High Court of Ireland Decisions
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Cite as: [2014] IEHC 564
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Judgment
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Neutral Citation: [2014] IEHC 564 THE HIGH COURT [2012 No. 9317 P] BETWEEN/ MICHAEL LOOBY PLAINTIFF AND
GREGORGZ DAMIEN FATALSKI AND MOTOR INSURERS BUREAU OF IRELAND DEFENDANTS JUDGMENT of Mr. Justice Barr delivered on the 3rd day of December, 2014 Background 2. The defendants maintain that the plaintiff’s action should be dismissed pursuant to s. 26 of the Civil Liability and Courts Act 2004, due to the fact that the plaintiff told lies to his doctor and to his solicitor in relation to the number of hours that he could cycle on his bicycle after the accident. It is also alleged that the plaintiff swore an affidavit of verification which he knew to be false and misleading in a material respect. It is necessary to look at what the plaintiff told his advisers at various stages of the proceedings. The Plaintiff’s Pre-Trial Statements
2. The assertions, allegations and information contained in the said pleadings which are within my own knowledge are true. I honestly believe that the assertions, allegations and information contained in the said pleadings which are not within my own knowledge are true. 3. I am aware that it is an offence to make a statement in this affidavit that is false or misleading in any material respect and that I know to be false or misleading.”
8. In his evidence, the plaintiff admitted that he had told lies to his solicitor for the purpose of providing details for insertion into the replies to the notice for particulars. In particular, he admitted that by the autumn of 2012 he had been able to resume cycling for up to five hours at a time. He was able to do a route known as the “Sean Kelly Route” which was a demanding cycle between Clonmel and Dungarvan involving a number of challenging assents. 9. The plaintiff also admitted swearing the affidavit of verification to the effect that the replies furnished were the truth. He knew that the reply given at item 11 was not the truth. He stated that he did this to give his case a better value. 10. The plaintiff also admitted that he had told lies to his GP in relation to the amount of time that he could cycle his bicycle. He told the doctor on a number of occasions that he could only cycle for one to one and a half hours, when in actual fact he could cycle for up to five hours. The plaintiff admitted that he told these lies in order to get more money in his case. 11. In cross-examination, the plaintiff stated that he had been interviewed by Mr. Frank Walsh, a careers consultant, on 11th February, 2014. As appears in Mr. Walsh’s report, the plaintiff described his general situation as follows:-
13. The plaintiff maintained that he had told the truth in his evidence because he wanted to get the truth out into the open. He denied that he only told the truth because the defendants had listed a private investigator on their list of witnesses. He conceded that he was aware that the game was up, so he had to tell the truth. He admitted that he had done the “Sean Kelly Route” in November 2012, which was the time when the defendants’ private investigator had photographed the plaintiff on this route. He accepted that on 21st November, 2012, when the private investigator had followed him, he may have done some extra mileage, giving an overall trip of approximately 105km. He admitted that he had gone this distance without a break. 14. It was put to the plaintiff that some days earlier, on 15th November, 2012, the private investigator had followed him to Dungarvan, which was a round trip of 80km. The plaintiff said that he could not recall the dates, but he accepted that he had told lies in relation to his capacity for cycling. 15. The plaintiff was also questioned about his reply to item 8 in the notice for particulars. He had been asked whether he had had any illness, sickness, disease, handicap, surgical operation, or medical complaint, physical or otherwise, either prior to or subsequent to the incident on 27th April, 2012, referred to in the summons. If he did have any of the above conditions, he was asked to give certain information in relation thereto. In his reply to question 8, the plaintiff had stated that to the best of his recollection, with the exception of an incident involving exposure to ammonia, he had not required treatment in twenty years. It was stated that he would make voluntary discovery of his medical records to confirm that that was the position. The plaintiff did not believe that he had ever suffered from any injuries or medical condition relevant to the injuries, the subject matter of these proceedings. 16. It was put to the plaintiff that he had told a lie in this reply because he had not disclosed a leg injury which he had sustained in September 2011 when he had slipped while ascending a flight of stairs. He had gone on to develop cellulitis as a result of this injury. The plaintiff did not accept that he had told a lie in this regard. 17. The plaintiff’s GP, Dr. Sullivan, also gave evidence. He stated that the plaintiff had been seen by Dr. Kelly, Consultant Orthopaedic Surgeon, who had confirmed a fracture of L1 vertebra which had been treated conservatively with a back brace. Mr. Kelly was satisfied that the fracture had healed with excellent alignment. 18. Dr. Sullivan stated that he relied to some extent on what the plaintiff told him during the examination. The plaintiff had told Dr. Sullivan that he could only cycle for one and a half hours per day. However, the doctor stated that he would also rely on his own examination of the plaintiff when making his diagnosis. He said that in pursuing his hobby of cycling, the plaintiff was making every effort to get better. He approved of the plaintiff’s cycling more than one and a half hours if he felt up to it. He felt that the cycling was beneficial not only from the point of view of recovery of the back injury, but was also having a beneficial effect on the plaintiff’s mood, which had been somewhat depressed after the accident. The doctor said that he would encourage the plaintiff to cycle. He did not think that there was much significance to the fact that he could cycle for four to five hours rather than two hours as stated. The Defendants’ Submissions
