IRL High Court Section 26 Application- Dismissal of Personal Injuries case- Review by Damian McGeady

FOLAN .V. Ó’CORRAOIN AND OTHERS

[2011] IEHC487

This is a personal injuries claim; The Plaintiff was an apprentice who it is alleged fell and suffered an injury on the 5th April 2007. The first named Defendant was a roofing contractor and the Plaintiff’s Employer on a site which it was claimed was under the control of the second named Defendant Company whose Directors were the other Defendants.

The Defendants denied liability (nobody witnessed this incident). They further attempted to rely on the failure of the Plaintiff to serve a letter of claim as required by Section 8 of The Civil Liability and Courts Act 2004, within two months from the accrual of the cause of action. They further alleged contributory negligence.

The Plaintiff’s evidence is set out in a very lengthy written Judgment by Justice Murphy. It is fair to say that there were a number of inconsistencies with the Plaintiff’s evidence in terms of the accident circumstances but also in terms of the injuries that were allegedly sustained. For example the Plaintiff appeared to have an inexplicable limp and was using a crutch for no apparent reason, despite the fact that he had not sought medical attention from his own General Practitioner for several years. He also appeared to lead a very active life which belied the description of the injuries sustained.

The Court assessed the credibility of the Plaintiff and relied on the statement of Lord Pearce in the House of Lords case of Onassis .v. Pergottis [1968] 2 Lloyd’s Rep. 403 at 431. Using that test the Court found the Plaintiff to be a truthful person but one who was maybe telling something less than the truth on the issue of his fall and on the deterioration of his health since the fall.

At the close of the Plaintiff’s case an Application was made by the Defendants for a Direction. The Defence, referring to the Plaintiff’s Replies to the Notice for Particulars and subsequent Affidavit of Verification in respect of same, said that the Plaintiff was exaggerating his claim and referred to the case of Carmello .v. Casey and Another [2007] IEHC 362 where Judge Peart dismissed a claim for lack of disclosure of an intervening accident under Section 26 of The Civil Liability and Courts Act, 2004.

The Court acknowledged the decision of The High Court in Mary Farrell .v. Dublin Bus [2010] IEHC 327 that the burden of proof for a successful Section 26 Application fell to the Defendant and that the appropriate standard of proof to prove that a Plaintiff had knowingly given or adduced false or misleading evidence for the purposes of the Application required a high probability.

The Court in this instance decided to refer the Direction to the close of the case.

Only medical evidence was called on behalf of the Defendants.

The Court was satisfied in this instance that the Plaintiff had exaggerated the consequences of his fall. It had misgivings regarding the history recounted by the Plaintiff to the Medical Consultants. It found that the use of a crutch at consultation could be interpreted as a deliberate attempt to exaggerate his symptoms. It found that that attempt caused Medical Consultants to adduce evidence that his injuries were more serious than which appeared from the Medical Records from the Plaintiff’s Accident & Emergency Department on initial attendance.

The Court considered whether the dismissal of the action would result in an injustice being done to the Plaintiff. It did not accept the argument that the Court should disallow that part of the claim which was based on false or misleading averments.

The Court noted that no Section 8 letter was sent to the Defendants within two months prescribed by The Civil Liability and Courts Act 2004 (but did not choose to comment upon that as to its contribution towards the ultimate Judgment).

The Plaintiff’s claim was dismissed.

Although just recently published this Decision was handed down in November 2011 and would have preceded The Supreme Court Judgment in Ahern .v. Bus Eireann [2011] IESC 44, which is the only Surpeme Court Judgment on the interpretation of a violation of Section 26 of The Civil Liability and Courts Act 2004.

In that case The High Court found that the Plaintiff whilst misleading the Court did not intend to do so. The Supreme Court did not interfere with that Judgment.

Section 26 Applications depend on the individual circumstances of the case, clearly and is a subjective test.

In the right case Section 26 clearly has teeth.

Pleural Plaques Compensation is available in Northern Ireland again.

Given the traditional history of heavy industry in Northern Ireland it is no surprise that asbestos related conditions have traditionally been the subject of litigation here.

The House of Lords Decision in Rothwell .v. Chemical and Insulating Co Ltd [2007] UKHL 29 decided that the mere presence of pleural plaques did not constitute injury which could give rise to a claim for damages. Up to then, Plaintiffs claiming upon diagnosis of pleural plaques had been recovering moderate amounts of damages.

On foot of the Rothwell decision The Scottish Parliament passed The Damages (Asbestos – related conditions) (Scotland) Act 2009. It provided that asbestos related pleural plaques and certain other asbestos related conditions did constitute personal injury and were actionable under Scots Law.

