Supreme Court of Ireland Decisions

Shelley-Morris v. Bus Atha Cliath/Dublin Bus [2002] IESC 74 (11 December 2002)

THE SUPREME COURT

Denham J.

McGuinness J. No. 357/01

Hardiman J.

BETWEEN/

SIWSAN SHELLEY-MORRIS

Plaintiff/Respondent

And

BUS ATHA CLIATH – DUBLIN BUS

Defendant/Appellant

[Judgments delivered by Denham & Hardiman JJ.; McGuinness J. agreed with both judgments]

Judgment delivered on the 11^th day of December, 2002 by Denham J.

1. Appeal

This is an appeal by Bus Atha Cliath – Dublin Bus, the defendant/appellant, hereinafter referred to as the defendant, from a judgment and perfected order of the High Court (O'Higgins J.) of the 26^th October, 2001 and the 10^th December, 2001, respectively. The proceedings were commenced by Siwsan Shelley Morris, the plaintiff/respondent, hereinafter referred to as the plaintiff.

2. High Court Judgment

The facts were found by the learned trial judge. As to the facts and the issues of negligence and contributory negligence he held:

"On Saturday, 22^nd September 1995 the plaintiff, who at the time of the incident was 45-year-old, was a passenger in a bus, the property of the defendants. The bus was privately hired to bring people to a wedding in Monkstown and after that to a reception in Killiney.

The bus initially brought the plaintiff and other passengers from Malahide to the church in Monkstown, and the plaintiff's evidence is that during that time the journey was just normal. However, on the journey from the church in Monkstown to the reception in Killiney, the plaintiff maintains that the diving (sic) was different, that it appeared faster and more jerky.

The plaintiff stayed in the lower deck somewhere beyond halfway up the bus towards the back, her two-year-old daughter was sitting beside her and another witness was beside the child. The child got bored. The bus having stopped at a red light, the plaintiff took the opportunity to bring the child upstairs. She picked up her, (sic) held her on her right hip and started to go up the stairs holding the left-hand rail. She was approximately one step from the top when the bus jerked forward and then carried on accelerating.

The plaintiff was thrown backwards., Her left hand had been on the railing but she let go because of the jerking of the bus. She fell backwards but managed to hold the railings again and ram her right leg and right heel into the third step up and used it as a foot ramp. She swung out and landed on her back on the floor with her daughter on top of her. She felt her knee creak.

Her dress was torn and up around her waist. She felt stupid and embarrassed and her knee was very painful and swollen. She could not stand up and the heel of her shoe came out in the incident. That is the plaintiff's account of the accident.

This account was disputed hotly by the driver of the bus, Mr. Collins. He says that on the day in question his driving from Malahide to Monkstown was uneventful. He also maintains that the driving from Monkstown to Killiney was similar and no different than his previous driving.

He was unfamiliar with the route from Monkstown to Killiney and a person going to the wedding offered to show him the way and told the bus driver to follow his car. There was no mention of him putting the boot down and no mention of hurry or delay, and the driver said that he had no difficulty in keeping up the car (sic) because of the heavy traffic. His driving was normal and there was nothing unusual.

When the bus had nearly reached the hotel he heard a commotion on looked (sic) in the mirror and saw the plaintiff on the floor at the bottom of the stairs. He flashed his lights, sounded the horn to stop the car which was guiding him and that car pulled in as did the bus. The driver does not think that there were any traffic lights just at or near the scene of the accident, the bus was moving normally and had not been stationary for some time before the incident.

He asked the plaintiff if she was all right and she said she was. He asked her if she wanted an ambulance and she declined. He said that she told him, although she denies this, that she went upstairs and on the way down the heel of her shoe broke and she fell.

The driver denies that there was any jerking movement of the bus. He denied that he was going faster than normal. He denied that he was pulling away abruptly upon being stopped. There were no complaints about his driving. He said that the red light would stay on long enough to allow a person to go up the stairs.

The version given by the plaintiff varies substantially with that given by the bus driver, and were it a matter of balancing the evidence of one against the other, the job of the Court would be very, very difficult indeed."

However, the trial judge accepted the evidence of Ms. Conlon as to the way the bus was being driven and the circumstances of the event in issue. He held:

". . . I am unable to disregard the evidence of Trudy Conlon, who in my view was an extremely impressive witness. Careful, accurate and in my view to be believed and I accept her account of the accident. She substantially corroborates the account of the plaintiff, both as to the bus having being (sic) stopped and moving off abruptly causing her indeed to jerk forward as well as the plaintiff who was upstairs on the bus. I believe her and she carries the plaintiff's case on the factual issue.

Moreover, the account of the accident given by the plaintiff herself when she was admitted to St. Mary's Hospital in Paddington was consistent with the account that she has given to the Court. Were she to be involved in some sympathetic reconstruction to suit her own purposes, I doubt that she would have done that at that stage.

As for the evidence of the bus driver, that she told him that she fell because the heel came off her shoe, I have no doubt that that is the bus driver's recollection of what happened and I have no doubt that he is not in any way trying to mislead the Court. However, it seems to me very likely that there was some mention of a heel of a shoe and I would not attach any significance to the fact that he took that message out of the conversation, which on my view was not factually a correct account of how the accident happened.

So it seems to me that in the circumstances that the bus jerked off abruptly and that that was the primary cause of the accident in question."

Having determined the negligence in issue the learned trial judge then addressed the issue of contributory negligence. He held:

"The question of contributory negligence arises then. While I feel that the plaintiff herself must take a share of the responsibility for the accident, it is true that there is no embargo on people going up to the top of the bus and they are entitled to go up. The evidence indeed of the driver is that people would in ordinary journies (sic) be going up the bus while the bus was moving and there are handrails provided, but to do so with a small child on one's hip when it is not necessary to do so seems to me to be not what a prudent person would do.

To do so with a small child on the hip in circumstances where one had already noticed the jerky nature of the bus when moving off seems to me to amount to a considerable degree of contributory negligence. I penalise the plaintiff in contributory negligence to 25%."

Having found that the defendant was negligent and that there was contributory negligence on the part of the plaintiff, the trial judge apportioned the degrees of fault as to 75% to the defendant and 25% to the plaintiff. The court assessed damages as follows:

Special Damages:

Loss of pension and gratuity: £37,500.00

Loss of earnings for the future: £25,000.00

General Damages:

Pain and suffering to date: £70,000.00

Pain and suffering in the future: £40,000.00

Total award: £172,500.00

Thus, in accordance with the apportionment determined, the High Court ordered that the plaintiff should recover £129,375.00 being 75 per cent of the total award of £172,500.00 and the costs of the action.

3. Appeal

The defendant appealed against the judgment and order on the grounds that:

(a) That the learned High Court judge erred in his findings that the defendant was the prime cause of the accident the subject matter of these proceedings;

(b) That the learned High Court judge erred in his finding that there was 25% contributory negligence only by the plaintiff in light of her actions;

(c) That the learned High Court judge erred in his assessment of the appropriate damages that should be paid to the plaintiff as a result of the personal injuries suffered by the plaintiff in the accident the subject matter of these proceedings and by virtue of the deliberate exaggeration by the plaintiff of those injuries;

(d) That the learned High Court judge erred in his assessment of the appropriate damages for which the plaintiff should be entitled by reason of the future loss of pension/earnings when there was insufficient evidence to support such an assessment.

