JUDGMENT of Mr. Justice Fennelly delivered the 23rd day of February 2012.
1. The defendant on this appeal seeks the radical remedy of the dismissal, in its entirety, of the claim of a plaintiff, who admittedly suffered serious injuries at its hands in a road traffic accident for which it admits liability. The claim is made on the ground that the plaintiff is said to have fraudulently exaggerated her claim and that an order dismissing the action should be made pursuant to s. 26 of the Civil Liability and Courts Act, 2004 (“the Act of 2004.”)
2. The plaintiff commenced her claim in the Circuit Court, but the case was transferred to the High Court. The action was heard at the High Court sitting in Cork over four days in July 2007 and three days in July 2008. The plaintiff lives in the United States and, for that reason, in addition, evidence of medical witnesses was heard on commission in New York over two days in June 2006 and, during the interval between the 2007 and 2008 hearings, one day in November 2007. The appeal is from the judgment and order of the High Court (Finlay Geoghegan J.) of the 11th July, 2008.
3. The High Court awarded damages to the plaintiff as follows:
(i) Loss of earnings to date €137,280.00
(ii) Interest on loss of earnings €63,413.00
(iii) Pain and suffering to date €90,000.00
(iv) Pain and suffering in the future €60,000.00
(v) Agreed special damages €40,475.00
Total: €260,779.00
The incorrect total is as it appears in the order of the High Court. It does not affect any issue in this judgment. The High Court placed a stay of execution, pending appeal, on its order to the extent of 50% of the value of the award and of the costs.
4. The central plank of the appeal is that the learned trial judge erred in law in failing to dismiss the plaintiff’s claim under s. 26 of the Act of 2004 on the ground that the evidence given by the plaintiff in the hearing of the action had been false and misleading. The grounds of appeal focus on particular aspects of the issue: firstly, that the evidence of the plaintiff was inconsistent with her appearance on film recordings of her behaviour taken by a private investigator retained by the defendant; secondly, that the learned trial judge misinterpreted the evidence of two medical experts called by the defendant to such an extent as to lead her to discount or disregard the parts of their evidence in which they disputed the genuineness of the plaintiff’s complaints. The defendant says that the award was, in any event, excessive having regard to the evidence.
5. The plaintiff was born on 21st December 1960 in Cork where she was brought up. She went to the United States in 1986, put herself through college and trained as a nurse. On a visit home to Ireland, she was driving a car with her two children as passengers on 31st July 1999 at or near Rathcoole, Co Dublin. She was stopped at a traffic light when a bus operated by the defendant collided with the rear of her car, pushing it across the intersection.
6. It is not disputed that she suffered a soft tissue or whiplash type injury. It is the extent and genuineness of her later complaints that has been hotly disputed by the defendant. The plaintiff was taken to Tallaght Hospital but was detained for only a short time. She returned to the United States after a few days.
7. The Civil Bill issued for the Cork Circuit Court on 20th September 1999 said that she had complained of dizziness and general upset and of “pain and soreness in her neck,” which “radiated into her upper thoracic area.” X-rays did not disclose any bony injuries and a “diagnosis of a soft tissue injury [had] been made to her spine.”
8. The plaintiff, following her return to the United States, was treated by a variety of American doctors from different specialties in respect of different aspects of her complaints. Further particulars were delivered on 10th November 1999. The action was transferred to the High Court. Notice of trial was served on 17th July 2002. Further detailed particulars of her injuries were delivered on 14th June 2005, 12th September 2006, and 28th June 2007.
9. Before the accident, the plaintiff was active and athletic. She played camogie and jogged. However, subsequent X-ray examination revealed that she was suffering from significant early deterioration of her cervical spine, although she had not experienced any symptoms from these conditions prior to the accident. The plaintiff had, prior to her accident, given up her job as a hospital theatre nurse with the intention of going on a training course for 18 months to become a nurse practitioner.
