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Defendant's application to have Plaintiff's claim
dismissed on foot of Section 26 of the Civil Liability and Courts
Act 2004 was refused. Insufficient evidence to support
the Defendant's contention that the Plaintiff had deliberately
adduced false evidence.
Facts
The Plaintiff sustained injuries to his back as a result of a
road traffic accident which occurred on 10th April 2006.
Liability was not in issue. At the time of the accident, the
Plaintiff was working as a gardener and was also heavily involved
in rugby coaching. The Plaintiff had a significant and very
relevant pre-accident medical history, namely a severely
compromised back which he had had from a very young age. He
had a history of chronic back pain and left-sided sciatica.
The Plaintiff alleged that his back had not given him much trouble
since early 2006 and that in the aftermath of his accident, his
back became extremely symptomatic. He further alleged that
his involvement in the accident required him to undergo back
surgery sooner than would have been required, had the accident not
occurred.
The Defendant contended that none of the Plaintiff's back
complaints post-accident were accident-related but were in fact
related to the Plaintiff's pre-existing medical condition. The
Defendant also contended that the Trial Judge should invoke Section
26 on the basis that the Plaintiff had failed to disclose to
certain medical advisors the fact that he had suffered from
significant back problems prior to his accident, had provided
inconsistent information regarding the onset of his back pain
post-accident and had inflated a claim for loss of earnings.
Judgment
Whilst accepting that portions of the Plaintiff's evidence
were "fragile", Irvine J did not accept that the
Plaintiff had deliberately adduced false evidence. Irvine J held
that inconsistencies in the Plaintiff's evidence relating to
when his symptoms commenced post-accident were not sufficient to
convince her that his evidence was untruthful. It was of
assistance to the Plaintiff that his own evidence regarding the
onset of his symptoms post-accident was corroborated by his
physiotherapist. Irvine J accepted that the Plaintiff had sustained
a back injury as a result of his accident. She attached
particular importance to the evidence of Dr O'Flanagan, who,
for a number of years, had been the doctor to Bective Rugby Club
where the Plaintiff coached. Dr O'Flanagan gave evidence
to the effect that the Plaintiff appeared to be in the whole of his
health prior to 2006 and did not demonstrate any signs of
significant incapacity.
In relation to the Plaintiff's claim for loss of earnings,
it was noted by Irvine J in her Judgment that the claim being
advanced by the Plaintiff in that regard was limited to seeking
augmented general damages to take account of the fact that he was
required to undergo back surgery sooner than would otherwise have
been required. In that regard, Irvine J did not accept that
this element of the Plaintiff's claim was misrepresented or
deliberately falsified.
In describing the Plaintiff's injury arising out of the
accident as a "seriously debilitating soft tissue injury of
approximately 2 – 3 years duration", Irvine J
awarded the Plaintiff a sum of €45,000 which included
a modest uplift to cover any minor loss of income referable to the
accident.
Comment
In her Judgment, Irvine J makes reference to a number of
landmark cases relating to Section 26 of the Civil Liability and
Courts Act 2004 including the cases of Carmello v Casey and Ahern v
Dublin Bus. Having considered the principles which emerged
from those cases and having heard the extensive submission made by
both sides in the case, Irvine J was not satisfied, on the balance
of probabilities, that the Plaintiff had deliberately sought to
mislead the Court. It is clear from this case and a number of
other recent decisions relating to Section 26 that the mere fact
that there may be inconsistencies in relation to certain aspect of
a Plaintiff's claim is unlikely to be sufficient to bring a
claim within the realms of Section 26. There must be strong
evidence of a deliberate attempt to mislead the court in respect of
a material aspect of a claim. There is no doubt that in this
case the cooroborating evidence of the Plaintiff's
physiotherapist and of Dr O'Flanagan was crucial. That
evidence may very well have been the determining factor in
tipping the balance of probabilities in favour of the Plaintiff in
terms of the Defendant's application pursuant to Section
26.
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