The insurance industry sought to challenge the validity of that Act on two fronts, namely;

1. That it is incompatible under Article 1 of Protocol 1 of the European Convention of Human Rights and therefore is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998; and
2. That it is open to judicial review as an unreasonable, irrational and arbitrary exercise if a legislative authority of the Scottish Parliament.

The Supreme Court on Appeal from the Scottish Court of Session dismissed the Appeal.

It held that in order for such an Act to comply with Article 1 of Protocol 1 of the European Convention on Human Rights it must be shown that the Act was pushing a legitimate aim and was reasonably proportionate to that aim.

The Court accepted that the Act pursued a legitimate aim and that it was reasonably proportionate.

On the second limb of the Appeal the Court found that it would be wrong for the Judges to substitute their views as to what is rational or reasonable for the considered judgment of a democratically elected legislature.

The decision of the Supreme Court paved the way for equivalent legislation in Northern Ireland in the form of the Damages (Asbestos-Related Conditions) Act (Northern Ireland) 2011which has been in force since December 14th 2011. Read more here.

The Court of Appeal in England has given a Credit Hire company leave to launch contempt of court proceedings against seven former employees of a company, whose job it was to investigate, on behalf of insurance companies, spot hire rates of hire cars in areas where accidents occurred, it has been reported.

The Accusation is that the employees had given evidence alleging research that actually did not take place at all, and may have ‘infected’ up to 30,000 cases.

The Court (Lord Justice Moses sitting with Mr. Justice Irwin) ordered that the documents in the case be sent to the attorney-general, Dominic Grieve QC. The attorney-general has been given three months to come to a decision as to whether a criminal prosecution should be launched.

Speaking in the House of Lords in the civil litigation reform debate yesterday Lord McNally ruled out banning the practice known as Third Party Capture.

He said ‘Third-party contact does not, in itself, cause detriment to consumers and may be to their advantage as a claim can often be resolved quickly.

‘In addition, this practice can allow insurers to reduce the legal costs associated with handling a claim, and this in turn reduces costs for all policyholders.’

Lord McNally was reacting to Liberal Democrat Peer Lord Thomas of Gresford, who had tabled an amendment to the Legal Aid, Sentencing and Punishment of Offenders bill calling for the practice to be banned.

Court of Appeal reaffirms strict test in considering Financial Services Ombudsman decisions

The recent decision in the Court of Appeal case De Paor -v- Financial Services Ombudsman reaffirms the stringent test which must be adopted by the High Court in considering decisions of the Financial Services Ombudsman. The appellant joined Quinn Healthcare’s (the Provider) medical expenses insurance scheme. In August 2008, she was diagnosed with breast cancer and underwent surgery. She contacted the Provider following surgery, to enquire about cover for her further treatment, and in particular, a course of radiation. She was advised by the Provider that this treatment would not be covered under her Personal Care Plan, but that if she transferred to a Family Care Plan for a slightly higher premium, she would be covered for the specific form of radiation required. On the basis of this advice, the appellant agreed to change her policy to a Family Care Plan and proceeded with her medical treatment. It subsequently transpired that she would require chemotherapy before the radiation treatment – when advised the Provider of the change she was informed that she was not covered for either radiation or chemotherapy as her cancer was considered to be a pre-existing illness. The Provider ultimately agreed to cover her for eight sessions of chemotherapy but refused to cover her for radiation treatment. The appellant complained that by failing to honour the assurances given to her and classifying her condition as pre-existing, the Provider caused her inordinate stress and worry in relation to payments for various elements of her on-going cancer treatment and forced her to suspend further treatments required (such as bone density scans, MRI and CT scans and ECGs) pending a resolution of the dispute which she referred to the Financial Services Ombudsman in April 2010. The Provider acknowledged that the appellant was incorrectly advised on aspects of cover on her policy for the treatment, and then agreed to pay not only for the treatment but also to make further payment as a gesture of goodwill in respect of other aspects of the on-going treatment. An award of €850 was made to the appellant in respect of distress and inconvenience, and it is in respect of this amount of compensation that the appellant appealed the High Court. The parties agreed that it is not the function of the Court to place itself in the shoes of the Financial Services Ombudsman, and held that if the Court was to treat matters such as this as an appeal on quantum in the usual sense, it is likely that such appeals would frequently come before the courts arising out of decisions of the Ombudsman. If that were permitted, it would have the effect of frustrating the purpose of the scheme which is aimed at informal resolution of consumer issues. The whole purpose of the legislative scheme is to keep the process – so far as possible – out of the courts. The Court’s decision was reached not on the issue of whether the learned judge would have awarded a greater sum for stress and inconvenience but rather whether “taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors”. Finding nothing in the Respondent’s decision that would meet that test, the appeal was dismissed.