Carmello v Casey and Casey

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 26 October 2007
• Neutral Citation: [2007] IEHC 362
• Docket Number: [2004 No. 987P
• Court: High Court
• Date: 26 October 2007

Carmello v Casey

Between:

Damien Carmello

Plaintiff

And

Terence Casey and Geraldine Casey

Defendants

[2007] IEHC 362

Record Number: No. 987P/2004

THE HIGH COURT

Abstract:

Practice and procedure - Personal injuries -Dismissal of action - Whether plaintiff knowingly adducing evidence that is false and misleading in material respect - Whether dismissal of personal injuries action would result in injustice being done - Whether plaintiff's claim should be dismissed - Civil Liability and Courts Act 2004, section 26

the plaintiff brought an action seeking damages for injuries arising from a road traffic accident. Liability was not in issue and the hearing proceeded as an assessment of damages only. The defendants asserted that the plaintiff had deliberately given false and misleading evidence in order to exaggerate his claim and they urged the court to exercise its power under s. 26 of the Civil Liability and Courts Act 2004 to dismiss the entirety of the plaintiff's case as a result. They alleged that the plaintiff knowingly attempted to attribute injuries received in a subsequent accident to the road traffic accident in issue.

Held by Peart J in dismissing the plaintiff's claim that, on the balance of probability, the plaintiff had been deliberately untruthful in his evidence in a material respect in an effort to obtain an award of damages to which he was not entitled. He deliberately set out to attribute a later injury to his face to the accident for which he was seeking damages. In all the circumstances no injustice would result from a dismissal of the action.

Reporter: P.C.

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

1 Mr Justice Michael Peart delivered on the 26th day of October 2007 :

2 On the 25th October 2002 the plaintiff was a passenger in a car being driven by the first named defendant and owned by the second named defendant. The first named defendant appears to have lost control of the vehicle at a bend, hit a ditch and rolled over, causing injury to the plaintiff. The plaintiff has stated that he was wearing his seatbelt and there is no evidence to the contrary. Liability is not in issue in this case. It is an assessment of damages only.

3 However, the plaintiff's case has been complicated by the fact that the defendants' insurers are alleging that the plaintiff both in his evidence, in the manner in which he has instructed his solicitors, and by swearing an affidavit verifying particulars of his injuries, has deliberately given false and misleading evidence in order to exaggerate his claim, and has misled the court, and they urge this Court to exercise its power under s. 26 of the Civil Liability and Courts Act, 2004 to dismiss the entire of the plaintiff's case as a result.

4 The alleged exaggeration is in respect of a numbness on the left side of the plaintiff's face which he says is a result of the injuries sustained in the accident on the 25th October 2002 which is the subject of the within proceedings. The defendants contend that this numbness was the result of another incident in May 2003 about which, unknown to the plaintiff, they have learned about, and in which a branch of a tree stuck the plaintiff on the left side of his face, and for which he received treatment in Limerick Hospital, but which the plaintiff failed to disclose in his Replies to Particulars, although other accidents in the past were disclosed.

5 The Plenary Summons was issued in this case on the 27th January 2004. It was served on the defendants on the 23rd June 2004, and an Appearance was entered some eighteen months later on the 13th December 2005 which called for a Statement of Claim to be delivered. Shortly afterwards on the 4th January 2006 such a Statement of Claim was delivered, and this document set forth the details of the plaintiff's injuries in the following way:

"The plaintiff sustained injuries to his nose upper back and chest. He attended at Limerick Regional Hospital after the accident and was kept on the observation ward for a number of hours and thereafter was discharged. The plaintiff broke his nose as a result of the accident and has difficulty with nasal breathing. In relation to his cervical spine, he was tender over same and flexion was painful. He was tender over his sternum on palpitation. He was tender at the junction of the nasal bone and nasal cartilage, and he had an inflamed nasal mucosa. He was treated with analgesics and painkillers."

6 The Statement of Claim indicated that the plaintiff was under the care of Dr K.P. Manning, a Consultant Ear Nose and Throat Surgeon regarding his nasal difficulties, and that the plaintiff's injuries were of a continuing nature and the plaintiff reserved the right to furnish further particulars in due course.

