Ahern v Bus Éireann

JurisdictionIreland
CourtSupreme Court
JudgeDenham C.J.
Judgment Date02 December 2011
Neutral Citation[2011] IESC 44
Date02 December 2011

[2011] IESC 44

THE SUPREME COURT

Denham C.J.

Murray J.

Hardiman J.

Macken J.

Finnegan J.

[Appeal No: 210/06]
Ahern v Bus Eireann
Between/
Rose Ahern
Plaintiff/Respondent

And

Bus Éireann
Defendant/Appellant

CIVIL LIABILITY & COURTS ACT 2004 S26

CIVIL LIABILITY & COURTS ACT 2004 S26(1)

CIVIL LIABILITY & COURTS ACT 2004 S26(2)

CIVIL LIABILITY & COURTS ACT 2004 S14

HAY v O'GRADY 1992 1 IR 210 1992 ILRM 689 1992/2/502

TORT LAW

Personal injuries

Fraud - False or misleading evidence - Exaggeration - Future care - Psychological sequelae - Affidavit of verification - Application to dismiss proceedings - Test to be applied - Onus of proof - Whether onus of proving applicability of statutory section fell on defendant - Standard of proof - Whether standard of proof for application to dismiss claim for false or misleading evidence was proof on the balance of probabilities - Whether claim for future care false or misleading - Whether claim exaggerated - Whether false or misleading evidence adduced where claim for future care abandoned - Whether evidence was knowingly false or misleading - Whether plaintiff had deliberate intention to mislead - Whether sequelae alleged were subjectively believed by plaintiff - Whether plaintiff was honest witness - Whether Supreme Court could interfere with findings of trial of judge in relation to honesty of plaintiff - Hay v O'Grady [1992] 1 IR 210 followed - Civil Liability and Courts Act 2004 (No 31), s 26(1) & (2) - Appeal dismissed (201/2006 - SC - 2/12/2011) [2011] IESC 44

Ahern v Bus Éireann

Facts The plaintiff had been injured in an accident whilst travelling as a passenger on a bus. The plaintiff was awarded damages. At the conclusion of the plaintiff's case the claim for special damages in respect of future care was withdrawn. The defendant/appellant had sought the dismissal of the plaintiff's claim on the basis of fraud and submitted that claim ought to be dismissed. In this regard it was contended that misleading evidence had been tendered and the claim should be dismissed under section 26 of the Civil Liability and Courts Act, 2004. The High Court had refused to dismiss the claim and had awarded damages to the plaintiff. The defendant appealed to the Supreme Court against the finding of the High Court.

Held by the Supreme Court (Denham CJ delivering judgment) in dismissing the appeal. There were no grounds for the appeal to succeed on the basis of the personal evidence given by the plaintiff. The report of the actuary and of the nurse had not been put into evidence and this removed these matters from section 26 of the Civil Liability and Courts Act, 2004. The plaintiff had been an honest witness and did not knowingly mislead the court.

Reporter: R.F.

1

This is an appeal by Bus Éireann, the defendant/appellant, referred to as "the appellant", from the decision of the High Court (Feeney J.) made on the 16 th May, 2006, at Limerick, insofar as the said order provides that the plaintiff/respondent, referred to as "the respondent", is entitled to recover damages and costs of her action against the appellant.

2

The undisputed facts of the case in the High Court were that on the 13 th November, 2004, the respondent was travelling as a passenger on the appellant's bus near the junction of Hartstonge Street and O'Connell Street in Limerick when the driver was forced to brake heavily to avoid a collision with a car which pulled out in front of the bus.

3

As a consequence, the respondent fell from her seat and injured her face, chest, left thumb and lower left leg.

4

Liability was not in issue in the High Court.

5

However, the nature and extent of the injuries suffered by the respondent as a result of the accident were in contest. In particular, there was a dispute about the respondent's claim that she needed a carer as a result of the accident, which grounded a special damages claim of €177,000.00.

6

The case came on for hearing before the High Court in Limerick on the 8 th, 9 th and 10 th May, 2006. Judgment was delivered on the 16 th May, 2006.

