O'Connor v Bus Atha Cliath

JurisdictionIreland
CourtSupreme Court
JudgeMurray, J.,Denham J.
Judgment Date18 December 2003
Neutral Citation[2003] IESC 66
Docket Number[S.C. No. 144 of 2003]
Date18 December 2003
O'CONNOR v. BUS ATHA CLIATH (DUBLIN BUS)
BETWEEN/
CONOR O'CONNOR
Plaintiff/Respondent

AND

BUS ÁTHA CLIATH/DUBLIN BUS
Defendant/Appellant

[2003] IESC 66

Denham J.

Murray J.

Hardiman J.

NO. 144/2003

THE SUPREME COURT

Synopsis:

- [2003] 4 IR 459

Facts: The plaintiff was involved in a road traffic accident on 18 November, 1996 when a bus collided with the rear end of his stationary vehicle. The plaintiff sustained injuries to the neck and back with resultant pain and stiffness and restriction of movement as a result of this incident and he alleged that this affected his work as a self employed motor engineer. In the year 2000 the plaintiff took up alternative employment in what he described as a "much less physical job." The plaintiff effectively claimed damages for the injuries he sustained as a result of this accident, for loss of earnings and future loss of earnings. Computation of the loss of earnings and future loss of earnings was delayed until the plaintiff's accountant prepared a report. This report was furnished in March, 2001 and stated that the plaintiff's business had ceased to trade from 30th August, 2000 due to financial difficulties. However, in June, 2002 the plaintiff's solicitor furnished a letter indicating that the plaintiff's injuries affected his occupation as a motor engineer. Furthermore the plaintiff's solicitors intimated in a letter dated 13th July, 2001 that the plaintiff's claim for loss of earnings was continuing. However during the course of the trial counsel for the plaintiff informed the court that no specific sum was being claimed for the loss of earnings and that it was to be included as part of the general damages. At this stage the plaintiff also abandoned his claim for future loss of earnings. Further inconsistencies in the plaintiff's evidence emerged in cross examination. Specifically, it emerged that the plaintiff had assisted in the building of his house, which involved him lifting heavy materials and mixing cement. The defendants in fact had video evidence to support this, although the plaintiff conceded that he had engaged in these activities prior to being informed of the existence of the video. The medical evidence furnished at the trial did not contain any recommendation that the plaintiff should change jobs and in fact fails to support the plaintiff's continuing physical complaints.

Mr Justice O'Donovan in the High Court concluded that soft tissue injuries were consistent with the sort of accident in which the plaintiff was involved but that it was probable that these injuries were of a very moderate nature. The learned judge held that the plaintiff's complaints of ongoing symptoms were inconsistent with the medical evidence, the accountant's evidence that the plaintiff's business had ceased to trade due to financial difficulties and also with the activity illustrated by the video tape. Consequently, O'Donovan J held that the plaintiff had grossly exaggerated his injuries. However the learned judge was not convinced that the plaintiff had told deliberate lies and found him to be a misguided but honest individual. Accordingly the learned trial judge awarded the plaintiff Eur15,000 for general damages and Eur5,431.00 in respect of special damages. The plaintiff was also awarded the costs of the proceedings on the appropriate Circuit Court scale.

The defendant has appealed against the decision of the High Court on two main grounds. Firstly, the defendant submits that the plaintiff's action should be dismissed on the basis that the gross exaggeration of the claim amounts to an abuse of process. Secondly, the defendants argue that the High Court should have exercised its discretion under section 17, subsection 5 of the Courts Act, 1981, as inserted by Section 14 of the Courts Act, 1991 to order the plaintiff to pay to the defendants the difference between defending this action in the Circuit Court and defending it in the High Court. In relation to the first aspect of the appeal the defendant relied on the decisions of the Supreme Court in Vesey v Bus Eireann (unreported 13th November, 2001) and Shelly-Morris v Bus Atha Cliath (unreported 11th December, 2002).

Held by the Supreme Court (Denham, Murray, Hardiman JJ) in dismissing the appeal and reaffirming the order of the High Court concerning the award of damages and making an order pursuant to Section 17(5) of the Courts Act, 1981 for the payment by the plaintiff to the defendant of a sum equal to the difference between defending the proceedings in the Circuit Court and defending them in the High Court (Denham J. dissenting): 1. That a significant number of personal injury claims feature injuries which are not, or not wholly, capable of being proved or negated by normal processes of clinical medicine. In those cases, the credibility of the plaintiff is central and often video surveillance evidence is resorted to in order to check the plaintiff's credibility.

