Mary Farrell v Dublin Bus

• Jurisdiction: Ireland
• Judge: Mr. Justice John Quirke
• Judgment Date: 30 July 2010
• Neutral Citation: [2010] IEHC 327
• Docket Number: [No. 11668 P/2004]
• Court: High Court
• Date: 30 July 2010

Farrell v Dublin Bus

BETWEEN

MARY FARRELL

PLAINTIFF

AND

DUBLIN BUS/BUS ÁTHA CLIATH

DEFENDANT

[2010] IEHC 327

[No. 11668 P/2004]

THE HIGH COURT

DAMAGES

Personal injuries

Assessment - Loss of earnings - Dismissal of action - Fraudulent action - False or misleading evidence - Standard of proof - Proportionality - Whether evidence of loss of earnings and/or symptoms false or misleading in a material respect - Whether highly probable that plaintiff's evidence false or misleading in any material respect - Whether abandonment of claim for loss of earnings satisfactorily explained - Whether dismissal of claim proportional and/or just - Georgopoulos v Beaumont Hospital Board [1998] 3 IR 132 and Banco Ambrosiano SPA v Ansbacher [1987] ILRM 669 applied - Civil Liability and Courts Act 2004 (No 31), ss 14, 25 and 26 - Claim dismissed (2004/11668P - Quirke J - 30/7/2010) [2010] IEHC 327

Farrell v Dublin Bus/Bus Átha Cliath

Facts The proceedings arose out of an incident whereby a bus owned by the defendant collided with a vehicle being driven by the plaintiff. Liability had been admitted by the defendant and the case concerned assessment of damages only. As such the plaintiff's loss of earnings became an issue when estimates of €71,000 were submitted in respect of loss of income between the date of the accident and the trial and a claim of between €161,452 and €343,000 was submitted in respect of loss of future earnings. The defendant succeeded in having the trial adjourned to investigate the claims. The plaintiff had subsequently discontinued her claim for future loss of earnings and confined her claim to the period of time between the accident and to a date when she began driving a taxi. The defendant claimed that as false and misleading testimony had been submitted the claim must be dismissed pursuant to section 26(1) of the Civil Liability and Courts Act, 2004. The plaintiff agreed that she had made a claim that was not true. Evidence was also tendered of the plaintiff having purchased a new car in 2005 and another new car in 2006 and also of regular bi-annual trips to the United States lasting on average ten days. However there was very little evidence of actual earnings during this period and the plaintiff was also in receipt of social welfare illness benefit at this time. Evidence was also given of apparent inconsistencies between the plaintiff's injuries and her actual physical capacity of movement.

Held by Quirke J in dismissing the action. The plaintiff had given misleading evidence in respect of her claim for damages. It was inappropriate for a plaintiff to simply abandon a large portion of her claim without a satisfactory explanation to the court. No credible explanation had been offered to explain the plaintiff's comfortable lifestyle at a time when she claimed to have been incapable of earning and dependent upon social welfare benefits. No adequate explanation had been provided for the plaintiff's failure to disclose relevant matters to her medical experts and also why conflicting accounts had been given. The claim would be dismissed.

Reporter: R.F.

CIVIL LIABILITY & COURTS ACT 2004 S26(1)

CIVIL LIABILITY & COURTS ACT 2004 S14

CIVIL LIABILITY & COURTS ACT 2004 S25

CIVIL LIABILITY & COURTS ACT 2004 S26

CIVIL LIABILITY & COURTS ACT 2004 S14(5)

GEORGOPOULUS v BEAUMONT HOSPITAL BOARD 1998 3 IR 132

BANCO AMBROSIANO SPA & ORS v ANSBACHER & CO LTD & ORS 1987 ILRM 669

Mr. Justice John Quirke

1 In these proceedings, the plaintiff claims that she was injured in a road traffic accident on 14^th June, 2004, when a bus, owned by the defendant, collided with the rear of her vehicle at the junction between North Circular Road and Dorset Street in Dublin. Her vehicle was stationery at traffic lights when the collision occurred and she stated in evidence that she was propelled forward and then backward and then forward again and suffered a "whiplash" type injury to her neck.

2 A Plenary Summons was issued on behalf of the plaintiff on the 16^th July 2004 and a Statement of Claim was delivered on the 31^st January 2006 in which loss of earnings were claimed.

3 Particulars delivered on behalf of the plaintiff on the 13^th March claimed ongoing loss of earnings on the grounds that she had been unable to return to her former employment as a housekeeper/ cleaner with Jury's Hotel.