10. The Plaintiff’s complaints, as they developed, fell under three principal headings:
11. The plaintiff said in evidence that she had pain in her neck, her chest and shoulder and down her arms; her left hand was stiff. She could not raise her left hand or rotate her head. She went to the hospital in New York where she had worked and underwent courses in “physical therapy” directed to her upper body (neck and arms). This lasted nine months, but the pain got worse. In evidence she said that her neck pain, radiating down to her left arm and to her hands, persisted. She had constant pain in her neck. It was stiff and restricted. She had to turn her whole body in order to look around. She was also suffering pain in her shoulder and lower back and legs. She attended several different doctors. She had three or four cervical epidural injections without success. She attended an osteopath: osteopathy gave her a little relief.
12. In 2001, she was referred to Dr Jonathan Glashow, a shoulder specialist, who examined and treated her shoulder. He found that she had a lot of tenderness and spasm in the muscles, ligaments and tendons around the shoulder girdle. He used painkilling injections to enable him to diagnose the nature of her injury. He found that that she had significant shoulder problems.
13. In February 2002, Dr Glashow performed an arthroscopic procedure on her left shoulder. He treated a torn labrum (the lip that surrounds the socket bone) and tightened the ligaments within the shoulder capsule. He also removed scar tissue above her rotator cuff. The plaintiff improved considerably so far as the shoulder was concerned, but problems with her neck continued. She said in evidence that her shoulder improved, though it was not as good as her right shoulder.
14. The most controversial aspect of the claim related to her evidence that she had pain in her lower back, radiating down at times along her leg to her knee and to her left foot. She limped at times, and she felt constantly “hindered.” She said that she could walk only short distances. For example, at one point in her evidence she said that she could walk only three city blocks. She had great difficulty getting in and out of a car, though she drives. She had difficulty lifting and with housework.
15. The plaintiff said that she had been unable to work at all since the accident, apart from helping her husband with a radio programme which he produces. She could not return to nursing.
16. The plaintiff was cross-examined at length and in great detail about complaints she had made to Mr McGuinness, the consultant orthopaedic surgeon who examined her on behalf of the defendant. Counsel put to her statements which, based on notes taken by Mr McGuinness, she was alleged to have made when examined in October 2006. The theme of the cross-examination was that she had complained of pain being constant and of suffering from it “all the time.” Her answers were in many instances that she disagreed that she had said she had the particular symptom “all the time,” but said that she had experienced it regularly or intermittently. For example:
• Asked if she had told Mr McGuinness that her pain in her left knee was severe “all the time,” she replied: “Intermittent. Not all the time. It never has been all the time;”
• Asked if she had complained to him of “severe left groin pain, buttock pain and pain in her side of the left thigh,” she said: “severe; maybe that time [meaning the day of the examination] was a bad day for me and I said severe. At times it is severe, not all the time;”
• asked whether she had said that she could "only walk two to three blocks,” she answered: "on a bad day, yes. I couldn't walk."
• asked if she had claimed "severe ongoing relentless low back pain," she replied: "my lower back is on and off, yes." She disagreed that she had used the word "relentless,” when examined by Mr McGuinness.
• where it was said that Mr McGuinness had noted her as not being able to do any lifting, she replied that she did some lifting, "not heavy lifting." She did not recall saying she could not do any lifting and insisted: "I do some lifting, yes."
• asked if she complained of pain in both shoulders, she replied that she had never had pain in her right shoulder.
17. The defendant relied in the High Court on three principal pieces of evidence. Firstly, a private investigator engaged by the defendant filmed the plaintiff surreptitiously on a number of occasions both in Ireland and in the United States. The defendant relied principally on the United States film, which I will call “the DVD,” as that is the form in which it was provided to the Court. Secondly, the defendant called as a witness Mr Anthony McGuinness, a consultant orthopaedic surgeon, who had examined the plaintiff on behalf of the defendant on 7th August 2001, 6th January 2005 and 3rd October 2006. Thirdly, the defendant called Mr Michael O’Sullivan, a consultant neurological surgeon, who had examined the plaintiff on 6th October 2006.
18. The essence of the evidence of the two medical witnesses was that they did not accept that many of the symptoms of which the plaintiff complained were genuine: they were not consistent from one observation to another; they were not compatible with the absence of any objective evidence of neurological deficit. The defendant relied on the evidence of these experts in support of the case that the plaintiff’s evidence was grossly exaggerated and, in that sense, false and misleading. However, neither expert was prepared to go so far as to say that she was deliberately and consciously untruthful.