7

At the conclusion of the respondent's case, the claim for special damages for care into the future was withdrawn, after the cross-examination of the respondent.

8

The respondent succeeded in her claim against the appellant in that the High Court assessed damages and awarded general damages of: (a) pain and suffering to date: €25,000; and (b) pain and suffering into the future: €15,000; being a total of €40,000.

9

The High Court also ordered that the respondent receive the costs of the action against the appellant on the basis of a two day hearing, when taxed and ascertained. However, it was ordered that the costs of the actuary's report and the report of Nurse Noreen Roche be refused.

High Court Judgment
10

At the commencement of his judgment, the learned High Court judge pointed out that the defence proceeded on the basis that the conduct of the claim was a fraudulent action within the terms of s. 26 of the Civil Liability and Courts Act, 2004, referred to as "the Act of 2004", and that the claim should be dismissed. The appellant had relied on s. 26 of the Act of 2004 with three factual bases:-

(a) The respondent did not require the assistance of a carer and that there was no consequence of the injuries she received properly giving rise to such a claim;

(b) the respondent had provided false and misleading evidence, averments, information, relating to the psychological consequences of the accident, including her ability to travel alone; and,

(c) the second affidavit of verification sworn by the respondent on the 17 th February, 2006, was false or misleading in a material respect, and known to be false by the respondent.

On this basis the appellants argued in the High Court that pursuant to s. 26 of the Act of 2004, the plaintiff's claim should be dismissed.

Onus of Proof
11

The learned High Court judge held that the onus of proving the applicability of s. 26 of the Act of 2004 rested on the appellant.

The Respondent
12

The learned High Court judge described the respondent. He stated that at the time of the accident she was a 78 year old widow, determinedly independent, and in receipt of considerable family support and assistance, particularly from a number of daughters. She had a history of suffering from stress and had required medication; the stress was controlled by drugs. There had been a history of mild elevated blood pressure but not sufficient to require medical intervention, and that such a condition was not unexpected at her age. She also had extensive pre-existing osteoarthritis. The learned High Court judge held:-

"It was accepted that due to the history of stress that the [respondent] was a somewhat fragile candidate for an accident even given her age and pre-existing osteoarthritis."

Physical Injuries and Sequelae
13

The High Court held that the physical injuries and their sequelae lasted a number of months. The learned High Court judge held:-

"It is difficult with a person, such as the [respondent], to disentangle continuing complaints concerning her knee, mobility, and endurance, from her pre-existing medical history and her increasing age. This problem is not as a result of any invention of continuing physical problems, but rather as a consequence of age and osteoarthritis."

The learned High Court judge pointed out that the respondent had noticed a deterioration in her capacity for total physical independence since the accident. He held:-

"If the [respondent] was failing to give a detached medical assessment of which continuing symptom or symptoms are due to the accident, and could objectively be said to have overstated the connection, it can be no more than an understandable exaggeration of the [respondent's] subjective belief."

Stress
14

The High Court found that the position with regard to stress following the accident was also complicated by a pre-accident history of stress. Reference was made to the evidence of Dr. Malone that the accident damaged the respondent's confidence and that the anxiety suffered by the respondent had an acute period in November/December 2005 which caused panic attacks at night and required additional medication. The High Court held:-

"The probability is that this increased anxiety was linked to the accident and I accept the evidence to that effect."

The High Court was not persuaded that the diagnosis of a depressive disorder had been established. However, the High Court did accept that the respondent had always been a worrier and somewhat fragile for this type of accident. Thus the presence of significant anxiety from the accident was accepted.

Claim for Care
15

The High Court held:-

"The main area relied on to support a finding under s. 26 by the [appellant] relates to a claim for care. Absent the [respondent's] daughters, it might be the case that the [respondent] has reached the age and a health condition where some help, or care, or minding, might be required. On the physical side the Court is satisfied that the [respondent's] deterioration is more likely to be linked to her age and her pre-accident osteoarthritis, but the Court does not, and should not, draw any adverse findings in forming that view. Such linkage is, in this Court's view, within category B in Ms. Justice Denham's categorisation, and the...

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