O'Connor -v- Bus Atha Cliath/Dublin Bus, [2003] IESC 66 (2003)

Docket Number:144/03
Party Name:O'Connor, Bus Atha Cliath/Dublin Bus
Judge:Denham J. / Hardiman J. / Murray J.
 
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JUDGMENT BY: Denham J.

THE SUPREME COURTNO. 144/2003Denham J.

Murray J.

Hardiman J.

BETWEEN/CONOR O'CONNORPlaintiff/RespondentAND

BUS ÁTHA CLIATH/DUBLIN BUSDefendant/AppellantJudgment delivered on 18th day of December, 2003 by Denham J.

  1. Appeal

    Bus Átha Cliath/Dublin Bus, the defendant/appellant, hereinafter referred to as the defendant, has appealed from the order of the High Court (O'Donovan J.) delivered on 28th March, 2003 whereby Conor O'Connor, the plaintiff/respondent, hereinafter referred to as the plaintiff, was awarded damages of 20,431 (15,000 for general damages and 5,431 for special damages), together with costs on the appropriate Circuit Court scale and the certification of a fee for Senior Counsel.

  2. Claim

    The claim for damages by the plaintiff arises out of a road traffic accident which occurred on 19th November, 1996 on the Malahide Road. The plaintiff claims damages for personal injuries, loss and damage suffered by reason of the negligence and breach of duty of the defendant. The plaintiff was stationary in his car in a line of traffic when a bus, owned by the defendant and driven by a servant or agent of the defendant, collided with the rear of the car of the plaintiff. The plaintiff claims that this caused him personal injuries and severe damage to his car.

  3. Assessment

    Liability for the accident was not denied by the defendant; liability was not an issue. Hence this claim proceeded in the High Court as an assessment only. However, the defendant contested the nature and extent of the injuries of the plaintiff. The defendant also submitted that the plaintiff had deliberately and grossly exaggerated the injuries to the point that the claim was an abuse of process.

  4. High Court Judgment

    The case proceeded in the High Court on 26th and 27th March, 2003. The learned trial judge reserved judgment overnight and delivered judgment on 28th March, 2003. The High Court rejected the submissions of the defendant that the facts of the case, being the exaggeration of his injuries and their sequaelae, were such as to amount to an abuse of process as described in Shelley Morris v. Bus Atha Cliath [2003] 2 I.L.R.M. 12. The learned trial judge held: " …I have no doubt that Mr. O'Connor grossly exaggerated the symptoms which he alleged that he experiences as a result of the injuries which he suffered in the accident which gave rise to this claim. However, I am not persuaded, as Mr. Cooney for the defence has submitted, that he told me deliberate lies. While I do not believe that he was anything like as bad as he purports to have been since his accident, I am convinced that he believes everything that he has told me. In other words, while I think that he is misguided and a lot of his problems, particularly his alleged ongoing problems, are a figment of his imagination, I think that basically he is an honest person. I am persuaded of this for four reasons: Firstly, that he never stopped working since his accident. Secondly, that he never denied engaging in any of the activities that Mr. Price filmed him doing. Thirdly, that he conceded not only improvement over the years, but also that he had remissions which lasted for months. Fourthly, that Mr. McNamee thought he was a genuine person.

    In my view, if Mr. O'Connor was deliberately trying to pull the wool over the court's eye or endeavouring to attract compensation to which he was not entitled, he would not have continued to work and would not have made the concessions which he made in evidence.

    Accordingly I do not think that the principle laid down by the Supreme Court in Shelley Morris v. Bus Atha Cliath, an unreported decision which was delivered on the 11th December, last year, to which I was referred, whereby a court is entitled to dismiss a claim in which a plaintiff is guilty of deliberate exaggeration to the extent that his or her creditability is so devalued that it cannot be relied upon, applies in this case."

    The learned High Court judge held that the plaintiff had suffered a moderate injury as a consequence of the negligence of the defendant. He stated:"As I say, I think that the plaintiff has established on the balance of probability that he did suffer an injury on the 19th November, 1996 as a result of the defendant's negligence. However, notwithstanding what the plaintiff himself has said, I do not think that it was a very … I think it was a very moderate one, and that in the light of Mr. McNamee's evidence, I think that Mr. O'Connor has largely recovered and had largely recovered by the time that Mr. McNamee saw him in November of 1999. And that such symptoms as he then had, whatever he himself may think, I do not consider that they were very significant, and abated in a relatively short time after that.