19. Mr McGuinness could find no objective neurological deficit affecting either the left arm or the left leg. Her reflexes were normal. Dealing with the leg, he said that she walked in a bizarre fashion; she had a left sided limp; she did not use the left leg properly but dragged it in a similar way to a patient with a mild left-sided stroke. Her left arm was held up to her side. Straight leg raising, when lying on her back, was only 15°, whereas, when she was in a standing position, she could bend forward about 70% of normal. As to her neck, she moved it with a jerky cog-wheel type movement which, to medical practitioners, is a bad sign, meaning there is some form of exaggeration. Her movements were inconsistent: her reactions varied on repeated examination. In conclusion, Mr McGuinness was of the opinion that her reaction to her injury was excessive and exaggerated. However, he acknowledged that it was difficult to be certain whether the reaction was intentional or unintentional. She may have had a somewhat “labile personality.”
20. Mr McGuinness strongly disputed the contention that the plaintiff was suffering from the effect of nerve entrapment in her cervical spine. There was no objective evidence, in his opinion, of pressure on the nerve and he disagreed with the American expert, Dr Reich, to the extent that, in his evidence on commission, he had said the contrary.
21. Mr McGuinness accepted, however, that the plaintiff had sustained whiplash injury to her neck of moderate severity and a soft-tissue injury to her left shoulder consistent with rotator cuff tendonitis.
22. It is important to recall here that the plaintiff, as already mentioned, was also asked about notes Mr McGuinness had taken concerning the complaints made to him by the plaintiff. In those notes, the plaintiff was, it was said, generally recorded as having complained of constant and unrelieved pain. In her evidence, on the other hand, the plaintiff acknowledged that there were "good days and bad days" and that some of her symptoms occurred intermittently. The plaintiff was cross-examined at length on the basis of Mr McGuinness’ notes and disputed that she had given such an unequivocal picture of constant and unrelieved pain. Mr McGuinness was not himself examined or cross-examined about the accuracy of his notes.
23. The American expert, Dr Reich, also explained the comparatively active and unhindered behaviour of the plaintiff as shown on the DVD on the basis that her symptoms would naturally differ from time to time: she would have good days and bad days.
24. Mr O'Sullivan, called for the defendant, was also strongly sceptical about the genuineness of many of the plaintiff's symptoms. He used certain tests to assess them. One of these, called "minimal axial compression," involved placing his hand on her head and gently pressing down. This should, he said, cause no symptoms whatsoever but she, in fact, gave the impression of being about to collapse. Another test, superficial palpation or touching of the skin, should not cause any spinal pain but she said that it did cause her pain. Moreover, on testing, her straight leg raising was zero, which is not possible. These indicated that there was present what Mr O'Sullivan called "illness behaviour" and there was a "large psychological component to the symptoms." He, like Mr McGuinness, said that there was no evidence of nerve compression. The plaintiff's symptoms were inconsistent with spinal cord pathology. The plaintiff had a multitude of symptoms but only some of them, the witness thought, could be explained by a soft tissue injury to her spine. Others were difficult to explain. In particular, he could find no organic basis to explain her left sided limp, i.e., her gait. An MRI scan of the lumbar spine showed no significant abnormality apart from ageing change. He believed that the plaintiff was grossly exaggerating her complaints.
25. Mr O'Sullivan also viewed the DVD and thought that they showed a completely different person from the one he had seen. She seemed to have a normal gait.
26. Pressed as to whether the inconsistency of the plaintiff's complaints was intentional or unintentional, Mr O'Sullivan said he was not clear and that it might be subconscious. He did not think that anyone was clear on that matter. He thought that the plaintiff's symptoms had a major psychological overlay.
27. Mr O'Sullivan, however, accepted that the plaintiff had suffered a soft tissue injury to her cervical spine which had resulted in mid-line neck pain radiating up to the occiput and with referred arm pain going down in both upper limbs. He had not concerned himself with the shoulder injury but he did not dispute it.
28. Counsel for the defendant submitted to the trial judge that the plaintiff's exaggeration of her case had been so gross that her claim was a fraudulent action.
