Lukasz Waliszewski v Mcarthur & Company Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 24 April 2015
• Neutral Citation: [2015] IEHC 264
• Court: High Court
• Date: 24 April 2015

Waliszewski v McArthur & Company (Steel & Metal) Ltd

BETWEEN

LUKASZ WALISZEWSKI

PLAINTIFF

AND

McARTHUR AND COMPANY (STEEL AND METAL) LIMITED

DEFENDANT

[2015] IEHC 264

[No. 410 P/2010]

THE HIGH COURT

Personal injury – Causation of Injuries – S.26 of the Civil Liability and Courts Act 2004.

Facts: The plaintiff sought damages for injuries sustained while being employed with the defendant as a side loader. The plaintiff alleged that the nature of his job exposed him to ‘whole body vibration’ and caused injuries and losses. The defendant alleged that the condition of the plaintiff was in fact caused by the contributory negligence committed by the plaintiff. The defendant now invoked the provisions of s.26 of the Civil Liability and Courts Act 2004 alleging that the plaintiff wilfully withheld material information. The defendant claimed that the plaintiff knowingly presented false or misleading evidence and therefore, lost his credibility in relation to the causation of the injury.

Mr. Justice Bernard J. Barton held that the application of the defendant under s.26 of the Act of 2004 would be granted. The Court accepted the evidence that the plaintiff intentionally withheld material information in the proceedings of the case. The Court held that the decision of the court on the question of the causation would be moot. The Court further held that the plaintiff failed to prove that the alleged injuries were as a result of the “whole body vibration” experienced in the course of the employment by the defendant.

Background

1 1. The plaintiff was born on the 16 ^th March 1981, is a Polish national, and at the time of the institution of these proceedings resided at 55 Raheen Road, Springfield, Tallaght, Dublin 24.

2 2. In 2007 the defendant was one of the largest suppliers of steel for the construction industry in Ireland. It's warehousing, storage and distribution operations were carried out from two premises; one at Ballymount and the other at Blessington, County Wicklow.

3 3. When the plaintiff left school at the age of eighteen he did his national service and following that he trained to be a truck and forklift driver. In 2005 he was unemployed and living in Posnan, Poland. As a result of a contact from a friend he came to Ireland looking for work and obtained employment with the defendant in July 2006.

4 4. When he commenced employment with the defendant, he initially worked at the Ballymount site. His work there was mainly indoors and involved driving a mobile crane and in respect of which he had received training. Having worked for approximately seven months at Ballymount he was transferred to the Blessington site where his duties were principally outdoors. Approximately 80% of his time was spent operating and driving what was described in the evidence as side loaders. Initially he drove a Lancer side loader and subsequently a Jumbo side loader.

5 5. A full defence was delivered to the plaintiff's claim in these proceedings, incorporating a plea of negligence and contributory negligence on the part of the plaintiff; the essence of which was that the plaintiff was the author of his own misfortune.

Pleadings and discovery.

6 6. The case made by the plaintiff on the pleadings and opened to the court was that between July 2006 and September 2007 his duties required him to drive one of these side loaders on a constant basis over uneven surfaces for which neither of the side loaders were designed nor intended. The consequence of this was that he was exposed to what was described in the evidence as 'whole body vibration' which, together with the necessity of his having to twist his body in his seat in order to face the lifting forks of the side loader, caused the plaintiff the injuries and loss in respect of which he brings these proceedings.

7 7. Whilst the plaintiff did not in the general body of the endorsement of claim on the personal injury summons plead any specific accident as such, it was pleaded in the particulars of personal injury that on the 27 ^th September, 2007, that whilst operating a work system which involved his body being constantly twisted in the course of driving over uneven ground, he suffered a seizure of the muscles in his back and as a result of which he fell to the ground. The plaintiff swore an affidavit of verification in respect of the personal injury summons on the 28 ^th of January, 2010.