4. Evidence

In this case there was oral, documentary and video evidence before the High Court. On the issue of liability the plaintiff's evidence was supported by two other passengers on the bus being Mr. Trudy Conlon and Mr. Paul McEvoy. The only witness for the defendant on this issue was the bus driver. The learned trial judge, on the issue of liability, accepted the evidence of the plaintiff, it being corroborated by Ms. Conlon.

As to the issue of damages, it was agreed between the parties that the reports of the treating specialists and doctors from the United Kingdom would be received into evidence in substitution for viva voce evidence. Thus reports were admitted into evidence from Mr. Richard Hampton, F.R.C.S., dated the 27^th June, 1996; Mr. R. Sinnerton, F.R.C.S., dated August, 1998; Mr. M. Roberts, Consultant Orthopaedic Surgeon, dated the 20^th November, 1997 and Mr. M.Y. Zakaria, Locum Consultant Orthopaedic Surgeon, dated the 3^rd March, 1999. Viva voce evidence was given on behalf of the plaintiff on the issue of quantum by Mr. Eric Kersey who was Payroll and Pensions Manager with the plaintiff's employers, by Mr. Alan Dodds, a rehabilitation consultant and Mr. Peter Delaney, an actuary. No medical evidence was called by the respondent. The defendant called only one witness on the issue of quantum, and that was Mrs. May Feeley, a rehabilitation consultant. However, by agreement, the defendant introduced into evidence a video film of the plaintiff showing her engaged in activities. Thus in this case this appellate court is in the same position as the trial judge in relation to the evidence from the medical reports and the video evidence.

5. Exaggeration

The learned trial judge found that the plaintiff had deliberately exaggerated some of her symptoms. He held:

"However, I have to say that in her evidence overall I am bound to say that I found that the plaintiff was exaggerating her symptoms from time to time. In particular I have to say that what was evident to the Court on the video tape was at variance at least with the general picture of her disability that the plaintiff offered to the Court.

As for her explanation that this was a combination of a good day and emergency, the Court is unable to accept that as being a full explanation of the discrepancy, particularly in view of the fact that while the question of the fallen, or the would be fallen, electric wires could indeed be thought to constitute an emergency, the plaintiff's evidence about the emergency because of the removing of the items from her father-in-law's house was singularly unconvincing to the Court.

So the plaintiff's case is more difficult to evaluate because of the factor that the Court has found that she deliberately exaggerated some of her symptoms to the Court."

This finding of deliberate exaggeration by the learned trial judge is at the core of the defendant's case.

The issue of exaggeration by a plaintiff in court proceedings is not new. It may arise in different ways in different cases. There are many possible circumstances. Three of these are as follows:

First, there is the case where the whole claim is concocted. The accident did not happen or did not happen as claimed. This is a fraudulent claim and will be dismissed by the trial judge.

Secondly, there is the situation where there is a genuine claim but the effect of the injuries is exaggerated by the claimant because of a subjective belief that the injuries have had a worse effect than they have. This type of approach involves no conscious lying by a claimant. The trial judge would determine the value of the damage suffered in accordance with the evidence, but would not condemn the evidence of the plaintiff.

A third scenario exists where there is a genuine case made establishing negligence but the plaintiff deliberately exaggerates the injuries, knowing that he or she is exaggerating the injuries and their effects. This may take on the appearance of a fraudulent claim. The lies of the plaintiff are apparent to the judge. It is at this stage that the trial judge (who has heard all the evidence and seen the witnesses) must exercise his or her judicial discretion. At issue is the credibility of the witness. If the credibility is so undermined that the burden of proving the claim has not been met then the trial judge will dismiss the claim. However, to achieve a fair result in all the circumstances, the trial judge may assess the credibility of the witness in light of the evidence of other witnesses. It may be that the negligence of the defendant is established but that the evidence of the plaintiff as to the injuries or some of the injuries may not be credible. This may arise in circumstances where injuries are not easily assessed objectively but great reliance has to be made on the evidence of the plaintiff, for example in soft tissue injuries. The evidence of a plaintiff is critical. In a situation where the plaintiff has told a mixture of the truth and lies his or her credibility is completely undermined. It is for the plaintiff to prove his or her case on the balance of probabilities. It may be that the deliberate exaggeration is such that the credibility of the witness is called into doubt and the burden of proof is not carried. Consequently, the plaintiff will not succeed in proving the claim to which such deliberate exaggeration applies.

This principle has been stated recently in Vesey v. Bus Éireann [2001] I.R. 192 where it was held that it was not the responsibility of a trial judge to disentangle the plaintiff's case where it had become entangled as a result of lies and misrepresentations systematically made by the plaintiff. For the trial judge to make on behalf of the plaintiff the best case he could in such circumstances would risk a perception of bias.

In this case the medical evidence was in admitted medical reports. The learned trial judge held, as regard the injuries, as follows:

"Following the accident the plaintiff was taken to Loughlinstown Hospital where she received an injection, x-rays and tubigrip bandage was applied. A tentative diagnosis of ligamentous injury was made and she returned to the wedding reception. She returned to London the following day and she was in considerable pain.

Approximately a week later she received a letter saying that there was a possibility that the injury was more than the ligamentous damage which had been previously thought and advising her to see a specialist. The plaintiff was seen in a fracture clinic on 4^th October 1995 and it was recorded that she had sustained a depressed fracture of the right tibial platter. She was admitted to hospital that day under the care of Mr. Hunt with a view to operative reduction and fixation of the fracture.

On 10^th October 1995 the plaintiff underwent the operation on right knee, arthroscopy and elevation of the lateral tibial platter with bone grafting and external fixation. At the operation the depressed lateral tibial platter was elevated and the defect in the cancerous (sic) bone was grafted using a bone graft taken from the right iliac crest of the plaintiff. Fixation was provided by a laterally placed T-shaped buttress plate with screws attached. There was a long protrudial peripheral scar on the lateral meniscus which did not require surgical intervention.

Post-operatively she received continuous passive movement in order to prevent knee stiffness. It is recorded in the report of 27nd (sic) June that she made an uneventful recovery. She was mobilised with crutches and she described of having to use the crutches for a period of nearly a year. She described a heavy casing that was imposed on her for sometime as well. Also I have to say that she is left, as a result of the operation and the subsequent operation to remove the metal from the knee, with what has to be considered an ugly and unpleasant scar.

On 13^th November 1995 it was recorded that she was making good progress. On 28^th February it was recorded that she was fully weight bearing with occasional need of help from crutches. The range of movement in her knee from full flexion to 90 degrees. At that stage when reviewed in the clinic 6 months after the operation it was considered that she had made a good result following her knee injury, but further examination was required. I have had the benefit of that report which is 27^th June 1996.

The next report was in November 1997, that of Mr. Roberts, the consultant orthopaedic surgeon, dated 20^th November 1997. That stated that the plaintiff's complaint was of a constant intermittent general ache around the right knee which became painful at times, the joint swelling periodically. She complained of pain for standing in excess of 15 minutes and walking in excess of 100 yards was impossible without a rest. She carried a walking stick continuously outdoors.

