The Civil Liability and Courts Act 2004 was recently passed into law by the Irish Dáil. This is interesting legislation as it creates a specific criminal offence for giving false evidence specifically in a personal injury claim and also provides for the dismissal of such a personal injury claim where the plaintiff knowingly gives false or misleading evidence unless it would be contrary to the interests of justice to dismiss the claim.
The Irish Supreme Court case of Shelly-Morris v Bus Atha Cliath reported last year appears to be one of the motivations for this new law. The claim was for injuries to the plaintiff's knee suffered when a bus jerked forward whilst she was climbing to the upper deck, carrying her child on her hip and causing her to fall backwards. She gave evidence that her injuries required her to walk with a stick and she was no longer able to pick up her child. The defendant, however, presented video footage of her undertaking normal physical activity including walking comfortably without a stick. Shelly-Morris was nevertheless successful with her claim and the defendant appealed to the Irish Supreme Court which, reduced the plaintiff's damages and refused to grant her costs but did not dismiss her claim.
Although perjury is a criminal offence in our law, we have no specific statutory provision providing for the dismissal of a civil claim (personal injury or otherwise) where the plaintiff knowingly gives false or misleading evidence. The credibility of any witness and accordingly the weight to be attached to the witness's evidence in both civil and criminal matters must be assessed by the presiding officer taking into account inter alia the general quality of the testimony, the consistency of the evidence when measured against other witnesses and objective facts, the integrity, objectivity and candour of the witness, and any personal interest the witness may have in the outcome of the litigation.
Our law of evidence requires each matter to be dealt with on its merits and has no hard and fast requirements that a witness who has lied in one respect must be regarded as untruthful overall. It is quite permissible for a South African court to accept those portions of a witness's testimony which it finds to be truthful and to reject those parts which it finds to be untruthful. One of the tests to be applied in this regard is whether the lies exposed in the testimony of a party to an action indicate a carefully thought out and prepared set of untruths or whether the false and misleading evidence was given impulsively and without premeditation. Premeditation in this regard would be a clear indication that the perjurer appreciated in advance material deficiencies in the case such that the case could not succeed on the truth alone. In those circumstances the evidence should be rejected and if there is insufficient evidence remaining for the case to succeed, the plaintiff should fail.
The criminal offence of perjury coupled with the ability of a court to reject untruthful evidence provides our courts with sufficient ordnance without interference from Parliament. In any event, the Irish Supreme Court was satisfied that Shelly-Morris had suffered damages but reduced those damages by 50% and refused to award her costs. One wonders if the Irish Supreme Court would come to a different decision applying the Civil Liability and Courts Act 2004.
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