Goodwin v Bus Éireann

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 23 February 2012
• Neutral Citation: [2012] IESC 9
• Court: Supreme Court
• Date: 23 February 2012

Goodwin v Bus Eireann

Between/

Teresa Goodwin

Plaintiff/Respondent

And

Bus Éireann

Defendant/Appellant

[2012] IESC 9

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Macken J.

[Appeal No: 262/2008]

THE SUPREME COURT

TORT LAW

Personal injuries

Negligence - Dismissal of proceedings - False and misleading evidence - Test to be applied - Whether trial judge erred in finding plaintiff did not knowingly give false or misleading evidence - Whether dismissal of proceedings appropriate - Damages - Whether award of damages excessive - Ahern v Bus Éireann [2011] IESC 44, (Unrep, SC, 2/12/2011) approved - Civil Liability and Courts Act 2004 (No 31), s 26 - Constitution of Ireland 1937, Art 40.3 - Appeal dismissed (262/2008 - SC - 23/2/2012) [2012] IESC 9

Goodwin v Bus Éireann

Facts: The defendant sought the dismissal in its entirety of the claim of the plaintiff, who was living in the United States who had suffered serious injuries to her hands in a road traffic accident in Ireland. It was claimed that the plaintiff had fraudulently exaggerated her claim and that an order was appropriate pursuant to s. 26 of the Civil Liability and Courts Act 2004, to dismiss her claim. The plaintiff was awarded Eur 260,779.00 in the Court below.

Held by Fennelly J. (Denham CJ, Murray, Hardiman, Macken JJ. concurring), that the Court would dismiss the appeal and affirm the order of the High Court. She was entitled to be awarded the moderate sum of Eur 60,000 for pain and suffering in the future. She had received no award in respect of loss of earnings and the future. The trial judge was entitled on the evidence to conclude that the plaintiff continued to suffer significant pain and disability in her neck. The defendant had to discharge the burden of showing material evidence had been given false or misleadingly. It was impossible for the defendant to succeed given the absence of a finding from the trial judge that the plaintiff had given such evidence. The defendant had failed to establish that the trial judge had committed any error in her assessment of the evidence.

Reporter: E.F.

CIVIL LIABILITY & COURTS ACT 2004 S26

CONSTITUTION ART 40.3

AHERN v BUS EIREANN UNREP SUPREME 2.12.2011 2011 IESC 44

1 1. The defendant on this appeal seeks the radical remedy of the dismissal, in its entirety, of the claim of a plaintiff, who admittedly suffered serious injuries at its hands in a road traffic accident for which it admits liability. The claim is made on the ground that the plaintiff is said to have fraudulently exaggerated her claim and that an order dismissing the action should be made pursuant to s. 26 of the Civil Liability and Courts Act, 2004 ("the Act of 2004.")

2 2. The plaintiff commenced her claim in the Circuit Court, but the case was transferred to the High Court. The action was heard at the High Court sitting in Cork over four days in July 2007 and three days in July 2008. The plaintiff lives in the United States and, for that reason, in addition, evidence of medical witnesses was heard on commission in New York over two days in June 2006 and, during the interval between the 2007 and 2008 hearings, one day in November 2007. The appeal is from the judgment and order of the High Court (Finlay Geoghegan J.) of the 11 ^th July, 2008.

3 3. The High Court awarded damages to the plaintiff as follows:

The incorrect total is as it appears in the order of the High Court. It does not affect any issue in this judgment. The High Court placed a stay of execution, pending appeal, on its order to the extent of 50% of the value of the award and of the costs.

(i)	Loss of earnings to date	€137,280.00
(ii)	Interest on loss of earnings	€63,413.00
(iii)	Pain and suffering to date	€90,000.00
(iv)	Pain and suffering in the future	€60,000.00
(v)	Agreed special damages	€40,475.00
Total:		€260,779.00

4 4. The central plank of the appeal is that the learned trial judge erred in law in failing to dismiss the plaintiff's claim under s. 26 of the Act of 2004 on the ground that the evidence given by the plaintiff in the hearing of the action had been false and misleading. The grounds of appeal focus on particular aspects of the issue: firstly, that the evidence of the plaintiff was inconsistent with her appearance on film recordings of her behaviour taken by a private investigator retained by the defendant; secondly, that the learned trial judge misinterpreted the evidence of two medical experts called by the defendant to such an extent as to lead her to discount or disregard the parts of their evidence in which they disputed the genuineness of the plaintiff's complaints. The defendant says that the award was, in any event, excessive having regard to the evidence.