At that stage it was considered that she had made a very good recovery, but the general changes are present. The report say (sic) that at the moment these are not gross, but progression over the years is likely. After the metalwear has been removed some of the pain will resolve. Indeed the plaintiff gave evidence to the Court that some hotness which was associated with the metal plate was absent after that. It is recorded there that the osteoarthritis is not gross, but she is significantly limited in her ability to function normally.

The next report is undated but received by Bruce St. John Blake Limited the then solicitors for the plaintiff in August 1998. That is the report compiled from the notes which I accept as being accurate by Mr. Sinnerton, consultant surgeon.

He says she was seen for a final time in June 1996 at which point it was recorded that the result was excellent. She was walking without a stick with no significant pain and had a full range of movement of the knee. The wound had completely settled and the patient was reported as being extremely happily (sic) with the result. X-rays showed a united fracture. It was not thought that there was any indication for removing the metalwork unless it was for a specific reason or strong desire from the plaintiff.

At that stage the opinion was that she had suffered a very significant injury to right knee, a fracture of the lateral tibial platter damaging the articular surface on the side, but it was reconstructed well. The operation notes record central defect and the articular surface of the operation. At that stage there was a prognosis as to the likelihood of arthritis, that is (sic) prognosis is irrelevant now as it is common case that the lady has arthritic condition in the knee."

This then was the medical evidence from the reports. It described a significant injury with an excellent result but for arthritis. However, the plaintiff claims differently. It is at this stage of the case that the evidence of the plaintiff and the video evidence are in conflict and are relevant, together with the medical reports. The learned trial judge held:

"However, the plaintiff disputes the finding that the result was excellent at the time. She disputes that she was walking without a stick. In relation to no significant pain she says it depends what you mean by significant. I am ready to accept that subjective and objective assessments of pain are different.

However, I have to say that in her evidence overall I am bound to say that I found that the plaintiff was exaggerating her symptoms from time to time. In particular I have to say that what was evident to the Court on the video tape was at variance at lease with the general picture of her disability that the plaintiff offered to the Court.

As for her explanation that this was a combination of a good day and emergency, the Court is unable to accept that as being a full explanation of the discrepancy, particularly in view of the fact that while the question of the fallen, or the would be fallen, electric wires could indeed be thought to constitute an emergency, the plaintiff's evidence about the emergency because of the removing of the items from her father-in-law's house was singularly unconvincing to the Court.

So the plaintiff's case is more difficult to evaluate because of the factor that the Court has found that she deliberately exaggerated some of her symptoms to the Court.

However, there is no doubt that she had a significant injury. There is no doubt as well that while she complained of ache, afterwards she said that it was a pain, pain on a daily basis, the Court simply does not accept the evidence of the plaintiff that she is unable to go about her business without a walking stick. Nor does the Court accept that the plaintiff is unable to drive a car for any distance of time. The Court also does not accept that the plaintiff has made all reasonable efforts to obtain further employment and to get back into the workforce.

However, apart from the nasty injury she sustained, the Court accepts without reservation that the plaintiff was depressed and upset and demoralised following and as a result of the accident. She suffered a real depression and diminution in the quality and enjoyment of her life.

However, I do not accept that she is not in a position to go back to gainful employment. I do not accept that she will have any huge difficulties getting that employment.

However, I have to say that it is actually common case, but that her job prospect and her career prospects are diminished by the following factors; (1) Undoubtedly by her age, which I think will come against her. (2) By the fact that she has been out of the workforce for a number of years. (3) Notwithstanding the fact that I do not accept her evidence, as I have made clear in relation to the level of her disability, there is no doubt that she unfortunately has to look forward to the prospect of pain in the future and a strong possibility, if not a likelihood of surgical intervention to replace the kneecap. Those circumstances are bound to have some repercussions on her job prospects."

Having considered the transcript of the oral evidence, the medical reports and the video I would affirm the finding of the High Court that the plaintiff deliberately exaggerated symptoms. Consequently, she lost credibility on these issues. As the burden of proof is on the plaintiff the loss of credibility undermines her case as to her injuries suffered. The burden is on the plaintiff to prove her case, on the balance of probabilities, on credible evidence. Consequently, the plaintiff was in danger of losing her entire claim.

In light of the fact that the trial judge in this case had the benefit of seeing her and hearing her evidence and was satisfied that she did suffer some injuries her evidence stands and is credible insofar as it is corroborated by the medical reports. While that evidence is that she has made a good recovery, the injury has resulted in arthritis, which is progressive, and which causes pain and some limitation of movement. The condition of the plaintiff was described by Mr. M.Y. Zakaria on the1^st March, 1999 as:

"She is currently complaining of dull aching pains in and around her right knee with recurrent swelling on exertion. Her range of movement is almost full and the knee is mildly tender along the joint line and the scar area laterally."

In view of the video evidence, the medical reports and the finding of the learned trial judge that the plaintiff deliberately exaggerated some of her symptoms her evidence on this topic lacks credibility. She has failed to prove this aspect of her case on the balance of probability. Unlike the issue of liability where the learned trial judge found that the evidence of the plaintiff was corroborated by that of Ms. Condon there is no such corroboration on the issue of quantum. I have had the opportunity of viewing the video and considering the medical reports. In light of the deliberate exaggeration by the plaintiff as to some of her symptoms, that is giving untrue evidence, the credible evidence upon which the court may rely is that of the video evidence and the medical reports. Consequently, determining the matter on the video evidence and the medical reports it is clear that the plaintiff suffered a significant injury which had sequelae which the learned trial judge accepted. I would uphold the award of £70,000.00 for pain and suffering to date. However, in light of the credible evidence, I would vary the order of the High Court as to pain and suffering in the future and would award for future pain and suffering £20,000.00.

The information which grounded the evidence of Mr. Alan Dodds, as regards the plaintiff and her ability to work, came from the plaintiff. In view of her lack of credibility on this issue her evidence on this aspect of the claim may not be relied upon. As a consequence neither may the evidence of Mr. Dodds be relied upon. Thus, because of a lack of credible evidence the plaintiff has failed to prove on the balance of probabilities a basis for special damages as to loss of pension and gratuity and loss of earnings into the future. Consequently, I would determine the quantum as £90,000.00.

6. Abuse of Process

Deliberate exaggeration by a plaintiff may be such as to be an abuse of the process of the court. In such a case it may be appropriate to put this to a witness and for counsel to address the legal issues. However, that did not occur in these proceedings. Consequently, apart from raising the matter as an appropriate issue which may be considered in the future in such a case, I make no finding.

7. Contributory Negligence

The learned trial judge accepted evidence that on the journey from the church in Monkstown to the reception in Killiney the bus was driven in a way that was faster and more jerky. He had the benefit of hearing the evidence. An appellate court should be slow to interfere with such a finding of fact by a trial judge: Hay v. O'Grady [1992] 1 I.R. 210. However, having accepted that evidence of the plaintiff over the evidence of the bus driver, who maintained that his driving did not change during the trip from Malahide to the church in Monkstown and from Monkstown to Killiney, it was an important fact in the case. The learned trial judge having held that the driving did change, that it was faster and jerky on the latter run, consequences flow. Having accepted that evidence, it then becomes part of the circumstance in which the plaintiff decided to carry a two year old child upstairs. Accepting the evidence that the bus was being driven in a fast and jerky fashion it is in those circumstances that, at a red light, the plaintiff decides to pick up a two year old child, and, wearing high heels, climb the stairs to the upstairs of the bus. Before she reaches the top the bus jerked forward and she fell.

