early stage and ultimately that the Defendant’s must, subject to any defences that they may have be prima facia liable in the circumstances.

The Defence argued that the Plaintiff was guilty of contributory negligence, that she had failed to engage in the grievance procedure, that the Plaintiff had failed to mitigate her loss and that the Plaintiff’s case could not proceed for a number of her grievances due to findings made by the LRC and others. The Court found that there was no question of estoppel or res judicata arising and that there was no element of contributory negligence attaching to the Plaintiff in this instance.

The issue of quantum is very interesting and in particular how the Court dealt with the injury to the back. The Plaintiff had suffered a previous injury to her back in 1998 which lasted a few weeks and up to the accident in August 2004 the Plaintiff was an active person, swimming every day and dancing once a fortnight, doing gardening and generally participating in physical work. The Plaintiff was examined in May 2011, six years after the incident and was still complaining of pain in the lumbar region, the view being that the Plaintiff had pre-accident degenerative changes consistent with her age which were rendered symptomatic prematurely. The medical evidence was that if it were not for the accident the symptoms would likely to have arisen spontaneously within a number of years. The Court held that the Plaintiff was likely to go through the rest of her life with the knowledge of a back that was less than perfect and that it was quite possible that were it not for this instant that she would have had some flare up of symptoms at some stage and in those circumstances cross J. said;

“Doing the best that I can I would assess in respect of the Plaintiff’s back complaint, damage to include some damages for limitation for work availability at a modest level in the sum of €30,000.00”.

When dealing with the issue of the psychiatric injury the Court found that some of the symptoms were not related to the bullying but acknowledged that those attributable to the finding against the Defendant amounted to €60,000.00. The Court awarded €90,000.00 together with the Plaintiff’s expenses and outlays (no costs of course).

by Damian McGeady

The Supreme Court in Coffey v Kavanagh [2012] IESC 18 has allowed an Appeal in a claim for personal injuries arising out of an accident at work where The High Court awarded damages in full to the Plaintiff.

The Plaintiff was employed by the Defendant/Appellant as a Shop Manager. She alleged she was caused to trip over a box in the office area of the Defendant/Appellant’s premises and suffered a fracture to her wrist. She sued her employer by reason of the negligence and breach of duty in failing to provide her with a safe place of work and in causing the office area of the premises to become cluttered, unsafe and dangerous.

The Defendant/Appellant denied negligence and claimed that the injuries were caused at the Plaintiff’s own negligence in failing to have adequate regard to her own safety. The Trial Judge found entirely against the Defendant employer. On the issue of contributory negligence the Trial Judge held that the Plaintiff/Respondent was not guilty, and said;

“It has been contended on behalf of the [Appellant], that the [Respondent] was guilty of contributory negligence in failing to keep a proper lookout and that this negligence caused or contributed to her injury. I do not accept that contention. I accept the evidence of the [Respondent] … that during busy periods, the floor of the office area within the [Appellants] premises regularly became cluttered. I also accept [the Respondent] that she drew this to the [Appellants] attention from time to time and that nothing was done by the [Appellant] to reduce the risk of injury to the staff members by adopting a safe system. I do not accept on the evidence that the [Respondent] failed to keep a proper lookout. I accept her evidence that a hazard on the floor, which she could not identify, but which caused her trip, was probably either packing material or a tear in the carpet which caused her to trip and that she then fell over a box which was lying on the floor in an inappropriate place. I cannot see how she can, in those circumstances, be found to have caused or contributed to her own injury. Accordingly, I am satisfied that the [Respondent] is entitled to recover the full value of her claim”.

The Supreme Court noted that whilst the Trial Judge did not accept the contention that the Respondent was guilty of contributory negligence, he did accept the evidence of the Respondent that the floor of the premises regularly became cluttered and that she herself had drawn the problem to the attention of the Appellant.

It was submitted on Appeal by the Defendant/Respondent that insufficient weight was given by the Trial Judge to the evidence of the Appellant and his witnesses and that the Plaintiff/Respondents evidence was accepted uncritically and with an excess of weight in contrast to the treatment of corroborated evidence of the Defendant/Appellant. Further on the issue of contributory negligence that the Trial Judge failed to give adequate weight to the Defendant/Respondents role in the ongoing management of the office.

This is an interesting case. The Supreme Court was being asked to deal with the role of an Appellate Court in reviewing oral evidence given in The High Court. The Supreme Court relied on the decision by McCarthy Jury in Hay .v. O’Grady [1992] 1I.R. The Court had to deal with the issue of not having had the opportunity of seeing and hearing witnesses.

In Hay .v. O’Grady McCarthy J. said;

“In my judgment an Appellate Court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the Trial Judge. In the drawing of inferences from circumstantial evidence, an Appellate Tribunal is in a position as the Trial Judge”.

The Supreme Court in this instance was in a good position given the accepted facts of the case. The Plaintiff was familiar with the office. She had responsibility to keep her desk and area around it tidy. She knew of clutter. She had made a complaint previously. She knew of potential danger. She was clearing the office when the accident occurred. She had started packing and unpacked two of the boxes and while working something on the floor caused her to trip and she fell.

On the basis of the accepted facts alone and without the opportunity of hearing the evidence heard by the Trial Judge, The Supreme Court held that the Respondent was 25% contributory negligent, allowing the Appeal and consequently reducing the Plaintiff/Respondents award.

By Damian McGeady

The Supreme Court has dismissed an appeal on the Application of Section 26 of the Civil Liability and Courts Act 2004. In a Judgment delivered last week the Supreme Court dismissed the Appeal by the Defendant, Bus Eireann. The Defendant had sought the dismissal of the Plaintiff’s claim in its entirety on the grounds that the Plaintiff had fraudulently exaggerated her claim.

This is the second Supreme Court Judgment in as many months on Section 26 of the Civil Liability and Courts Act 2004, and the Court in this instance adopted the same approach. The first decision was Ahern v Bus Eireann [2011] IESC 44.

There is a heavy burden upon the Appellant in these cases and whether the Judge dismissed the claim or allowed it at first instance, it is clearly difficult to succeed on Appeal.

In his Judgement Mr. Justice Fenelly said; “In the absence of a finding from the Trial Judge that the Plaintiff, in this case had knowingly given false or misleading evidence, it is impossible for the Defendant to succeed. She was the Judge who heard all the witnesses, apart from those who gave evidence on commission, and, especially, heard the Plaintiff whose evidence was at issue. This Court cannot substitute itself for the Trial Judge in the assessment of credibility of witnesses”.

Whether you act for the Plaintiff or the Defendant, if a Section 26 Application is not favourable at trial, it would be wise, given the dictum of the Supreme Court in this case to think very long before appealing *(mindful of time limits, of course).

Obiter Dictum ; There is one other interesting matter arising from the Judgement. On the first line of the written Judgement Fenelly J. wrote;

“The defendant on this appeal seeks the radical remedy of the dismissal, in its entirety, of the claim of a plaintiff, who admittedly suffered serious injuries at its hands in a road traffic accident for which it admits liability”

Is it an insight to the thinking of the court to describe the provision of Section 26 as radical. I wonder is it good radical or bad radical?