Keating v Mulligan
|Mr. Justice Noonan
|09 November 2022
| IECA 257
|Court of Appeal (Ireland)
|Record Number: 2020/48
 IECA 257
Record Number: 2020/48
High Court Record Number: 2017/11129P
THE COURT OF APPEAL
JUDGMENT of Mr. Justice Noonan delivered on the 9th day of November, 2022
In these personal injuries proceedings, the primary issue arising on this appeal is whether the trial judge (Cross J.) should have acceded to an application by the appellant, to whom I shall refer for convenience as the defendant, pursuant to s. 26 of the Civil Liability and Courts Act, 2004. This section empowers the court to dismiss a personal injuries action essentially on the basis that it is fraudulent.
The claim of the respondent (the plaintiff) arises out of an incident that occurred on a LUAS tram on the 15th June, 2016. On that date, the plaintiff was travelling as a passenger on the LUAS when it collided with the defendant's taxi in what appears to have been a relatively minor accident. The plaintiff claims to have suffered injuries as a result of striking her shoulder on one of the upright bars on the tram. Her principal injury was to her right shoulder although she also suffered injury to her neck. The defendant delivered his defence in the normal form admitting negligence and putting the plaintiff's injuries in issue. Beyond that however, no specific plea on causation was advanced.
Although the plaintiff initially also had complaints of low back pain, her right shoulder and neck continued to be symptomatic, more particularly the shoulder. The symptoms in her shoulder and neck appeared to plateau after a period of time. An MRI scan of her right shoulder showed mild age-related changes. When reviewed by Mr. Nicholson, a consultant orthopaedic surgeon at about 27 months post-accident, he was of the view that the plaintiff's symptoms had become permanent. She underwent two trigger point injections into the right trapezius by Dr. Das, a consultant pain specialist, with poor results.
It is relevant to note that the plaintiff's doctors gave viva voce evidence, while the defendant called no medical evidence, despite listing a medical consultant in their SI 391 disclosure schedule, nor were any of the medical reports agreed.
In the course of the trial and after two days at hearing, the plaintiff's solicitors sought an up to date medical report from her General Practitioner, Dr. Sayed. A report was prepared by Dr. Sayed dated the 12th June, 2019, now three years post-accident, which was received by the plaintiff's solicitors on the 17th June, 2019. The plaintiff's solicitors on the same date served the report on the defendant's solicitors. This report disclosed for the first time that the plaintiff had been involved in a second accident on the LUAS on the 28th August, 2017, some 14 months after the accident the subject matter of these proceedings. That fact had never previously been disclosed to the defendant's solicitors, notwithstanding a notice for particulars which sought details of any accidents or injuries, either pre or post the accident in issue herein. Further, an affidavit of verification was sworn by the plaintiff in relation, inter alia, to her replies to particulars dated the 29th January, 2018 in response to a notice for particulars of the 11th January, 2018.
It further emerged during the course of the hearing that the plaintiff's solicitors wrote a letter of claim dated the 3rd October, 2017 in relation to this subsequent accident to the operators of the LUAS and followed it up with a reminder on the 11th December, 2017, a little more than a month prior to drafting the replies to particulars in the present case. Between the dates of those two letters, the personal injuries summons in these proceedings issued on 7th December, 2017.
I should note that during the first hearing before the High Court, when the fact of the second LUAS accident emerged, the defendant made an application to dismiss the case pursuant to s. 26. The judge refused that on the basis that he could not decide the application without hearing further from the plaintiff and her being cross-examined about the non-disclosure. The defendant then sought and was granted an order for further discovery of the plaintiff's medical records in relation to this later accident. This resulted in an adjournment of the trial for several months and when it resumed, the plaintiff was re-called to be cross examined about her failure to disclose the subsequent accident.
In the course of her cross examination on the first day of the trial, the plaintiff was asked about other accidents (Day 1, Page 40 – 41):
“170 Q. Mr. McDonagh: and the defendants in this case, Ms. Keating, they raised a notice for particulars dated 11th January, 2017 [it was in fact 2018] and you were specifically asked whether you had ever been in an accident or suffered any injuries in an accident either prior to or subsequent to the alleged accident referred to in the personal injury summons/indorsement of claim. And the only accident, Ms. Keating, that you refer to is the injury that you suffered in November 1996?