(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 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 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. (3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court.” 21. The defendant accepted that as no false evidence was in fact given, subsection (1) of s. 26 was not relevant. 22. The defendant referred to the decision of Peart J. in Carmello v. Casey [2007] IEHC 362, where the rationale for s. 26 was stated as follows:-
The imposition of the sanction has the effect of depriving the claimant of damages to which he or she would otherwise be entitled. The court must disallow both that part of the claim which has been based upon materially false and misleading averments, and also that part of the claim which would otherwise have been valid and would have resulted in an award of damages. The sanction must be imposed unless its imposition ‘would result in injustice being done’. What Mr. O’Connell S.C. has suggested is that the court should disallow that part of the plaintiff’s claim which has been based upon his false and misleading averments and should allow that part of his claim which is valid and which would otherwise have resulted in an award of damages. He contends that the relevant provision within s. 26 of the Act confers a discretionary power upon the court to make such an award. However, when the court has made a finding of the kind made in this case, its power to award damages is restricted and may only be exercised for certain stated reasons based upon evidence of certain exceptional circumstances. It must be satisfied, on the evidence, that dismissal will result in injustice and it must identify the nature and extent of the injustice. The fact that the dismissal of an action will deprive a plaintiff of damages to which he or she would otherwise be entitled cannot, by itself, be considered unjust. Section 26 of the Act contemplates and requires such a consequence. … In this case, dismissal of the plaintiff’s action will have severe consequences for him. It will deprive him of significant compensation for his injuries and their consequences. It will affect his life and lifestyle in the future. However, the court’s discretion is limited. It may not be exercised simply because the statutory sanction required will have very severe consequences for a hardworking and likeable man who has suffered a serious injury. The misleading evidence within the plaintiff’s verifying affidavit was not trivial. It was intended to support claims for very substantial sums by way of damages. No evidence of exceptional or other circumstances has been adduced which would enable this court to find that dismissal of the action would result in an injustice. This court is therefore obliged to dismiss the plaintiff’s claim and I so order.” 25. The defendant pointed out that in Farrell v. Dublin Bus [2010] IEHC 327, the abandonment of a loss of earning claim did not save the action from dismissal pursuant to s. 26. In the course of his judgment, Quirke J. held that where a significant loss of earnings claim was abandoned, the plaintiff cannot just proceed as if nothing unusual has occurred. The plaintiff must explain why the claim was put forward and later abandoned. 26. The defendant also referred to the inherent jurisdiction of the court to protect its own processes as laid down in Shelly-Morris v. Dublin Bus [2003] 1 IR 232, where it was established that the court can protect its own processes, so that if a plaintiff told lies, this can undermine the entirety of the plaintiff’s claim. This is a discretionary jurisdiction. 27. The defendant submitted that the case had to be considered under s. 26(2) as the plaintiff had sworn an affidavit of verification stating that his replies were truthful when, in fact, he knew that the response he had given to item 11 of the affidavit was incorrect and misleading. 28. The defendant further submitted that the operation of s. 26 was mandatory. It stated that the court “shall” dismiss the action if the elements in subs. (1) or (2) are established. In the circumstances, the defendant submitted that the plaintiff’s action should be dismissed in accordance with s. 26 of the 2004 Act. The Plaintiff’s Submissions 30. The plaintiff stated that in order for s. 26 to be activated, the plaintiff had to provide evidence that was false or misleading in a material respect. Looking at the section in its entirety, the effect of the section is to deal with false or misleading evidence. The plaintiff submitted that there was no evidence before the court that the plaintiff’s pre-trial statements were false or misleading in a material respect. There was no evidence that the doctors were misled by the plaintiff’s answers. In the circumstances, it was submitted that the plaintiff’s lies were not material. 31. The plaintiff also submitted that regard must be had to the principle of proportionality. They referred to Rock v. Ireland [1997] 3 I.R. 484, and in particular to the following dictum of Hamilton C.J.:-
