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 UK Supreme Court whilst holding that it has the jurisdiction to strike out a claim for abuse of process has declined to do so in an injury action where the claimant accepted that he had made statements of truth which he knew to be false and where the trial Judge had held that the evidence was sufficiently quoted to sustain a claim of fraud not only applying to civil standard but also the criminal standard.

The case of Fairclough Holmes Limited (Appellant) v Summers (Respondent) concerns an accident at work. The claimant suffered a fracture to his right scaphoid and a complicated ankle fracture.

In August 2007 the County Court gave Judgment for the claimant on liability with damages to be assessed at a later date. Between October 2007 and September 2008 the Defendant Appellant subjected the Claimant to covert surveillance which revealed that the Claimant was grossly exaggerating the effect of his injuries and incapacity to work.

The insurers did not show their hand at that stage and by December 2008 the Claimant served a Schedule of Loss claiming damages of £838,616.00 including a claim for loss of earnings up to October 2008. Having received that claim, the Defendant Appellant disclosed its surveillance evidence to the Claimant’s representatives and amended its Defence asserting that the claim was dishonestly exaggerated and should be struck out in its entirety. The Claimant subsequently served two further Schedules of Loss valuing the claim at a greatly reduced figure of approximately £250,000.00. All the Schedules of Loss were supported by “Statements of Truth”.

The trial on damages took place in January 2010.

The Claimant did not challenge the surveillance evidence. The Judge held that there was no doubt that he had suffered serious fractures. The ankle injury had required two arthrodesis procedures. The Judge found that the evidence established that the Claimant committed fraud and had deliberately lied to medical experts and the Department of Work & Pensions. The Judge having considered the evidence found that the Plaintiff would have been fit for work since the end of June 2007. The Judge awarded the Plaintiff damages in respect of loss of earnings up to that point in accordance with his findings. The total award to include general damages of £18,500.00 was £88,716.76.

The Defendant Appellant submitted that the Court had power to strike out the claim in its entirety on the grounds that it was tainted by fraud and was an abuse of process.

The Judge at first instance and the Court of Appeal held that they were bound be decisions of the Court of Appeal in Ul-Haq v Shah [2009] EWC CIV 542 and Widlake v BAA [2009] EWC CIV 1256 to refuse the Application on the ground that the Court had no power to strike out a statement of case in such circumstances.

The Supreme Court which unanimously held that the Court does have jurisdiction to strike out the claim for an abuse of process but in this instance chose to decline to exercise its power.

The Judgement was given by Lord Clarke. The Court considered in detail the provisions of the Civil Procedure Rules and the inherent jurisdiction of the Court which existed prior to those Rules coming into operation.

Having found that the Court did have the power to strike out a statement of case it did go on to rule that it should only exercise the power in very exceptional circumstances.

“The power to strike out a claim at the end of a trial should only be exercised if the court is satisfied that the party’s abuse of process was such that he had thereby forfeited the right to have the claim determined. This is a largely theoretical possibility. It must be a very rare case in which, at the end of a trial, it would be appropriate for the Judge to strike out a case rather than dismiss it in a Judgement in the merits in the usual way. The same is true where, as in this case, the court is able to assess both the liability of the Defendant and the amount of that liability.”

Moreover the Court considered that the conclusion was compatible with Article 6 of the European Convention on Human Rights stating that “it will only strike out the claim if this is a proportionate means of achieving the aim of controlling the process of the court when dealing with the cases justly. It is very difficult to think of circumstances in which such a measure would be proportionate. However they might include a case where there had been a massive attempt to deceive the Court but the award of damages would be very small”.

The Court rejected the submission on behalf of the Defendant insurers that unless exaggerated claims are struck out dishonest Claimants will be not be deterred. The Court insisted that there are many other ways in which deterrents can be achieved including making Orders for costs, reducing interest, proceedings for contempt in criminal proceedings and in appropriate cases where adverse inferences can also be drawn against the Claimant.

Ultimately the Court found that although the Claimant Respondent accepted making Statements of Truth which he knew to be false, as a matter of substantive law the Court found he did suffer significant injury as a result of the Defendant’s breach of duty and that it would not be proportionate or just to strike the claim out. The Supreme Court dismissed the Defendant Appellant’s Application.

The Judgement has typically been widely acclaimed by Claimant Lawyers. It is clearly a blow to Insurers who rightly have invested huge sums of money to combat fraud.

Next up for this blog is an analysis of this decision and the potential for a challenge to Section 26 of The Civil Liability and Courts Act 2004, in Ireland.

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 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.