Lynch v Motor Insurers' Bureau of Ireland

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Liam Kennedy
• Judgment Date: 30 October 2024
• Neutral Citation: [2024] IEHC 587
• Docket Number: [Record No. 2019/4941P]

Between:

Kevin Lynch

Plaintiff

and

Motor Insurers' Bureau of Ireland

Defendant

[2024] IEHC 587

[Record No. 2019/4941P]

THE HIGH COURT

Personal injuries – Negligence – Quantum – Plaintiff seeking damages – Whether the proceedings should be dismissed on the basis that the plaintiff gave false evidence

Facts: The plaintiff, Mr Lynch, claimed to have sustained personal injuries due to an unidentified driver’s negligence. Liability was not vigorously contested. The defendant, the Motor Insurers' Bureau of Ireland, applied to the High Court to dismiss the proceedings on the basis that the plaintiff allegedly gave or adduced false or misleading evidence (or caused it to be given or adduced). That application relied on, firstly, the plaintiff’s delivery (and subsequent withdrawal) of a substantial loss of earnings claim and, secondly, issues with information supplied by the plaintiff to medical experts.

Held by Kennedy J that the plaintiff had established on the balance of probabilities that he sustained personal injuries in the incident, but he had not satisfied him that the injuries due to the incident (as opposed to pre-existing or independent issues) were as severe as claimed. However, while Kennedy J did not accept certain evidence tendered on the plaintiff’s behalf, the defendant had not satisfied him that the plaintiff deliberately misled the Court. While those matters did not provide a basis to dismiss the claim, they did influence Kennedy J’s assessment as to the weight to be accorded to certain evidence, including expert evidence, particularly as to quantum. He accepted the defendant’s submissions that the appropriate guidance from the Book of Quantum was that this should be classified as, principally, a moderate soft tissue shoulder injury, with a recommended range of €22,000 to €60,900. He also considered that the injuries to the shoulder and upper arm would fall at the lower end of the applicable range. He accepted that the plaintiff had experienced, and may continue to experience, pain and suffering due to the incident and that it exacerbated existing injuries to some degree. Kennedy J was not convinced that many of the subsequent symptoms of which he complained were due to the incident to a material degree; nor had the plaintiff undertaken the treatment which would be warranted if the injuries were as serious as he maintained. Accepting the right shoulder injury as the most significant for Book of Quantum purposes, Kennedy J considered that the Book of Quantum approach to multiple injuries was appropriate in this case. He would have been inclined to make an award at the lower end of the recommended range. However, in order to make some allowance for the plaintiff’s other, lesser physical injuries (and for any psychological issues to the limited extent that they were related to the incident) and to allow for the possibility that the plaintiff’s preexisting injuries may well have been exacerbated to a limited extent as a result of the incident, Kennedy J increased the total pain and suffering and general damages award to €45,000 to cover both past and future pain and suffering due to the incident.

Kennedy J dismissed the defendant’s application and entered judgment for the plaintiff, with special damages as agreed. Kennedy J awarded €45,000 by way of general damages, past and future pain and suffering and any aggravation of the plaintiff’s pre-existing condition.

Application refused.

JUDGMENT of Mr Justice Liam Kennedy delivered on the 30th day of October 2024 .

1 . These proceedings arise from a road traffic incident in which the Plaintiff claims to have sustained personal injuries due to an unidentified driver's negligence. Liability was not vigorously contested. Apart from quantum, the key issue arises from the Defendant's application to dismiss the proceedings on the basis that the Plaintiff allegedly gave or adduced false or misleading evidence (or caused it to be given or adduced). That application relies on, firstly, the Plaintiff's delivery (and subsequent withdrawal) of a substantial loss of earnings claim and, secondly, issues with information supplied by the Plaintiff to medical experts.

2 . In short, the Plaintiff has established on the balance of probabilities that he sustained personal injuries in the incident, but he has not satisfied me that the injuries due to the incident (as opposed to pre-existing or independent issues) are as severe as claimed. However, while I do not accept certain evidence tendered on the Plaintiff's behalf, the Defendant has not satisfied me that the Plaintiff deliberately misled the Court. While those matters do not provide a basis to dismiss the claim, they do influence my assessment as to the weight to be accorded to certain evidence, including expert evidence, particularly as to quantum. I have awarded the Plaintiff €45,000 by way of general damages for past and future pain and suffering.