Given that the bus was being driven in a fast and jerky fashion the negligence of the plaintiff is clear. Given the factors, the proven way in which the bus was proceeding, the age and consequent weight of the child, the decision to move while the bus was making a journey, the footwear of the plaintiff, I am satisfied that the learned trial judge erred in apportioning the negligence to the plaintiff at 25%. Both the plaintiff and the defendant were equally negligent. I would apportion the negligence as against the plaintiff at 50%.

8. Conclusion

In conclusion, I would set aside the order of the High Court and I would assess the damages to the plaintiff at £90,000.00. Having determined the contributory negligence of the plaintiff at 50%, the sum to which the plaintiff is entitled is £45,000.00.

THE SUPREME COURT

Denham J. 357/01

McGuinness J.

Hardiman J.

Between:

SIWSAN SHELLY-MORRIS

Plaintiff

and

BUS ÁTHA CLIATH

Defendants

JUDGMENT of Hardiman J. delivered on the 11^th day of December, 2002.

The Plaintiff, who is a Welsh lady now aged 52, was involved in an accident in Dublin on the 22^nd September, 1995. She was a guest at a wedding and was conveyed in the Defendant's double decker "Wedding Bus" to the Church and from the Church to the reception. On the latter journey she suffered a fall on the stairs of the bus. The circumstances of this incident will be discussed later. The initial focus at the hearing of this appeal was on the question of Special Damage, specifically loss of earnings. It was argued that the Plaintiff's case on this aspect was consciously false and that this fact had consequences for the case as a whole.

The Plaintiff's proceedings

The Plaintiff instituted proceedings in respect of this incident on the 7^th January, 1997. In her Statement of Claim delivered the following month she claimed, by way of special damages, loss of earnings which were described as "unascertained and continuing". At the time of the accident she was employed as a community worker by a public authority in London.

On the 8^th November, 1999 the Plaintiff's solicitors provided further particulars of the claim stating that she had post traumatic degenerative arthritis which is progressive in nature and would require a knee replacement at some time in the future. The letter ended:-

"She has had to retire from her work on health grounds and has suffered a loss of income to date and will do so into the future in respect of which actuarial evidence will be led".

On the 26^th June, 2001 the Plaintiff's present solicitors gave particulars of special damage claiming £114,281.37 in respect of loss of earnings to date and £298,037.00 loss of earnings into the future. These sums, totalling £412,318.37 clearly represent a substantial claim, for loss of earnings alone.

The basis of the claim for loss of earnings was that, according to a further letter from the Plaintiff's solicitor of the 4^th July, 2001 she was "incapable by reason of ill health of discharging her duties with the Hammersmith and Fulham Social Services". She had been employed by that body as co-ordinator of Independent Living Schemes and retired from it on the 22^nd September, 1996. Subsequent to this, according to the letter, she moved to Wales "where she has been unable to find similar employment".

She also advanced a substantial claim in respect of loss of pension.

The opening and the Plaintiff's evidence at trial.

The trial took place in the High Court (O'Higgins J.) on the 24^th to the 26^th October, 2001. In opening the case, her counsel stated:-

"………She was declared unfit for work by her local borough in June, 1997 but, in fact it seems to have been backdated to September of 1996 so the actual declaration made in June of 1997 was dated back to some examination that was carried out in September, 1996. That was permanent employment and she could have remained there until retirement age and she was on a pension scheme or contributing to it and she would have retired with a nice pension. Since then she has moved to various places in Wales. At the moment she is living in an isolated rural area in Wales and there is no employment there for her. She does not drive a car, she did have a provisional licence at one stage but with her injury she cannot really drive a car and has not got a full licence. The bus service is fairly limited. ……. She is from Wales herself so she is happier living there than in a big urban environment like London but, unfortunately, for her earning capacity it is very difficult and practically non-existent. There are some jobs in Wales for which she would be qualified but she physically would not be in a position to carry out those jobs because they involve and commuting and being able bodied".

Notwithstanding this, and notwithstanding the particulars of special damage in the nature of loss of earnings quoted above, counsel had the following to say about the claim for loss of earnings:-

"It may well be a case that for some of the time in the past or for some of the time in the future it may be more appropriate to deal, certainly in the future, deal with the loss of earnings figure as an item included in the general damages rather than a distinct heading of future special damages".

In her oral evidence the Plaintiff gave the following evidence relevant to the loss of earnings claim. She said she was born in Pembrokeshire in January, 1950. After school she studied dress designing and embroidering. She moved to London in the late 1960's and worked in the art department of a magazine. In 1969 she moved to Formentor in the Balearic Islands where she was self employed:-

"I did dressmaking and I found houses for people, I did embroidery and crotchet work, made jewellery". She gave birth to a son in the year 1970 returned to the UK and "I started up a school with my son, an alternative education school and I was involved in education at home. Again I was still making clothes for people as commissions and making jewellery as self employed." She moved back to Spain in the early 1970's and then back to Wales. She became involved in the music business as a percussionist/drummer, playing drums, timpani, drum bongos and "generally all percussion". From about 1980 onwards she had been involved with her (then ten year old) son "working with young people and I decided I would use my skills with young people, teenagers in a youth club".

The Plaintiff appears to have spent the succeeding years "educating my son at home and also working with teenagers. Young people would come to our house and I started to work as a youth worker at that time". This, however, was on a voluntary basis. She then "began to train as a part time youth worker". She did a two year certificate in Reading University in 1986/1987 which allowed her to get a job working in youth clubs. This qualification is also referred to, in the transcript, as a diploma and as a degree. In 1988/89 she got a job with Hammersmith and Fulham Social Services, at which time she would have been about thirty-nine years old. She says she worked with black people, Bangladeshi, unemployed people, single mothers and travellers. Subsequently "they decided to redeploy the community workers into positions and into groups for service. I was redeployed into the position of co-ordinator of Independent Living Services".

This involved working with disabled people. She described it as follows:-

"I would visit a service user who was disabled in their own home and assess them with a Social Worker for their availability for community care. That would mean that they would be able to receive direct payments in order to enable them to employ their own personal care assistants. …….. I had to supervise all the carers at work for disabled people."

She said she would go out to see and assess people on referrals from social workers. She travelled by bicycle because the area is a small one and there is very little parking available. Travelling to these peoples' homes was the only physical activity involved in the job.

In subsequent evidence, the Plaintiff said that her effective complaint related to her right knee. No medical witness was called but a number of reports were, by agreement, given to the Court. She could not kneel on her knee, she could not do weight training or body building as she had done before the accident. She had put on a lot of weight. She could not cycle, she had much less strength in her knee. She had originally been on crutches. At page 72 of the transcript of Day 1 of the trial she was asked "Do you need anything for walking now that the two crutches……….?" and replied "a stick". She used this "pretty much everyday" but did not use it in her home "because we have got banisters…..", also because the house "is very small". She complained that she had "slowed down in every way. I am completely slow now compared to how I used to be". Asked whether she needed a stick in order to walk or more as a psychological crutch she said "No no, I need to use the stick for the walking, it helps me". She could not stand or sit for long.

