O'Connell v Martin; Ali v Martin

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Twomey
Judgment Date10 May 2019
Neutral Citation[2019] IEHC 571
Date10 May 2019
Docket Number[2016 No. 574 C.A.]

[2019] IEHC 571

THE HIGH COURT

CIRCUIT APPEAL

Twomey J.

[2016 No. 574 C.A.]

[2016 No. 956 C.A.]

BETWEEN
ROSALEEN O'CONNELL
PLAINTIFF
AND
RUTH MARTIN
DEFENDANT
BETWEEN
ASHRAF ALI
PLAINTIFF
AND
RUTH MARTIN
DEFENDANT

Personal injuries – Fraudulent claim – Misleading evidence – Plaintiffs seeking damages – Whether the plaintiffs’ personal injuries claims were fraudulent and exaggerated/misleading

Facts: The first plaintiff, Ms O'Connell, claimed to have suffered injury to her back on the 10th February, 2015 when she was a back-seat passenger in a car driven by the second plaintiff, Mr Ali. It was accepted that the defendant, Dr Martin, was driving her car and came into contact with the back of Mr Ali's car, when Mr Ali's car was stationary at the junction of the South Circular Road and the Ballinacurra Road in Limerick city. Dr Martin gave evidence that at the time of the incident she was ‘crawling along’ the road at approximately 20 km per hour, as it was school closing time and traffic was very heavy on that stretch of road. She gave evidence that Mr Ali braked suddenly when approaching the junction and that she then came into contact with Mr Ali’s car causing a minor dent to his rear bumper. She gave evidence that it was the most negligible of contact similar to the contact that might result if one was parking a car and tipped a stationary car in a car park. This evidence was supported by the fact that Dr Martin gave evidence that there was absolutely no damage done to her own car. Dr Martin's evidence was very clear that after the accident she went around to the front of Mr Ali's car to take his insurance details and observed that the only other occupants of the car were Mr Ali's wife and his two young children. She was very clear that Ms O'Connell was not in the car at the time of the accident. Ms O’Connell, for her part, claimed that she was in the back-seat of the car and that she suffered back injuries for which she sought damages. Dr Martin’s evidence was supported by the fact that Mr Ali offered to accept only €400 for the damage to his car (which offer was, in any case, not even accepted by Dr Martin). Mr Ali claimed that he suffered neck and back injuries in the contact between his car and Dr Martin's car on 10th February, 2015. As regards Mr Ali’s claim, there was no dispute between the parties that he was in the car at the time of the accident. However, the High Court accepted the evidence of Dr Martin regarding the accident, namely that the contact between the two cars was so minor that it did not lead to any damage to her car and led to only a minor dent to the rear bumper of Mr Ali’s car. As regards Mr Ali’s evidence, the Court did not find him to be a credible witness as he was evasive and suggested he did not understand questioning when it did not support his claim. In particular, while it was not clear what evidence Mr Ali gave in the Circuit Court, in the High Court he gave evidence that Ms O'Connell was in the car at the time of the accident, while the High Court, and the Circuit Court (since it too dismissed Ms O'Connell's claim), had preferred the evidence of Dr Martin in this regard, namely that Ms O'Connell was not in the car.

Held by Twomey J that the case of Ms O’Connell was being dismissed as a fraudulent claim, since the Court found Dr Martin to be a more credible witness than Ms O’Connell and therefore preferred her evidence that Ms O’Connell was not in the car on the date of the minor impact between Mr Ali’s car and Dr Martin’s car. Twomey J held that the Court’s conclusion, regarding Ms O’Connell’s credibility and that she was not in the car, was supported by, inter alia, the fact that there was no medical reason for Ms O’Connell to see a back specialist and a psychiatrist, since at the relevant time she was referred by a solicitor who had no medical expertise and so the only reason for this referral was a legal reason, namely to substantiate her claim for damages.

Twomey J held that Mr Ali’s claim was being dismissed because of his misleading evidence that Ms O’Connell was in the car (in light of Dr Martin’s more credible evidence) as well as the Court’s conclusion that he made an exaggerated claim for damages, which conclusion was supported, in part, by the fact that, like Ms O’Connell, there was no medical reason for him to be referred by a person with no medical expertise to see a back specialist, but simply a legal reason, namely to substantiate his claim for damages.

Claims dismissed.

JUDGMENT of Mr. Justice Twomey delivered on the 10th day of May, 2019
SUMMARY–one fraudulent & one exaggerated personal injury claim dismissed
1

This is a case in which one fraudulent personal injuries claim by the first plaintiff, Ms. O'Connell and one exaggerated/misleading personal injuries claim by the second plaintiff, Mr. Ali were dismissed by this Court. Both claims arose out of minimal impact between two cars which resulted in a minor dent to the bumper of the Mr Ali's car (with an estimate, obtained by Mr. Ali, of €400 to repair) and no damage to the defendant's (‘Dr. Martin’) car.

€3,000 or €17,500 for whiplash/soft tissue injuries in the Circuit Court?