The High Court Judgment
29. The learned trial judge noted that it was not in dispute that the accident had caused the following injuries to the plaintiff:
30. She outlined the various medical treatments undergone by the plaintiff.
She was satisfied that the plaintiff had suffered a specific shoulder injury and had significant pain and symptoms from both the shoulder injury and the neck soft-tissue injury which were intimately related. She was satisfied that the plaintiff had been significantly hampered in her daily life and was unfit to work and accepted that she did attempt to protect her shoulder by carrying her arm close to her chest and that she developed a habit of holding her head in a particular way.
31. She addressed the controversy concerning whether there was nerve entrapment by noting, firstly, the firm view held by Dr Reich that there was nerve entrapment at the neuro foramen at C/7 and C/T1. She also noted that the probability of nerve root compression was strongly disputed by the defendant’s experts, Mr McGuinness and Mr O'Sullivan. The learned judge did not consider it necessary for her to resolve that dispute. The reason she gave was that the plaintiff was not claiming in the proceedings on the basis that she would, as a matter of probability, have neck surgery or surgery to her cervical spine and that the defendants were not making the case that the plaintiff could be improved by any such surgery.
32. It would appear, therefore, that the learned judge left out of the case any question of a claim flowing from an allegation of nerve entrapment or nerve compression.
33. Next, the learned judge dealt with the evidence of the defendants’ experts regarding the plaintiff's exaggeration of her symptoms. Dealing firstly with Mr McGuinness, she thought that he might have been mistaken in his first examination with regard to the reaction of the plaintiff to the injuries she had suffered, in particular regarding the need for surgery to her shoulder. She was also of the view that he was mistaken in relation to those symptoms of which the plaintiff complained by reason of her soft tissue injury to her neck. It seems to me, though it is not absolutely clear, that the learned judge was here referring to the way in which Mr McGuinness had recorded the plaintiff's complaints in his notes. At any rate, this was the basis upon which the learned judge decided largely to discount Mr McGuinness’ as evidence.
34. Next, the learned judge dealt with the evidence of Mr O'Sullivan. She thought that he had taken a definitely different view from Mr McGuinness. She said:
“He considered that the symptoms complained of in that respect [ the neck injury] were genuine symptoms and those included at that time in October 2006 constant pain up into the occiput and pain radiating down both lower limbs, the left being worse than the right, and weakness in the left toe.”
35. At this point, the learned judge said that this was not a dispute which it was relevant for her to resolve, i.e., the cause of the weakness in the left limb. She continued:
“I think Mr O'Sullivan's view would be it is weakness resulting from pain, as distinct from any neurological deficiency, but what I am concerned about are the symptoms which the plaintiff is currently suffering.”
36. She then summarised her findings in relation to the three injuries as follows:
Shoulder injury:
“firstly, in relation to the shoulder, the plaintiff did suffer the injury which I have already outlined which required an operation which took place approximately two and a half years after the accident and it appears to me that for a period, certainly until April 2002, the plaintiff did suffer significant pain and until the time of the operation in February 2002 was very severely impeded in her daily life. The only residual effect of the shoulder injury, I am satisfied is some residual weakness, which I accept, but which is not very significant.”
Neck injury
“However, she then appears to have disimproved in September 2002 and I am satisfied on the plaintiff's own evidence and on the evidence of all the doctors that the plaintiff does continue to suffer from symptoms which include what she describes as "constant pain” from her neck. I don't think by "constant" she means literally every moment of every day, but one which occurs on a very regular basis and that she has restriction of movement in her neck, less in my view, then the defendants doctors were able to ascertain. I say that without any criticism of the defendants’ doctors. I accept their evidence that in a number of respects the plaintiff's symptoms, which she evidenced when she met them, both in 2005 and 2006, were not explicable by her injuries but, nevertheless, I accept that there is some restriction of movement in her neck from observing her and from the evidence which she has given. And Mr O'Sullivan fairly says that some restriction of movement would be consistent with this type of injury. I am also satisfied that she continues to have pain, in particular down her left arm by reason of the injury.”
Lower back
“But I am not satisfied that the medical evidence adduced by the plaintiff supports a finding that, as a matter of probability, all her current complaints in relation to her left hip, leg and knee, and in particular the -- what she describes now is the intermittent limping -- is, as a matter of probability the result of the soft tissue injury.