Mr. McGrath: That is not true.
Mr. Justice Cross: If you go on, Mr. McDonagh, to the next paragraph:
‘The plaintiff was involved in a previous accident which occurred in November 1996 while she was residing in the UK. She suffered injuries to her lower back following a slip and fall and underwent surgery. The case was settled in 2002 for the sum of £400,000.’
Mr. Justice Cross: ‘The plaintiff was also involved in a road traffic accident approximately five years ago when she was rear ended and suffered bruising. No claim was made.’
‘No claim was made in respect of personal injuries in this matter.’
A. That is true.
171 Q. Mr. McGrath in his opening referred to another accident in 2002. Can you enlighten us, did you suffer any injuries in 2002?
A. 2002? I can't remember.
Mr. Justice Cross: You had your injury in England in 1996 and it was settled in 2002. You had a road traffic accident. That was approximately, five years ago?
A. With my grandchildren. The car ploughed into the back of me, yeah. I didn't put in any claims. And after that, it was after that I was walking on the Naas Road and two lads on a motorbike came up behind me and caught me in between my legs. I didn't make any claims.”
Counsel for the defendant then moved to a different topic in the plaintiff's previous medical history. As can be seen from the foregoing exchange, though the question of subsequent accidents was initially raised by counsel, as a result of interventions by the judge and counsel for the plaintiff, the enquiry focused only on prior accidents.
Following the adjournment of the case, on its resumption the plaintiff was recalled to be further cross examined arising out of the disclosure of the subsequent accident. The following exchange took place on Day 5 at pages 11–13:
“25 Q. Again, is there any reason why you didn't inform the court of the specific details of this incident which occurred on the 22nd August, 2017, Ms. Keating?
A. Well, I wasn't holding back not telling. I was waiting for you, Mr. McDonagh, to ask me the questions you were to ask and this is one of them. I didn't know that – I was told to answer the questions I am asked.
26 Q. You were specifically asked under cross examination, Ms. Keating, about your subsequent medical history and you refused, you failed to answer or you failed to disclose a relevant incident which occurred on the 22nd August, 2017?
A. No I didn't refuse, Mr. McDonagh.
27 Q. You had every opportunity to tell the court about this incident on the 22nd August 2017 and you failed to do so?
A. No because I was waiting for you to put that to me. I didn't fail. I wasn't hiding anything.
28 Q. I am suggesting to you deliberately misled this court?
A. Well you are wrong, Mr. McDonagh.
29. Q When you failed to disclose –
A. No, no, not at any time.
30. Q When you failed to disclose the existence of a relevant incident which occurred on the 22nd?
A. No, not at any time, Mr. McDonagh. I didn't.
31. Q And secondly, in replies to particulars you again had an opportunity to disclose the existence of the second incident of the 22nd August, 2017 and you failed to disclose them in those replies. In fact, you swore an affidavit of verification in relation to the replies and you failed to disclose this incident?
A. Well, I didn't fail to disclose. I was waiting for you to ask.
32. Q. I see, I see.
A. It wasn't anything I tried to hide, that was already out in the open. I didn't hide that there was an accident on the 22nd August.
33 Q. When was it out in the open, Ms. Keating?
A. It has been since days after it happened.
34. Q. When was it out in the open? When did you tell the defendant about the incident of 22nd August 2017?
A. Well, the solicitor knew.
35. Q. I'm asking you, Ms. Keating?
A. Well, I don't know if I'm allowed to talk to the defendant. All I know is I went through my solicitor.
36. Q. In your replies to particulars you failed to disclose the incident of the 22nd August, 2017. Have you an explanation for that, Ms. Keating?
A. No, I didn't fail. I already told about the incident on the 22nd August. I did tell, I didn't hold nothing back, Mr. McDonagh.
37. Q. The first time the defendant became aware of this incident was on the 17th June when your solicitors furnished a report from Dr. Sayed. That was the first notification to the defendant, Ms. Keating?
A. Well, I was led to believe that the defendant knew. I didn't hold back, Mr. McDonagh, on anything I was asked.
38. Q. You were cross examined at length Ms. Keating –
A. I know, I know.
39. Q. and you failed to disclose to the court the existence of the accident on the 22nd?
A. I have answered that Mr. McDonagh I was waiting for you to ask me. I...
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