On the topic of her employment, she confirmed that she had never gone back to work after the accident. For the first year she "wasn't able to walk". Asked what was to prevent her from going back to work after that period she said "Because I was told by my doctor that it would never get better unless I had the plate removed from my knee". Asked specifically if she would have been able to work after the removal of the plate (April 1998) she said "By that time I was living in Wales. I had gone back home to live in that year, 1996/1997". Furthermore, she claimed "I couldn't walk". The pain was "terrible, unbearable". Equally, she was "very very depressed". She was seeing her doctor once a month and also had physiotherapy. At this time she was unemployed and was on "incapacity benefit". She said that she was not able to work. She did not think of looking for work of any sort "because I couldn't

physical (sic) work at all with my knee because I knew I had to wait for the operation to have the plates removed". She was also minding her daughter who was born in 1994.

Asked whether her knee had improved after the plate was removed she said "When the plate was removed the heat that I was experiencing and the swelling was diminished but I would still get it occasionally depending on whether I moved in a jerky way or what I did".

She went on to describe how she had not done any work since the accident, except a very small amount of teaching young people and one musical "gig" for which she received £50.

In cross-examination she confirmed that she was making the claim for loss of earnings described above on the basis that she was completely incapacitated from working in the job she was doing, or any other work of the same kind.

One of her own medical reports, from Mr. Simerton FRCS, dating from August, 1998 was put to her. This stated:-

"She was seen for a final time on the 26h June, 1996 at which point it is recorded that the result was excellent. She was walking without a stick, with no significant pain and had a full range of movement in the knee. The wound had completely settled and the patient was reported as being extremely happy with the result".

The surgeon summarised her position as being that she had "suffered a very significant injury to her right knee, a fracture of the lateral tibial plateau damaging the articular surface on that side. Although this was reconstructed well, the operation notes record there was a central defect in the articular surface after the operation. However she has made an excellent recovery from this operation and has, according to the note, regained the full range of movement and is fully mobile with only minimum pain".

The Plaintiff said this report was inaccurate. She did not agree that the results were excellent. The surgeon was wrong when he said she had no significant pain. He was wrong when he said she had full range of movement in the knee. She claimed "he never actually saw me for that" apparently meaning the report. She said that Mr. Simerton's conclusions could not have been based on her medical notes. She said she always had a stick and he was quite wrong in his observation to the contrary. She said that the portion of the report headed "Opinion and Prognosis" was not an accurate record of the progress she had made in Mr. Simerton's hospital. She stressed several times that she always had a stick, which she regarded as essential for her to enable her to get around "and also it gives a sign to people to take a wide berth around me".

The Plaintiff agreed that she had told Mr. Roberts, the surgeon who removed the plate for her in 1998 that she could not walk for more than a 100 yards and that she carried a stick continuously outdoors. After that operation, she said, her range of activity improved only slightly. She said that she generally needed a stick outdoors but some times, sitting down in the sun or getting washing in off the line she might not need a stick. There was not much else she could do outdoors without a stick. She needed a stick in all her outdoor movements with those exceptions. She confirmed what she had earlier said, that she could go only go up steps one step at a time but said that "some days I might feel strong and I might be able to walk up in an ordinary way". She had not made this qualification in direct evidence. She would only be able to mount steps in the ordinary way once or twice a year. Asked how she would descend the steps she said "It depends if I was carrying anything, it depends if I have my daughter in my arm, it can depend on a lot of things". She immediately amended this to "…..If I had my daughter in my hand……". She denied that she carried her daughter on occasion; she said there was "no way" she could lift or carry her, or indeed any child. She would not like to carry anything requiring two hands, especially on a downward slope.

The Rehabilitation Consultant.

The Plaintiff also relied on the evidence of a Dr. Alan Dodds, a rehabilitation and employment consultant based in Nottingham. His instructions in relation to the details of the Plaintiff's working history and her potential for the future derived from information given to him by the Plaintiff herself. This was very clear. He said:-

"The Plaintiff reported to me that she had been designated as unfit for work, medically, and it is my understanding that she is still considered medically unfit for work".

In relation to her ability to drive, he said:-

"The Plaintiff led me to believe that although she possessed a provisional licence, she did not in fact drive a motor vehicle….. She told me she could sustain travel as a passenger in a motor vehicle for a distance of some twenty miles before experiencing discomfort."

In relation to her ability to walk Dr. Dodd said:-

"…….The Plaintiff told me that she could walk up to a distance of 200 yards with the aid of a stick".

In cross-examination, Dr. Dodds confirmed that the Plaintiff had led him to believe that without a stick her walking tolerance would extend to perhaps 50 or 100 yards only. Thereafter, he was led to believe, she was unable to continue walking because of her physical disability.

Dr. Dodds accepted that, if she were physically able to perform it, employment as a social worker in South Wales was available. He confirmed that if she had got the additional qualification she had been studying for at the time of her accident she would be still more employable; that there were many social work jobs available which did not involve any field work at all. He also stated that "One would expect an employer or health authority…… to be particularly compliant or careful or sensitive to the needs of one of their employees". He added that:-

"……Many Social Service Departments actively encourage applications for people with disabilities".

It should also be noted that the Plaintiff called the evidence of an actuary and of a person from her former employers to give evidence of her pension entitlements at various ages.

The letter of the 26^th June 2001.

This was the letter, referred to above, in which the Plaintiff claimed a total of £412,318.37 in respect of loss of earnings. These were plainly calculated on the basis that she would be at a total loss of earnings from now until her expected retirement date. Only social welfare payments were contemplated in a reduction of this figure, insofar as these payments were legally reckonable.

Cross-examination and video evidence.

It transpired in the course of cross-examination that on the 24^th September, 2001, exactly a month before the trial in the High Court, the Plaintiff had been observed by an investigator retained by the Defendant over a considerable period of time and a video tape of her movements over much of that day was made. This video tape was played in the High Court and again in this Court. It shows the Plaintiff, generally in the company of other persons especially her father-in-law and sister-in-law, walking on the public street, crossing the road to a restaurant, getting in and out of a car, walking up and down a sloping drive while carrying items in one hand and in two hands, holding a child in one arm at hip level and playing with two boxer dogs.

The video commenced when the Plaintiff was returning from the premises of a consultant employed by the Defendants. She was driven to this meeting by her father-in-law and brought her stick along. For the bulk of the time which the Plaintiff is in shot she is not using the stick at all. When she has a stick in her hand, as in crossing the road to a restaurant, she appears to be trailing it rather than leaning on it. Her movements, in walking on the street, in reeling in some form of wire or line and in crossing the road with her father-in-law after doing so, appear natural and unhindered despite the fact that she is not using a stick. She does not show undue difficulty getting into or out of a car. Her counsel conceded that the video tape did not give the impression of a woman who is disabled or impaired.

High Court findings on the above.

The learned trial judge, having set out the substance of the 1998 medical report quoted above, remarked that subjective and objective assessments of pain might be different. He continued:-

"However, I have to say that in her evidence overall I am bound to say that I found that the Plaintiff was exaggerating her symptoms from time to time. In particular I have to say that what was evident to the Court on the video tape was at variance at least to the general picture of her disability than the Plaintiff offered to the Court.

As for her explanation that this was a combination of a good day and emergency, the Court was unable to accept that as being a full explanation of the discrepancy, particularly in view of the fact that while the question of the fallen, or the would be fallen electric wires could indeed be thought to constitute an emergency, the Plaintiff's evidence about the emergency because of the removal of the items from her father-in-law's house was singularly unconvincing to the Court.