“and I have reached that conclusion by reason of the absence of any medical evidence adduced on behalf of the plaintiff to support the proposition, and also by reason of Dr Reich’s findings, in particular in April 2005 when he identified that rotation of the hip was causing pain at that stage; and it was never suggested that there was a hip injury caused at the time of the accident.”
37. In the light of those comments on the evidence under the three different headings, the learned judge proceeded to outline the basis upon which she would assess damages in respect of the third heading of injury, i.e., to the lumbar spine:
“And, therefore, insofar as I am assessing damages in respect of the plaintiff's injuries, whilst I have taken into account the fact that she suffered a lower back injury, which I accept continues on an intermittent basis to give her lower back pain, particularly exacerbated by such acts as bending or a long-standing or a lengthy walking and can, from time to time, result in pain down the leg, I have not taken into account, in assessing damages, the full extent of the plaintiff's current complaints in relation to her left leg."
38. The learned judge then dealt with the application which had been made by the defendant pursuant to s. 26 of the Act of 2004. She held that she was not concerned with any allegation of the plaintiff causing other evidence to be given. She was not concerned with what the plaintiff might or might not have said to the defendants’ medical experts. The intention of the Oireachtas had been to deter plaintiffs from pursuing unfounded claims based on false evidence. Applying the presumption of constitutionality, she held that the purpose of the discretion given to the court not to dismiss an action notwithstanding a finding that a plaintiff had given false and misleading evidence was the protection of the constitutional rights guaranteed by Article 40.3 of the Constitution. The onus was on the defendant to establish that the plaintiff had given evidence which was false and misleading and that she knew it to be false and misleading. It was necessary to identify the particular evidence which is said to be false and misleading.
39. She did not consider that the direct evidence given by the plaintiff, which had been given in advance of her seeing the DVD, was “sufficiently at variance with the DVD as to warrant a finding or to take a view that the defendant had discharged the onus of establishing that the evidence” given by the plaintiff was “in general… false and misleading...” She was not prepared to make a finding that the plaintiff’s evidence was false and misleading because, as she put it, she did not “find it to be so.”
40. It is necessary to note precisely the findings and decisions of the learned trial judge in relation to the evidence of Mr McGuinness, in view of the importance the defendant attaches to the matter and, in particular, the criticisms made of the findings of the learned trial judge. Firstly, she addressed a submission made by counsel for the defendant to the effect that the plaintiff had, in cross-examination, confirmed to the High Court in substance what she had said to Mr McGuinness, when examined by him in October 2006. The learned judge, having reread the transcript of her evidence declined to accept counsel’s characterisation of the plaintiff’s evidence. She accepted that counsel had put to the plaintiff in great detail what it was alleged that she had said to Mr McGuinness. The judge was satisfied that, as a matter of fact, the plaintiff had sought to disagree with counsel on a number of material matters regarding what Mr McGuinness was said to have recorded. I have set out a number of these questions and answers in my summary of the cross-examination above.
41. Moreover, the learned judge specifically stated that she was not making any finding as to what the plaintiff had said to Mr McGuinness. The learned judge said that she did not find that the plaintiff had repeated to the court matters which appeared to be at variance with or inconsistent with either her own evidence or her real complaints. Consequently, she said that she could not find that, under that heading, she gave any false or misleading evidence to the court.
42. This part of the High Court decision relates specifically to the evidence which was put to the plaintiff in cross-examination and said to be based on Mr McGuinness’ notes. It should be noted also that, although Mr McGuinness gave evidence of his examination of the plaintiff and of her complaints, he did not, in fact, and was not asked to give evidence of his notes. His notes were not put in evidence in any way.
43. The learned judge did not accept that the plaintiff had given evidence in court which was inconsistent with her real complaints. Nor did the learned judge accept that the defendant had demonstrated by means of the DVD that the plaintiff did not, in particular, have a week left arm. The learned judge recited this evidence in some detail. Having done so, and having referred to the DVD clips which she had seen, the learned judge did not accept that the plaintiff, in giving evidence to the court, was giving evidence of a limp which she did not have. The defendant had not established that she had given false and misleading evidence.