‘In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights (see, for example Times Newspapers Ltd. v. United Kingdom (1979) 2 EHRR 245) and has recently been formulated by the Supreme Court of Canada in the following terms. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:- (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations; (b) impair the right as little as possible, and (c) be such that their effects on rights are proportional to the objective: Chaulk v. R. [1990] 3 S.C.R. 1303 at pages 1335 and 1336.’” 33. The plaintiff pointed out that in the Salako case, the court had to rely on the subjective evidence of the plaintiff in relation to the injuries suffered. In the present case, the plaintiff had an objective injury in the form of a fracture of the vertebrae. The ongoing complaints of the plaintiff were consistent with the objective evidence of the injury. 34. The plaintiff submitted that when one looks at the test of materiality, there is no evidence that the plaintiff’s lies had any material bearing on the claim. It was submitted that it would be a grave injustice to the plaintiff to have his action dismissed. Here, the plaintiff had a definite injury and had lost a job offer. When looking at where the justice of the case lay, it was submitted that: (a) the action was not within s. 26; and/or (b) it would be an injustice to throw the case out altogether. 35. The plaintiff submitted that the court should have regard to the fact that the defendant chose not to go into evidence. They referred to the decision in Doran v. Cosgrove [1999] IESC 74 as authority for the proposition that the court can draw an inference from the fact that the defendant has not gone into evidence. In this case, it was common case that the plaintiff had told lies to his own doctor. The defendant had medical evidence which they chose not to call. The court was asked to infer that the reason they did not call that evidence was because it was adverse to the defendants’ case. The court is not satisfied that any inference can be drawn from the fact that the defendants chose not to call any medical evidence. We do not know what the plaintiff told the defendants’ doctors. Nor do we know what opinion was reached by them in relation to the plaintiff’s injuries and ongoing complaints. The court will not speculate as to what evidence may have been given to the defendant’s doctors. 36. It was submitted that there was no materiality to the lies told by the plaintiff to his doctor. There was the evidence of Dr. Sullivan that he was not misled by the plaintiff’s statement to him. 37. The defendant in reply submitted that the lies told by the plaintiff were material and relevant to the plaintiff’s claim. The relevance lay in the fact that there was a lie about the nature and extent of the plaintiff’s injury and also a contention by the plaintiff that he had lost the benefit of a recreational activity. This was material to the assessment of damages. A lie about one’s capacity to engage in a sport can be material. The evidence as to the nature of his impairment was material to the case. 38. Furthermore, the plaintiff had pleaded a reduced capacity to cycle, so this was relevant and material to his claim. The defendant referred to Nolan v. Mitchell & O’Neill [2012] IEHC 151 where damages had been assessed in favour of the plaintiff in the sum of €192,000.00. The claim was dismissed under s. 26 due to admission of exaggerated income figures and a statement by the plaintiff to the defendants’ vocational assessor to the effect that he could no longer participate in his pastime of “car drifting”. He had told the vocational assessor that he had had to give up this hobby. This was untrue. Due to these matters, the case was dismissed. 39. The defendant submitted that, in terms of the exemption provided for in s. 26 in relation to an injustice being done if the case is dismissed, Quirke J., in the Farrell case, stated that the relevant test was whether the dismissal of the action would result in injustice being done. It was submitted that in this case there would be no injustice to the plaintiff if his action was dismissed. Decision on the Section 26 Issue 41. Due to the fact that neither the plaintiff nor his doctor gave false or misleading evidence subs. (1) of s. 26 does not apply. 42. As already noted, subs. (2) provides that the court shall, if satisfied that a person has sworn an affidavit under s. 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 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. 43. In this case, the plaintiff had pleaded in his replies that since the accident, he was very limited in the amount of cycling that he could do. He stated that he was confined to cycling largely on the flat and for a maximum of one and a half hours. He stated that he could not sit properly on the bicycle because of his back injury. The replies were delivered on 26th February, 2013. This was at a time when the plaintiff could cycle for up to five hours. On 12th August, 2013, he swore an affidavit of verification in respect of the pleadings, including the replies. I am satisfied that in swearing that affidavit, the plaintiff did so in breach of s. 26(2) of the 2004 Act. 44. The consequence of a breach of the section is dismissal of the action. However, there is a saver to the effect that the action shall be dismissed unless the court shall be of the opinion that dismissal of the action would result in an injustice being done. I am satisfied that in this case there would be an injustice if the action were to be dismissed. The doctor has stated that there was not much significance from a clinical point of view between cycling between one and a half hours or for four hours. It does not appear that the doctor was misled in his diagnosis or treatment as a result of the lies told to him by the plaintiff. 