2. That bearing in mind the fact that the learned trial judge found that the plaintiff was not subjectively dishonest, the authorities cited by the defendants are not relevant, since they related to cases of manifest dishonesty in the prosecution of claims for damages for personal injuries.

3. That the finding of the trial judge based on his observations of the plaintiff and evidence given by him, that the plaintiff was honest but misguided in his exaggerated account of the effect of his injury is not a finding which, in the absence of something coercive, this court can disregard.

Hay v O'Grady [1992] 1 IR 210 followed.

4. That a claim for loss of earnings should, unless there is something which renders this course impossible, be pleaded as special damage and the distinction between special and general damage should be maintained.

5. That section 17(5) of the Courts Act, 1981 confers a discretion on the court with regard to the issue of costs when a case that could be taken in a lower court is pursued in a higher court.

6. That it is not a precondition to making an order pursuant to Section 17(5) of the Courts Act, 1981 to find that a claim or some aspect of it was fraudulent.

7. That unless the court, by the exercise of this discretion, imposes a price on those who thoughtlessly, or in pursuit of tactical advantage, embark on litigation which is elaborate and expensive when it could have been simpler and cheaper, the intention of the legislature will be frustrated.

8. That the trial judge exercised this discretion on an improper basis and accordingly this court should substitute its own exercise of the discretion. The issue most relevant to the exercise of the discretion is that any realistic assessment of the plaintiff's case, on the facts as known to him at the time the Statement of Claim was drafted, would have led inexorably to the conclusion that this was a case well within the Circuit Court jurisdiction.

9.That the finding by the trial judge that the plaintiff was not dishonest and had a genuine subjective belief in the grossly exaggerated account which he gave of his symptoms precludes the defendant from pursuing its claim for relief based on the proposition that these proceedings were an abuse of process.

Reporter: L O'S

Citations:

SHELLEY-MORRIS V BUS ATHA CLIATH (DUBLIN BUS) 2003 1 IR 263 2003 2 ILRM 12

COURTS ACT 1981 S17

COURTS ACT 1991 S14

VESEY V BUS EIREANN 2001 4 IR 192

SHELLEY-MORRIS V BUS ATHA CLIATH (DUBLIN BUS) 2003 1 IR 232

HAY V O'GRADY 1992 IR 210

NORTHERN BANK FINANCE CO LTD V CHARLTON 1979 IR 149

MOORE V FULLERTON 1991 ILRM 29

COLEMAN V CLARKE 1991 ILRM 841

RSC O.19 r28

SS GAIRLOCH, ABERDEEN GLENLINE STEAMSHIP CO V MACKEN 1899 2 IR 1

DPP, PEOPLE V MADDEN 1977 IR 336

COURTS OF JUSTICE ACT 1981 S17(5)

COURTS ACT 1991 S4

MANGAN V INDEPENDENT NEWSPAPERS (IRL) LTD 2003 1 IR 442 2003 2 ILRM 33

GRAINGER V HILL 1838 4 BING NC 212

BLACKSTONES COMMENTARIES ON THE LAW OF ENGLAND

JUDICATURE ACT (IRL) 1877 S27(5)

RSC O.19 r28

HALSBURY LAW OF ENGLAND 3ED VOL 16

SPEED SEAL PRODUCTS LTD V PADDINGTON & ANOR 1986 1 AER 91

GOLDSMITH V SPERRINGS LTD 1977 2 AER 566

LAWRENCE V NORREYS 1890 15 AC 210

COURTS OF JUSTICE ACT 1981 S17(5)(A)(I)

COURTS OF JUSTICE ACT 1981 S17(5)(A)(II)

DUNNE V DPP 2002 2 IR 305

RATCLIFFE V EVANS 1892 2 QB 424

CRAWFORD V KEANE UNREP BARR 7.4.2000 2000/4/1535

1

Judgment delivered on 18th day of December,2003by Denham J.

1. Appeal
2

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 28 th 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
3

The claim for damages by the plaintiff arises out of a road traffic accident which occurred on 19 th 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 thecar of the plaintiff. The plaintiff claims that this caused him personal injuries and severe damage to his car.

3. Assessment
4

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
5

The case proceeded in the High...

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