Nolan v Kerry Foods

Author:Ms Ailbhe Gilvarry, Lorcan Buckley and Rachel Kavanagh
Profession:Mason Hayes & Curran

[2012] IEHC 208 - Irvine J. Defendant's application to have Plaintiff's claim dismissed on foot of Section 26 of the Civil Liability and Courts Act 2004 was refused.  Insufficient evidence to support the Defendant's contention that the Plaintiff had deliberately adduced false evidence. Facts The Plaintiff sustained injuries to his back as a result of a road traffic accident which occurred on 10th April 2006. Liability was not in issue. At the time of the accident, the Plaintiff was working as a gardener and was also heavily involved in rugby coaching.  The Plaintiff had a significant and very relevant pre-accident medical history, namely a severely compromised back which he had had from a very young age.  He had a history of chronic back pain and left-sided sciatica.  The Plaintiff alleged that his back had not given him much trouble since early 2006 and that in the aftermath of his accident, his back became extremely symptomatic.  He further alleged that his involvement in the accident required him to undergo back surgery sooner than would have been required, had the accident not occurred. The Defendant contended that none of the Plaintiff's back complaints post-accident were accident-related but were in fact related to the Plaintiff's pre-existing medical condition. The Defendant also contended that the Trial Judge should invoke Section 26 on the basis that the Plaintiff had failed to disclose to certain medical advisors the fact that he had suffered from significant back problems prior to his accident, had provided inconsistent information regarding the onset of his back pain post-accident and had inflated a claim for loss of earnings. Judgment Whilst accepting that portions of the Plaintiff's evidence were "fragile", Irvine J did not accept that the Plaintiff had deliberately adduced false evidence. Irvine J held that inconsistencies in the Plaintiff's evidence relating to when his symptoms commenced post-accident were not sufficient to convince her that his evidence was untruthful.  It was of assistance to the Plaintiff that his own evidence regarding the onset of his symptoms post-accident was corroborated by his physiotherapist. Irvine J accepted that the Plaintiff had sustained a back injury as a result of his accident.  She attached particular importance to the evidence of Dr O'Flanagan, who, for a number of years, had been the doctor to Bective Rugby Club where the Plaintiff coached.  Dr O'Flanagan gave...

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