Daniel Harty v Mary Nestor

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 17 February 2022
• Neutral Citation: [2022] IEHC 108
• Court: High Court
• Docket Number: [Record No. 2018/2345 P]

Between

Daniel Harty

Plaintiff

and

Mary Nestor

and

The Motor Insurers' Bureau of Ireland (MIBI)

Defendants

[2022] IEHC 108

[Record No. 2018/2345 P]

THE HIGH COURT

Road traffic accident – Damages – Civil Liability and Courts Act 2004 s. 26 – Plaintiff seeking damages – Whether the actions of the plaintiff brought the case within the provisions of s. 26 of the Civil Liability and Courts Act 2004

Facts: The plaintiff, Mr Harty, on 14th January, 2017, was travelling in a car which was being driven by the first defendant, Ms Nestor. The plaintiff was sitting in the front passenger seat. He was wearing a seatbelt. As they were going around a bend, an oncoming car came around the bend at speed and crossed onto their side of the road, colliding into the vehicle in which the plaintiff was travelling, striking a severe glancing blow to the driver’s side of the vehicle. The offending vehicle did not stop, but carried on in the direction that it was going. The driver of that vehicle remained untraced. While the occurrence of the accident and the liability for causation of that accident were not in dispute between the parties, the second defendant, the Motor Insurers’ Bureau of Ireland, made the case that the plaintiff had been untruthful in relation to the information which he gave to both his own doctor and to various doctors whom he saw at the behest of the second defendant. The second defendant made the case that the plaintiff, who had been involved in a prior accident on 27th May, 2008, deliberately understated the level of injuries that he had sustained in that accident when describing his condition prior to the occurrence of the accident the subject matter of the proceedings. The second defendant went further and submitted that the plaintiff had told deliberate lies to various doctors whom he had seen in the course of this litigation and had done so in a deliberate attempt to get them to give false and misleading evidence on his behalf. It was submitted that in the circumstances the case came within the provisions of s. 26 of the Civil Liability and Courts Act 2004 and that the High Court should therefore dismiss the plaintiff's action against the defendants.

Held by Barr J that, in considering whether the plaintiff had acted in a way that was contrary to the provisions of s. 26, the court was of the view that this was confined to the actual evidence that was led by or on behalf of the plaintiff at the trial of the action. The court was not persuaded that in giving false information to a treating, or reporting doctor, a plaintiff necessarily transgresses the provisions of s. 26. The court was satisfied of the following facts: the plaintiff was involved in a genuine road traffic accident on 14th January, 2017; as a result of that accident, he suffered an exacerbation of the degenerative changes in his cervical and lumbar spine; his lower back had given him ongoing pain since the time of the first accident in 2008; and his GP had made two referrals for him in respect of that injury to a pain clinic in 2014 and again at some date in 2015. Thus, the court was satisfied that the plaintiff's back was significantly symptomatic prior to the date of the accident the subject matter of the proceedings. In relation to the plaintiff's neck, notwithstanding the absence of any evidence from the plaintiff's GP, or from Dr Conroy, the court was satisfied that the plaintiff had received three injections to his neck from Dr Conroy, or his team. Thus, the court was satisfied that it was appropriate to draw the inference that the pre-existing degenerative changes in the plaintiff's neck were exacerbated to a relatively significant degree as a result of the accident in January 2017. From the evidence of Dr Spillane, the court was satisfied that the plaintiff would suffer some symptoms into the future.

Barr J held that it was fair to make an award of general damages for pain and suffering to date in the sum of €20,000, together with the sum of €10,000 for pain and suffering into the future. To that the court added the agreed special damages of €380, giving an overall award of €30,380 in favour of the plaintiff against the second defendant.

Damages awarded to plaintiff.

Judgment of Mr. Justice Barr delivered extempore on 17th February, 2022.

Introduction.

1 This action arises out of a road traffic accident that occurred on 14th January, 2017. On that date the plaintiff was travelling in a car, which was being driven by the first named defendant, who was a neighbour of the plaintiff. The plaintiff was sitting in the front passenger seat. He was wearing a seatbelt. As they were going around a bend, an oncoming car came around the bend at speed and crossed onto their side of the road, colliding into the vehicle in which the plaintiff was travelling, striking a severe glancing blow to the driver's side of the vehicle. The offending vehicle did not stop, but carried on in the direction that it was going. The driver of that vehicle remains untraced; hence the involvement of the second named defendant.