8 8. Replies were furnished on the 1 ^st of March 2010 in response to the defendant's notice for particulars dated the 15 ^th of February 2010. This initial reply to particulars was followed by a request for further and better particulars dated the 26 ^th July 2010 and that was ultimately responded to by a reply dated the 27 ^th of January, 2011. A verifying affidavit in relation to the replies was sworn on the 12 ^th May 2011. This was followed by an affidavit of discovery sworn by the plaintiff on the 21 ^st July 2011.

9 9. The action ultimately came on for hearing before Hanna J. on the 17 ^th of July 2014. Following an objection from counsel for the defendant that the case, as opened, was at variance with the pleadings and the disclosure of another accident involving the plaintiff in late 2010, the trial judge adjourned the case on terms.

10 10. Further supplemental replies to particulars were furnished and made the subject matter of an affidavit of verification sworn by the plaintiff on the 18 ^th of July 2014.

11 11. Finally, on the 3 ^rd of February 2015, two days prior to the opening of the case before me, the plaintiff swore a further affidavit for the purposes of clarifying certain matters and proffering an explanation in relation to previous replies which had been given, as well as for the purposes of giving details in relation to a road traffic accident involving the plaintiff which had occurred on the 14 ^th of December 2010. In that road traffic accident, the plaintiff had sustained injuries and had made a claim for compensation in respect thereof. The affidavit exhibited medical reports in connection with that claim and which had been prepared on behalf of the plaintiff by Dr. Jean O'Sullivan and Mr. Esh Kessopersadh.

12 12. The further affidavit, sworn by the plaintiff on the 18 ^th of July, 2014 following the adjournment of the action, sought to clarify the circumstances of the accident which had occurred on the 27 ^th September 2007 and which had been referred to in the particulars of personal injury. In answer to para. 5 of the initial notice for particulars, the plaintiff had responded by referring the defendant back to the personal injury summons. In the supplemental replies to particulars dated the 27 ^th of January, 2011 and referring to an initial response which had been made to para. 5 of the initial notice for particulars, the plaintiff stated:-

"The plaintiff cannot specifically point out any one particular incident which caused the injuries. The plaintiff was required to use a side loader over a long period, and continuous usage of the side loader over rough ground over a period of time damaged and weakened his back. In addition, the consistent repetition of work and strain to his back of the manipulations required of him while using the side loader damaged and weakened his back. On the 27 ^th September 2007, the plaintiff was lifting wood onto steel and then lifting steel onto wood, etc. building up a pile involving steel and wood. It was in the course of doing this job, which involved the manual lifting of wooden beams, that the plaintiff's back went into spasm and the injuries were made manifest to him."

For the sake of clarity, no case is being made to suggest that the weight of the wooden beams would have caused him injury but for the damage and weakness in his back which had been caused by the continuous use of the side loader in the manner described."

After a lengthy trial and at the conclusion of the evidence, counsel on behalf of the defendant invoked the provisions of s.26 of the Civil Liability and Courts Act 2004.

The Law

13 13. Given the nature of the application and the circumstances of the case pertinent to this issue and to which I will refer in this judgment, it is considered appropriate in the first instance to set out the full text of the section here.

2 2 "26. (1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or introduces, or dishonestly causes to be given or adduced, evidence that -

(a) is false or misleading, in any material respect, and

(b) he or she knows to be false or misleading,

the court shall dismiss the plaintiff's action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.

(2) The court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under s. 14 that -

(a) is false or misleading, in any material respect, and

(b) that he or she knew to be false or misleading when swearing the affidavit,

dismiss the plaintiff's action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.

(3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court.

(4) This section applies to personal injuries actions -

(a) brought on or after the commencement of this section, and

(b) pending on the date of such commencement."

14 14. By virtue of the Civil Liability and Courts Act (Commencement) Order S.I. No. 544 of 2004 a number of the sections of the Act, including s.26, came into force on the 20 ^th of September 2004. By the same Statutory Instrument other sections including s. 14 came into force on the 31 ^st March 2005.

15 15. The provisions of s.26 have...