So the Plaintiff's case is more difficult to evaluate because of the fact that the Court has found that she deliberately exaggerated some of her symptoms to the Court".

This Court has no doubt whatever that the learned trial judge was correct in this assessment and indeed that his findings are conservatively phrased. The Plaintiff told a number of deliberate falsehoods in relation to her symptoms and capacities. In particular, she appears to have realised that her reference to having her daughter in her arm was inconsistent with the general picture painted, retracted it, and said that she could not lift her or any child. The picture painted in her evidence of gravely limiting and continuous impairment is false. Her statements, not summarised above, about her grave difficulty in driving a car and doing so only occasionally for distances such as 2½ miles are inconsistent with the fact that, in relatively straitened financial circumstances, the family, consisting of two adults and one child, maintains two cars. She admitted this with difficulty and reluctance.

The Plaintiff's manifest falsehoods, and the overall impression of her performance on the video tape give rise to a considerable difficulty. As the learned trial judge said, the assessment of her case is more difficult because of her deliberate exaggerations. This Court has previously held in Patrick Vesey v. Bus Eireann/Irish Bus (Supreme Court unreported 13^th November, 2001) that it is not the responsibility of a trial judge to disentangle the Plaintiff's case when it has become entangled as a result of lies and misrepresentations systematically by the Plaintiff himself. The reason for this is that:-

"The procedure in our courts is an adversarial one and the Defendant is entitled to have the Plaintiff's case presented by him and accepted on its merits or otherwise as these appear from the Plaintiff's presentation and cross-examination. For the trial judge to make on behalf of the Plaintiff the best case he can in such circumstances would risk the loss of the appearance of impartiality".

It must also be noted that the Plaintiff's falsehoods did not simply relate to her medical condition and capacity but extended to a false explanation to do with the level of excitement or emergency caused by the necessity to move her father-in-law's goods. This is quite inconsistent with the leisurely activity shown on the video during which the Plaintiff holds the child for an appreciable period, stands chatting to her father-in-law and other bystanders and plays with two large boxer dogs. This explanation was quite rightly rejected by the learned trial judge.

The loss of earnings claim.

Notwithstanding the findings summarised above the learned trial Judge made an award of damages in respect of loss of earnings to age 60. He did so on the basis of taking the capitalised loss of earnings as a sum of £99,600.00. He then reduced it, saying:-

"First of all, as I have said, she is able to work. Secondly there is no way of knowing what pensionable employment she will take on. Thirdly these are by their nature actuarial exercises and can be quite divorced from reality. I would have thought however that she would be entitled to 30% of that figure being £30,000 sterling……. Likewise in relation to a loss of £372 [which] I am told is the correct figure for the loss of £1 a week.

I do not know what loss of earnings this woman is going to have but I have no doubt that (a) as I have already indicated that she will be in a position to work and (b) I have no doubt that her earning capacity is diminished because of the factors agreed to on both sides and the extra factor of her age which is given in evidence by one side but not accepted by the other".

Further on this topic, the learned trial judge held:-

"…….. I do not accept that she is not in a position to go back to gainful employment. I do not accept that she will have any huge difficulties in getting that employment".

The learned trial judge also held that, on the balance of probabilities, he believed the Plaintiff would have retired at the age of sixty rather than sixty-five.

Observations on the foregoing.

It is clear from the foregoing that the Plaintiff presented her case in court, through the information she supplied to her own consultant Dr. Dodds, and in the particulars of special damage which she delivered on the 26^th June, 2001, on the basis that she would be at a total loss of the earnings she would otherwise have had until the date of her retirement, and that this was a result of the accident. In the letter referred to, she specifically mentioned only the social security in diminution of this loss. Any other earnings to which, on her own evidence, she might aspire would be extremely small.

It is equally clear that this picture is a false one. She is capable of working. Work of a sort she can do is available in Wales and even more so elsewhere. In pretending to be unable for any significant work, the Plaintiff is guilty of serious falsehood.

Obviously, the position of the Plaintiff and her legal advisers after the video tape was played was one of some embarrassment. It appeared quite inconsistent with the picture the Plaintiff had painted of herself, and with the claim she had made. Certain particular arguments were advanced to this Court in that context. These focussed on the claim for loss of earnings for the entire of her working life, advanced in the letter already referred to several times. Specifically it was argued:-

(a) That this letter should not be interpreted as a statement of the Plaintiff's quantified future loss which she intended to claim as an entitlement from the Defendant. On the contrary, it should be regarded simply as reflecting the fact that the Plaintiff believed she would never be able to work again and, rightly or wrongly, attributed this to the accident. She had incurred the specified loss "in her own mind".

(b) It was submitted that the contents of the letter, even literally construed, should not be attributed to the Plaintiff as a claim advanced by her. The basis for this submission was that the letter was the work of other persons. These other persons were her solicitors who presumably arrived at the actual sum specified with the input of her former employers and other advisers. It was said that the Plaintiff is not responsible for the particulars delivered.

(c) It was suggested that, even if the letter quoted was to be regarded as advancing a claim for the amounts specified that claim had been resiled from at trial. It was said that claims are often made in pleadings which are not supported in evidence.

I can see no merit whatever in any of these contentions.

It is quite untenable to regard the mention of the sum of £412,318.37, described as special damages and divided into loss of earnings to date and "future loss of earnings to date of retirement" (and transmitted in a solicitor's letter beginning "Please note that the Plaintiff claims the items of special damage as set out hereunder……") as anything but a claim to that sum. It is impossible to accept that it is merely an impressionistic statement of the Plaintiff's sincere but ill-founded expectation. Firstly it is quantified to the last penny; secondly the Plaintiff impresses from the transcript as an intelligent woman quite able to understand what she was and was not entitled to and thirdly, even if she had any misapprehensions on that score, they would hardly have survived consultation with her solicitor. The term "Special Damages" has a very precise meaning, which it has borne for well upwards of a hundred years. In Ratcliffe v. Evans [1892] 2 QB 424, special damages were described as "that particular damage (beyond the general damage) which results from the particular circumstances of the case and of the Plaintiff's claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial."

It is impossible to read the letter of the 26^th June, 2001 as anything other than a statement that the Plaintiff had lost the very large sum mentioned in respect of loss of earnings alone.

I would entirely reject the submission that the letter mentioned is not the Plaintiff's letter, and is not to be attributed to her. I was surprised to hear the submission made. In another recent case of serious dishonesty in the making of a personal injuries claim, Vesey v. Bus Eireann/Irish Bus (Supreme Court unreported 13^th November, 2001), the same submissions was strongly deprecated as follows:-

"I would specifically deprecate the submission made that particulars in another action should be disregarded, or regarded with less seriousness, on the basis that 'everybody knows' that they are not drafted by the Plaintiff personally. It is quite true that, in providing the particulars which a defendant is entitled to require a plaintiff may rely on the advice of his lawyers doctors engineers and other professionals. But none of these professional advisers are responsible for the factual content of the replies. These replies are the Plaintiff's document for which he is personally responsible…… it is essential and as far as I know is the general practice, that a plaintiff's solicitor should carefully go through with him replies to particulars in the form in which it is proposed to send them to the Defendant and obtain his assent".