44. To a significant extent the defendant’s contention that the plaintiff gave false and misleading evidence relies on absolute or unqualified statements made or attributed to the plaintiff that her pain was constant, i.e., that she was never without pain. Particular reliance was placed on statements attributed to the plaintiff by Mr McGuinness and recorded in his notes. I will return to that issue. So far as the learned trial judge was concerned, she resolved this type of conflict by finding, as already mentioned, that, when the plaintiff said that she had “constant pain,” she did not mean that she had it “literally every moment of every day” but that its was pain “which occurs on a very regular basis.” The learned trial judge mentioned a very particular instance where the plaintiff had explained in evidence that she was “dependant” and testified that, if she wanted something from a high shelf, she would have to wait for someone else to come and get it for her, adding: “I can’t do anything for myself like carry things.” This arose from the fact that one of the DVD clips showed her moving furniture and carrying things to a motor car. The learned judge noted that the plaintiff, in her direct evidence, had made it clear that she did housework and, indeed, normally did all the housework in her home. The learned judge continued:
“…it’s as a matter of common sense that she can't do that [the housework] without carrying. I don't believe that the plaintiff intended in response to Mr McCullough to say -- to indicate to the Court that she could never carry things and did not carry things. And so it doesn't appear to be that the fact that the video demonstrated her carrying things means that in that respect she was giving evidence which was false or misleading in a particular respect.”
45. In summary, the learned judge declined the defendant’s urgings that she should find that the plaintiff had knowingly given false and misleading evidence. Where there appeared to be conflict between statements made or attributed to the plaintiff and objective medical evidence or her appearances as shown on the DVD, the judge found herself able to reconcile them without any adverse reflections on the plaintiff’s honesty as a witness.
46. However, the learned judge took particular note of the evidence of Mr O’Sullivan that, in the plaintiff's reaction to some of her injuries, there was an element of what he had described as "illness behaviour." She decided that this was well founded and that there was an element of psychological reaction. She did not, on the other hand, fully accept Mr O'Sullivan's view that "all of her symptoms would resolve immediately on the termination of this litigation." She found that, as a matter of probability, the plaintiff would "continue to suffer from pain and stiffness resulting from her soft tissue injury from her neck," and that "her lower back to the limited extent that it results from the accident, may well persist…” She considered that the underlying changes which had existed prior to the accident had been exacerbated or made symptomatic by the trauma of the accident.”
47. For those reasons, the learned trial judge made the award of damages set out above. While no issue arises on the appeal regarding the award in respect of loss of earnings, it is worthy of note that the learned trial judge’s award under this heading was very circumspect. She accepted that she was fully disabled from working as a nurse until after her shoulder operation in 2002 and, indeed, so far as work as a nurse was concerned, probably would never be able to return to it. However, she was satisfied, largely as a result of the evidence of the work she had been doing for her husband’s radio programme, that she was fit for some work. She made a graduated or tapering award, diminishing to 20% in the last year. She made no distinct award in respect of future loss of earnings.
The appeal
48. The fundamental point of the defendant’s appeal is that the plaintiff's claim should have been dismissed by the High Court pursuant to s. 26 of the Civil Liability and Courts Act, 2004. In order to make that case the defendant has to establish that the plaintiff had given evidence which was false or misleading in a material respect and, most crucially, that she knew it to be false or misleading. Counsel for the defendant, in advancing this claim in the High Court, contended that the exaggeration by the plaintiff of her claim had been "so gross that the plaintiff's claim amounts to a fraudulent action."
49. It is obvious that the defendant, upon whom the burden lies, faces a daunting task in making its case on appeal in circumstances where the trial judge, invited expressly to do so, declined to make such a finding and expressly said that she was not satisfied that the plaintiff had knowingly given false or misleading evidence. Faced with this difficulty, the defendant alleges that trial judge erred in her treatment of the evidence, particularly the evidence of Mr O'Sullivan and Mr McGuinness, and, among these, principally the former. In the case of Mr O'Sullivan, counsel for the defendant argued that the learned judge made an error which went to the root of her judgement.