7 Those details appear to have been gleaned for the purposes of the Statement of Claim from a medical report which the plaintiff's solicitors received from the plaintiff's general practitioner, Dr T.P.Casey which is dated 9th January 2003, since the wording of the particulars in the Statement of Claim mirror to a great extent what Dr Casey has stated in his report. That report states that the plaintiff presented to Dr Casey for the purpose of that report on the 6th January 2003, which is just over two months post-accident.

8 Dr Casey states in his report that "he [the plaintiff] informed me that he broke his nose as a result of this accident and he was having difficulty breathing". This report of course pre-dates the alleged incident involving the branch of a tree on the 1st May 2003 to which I have already made reference, and to which I shall refer again when detailing the plaintiff's evidence in relation to that incident when he was cross-examined about it by Liam Gaynor SC for the defendants. But it is at least noteworthy at this point that Dr Casey makes no comment about any complaint by the plaintiff of facial numbness.

9 By the time the Statement of Claim was delivered on the 4th January 2006, the plaintiff's solicitors had also received a report dated 17th September 2003 from Mr Manning, the Ear Nose and Throat Surgeon already referred to. That report was prepared just over three months after the alleged incident involving the branch of the tree, and in it, Mr Manning gives the history as given to him by the plaintiff. That history as given to Mr Manning by the plaintiff states as follows:

"Mr Carmello gives a history of having been involved in a car crash on 25.10.2002. While going around a bend travelling at approximately 70 or 80 mph the car sustained a blow-out. He was the front seat passenger in the car. He hit his nose on the dashboard. At the time he was wearing a seat belt. He was taken to the Regional Hospital, Limerick. He had bleeding from his nose. He was referred to my outpatient clinic. He says that he was told that his nose was straight and no operation was necessary."

10 Under the heading "Complaints", Mr Manning states as follows:

"Mr Carmello is now complaining of a blocked nose on the left side. He is complaining of pins and needles and a numb feeling on the left side of his nose and cheek. The numb feeling extends from the bridge of his nose under his eye to the midline of his upper lip. He also complained of having double vision for a few weeks following the accident."

11 Under the heading "Examination", Mr Manning states:

"Examination shows no abnormality of his external nose. The nose appears to be straight. There is some deviation of his nasal septum both to the left and the right. He had no feeling for touch on the left side of his face over the distribution of the left infra-orbital nerve."

12 An x-ray of the nasal bones taken at the time of the accident showed no fracture to be present. A CT scan of his sinuses showed mucosal swelling in the maxillary antrum. No bony abnormality was seen. There was no evidence of a fracture." (my emphasis)

13 Under the heading "Opinion", Mr Manning states:

"Mr Carmello is complaining of nasal obstruction on the left side of his nose. He has mild deviation of his nasal septum. This could be contributing to his symptoms of obstruction. It is possible that the septum was damaged at the time of the accident from hitting his nose off the dashboard of the car.

The numbness on his left cheek would suggest damage to the infra-orbital nerve. In general damage to the infra-orbital nerve would be a result of a fracture of the rim of the orbit or the floor of the orbit. There was no evidence of this on the CT scan as reported by Dr Sean Darby.

In the absence of a fracture it is possible that the nerve was damaged from a direct injury as it comes out from the bone of the inferior rim of the orbit onto the cheek".

14 Finally under the heading "Disability", He states:

"This numb sensation which Mr Carmello has would be very unpleasant. In general it would tend to become less noticeable over time. As it has been present for more than twelve months it is not likely to improve and is not likely to recover".

15 There are some further comments about the nasal obstruction which I need not refer to in any detail.

16 Of importance to note for the moment is that Mr Manning states that an x-ray taken at the time of the accident showed no fracture of the nose. Neither did the CT scan taken at the time show any bony abnormality, yet in January 2003 the plaintiff had told Dr Casey that he had broken his nose in the accident. Secondly it is worth stating again that before the Statement of Claim was delivered, the plaintiff's solicitors had in their possession this report from Mr Manning, and yet it refers to a broken nose, and there is no mention therein of the numbness to the left...