    … However, I am not persuaded that he suffered any reduction in income as a result of his injuries. And in those circumstances I will award damages as follows:

    I will award general damages to date in the sum of 15,000. I do not think that Mr. O'Connor is suffering any ongoing consequences of his accident, and accordingly, I am not awarding any general damages for the future.

    As it was agreed, I am awarding him a sum of 4,790, which is the euro equivalent of £3,772.32 which he paid to repair his car. I am awarding 595, which is the euro equivalent of £469 he paid in respect of physiotherapy. And I am awarding him 46, which is the euro equivalent of £36.30 which he paid to his general practitioner. Total 20,431. There will be a judgment accordingly."

  5. Grounds of Appeal

    The defendant has appealed on the following grounds:(a) The finding by the learned trial judge that the plaintiff was an honest though misguided witness was contrary to the evidence and the weight of the evidence.

    (b) The learned trial judge failed to give any or any sufficient weight to the contradictions, exaggerations and falsehoods perpetrated by the plaintiff both in his pleadings and in his evidence.

    (c) The learned trial judge erred in law and in fact in failing to hold that the plaintiff so abused the process of the court as to warrant dismissal of his claim.

    (d) The learned trial judge erred in law and in fact in not exercising discretion in favour of the defendant as provided for by s. 17 of the Courts Act, 1981, as substituted by s. 14 of the Courts Act, 1991.6. Submissions

    Counsel on behalf of the defendant, Mr. Brendan Mulhall, B.L., submitted that at issue was whether the learned trial judge was justified by all he had heard and seen during the course of the trial in reaching the conclusion that the plaintiff was an honest, though misguided, witness whose exaggerations were innocent rather than false and fraudulent. Counsel submitted that such a conclusion was not supported by the evidence. Of the four reasons cited by the learned trial judge as to why he thought that basically the plaintiff was an honest person, counsel on behalf of the defendant submitted as follows:

    (a) That he never stopped working since the accident.

    Counsel submitted that this is hardly a convincing reason given the extent of the plaintiff's initial injuries as evidenced by the medical attention which he sought and received. He was self-employed and his consultant thought he would be fully fit to resume all forms of work six months after the accident.

    (b) That he had never denied engaging in any activities which Mr. Price filmed him doing.

    Counsel submitted that the plaintiff admitted to these only when he knew that there was incontrovertible evidence of his ability to do this form of labouring work. Until that point in the course of the trial, he had effectively sought to deny this degree of physical capability.

    (c) He conceded not only improvement over the years but also that he had had remissions which lasted for months.

    It was submitted that the plaintiff's evidence was at best ambiguous in this regard and deliberately confusing. On another view, it was submitted that he purported deliberately to leave the impression with the trial judge that his physical capacity to carry out his work was seriously limited and that it was for this reason that he was obliged to change occupations. This impression, it was submitted, was unmistakably false.

    (d) That Mr. McNamee thought he was a genuine person.

    Counsel on behalf of the defendant submitted that this was an erroneous interpretation of Mr. McNamee's evidence. It was submitted that Mr. McNamee's evidence does not offer support for the view arrived at by the learned trial judge that the plaintiff was basically an honest person.

    Counsel on behalf of the plaintiff relied on the findings of the learned High Court judge. He submitted that the evidence of the plaintiff was corroborated by Mr. McNamee, that up to a time in 1999 the plaintiff was suffering from the effects of the injuries of the collision. He accepted that there had been a finding that the plaintiff had exaggerated - he pointed out that that finding had not been appealed. He submitted that the plaintiff was not a deliberate liar, but that he had exaggerated his evidence. He submitted that exaggeration may be either deliberate or innocent. He submitted that in this case the exaggeration was innocent, the learned trial judge having found the plaintiff to be basically an honest person.

  6. Decision

    In effect the defendant raised two issues on this appeal. First, the defendant, in his grounds of appeal (a) to (c), has essentially raised the issue of the honesty of the plaintiff. This matter requires consideration of the credibility and reliability of the plaintiff. From this determination flows the decision on the issue of an abuse of court process. Secondly, the defendant made submissions on costs. The court was referred to Vesey v. Bus Eireann, [2001] 4 I.R. 192 and Shelley Morris v. Bus Atha Cliath, [2003] 1 I.R. 232.

  7. i. Role of the Appellate Court

    The first issue, which arises from the grounds of appeal (a) to (c), the credibility and reliability of the plaintiff...

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