50. I will, in the first instance, address the complaint that the learned judge erred in her treatment of the evidence of Mr O Sullivan. The first criticism of the learned judge is that she misinterpreted the evidence of Mr O'Sullivan "when she believed that he considered the plaintiff's symptoms to be genuine problems…” This relates to a passage in the judgment were the learned judge referred to Mr O Sullivan's view in relation to the plaintiff's symptoms in respect of her neck injury. She said:
“He considered that the symptoms complained of in that respect were genuine symptoms and those included, at the time in October 2006, constant pain up into the occiput and pain radiating down both lower limbs, that the left being worse than the right and weakness in the left them.”
51. The second criticism is that the learned judge, having put a question to Mr O'Sullivan relating to a hypothetical case of genuine symptoms, misinterpreted the answer as meaning that he accepted that all the plaintiff's symptoms were genuine.
52. The defendant submitted that there was no evidence that Mr O'Sullivan accepted that the plaintiff's symptoms were genuine problems. The defendant quoted lengthy passages from the part of his evidence where he undoubtedly expressed extreme scepticism about the genuineness of the plaintiff’s symptoms. I have endeavoured to summarise his evidence above.
53. In my view, the defendant has wrongly concluded from this single extract from the judgment that the judge erroneously attributed to Mr O'Sullivan a view that all the plaintiff's complaints were genuine. It is clear that she did not. The learned judge’s remark about genuine symptoms, when properly read in context, related to the neck injury. In that respect, her conclusion was justified. She had asked Mr O'Sullivan in some detail whether the plaintiff had a soft tissue injury to her cervical spine "which resulted in midline neck pain radiating up to the occiput and then with referred arm pain going down both upper limbs which very often results in a subjective feeling of weakness although there may be no objective feelings…” The witness agreed with this proposition and also agreed that a complaint of stiffness and being unable to turn her neck was consistent with the soft tissue injury.
54. It is true that the learned judge questioned the witness in detail about hypotheses of genuine symptoms. I cannot see, however, any evidence that the learned judge misinterpreted this evidence. Indeed, it is quite clear from a reading of the transcript and of the judgment that she fully appreciated the strength of Mr O'Sullivan's view that the plaintiff’s symptoms were not genuine. When she came to assess damages, she expressly noted his view that there was "in the plaintiff's reaction to some of her injuries in what he describes as "illness behaviour" and that there is some element of psychological reaction." Moreover, she considered this view to be "well-founded." She also noted his view that all of her symptoms "would resolve immediately on the termination of this litigation." Furthermore, in so far as both medical witnesses were concerned she accepted that in a number of respects the plaintiff’s symptoms "which she evidenced when she met with them, both in 2005 and 2006, were not explicable by her injuries." Nonetheless, she accepted that there was "some restriction in her neck."
55. I am satisfied that, apart from some matters of emphasis and detail with which it might be possible to disagree, the learned judge did not err in her in treatment of Mr O'Sullivan's evidence.
56. I find it more difficult to identify the defendant’s complaint regarding the treatment of Mr McGuinness’ evidence. It is claimed that the learned judge was mistaken in saying that she believed that Mr McGuinness had been mistaken in his first examination of the plaintiff as to her then reaction to the injuries she suffered and the particular need for surgery to her shoulder. It appears that in a medical report dated 9th August 2001, Mr McGuinness said that he would "strongly advise in against any surgical intervention in this lady." The defendant’s complaint, on the appeal, is that these remarks related to surgery generally and were not specific to the shoulder.
57. Thus the judge incorrectly discounted the evidence. However, if the remarks were general, they necessarily included reference to the shoulder. Furthermore, it was common case by this stage of the hearing that the plaintiff had, in fact, undergone significant surgery to her shoulder in New York in 2002, which was both appropriate and necessary. Thus, to the extent that Mr McGuinness, in August 2001, was of the opinion that she should have no surgery, it was not unreasonable for the judge to conclude that, in that respect, he was mistaken. In my view, the learned judge was not mistaken in the comment she made. It does not appear this led her, in any event, to discount the entire of the evidence of Mr McGuinness.