I would repeat what was said in Vesey with even more emphasis in this case. It is inappropriate to contend that the particulars of the Plaintiff's claim are not to be attributed to the Plaintiff himself or herself. It is very much to be hoped that no such submission will be made in the future. The claiming of a very large sum of money from a Defendant is a serious matter, and most Plaintiffs will know this quite well. It is in any event the responsibility of a solicitor to ensure that the Plaintiff is fully aware of the significance and, indeed, solemnity of advancing a claim for hundreds of thousands of pounds, or a lesser sum, before the claim is presented to the Defendant, not to speak of the Court.

I have already quoted what was said in court during the opening of this Plaintiff's case in relation to loss of earnings into the future. It was emphatically not the case that the Plaintiff resiled from any such claim. Counsel stated that it might be accommodated in general damages rather than special damages. An actuary was called by the Plaintiff, who learnedly discussed the appropriate rate of return to be used by actuaries in order to determine an appropriate multiplier. This related to a claim that she would enjoy a reduced pension by reason of ceasing work as a result of the accident. The most that can possibly be said is that the itemised claim was not persisted in but the Plaintiff stoutly maintained a claim to future loss to retirement age. In relation to the amount of it, she was prepared to take as much as she could get. The Plaintiff on several occasions attempted to describe, or have described, at the trial the basis of her former employers acceptance of the proposition that she was unfit for work. The doctor who assessed her for this purpose was not called nor was any report from him or her tendered. The fact that the former employers may have accepted the proposition that the Plaintiff was permanently unfit for work could not, of course, be determinative of the Defendant's liability in this regard. If this practitioner were called, he or she would undoubtedly have been asked to comment on the Plaintiff's state of mobility as seen from the video tape.

It was also a feature of the Plaintiff's claim that, as a result of her injuries, she was unable to complete a one night per week course which would have enhanced her earnings. But neither on the basis of her own 1998 report nor of her capacity as seen from the video tape could this claim be accepted.

Difficulty in assessment.

The Plaintiff undoubtedly suffered a major loss of credibility in the course of the trial. This was not disputed on the hearing of the appeal when it was specifically conceded that the learned trial judge "was satisfied that video evidence furnished to the Court was at variance with the Plaintiff's account of her disability, and he rejected the Respondent's explanation for discrepancies arising out of such evidence". It was, however, submitted that the Plaintiff's "deliberate" exaggeration related solely to her description of the effect of her injuries. It was submitted that, if a lie is told in the course of the prosecution of a claim for damages for personal injuries, that fact affects only the narrow aspect of the case to which the lie specifically relates. It was further submitted that a case such as this, of deliberate exaggeration of the effects of the injuries, is different in degree from a wholly invented injury. Thus, while it was conceded that the video tape would make one regard some of the Plaintiff's earlier descriptions as suspect, or exaggerated, it should not be regarded as wholly undermining her credibility, or undermining it in relation to unconnected aspects of the case.

It was further submitted that the learned trial judge had given all proper weight to the very serious difficulties in credibility which the Plaintiff encountered as a result of her own deliberate falsehoods. He had very significantly discounted her claim in relation to special damages. This was an adequate reflection of what had happened at the trial. It was submitted that, "even if at the 11^th or 12^th hour" the full extent of the claim intimated in the letter giving particulars and the report of Dr. Dodds had been resiled from.

I cannot accept the latter submission. It is noteworthy that, at pages 124/125 of the transcript of the first day of the hearing the Plaintiff expressly confirmed that her claim in respect of loss of earnings was in the sum specified in the letter giving particulars. When the proposed evidence of Dr. Dodds "that you are incapable of earning a living or getting an income which is anyway equivalent to the income that you had been earning at the time of the accident" was put to her, she replied "yes, absolutely, yes".

Approach to an exaggerated claim.

I wish to reiterate what was said by this Court in Vesey: that the onus of proof in these cases lies on the Plaintiff who is, of course, obliged to discharge it in a truthful and straightforward manner. Where this has not been done "a court is not obliged, or entitled, to speculate in the absence of credible evidence". To do so would be unfair to the Defendant. Moreover, a Plaintiff who engages in falsehoods may expose himself or herself to adverse orders on costs. Furthermore, as was observed in Vesey "……there is plainly a point where dishonesty in the prosecution of a claim can amount to an abuse of the judicial process as well as an attempt to impose on the other party".

This last proposition is well established but has been little considered in the context of personal injuries claims. It is, perhaps, appropriate to comment on the Courts power to prevent, or remedy, abuse of process at greater length than was done in Vesey.

In Goldsmith v. Sperrings [1977] 2 AER 566 Lord Denning had this to say:-

"In a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. When it is so abused, it is a Tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer".

In Arrow Nominees v. Blackledge [2000] 2 BCLC 167, the English Court of Appeal said:-

"It is no part of the Court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the Court is to do justice between the parties; not to allow its process to be used as the means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke".

I have no doubt that these principles are equally applicable in this jurisdiction. It must not be thought that a falsehood in respect of one aspect of a claim will, at worst, lead to that particular part of the claim being reduced or disallowed. The Courts have a power and duty to protect their own processes from being made the vehicle of unjustified recovery. In a proper case this will be done by staying or striking out the Plaintiffs proceedings.

Quite properly in the circumstance of the present case, the Defendant has not sought this drastic relief. That is not to say that this relief would be inappropriate in a similar case in the future. But it appears to me that a Plaintiff who is found to have engaged in deliberate falsehood must face the fact that a number of corollaries arise from such finding:-

(a) The Plaintiff's credibility in general, and not simply on a particular issue, is undermined to a greater or lesser degree.

(b) In a case, or an aspect of a case, heavily dependant on the Plaintiff's own account the combined effects of the falsehoods and the consequent diminution in credibility mean that the Plaintiff may have failed to discharge the onus on him or her either generally or in relation to a particular aspect of the case.

(c) If this occurs, it is not appropriate for a court to engage in speculation or benevolent guess work in an attempt to rescue the claim, or a particular aspect of it, from the unsatisfactory state in which the Plaintiff's falsehoods have left it.

Liability.

In this case the deliberate exaggeration of the Plaintiff related to the extent and duration of the effect of her injuries. It was undisputed that the Plaintiff sustained a significant injury on the 22^nd September, 1995. At the trial, there was a lively dispute as to liability for that injury. One of the Appellant's principle contentions in this Court was that the findings on liability (that the Defendant was 75% responsible and the Plaintiff 25%) be reassessed is specifically in light of the Plaintiff's diminished credibility. Alternatively, it was argued, the proportion should be reassessed even on the Plaintiff's version of the facts.

The facts.

On the 22^nd September, 1995 the Plaintiff, her husband and two year old daughter were part of a group of people who had attended a marriage ceremony in a church in Monkstown, Dublin. They were travelling in the wedding bus from the church to a wedding reception at a hotel in Killiney. Previously they had been brought to the church from the Grand Hotel in Malahide on the same bus. It was undisputed that the Plaintiff had suffered a fall on the stairs of the bus. The dispute related to the circumstances of the fall.