2

This judgment considers the relevance of the fact that the plaintiffs were referred to a consultant, by a solicitor, who has no medical expertise, for their alleged injuries and also considers the principles applicable to the assessment of damages for personal injuries. The application of these principles to Mr. Ali's whiplash injury in this case led this Court to conclude that €3,000, rather than the €17,500 awarded by the Circuit Court, should have been awarded to the plaintiff, if an award for damages were to be made.

3

A key factor undermining the claims made by both plaintiffs is that, contrary to what this Court would regard as the usual practice, of a GP referring a patient to a consultant, it was a solicitor, with no medical expertise, who referred both Ms. O'Connell and Mr. Ali to a consultant, for their alleged injuries in order to progress these claims. The fact that a solicitor, rather than someone with medical expertise, made these referrals led this Court to the unavoidable conclusion that there was no medical need for the referral of the plaintiffs to the consultant, but a legal need to support a claim for damages. This conclusion that there was no medical need for the referral to a consultant supported Dr. Martin's claim that one plaintiff (Ms. O'Connell), was not even in the car at the time of the accident, and supported Dr. Martin's claim that the neck and back injuries suffered by the other plaintiff (Mr. Ali) were not as extensive as he claimed.

4

The very fact that there was a referral by a solicitor (who has no medical expertise) of two clients to a consultant specialising in back injuries is curious per se. However, it is made even more curious and concerning by the fact that when the plaintiffs were assessed by their respective GPs after the alleged “car accident”, both plaintiffs did not have any medical issues justifying a referral to a consultant specialising in back injuries. In Ms. O'Connell's case, she visited her GP after the car accident for a sinus issue only, yet within days, somebody without medical expertise, i.e. her solicitor, referred her to a neck/back consultant. Similarly, Mr. Ali attended his GP shortly after the accident and made no mention of any neck or back problem, yet the very next day, the same solicitor (who was acting for both plaintiffs) referred him to that same neck/back consultant.

5

Since one can conclude that the Medical Reports from that consultant (Dr. Henry) did not arise from any medical need on behalf of the plaintiffs, but rather from a legal need to support a claim for damages, those Medical Reports have to be treated with considerable scepticism, to say the least. This scepticism is increased where the contents of those Medical Reports are based on the subjective evidence of the plaintiffs (e.g. the statement in the Medical Report that Ms. O” Connell had experienced a “ big jolt” in the car and “is now sore on most days”).

6

As noted hereunder, it makes economic sense for defendants to settle unmeritorious claims such as these brought by impecunious plaintiffs, since the defendants are unlikely to recover the very significant costs of fighting these cases in the Circuit Court and on appeal, in the High Court. However, in this case and presumably at significant cost, the defendant did not settle this case in the Circuit Court, or on appeal by Ms. O'Connell to the High Court. Accordingly, this case highlights the manner in which Ms. O'Connell, who this Court has found was not even in the car which was involved in the alleged “road accident”, managed to use the services of:

• a solicitor (who referred her to a consultant for no good medical reason);

• a barrister, who sought punitive damages from Dr. Martin for having the temerity to suggest in the High Court that Ms. O'Connell might be lying when she said she was in the car (even though Ms. O'Connell's case had already been thrown out by the Circuit Court),

• a consultant physician (who saw Ms. O'Connell on a referral from the solicitor, and thus for no good medical reason), and who then saw her on three occasions and prepared five separate Medical Reports that stated, inter alia, that she had received a “ big jolt” from the “ car accident”, and

• a consultant psychiatrist, (again, on a referral from a solicitor) who was asked to opine as to whether Ms. O'Connell showed evidence of a psychiatric disorder arising from the “car accident” (which “ car accident”, even if she had been in the car, was the equivalent of a tip to a stationary car from another car while parking).

In this way, Ms. O'Connell used the professional expertise of four different professionals, two lawyers and two doctors, in order to create what had all the appearance of a...

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3 cases
  • Daniel Harty v Mary Nestor
    • Ireland
    • High Court
    • 17 February 2022
    ...see Fogarty v Cox [2017] IECA 309 (para. 43); Dardis v Poplovka (No 1) [2017] IEHC 149 (paras. 156 & 157) and O'Connell v Martin [2019] IEHC 571 (paras. 41 et 25 The disadvantages of proceeding with the evidence of a reporting doctor, rather than a treating doctor, is evident from the prese......
  • Cahill v Forristal; O'Riordan v Forristal
    • Ireland
    • High Court
    • 15 December 2022
    ...see Fogarty v. Cox [2017] IECA 309 (para. 43); Dardis v Poplovka (No 1) [2017] IEHC 149 (paras. 156 & 157) and O'Connell v Martin [2019] IEHC 571 (paras. 41 et seq). The disadvantages of proceeding with the evidence of a reporting doctor, rather than a treating doctor, is evident from the p......
  • Egan v Castlerea Co-Operative Livestock Mart Ltd
    • Ireland
    • High Court
    • 17 January 2023
    ...108, • Hardy v MIBI [2021] IEHC 614; • Hennessy v Bible [2021] IEHC 614; • Cahill v. Forristal [2022] IEHC 705, • O'Connell v. Martin [2019] IEHC 571 • Ali v. Martin [2019] IEHC 571 • Fogarty v. Cox [2017] IECA 309. 28 . In Mr. Egan's case there was no evidence before the Court to suggest t......
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