58. The other complaint is that the learned judge was incorrect in finding that the plaintiff had not confirmed to the court the substance of what she had said to Mr McGuinness on examination. As I have already explained, the plaintiff was cross-examined at length on the basis of notes made by Mr McGuinness on examination. The cross-examination proceeded on the basis that the plaintiff had made a number of complaints, in an unqualified way, of suffering pain "all the time" or, for example, of never being able to lift things. As already explained, the plaintiff, when giving evidence, did not accept that she had made complaints in those terms to Mr McGuinness. In effect, she said that many of her complaints occurred from time to time or were intermittent. In any event, the notes taken by Mr McGuinness were not, in the event, put in evidence. I believe that the learned judge was entitled to reach the conclusion which she did on the evidence before her.
59. The defendant also complains that the behaviour and demeanour of the plaintiff as shown on a number of occasions in the DVD was sharply at variance with her evidence. This was, indeed, the view of Mr O'Sullivan. However, the learned judge had before her contrary evidence given on commission by Dr Reich in New York. This witness did not agree. Firstly, he said that the evidence was consistent with the plaintiff having, as she had said herself, good days and bad days. Secondly, Dr Reich believed, from his watching of the DVD, that the plaintiff did indeed exhibit significant symptoms of disability. In particular, he said that she appeared not to turn her head but to have to turn her whole body. He also thought that she had a limp on some occasions.
60. In any event, the learned judge had herself the benefit of watching the DVD. She did not find the evidence sufficiently at variance to lead to a conclusion that the plaintiff had given false or misleading evidence. She had the advantage of seeing the plaintiff and of hearing her evidence.
61. Section 26 of the Civil Liability and Courts Act, 2004 provides, so far as material:
(1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that—
(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—
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.
62. For this section to apply, the defendant must discharge the burden of showing that some material evidence has been given which is false or misleading and that the plaintiff knew that it was false or misleading. (see the judgment of Denham C.J. of 2nd December 2011in Ahern v Bus Eireann [2011] IESC 44). Counsel for the defendant correctly accepted that this amounted to an allegation that the claim was fraudulent.
63. In the absence of a finding from the trial judge that the plaintiff, in this case, had knowingly given false or misleading evidence, it is impossible for the defendant to succeed. She was the judge who heard all the witnesses, apart from those who gave evidence on commission, and, especially, heard the plaintiff whose evidence was at issue. This court cannot substitute itself for the trial judge in the assessment of credibility of witnesses.
64. The defendant, of course, accepts that it cannot go behind the findings of the trial judge. Therefore, it is claimed that the trial judge committed errors in her assessment of the evidence of the medical witnesses called on the part of the defendant to such an extent as to go to the heart of the case and to render her conclusions invalid. It was said that the court could itself apply the section or that it could direct a retrial. In my opinion, the defendant has failed to establish that the trial judge committed any error in her assessment of the evidence. She carefully considered the evidence of the two medical witnesses. She accepted it in part and, in other respects, preferred the evidence of the plaintiff.
65. Finally, and even apart from the application under s. 26, the defendant claims that the damages awarded were excessive and were against the evidence and the weight of the evidence both as to pain and suffering to date and as to pain and suffering in the future and as to loss of earnings to date and as to loss of earnings in the future. In the event, at the hearing of the appeal, counsel confined this aspect of the case to the issue of future general damages and future loss of earnings. There was, in fact, no separate heading in the latter respect.
66. It is unnecessary to repeat the account given above of the way in which the learned judge arrived at her assessment of damages. Although the defendant failed in its application under section 26, the evidence of its medical witnesses was not without effect. The learned judge accepted that there was a very significant element of psychological overlay in the claim. She did not regard any continuing symptoms related to the shoulder as being significant. To a lesser extent, she minimised the ongoing complaints regarding the plaintiff's lower back. It was in respect of the neck pain that she continued to suffer to a significant extent. On this point, as noted, she placed some reliance on the evidence of Mr O'Sullivan. However, she accepted that the plaintiff continued to suffer significant pain and disability in her neck. On the evidence, she was entitled to do so. In conclusion, I consider that she was entitled to award the moderate sum of €60,000 in respect of pain and suffering in the future. She made no awarded in respect of loss of earnings and the future. In so far as she included an unquantified element for future loss of earnings in the €60,000, it must have been minimal.
67. I would dismiss the appeal and affirm the order of the High Court.