45. In the circumstances, I am satisfied that the lies were not of great significance to the plaintiff’s overall claim. The injury suffered was an objectively verifiable injury in the form of a fracture of the L1 vertebra. He had required immobilisation in a body brace for three months. Thereafter, he had gradually got back to full fitness. The lies told were not sophisticated and were liable to be found out, as indeed they were by the private investigator. They related to his capacity to pursue his hobby of cycling. As such they did not relate to a central issue in the case. In these circumstances, I am satisfied that it would be an injustice to dismiss the plaintiff’s claim on account of the lies told by the plaintiff to his solicitor and his doctor. 46. The lies related to how much he could engage in his sporting pursuits. He admitted to cycles of up to one and a half hours in duration. This shows that he had attained a reasonable level of fitness. If he had admitted to doing the longer hours, his compensation would not have been much less than on the actual number of hours that he could cycle. It would be an injustice to dismiss the entire claim on account of the lies told in relation to his sporting pursuits. Accordingly, I refuse the defendant’s application for dismissal of the action pursuant to s. 26 of the Civil Liability and Courts Act 2004. Assessment of damages 48. He returned to his hobby of cycling in May 2011. He built up the distance in the time that he could cycle. Certainly, by the winter of 2012, he could cycle to a high level of fitness. The overall distance was in the region of 80/100km. It would take him four to five hours to complete the round trip. In the circumstances, the plaintiff must be seen as having made a fairly complete functional recovery by late 2012. 49. Also of some relevance was the fact that the plaintiff had an injury to his left leg in September 2011. He hurt his leg while ascending a flight of stairs going up two to three steps at a time. As a result of the injury, he developed cellulites in his leg in the area of his knee. This lasted for a number of months. It was not related to the injuries sustained in the accident. 50. The plaintiff also suffered from depression as a result of his back pain and consequent disability. In the medical report dated 17th April, 2013, Dr. Sullivan stated that he had seen the plaintiff in the past and had given him anti-depressant medication for one month, which the plaintiff felt had helped. In a report dated 13th March, 2014, Dr. Sullivan stated that he saw the plaintiff on 20th September, 2012, with depression and poor sleep. The doctor started the plaintiff on anti-depressant medication and he has been on this medication since that date. The doctor felt that the depression was secondary to the plaintiff’s frustration with his ongoing back injury and the fact that he was not working. 51. Dr. Sullivan was of the opinion that in March 2014, that the plaintiff had ongoing back pain although it had improved. He thought it unlikely that he would be fit for heavy work for the foreseeable future. The opinion and prognosis given in this report has to be seen in the light of the fact that the plaintiff had lied about his ability to go on long cycles due to back pain. 52. I am satisfied that the plaintiff suffered a significant injury to his lower back in the accident in April 2010. This was in the form of a fracture of the L1 vertebra. It rendered him totally disabled for the period of three months, while he was wearing the back brace. Thereafter he gradually returned to full fitness. He was able to undertake strenuous exercise by the winter of 2012. In the circumstances, I award the plaintiff general damages in the sum of €45,000 for pain and suffering to date. In light of his ability to perform strenuous exercise as and from 2012, I do not award any damages for pain and suffering into the future. 53. In relation to special damages, at the time of the accident the plaintiff was unemployed, but was second on a list of people who could be called on by Clonmel Borough Council to do manual work as required. The plaintiff had worked for the Council previously. On 3rd June, 2010, the plaintiff was offered a job as a general operative by the Council for a four month period. Due to the fact that he was wearing a back brace at the time, he could not take up this offer of employment. The job was given to the man who was third on the list. He was apparently kept on permanently when the four month contract was up. 54. The court heard evidence from Mr. Martin Nolan, an administrative officer with Clonmel Borough Council and now with Tipperary Council. He could not say with certainty that the plaintiff would have been kept on at the end of the four month contract. It would be speculative to say that the plaintiff would have been given a permanent job. He would have been on probation and he may not have been kept on. Mr. Nolan said that the plaintiff would have received €544.00 gross per week in the job. 55. I do not think that the court can make the assumption that the plaintiff would have been kept on permanently at the end of the contract period. However, the plaintiff is entitled to some damages for the loss of the four month contract. Given a gross weekly wage of €544.00, that would have amounted to €8,704. This would give a net loss after tax and Universal Social Charge of something in the region of €5,744.00. I will allow this sum as special damages. 56. Accordingly, the plaintiff is entitled to €45,000 for general damages and special damages of €5,744 giving a total of €50,744. |