The Plaintiff said that she had no complaint about the driving of the bus from Malahide to the church: "It just seemed to be okay, just normal". She said there were about fifteen people on the bus. She was seated on the lower deck, with her daughter. She said the driver did not know where the hotel was: when this transpired at the Church it was arranged that someone would drive ahead of the bus in order to show the driver the way. On this leg of the journey, the Plaintiff said, the mode of driving of the bus was very different: "It just seemed more faster and more jerky". It pulled off from traffic lights very quickly; this was what she meant by jerky. She said her young daughter was getting "a bit agitated because we were going stop start stop start and she was getting bored with sitting downstairs". She said that one of the other people on the bus had gone upstairs and come back down and the child said she wanted to go upstairs because of the view. The bus stopped at a light and she decided to take the opportunity to go upstairs with the child. She picked the child up and put her on her right hip and started to go up the stairs. She was holding on to the rail with her left hand. The bus was still stopped at lights at this stage. When she was about one step from the top of the bus it jerked forward and "with that I went flying backwards". She had no warning from the driver or any indication that the bus was to start moving.

This account, broadly, was corroborated by Ms. Trudy Conlon, the Plaintiff's sister-in-law.

The defence case as put to Mrs. Shelly-Morris was that she went up the stairs carrying the child and she stumbled and slipped. It was also put to the Plaintiff that her husband, who was present, believed that "the accident was caused by the heel coming of your shoe as you were either ascending or descending the stairs". This, apparently, was on the basis of what the husband had said to the bus driver after the accident. However, the Plaintiff denied this and the husband and was not called to give evidence, despite having seen her fall. It was agreed that the heel had come off her shoe, and that she had kept the shoes but it was denied that the heel coming off was the cause of the fall.

The bus driver denied strongly that there was any variation in his standard or manner of driving between one leg of the journey and the other or that the bus jerked forward at any stage. He said that the bus was in motion in the normal fashion immediately prior to his noticing the commotion caused by the Plaintiff's fall, and it had not been recently stopped.

The learned trial judge resolved this issue substantially on the evidence of Trudy Conlon. Of this he said that she "….. in my view was an extremely impressive witness, careful accurate and in my view to be believed and I accept her account of the accident. She substantially corroborates the account of the Plaintiff, both as to the bus having been stopped and moving off abruptly causing her indeed to jerk forward as well as the Plaintiff who was upstairs on the bus. I believe her and she carries the Plaintiff's case on the factual issue".

Submissions on this issue.

On behalf of the Plaintiff it was strongly urged that Mrs. Conlon's evidence should be discounted. This was on the basis that it coincided with that of the Plaintiff, who was discredited. Furthermore, it was submitted, the learned trial judge should have viewed her evidence with scepticism because she was a sister-in-law of the Plaintiff and is the woman shown talking to the Plaintiff on the video. Because she saw the Plaintiff's actual capabilities on the occasion the video tape was made, it was submitted, she knew the Plaintiff's evidence as to disability to be false. It was also suggested that the learned trial judge should have drawn an inference adverse to the Plaintiff from the failure to call the husband.

Decision on liability.

In light of the Plaintiff's gravely damaged credibility there is a definite attraction to these submissions. However, in my view it would not be proper to accede to them. Firstly, the learned trial judge came to the conclusion that he did in the full knowledge of the Plaintiff's gravely compromised credibility. Secondly, this Court must always bear in mind what was said by McCarthy J. in the well known case of Hay v. O'Grady [1992] 1 IR 210 at 217:-

"(1) An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

(2) If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and apparently weighty the testimony against them".

I do not believe it would be fair to regard Mrs. Conlon's evidence as falling outside the category of credible evidence merely because of her relationship to the Plaintiff and her presence with the Plaintiff on the occasion of the video tape. While she undoubtedly had an opportunity to observe the Plaintiff, walking, carrying loads, holding a child and playing with dogs on that occasion, and quite possibly to observe her on other occasions as well, there is no evidence to show that she was aware of the very far reaching nature of the claim the Plaintiff was making. In these circumstances one must regard her as a credible witness on whom the learned trial judge was entitled to rely.

The consequence of this finding is that one must accept that the immediate context of the accident was that described by the Plaintiff: a decision to go upstairs when the bus was stationary at traffic lights and a fall when the bus took it off from the traffic lights in a manner less smooth than would have been possible.

However, the Court is not bound by the learned trial judge's assessment of the degrees of fault arising in those circumstances. I am of the view that the Plaintiff's action in needlessly ascending the stairs of the bus carrying a two year child in her right arm was a significant contributory factor to the accident. The only reason given for ascending the stairs was that the child wanted to do so: it was plainly the responsibility of a parent to refrain from gratifying an impulse of the child that exposed both of them to danger. This danger was still more obvious if, as alleged, the manner of driving had deteriorated on the second leg of the journey. Having regard to the fact that there was ample accommodation downstairs for all passengers, that the driver had seen the Plaintiff and her child seated downstairs and that all passengers were going to the same destination, the driver had no positive reason to consider the possibility that a woman with a two year child in her arms would ascend the stairs. I would divide the responsibility for this accident in equal measure between the Plaintiff and the Defendant.

Damages.

The learned trial judge awarded damages as follows:-

"(i) Loss of pension and gratuity £37,500,

(ii) Loss of earnings for the future £25,000,

(iii) Pain and suffering to date £70,000,

(iv) Pain and suffering in the future £40,000.

The sums for general damages are expressed to take into account the omission to make any separate award for loss of earnings to date.

There is no doubt, as the learned trial judge has found, that the evaluation of damages is rendered more difficult by the fact that she deliberately exaggerated aspects of her symptoms. The learned trial judge specifically rejected the contentions that she was unable to go about her business without a walking stick, that she was unable to drive a car for any distance or time and that she had made all reasonable efforts to obtain further employment and get back into the work force. He held "There is no way of knowing what pensionable employment she will take on, and no way of knowing what loss of earnings she would have". He accepted that she will be in a position to work and that earning capacity is diminished.

In my view, having regard to those findings, the awards for loss of pension and gratuity and loss of earnings into the future are purely speculative. From the point of view of the Plaintiff this was an extremely benevolent speculation because, having regard to her falsehoods, she had simply failed to discharge the onus of proof in these regards. Having regard to the principles set out earlier in this judgment, and in Vesey, it is not proper to engage in this benevolent speculation, nor is it fair to the Defendant to do so. Accordingly, I would set aside the awards made in respect of loss of pension and gratuity and loss of earnings for the future.

I would uphold the award of £70,000 made in respect of pain and suffering to date and including loss of earnings to date. There is no doubt, even on the medical report most favourable to the Defendants, that this was a significant injury, giving rise to a considerable measure of pain and discomfort and inconvenience. The learned trial judge also accepted that the Plaintiff suffered depression upset and demoralisation. Having regard to the evidence at trial, including the video tape, one may doubt how long these afflictions lasted but the sum assessed is not wrong in principle.

In relation to pain and suffering in the future, there is no doubt that there will be a measure of this but it is clearly much less than the Plaintiff suggested. One cannot fail to reflect, under this heading too, the manifest variation between her self-described condition at present and her actions and demeanour on the video tape. Bearing in mind the descriptions and prognoses of her own doctors substantial damages under this heading are appropriate. Bearing in mind the fact that she is now plainly much better than she described herself as being an award of £20,000 under this heading is sufficient.

I would accordingly set aside the award of the learned trial judge and assess damages, under the headings set out above, at a total of £90,000. Since the Plaintiff is at fault to the extent of 50% in relation to the accident I would grant a decree in the sum of £45,000.