Background

3 . On 5 July 2015, the Plaintiff and his son were driving in an area of Co. Clare inauspiciously known as Gallows Hill, its name apparently attributable to its use as the site of Cromwellian executions in less enlightened times. It is now a more peaceful scenic hill in a woodland area. The Plaintiff and his son are keen hunters. They had driven up the hill (in a car belonging to the Plaintiff's partner) in search of deer to be stalked on future expeditions. The Plaintiff says that, as they ascended the hill approaching a blind bend at a moderate speed (circa 30 – 40 kph), a white car rounded the bend at speed, occupying most of the road and forcing him to take evasive action. This led him to collide with a stone pier or ditch by the side of the road. The white car sailed by without stopping. Neither it nor its occupants were ever identified. The Plaintiff and his son were understandably shaken, and the car was undriveable. The Plaintiff called his partner, who collected his son while he waited for a tow truck. The following day he made a report to the Gardaí. In the circumstances, the Plaintiff and his son were the only available witnesses to the incident.

4 . Photographic evidence confirmed extensive damage to the left front corner of the car. The motor assessors report noted that the vehicle had sustained:

“ a moderate impact onto the left front corner in a direction from front to rear and at a slight angle. Main parts damaged include the front bumper, bumper bar, both headlights, bonnet, front panel, radiator, cooling fan and cowling, air cond condenser, air filter housing, left hand wing, left hand wing guard, left hand flitch panel, left hand front door, left hand front wheel rim and tyre, left hand front suspension assembly, left hand drive shaft, steering rack etc.”

(I have disregarded a comment raised in the assessor's report as to whether the damage was consistent with the Plaintiff's account in view of the Plaintiff's testimony on that point).

5 . The Plaintiff's son, who, being in the front passenger seat, was closest to the point of impact, issued proceedings against the car's insurer which settled for approximately €15,000 plus costs. These proceedings were issued four years after the 2015 incident and the hearing took place on 20–21 June 2024.

The Plenary Personal Injury Summons (“PIS”)

6 . The PIS alleged injuries to the Plaintiff's lower back, left hip and right shoulder (while acknowledging pre-existing issues with his right shoulder in particular), and referenced the Plaintiff's “ anxiety and stress” following the incident, without details.

The Plaintiff's 18 September 2020 Replies to Particulars

7 . On 18 September 2020, the Plaintiff responded to a notice for particulars confirming, inter alia, the Plaintiff's ongoing loss of earnings, with details to follow.

Affidavit of Verification dated 24 September 2020

8 . The Plaintiff swore an affidavit verifying the PIS and his Replies to Particulars on 24 September 2020, apparently the only such affidavit of verification. He described his occupation as a “ Stone Mason”.

Affidavit of Discovery sworn 3 February 2023

9 . The Plaintiff's affidavit of discovery dated 3 February 2023 described his occupation as “ Seasonal Operator”.

The 21 April 2023 Schedule of Special Damages (“the April 2023 Schedule”)

10 . On 21 April 2023, the Plaintiff's solicitors served particulars entitled “ Schedule of Special Damages to Date and Continuing”, claiming special damages of €621,388. Other than uncontroversial medical and travel expenses, the crucial claims were €210,249 for loss of earnings to 3 April 2023, and €410,139 for loss of future earnings. Accordingly, the aggregate value of the loss of earnings claim was €620,388. The April 2023 Schedule was accompanied by a report from Peter Byrne, actuary, instructed by the Plaintiff's solicitor. The report records instructions that: (a) the Plaintiff was born on 20 April 1966 and worked as a stonemason before the incident; (b) his current and future earning capacity had been reduced due to his injuries; and (c) but for his injuries, he could have earned approximately €45,500 gross per annum. It noted the Plaintiff's earnings since 2016 and assumed a future loss of income. The report assumes that the difference between the Plaintiff's actual earnings from 2016 to 2020 and a notional stonemason's income was wholly attributable to his injuries and that, but for the incident, the Plaintiff would have continued to work as a stonemason, earning €45,500 per annum. Those assumptions underpinned his loss of earnings calculations.

Supplemental Affidavit of Discovery dated 12 April 2023

11 . The Plaintiff's supplemental affidavit of discovery exhibited the actuary's report and a letter from his accountant, confirming the Plaintiff's income as appearing from his 2016 to 2021 tax returns. Once again, his occupation was recorded as being a seasonal operator.

The 19 June 2024 Particulars

12 . In the...