4 Updated particulars of injuries were pleaded on behalf of the plaintiff and served upon the defendant on 11^th January, 2008. They listed a large number of ongoing physical symptoms and restrictions but provided no details in relation to loss of earnings.

5 Liability has been admitted by the defendant and the case has proceeded as an assessment of damages only.

6 The trial of these proceedings was listed for hearing on 9th July, 2008.

7 On 30^th June, 2008, which was some ten days before the trial date, an affidavit of voluntary discovery was sworn by the plaintiff in which she purported to discover all of the records, notes and memoranda within her possession or power of procurement relating to her earnings for the five-year period prior to the date of her accident and for the period from 14^th June to the date of the trial.

8 Those documents indicated that she had been in receipt of no earnings (other than Social Welfare benefits) between the date of her injury on 14^th June, 2004, and 30^th June, 2008.

9 Less than a week before 9^th July, 2008, (the date when these proceedings were due to be heard), the plaintiff's solicitors wrote to the defendant's solicitors enclosing her affidavit of discovery and also enclosing a report from Messrs. Seagrave, Daly & Lynch, dated 2^nd July, 2008, wherein it was suggested that, based upon the plaintiff's instruction, she had suffered a loss of income between the date of her road traffic accident and the date of the trial in July 2008, of approximately €71,000.

10 The report also indicated that, based upon the plaintiff's instructions, she would sustain loss of earnings in the future, ranging between a minimum of €161,452 and a maximum of €343,000, by reason of the injuries which she had suffered in her road traffic accident.

11 When the proceedings came before this court on 9^th July, 2008, the defendant sought and obtained an order adjourning the proceedings in order to enable them to adequately investigate the plaintiff's claim for past loss of earnings in the region of €71,000 and future loss of earnings of between €161,452 and €343,000.

12 On the 15^th March 2010 the plaintiff swore an affidavit in which, inter alia, she averred that she had earned €280 in 2007, and a sum just in excess of €3000 in 2008, driving a taxi. Her affidavit was silent in relation to earnings between 2008 and March 2010.

13 The proceedings have now come before the court for final determination.

14 The plaintiff has discontinued her claim for future loss of earnings and the case was opened on the basis that she was confining her claim for past loss of earnings to the period of time between the date when she suffered her injuries on 14^th June, 2004, and October 2007, when she commenced driving a taxi.

15 The defendant contends that, whilst the plaintiff did suffer injury in the road traffic accident on 14^th June, 2004, she was, in July 2008, prepared to prosecute a claim which she knew to be false and misleading in a number of material respects, and would have continued to pursue that claim in court if the defendant had not been successful in adjourning the proceedings.

16 The defendant further contends that after the commencement of these proceedings on 13^th of July, 2010, the plaintiff has continued to give false and misleading evidence to this court, which she knew to be false and misleading, in respect of her injuries and their consequences for her, and in respect of the loss of earnings which she claims she sustained between June 2004 and October 2007.

17 The defendant claims that, by reason of the false and misleading testimony which has been adduced by the plaintiff in these proceedings, her claim must be dismissed by the court pursuant to the provisions of s. 26(1) of the Civil Liability and Courts Act2004.

18 Although she was able to leave her car to inspect damage to the vehicle, the plaintiff was taken the Mater Hospital where she complained of pain and stiffness in her neck and along her left elbow.

19 On examination, she demonstrated a full range of movement in her neck and had no bruising or lacerations in her neck region. X-rays, taken in the hospital, excluded fractures of the cervical spine, left elbow and left shoulder, and she was placed in a soft cervical collar and her left elbow was immobilised in a collar and cuff support.

20 She was subsequently reviewed at a fracture clinic and the collar and cuff supports were removed and she was advised to mobilise.

21 She stated, in evidence that, thereafter, her symptoms worsened and she required ongoing treatment including physiotherapy and pain treatment and therapy including cervical facet joint injections in August 2005.

22 She stated that she has suffered ongoing pain from the date of the accident which has been sufficient to exclude her from a number of domestic and occupational pursuits.

23 She said she tries to block out the pain when it gets really bad and takes medication. She said that when the pain is at its highest, she is unable to engage in meaningful activity for two or three days and has to relax and rest. She said that she has physiotherapy every three or four months.

24 She said that until the summer of 2008, and indeed, thereafter, even up to the present, she has been unable to work fulltime as a taxi driver and has been capable of working only on an infrequent basis.

25 When asked to explain inconstancies between her pictorially recorded capacity to undertake significant...