5 5. The plaintiff was born on 21 ^st December 1960 in Cork where she was brought up. She went to the United States in 1986, put herself through college and trained as a nurse. On a visit home to Ireland, she was driving a car with her two children as passengers on 31 ^st July 1999 at or near Rathcoole, Co Dublin. She was stopped at a traffic light when a bus operated by the defendant collided with the rear of her car, pushing it across the intersection.

6 6. It is not disputed that she suffered a soft tissue or whiplash type injury. It is the extent and genuineness of her later complaints that has been hotly disputed by the defendant. The plaintiff was taken to Tallaght Hospital but was detained for only a short time. She returned to the United States after a few days.

7 7. The Civil Bill issued for the Cork Circuit Court on 20 ^th September 1999 said that she had complained of dizziness and general upset and of "pain and soreness in her neck," which "radiated into her upper thoracic area." X-rays did not disclose any bony injuries and a "diagnosis of a soft tissue injury [had] been made to her spine."

8 8. The plaintiff, following her return to the United States, was treated by a variety of American doctors from different specialties in respect of different aspects of her complaints. Further particulars were delivered on 10 ^th November 1999. The action was transferred to the High Court. Notice of trial was served on 17 ^th July 2002. Further detailed particulars of her injuries were delivered on 14th June 2005, 12 ^th September 2006, and 28 ^th June 2007.

9 9. Before the accident, the plaintiff was active and athletic. She played camogie and jogged. However, subsequent X-ray examination revealed that she was suffering from significant early deterioration of her cervical spine, although she had not experienced any symptoms from these conditions prior to the accident. The plaintiff had, prior to her accident, given up her job as a hospital theatre nurse with the intention of going on a training course for 18 months to become a nurse practitioner.

10 10. The Plaintiff's complaints, as they developed, fell under three principal headings:

· Pain in her neck radiating to her left arm and into her hand;

· An injury to her left shoulder;

· Pain and weakness in her lower back radiating down her left leg causing her to limp.

11 11. The plaintiff said in evidence that she had pain in her neck, her chest and shoulder and down her arms; her left hand was stiff. She could not raise her left hand or rotate her head. She went to the hospital in New York where she had worked and underwent courses in "physical therapy" directed to her upper body (neck and arms). This lasted nine months, but the pain got worse. In evidence she said that her neck pain, radiating down to her left arm and to her hands, persisted. She had constant pain in her neck. It was stiff and restricted. She had to turn her whole body in order to look around. She was also suffering pain in her shoulder and lower back and legs. She attended several different doctors. She had three or four cervical epidural injections without success. She attended an osteopath: osteopathy gave her a little relief.

12 12. In 2001, she was referred to Dr Jonathan Glashow, a shoulder specialist, who examined and treated her shoulder. He found that she had a lot of tenderness and spasm in the muscles, ligaments and tendons around the shoulder girdle. He used painkilling injections to enable him to diagnose the nature of her injury. He found that that she had significant shoulder problems.

13 13. In February 2002, Dr Glashow performed an arthroscopic procedure on her left shoulder. He treated a torn labrum (the lip that surrounds the socket bone) and tightened the ligaments within the shoulder capsule. He also removed scar tissue above her rotator cuff. The plaintiff improved considerably so far as the shoulder was concerned, but problems with her neck continued. She said in evidence that her shoulder improved, though it was not as good as her right shoulder.

14 14. The most controversial aspect of the claim related to her evidence that she had pain in her lower back, radiating down at times along her leg to her knee and to her left foot. She limped at times, and she felt constantly "hindered." She said that she could walk only short distances. For example, at one point in her evidence she said that she could walk only three city blocks. She had great difficulty getting in and out of a car, though she drives. She had difficulty lifting and with housework.

15 15. The plaintiff said that she had been unable to work at all since the accident, apart from helping her husband with a radio programme which he produces. She could not return to nursing.

16 16. The plaintiff was cross-examined at length and in great detail about complaints she had made to Mr McGuinness, the consultant orthopaedic surgeon who examined her on behalf of the defendant. Counsel put to her statements which, based on notes taken by Mr McGuinness,...