2 While the occurrence of the accident and the liability for causation of that accident are not in dispute between the parties, the second named defendant has made the case that the plaintiff has been untruthful in relation to the information which he gave to both his own doctor and to various doctors whom he saw at the behest of the second defendant. In essence, the second defendant makes the case that the plaintiff, who had been involved in a prior accident on 27th May, 2008, deliberately understated the level of injuries that he had sustained in that accident, when describing his condition prior to the occurrence of the accident the subject matter of these proceedings.

3 The second defendant went further and submitted that the plaintiff had told deliberate lies to various doctors whom he had seen in the course of this litigation and had done so in a deliberate attempt to get them to give false and misleading evidence on his behalf. It was submitted that in the circumstances the case came within the provisions of section 26 of the Civil Liability and Courts Act 2004 and that the court should therefore dismiss the plaintiff's action against the defendants.

4 Thus, the essential question for the court in this case is whether the actions of the plaintiff have been sufficient to bring the case within s. 26 of the 2004 Act.

Summary of the evidence.

5 The plaintiff was involved in an RTA on 27th May, 2008. On that occasion, he was travelling as a passenger in a vehicle driven by his nephew. On approaching a zebra crossing, the car in front stopped to allow a cyclist to pass across the zebra crossing and the car in which the plaintiff was travelling, collided into the rear of that vehicle. As a result of that collision, it was alleged by the plaintiff that he had suffered neck and back injuries. He instituted proceedings against his nephew. The MIBI were also a defendant to that action.

6 When that action came on for hearing before the High Court in Ennis in June 2016, the plaintiff withdrew his action. In cross examination in the current action, it was put to the plaintiff that he had withdrawn his previous proceedings because it had been intimated to him that the defendants were in a position to lead evidence from an undercover Garda to the effect that that accident had been a setup. The plaintiff denied that that was the reason why he withdrew his action. He stated that he had done so on the advice of his legal team.

7 In the course of cross examination, it was put to the plaintiff that he had given false and misleading evidence to this court, when he had stated in his evidence in chief, that the neck and back injuries arising out of the first accident in May 2008, had lasted for in or about six months. It was put to him that that was inconsistent with the records from his GP, which had been furnished in the course of the current proceedings, wherein it was noted that due to ongoing back pain, his GP had referred him to a Dr. Conroy in the Pain Clinic in St John's Hospital in May 2014 and again in 2015. It was further put to the plaintiff that his evidence in chief was inconsistent with what he had told Mr. Michael Gilmore, consultant orthopaedic surgeon, whom he had seen on 15th February, 2016 in relation to his first accident, when he had told the doctor that his back was “not so bad now”, but that he had a few weeks prior to that experienced his back locking. He also stated that he got occasional pins and needles in the left foot. It was put to the plaintiff that that evidence from his own doctors was inconsistent with the evidence that he had given to the court at the hearing of this action.

8 It was further put to the plaintiff that he had given misleading information to the only doctor who had given evidence on his behalf in the present action. He had seen Dr. Aideen Henry, who had been retained by his solicitor to furnish a medicolegal report on behalf of the plaintiff. When he had seen her on 27th February, 2017, he had told her that he had been in an accident in 2008 in which he had hurt his lower back. He told her that he had made a full recovery after that and that he had no other medical issues. It was put to the plaintiff that that was false and misleading, given the content of the GP records in relation to his referral to the pain clinic in respect of ongoing back pain and also having regard to what he had told Mr. Gilmore at the examination in February 2016. In addition, it was put to the plaintiff that he had deliberately withheld making any mention of an injury to his neck in the accident in 2008; nor had he mentioned an incident of acute neck pain, for which he had attended with his GP on 20th January, 2015.

9 It was put to the plaintiff that he had been untruthful when he had been examined by Mr. Cormac Tansey on behalf of PIAB in relation to the second...