Olaru v The Motor Insurers' Bureau of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 19 November 2020
• Neutral Citation: [2020] IEHC 641
• Date: 19 November 2020
• Court: High Court
• Docket Number: [Record No. 2011/1351P]

BETWEEN

VICTOR OLARU

PLAINTIFF

AND

THE MOTOR INSURERS’ BUREAU OF IRELAND

DEFENDANT

AND

VICTOR OLARU

PLAINTIFF

AND

YAROSLAV BOGOYSKY AND THE MOTOR INSURERS’ BUREAU OF IRELAND

DEFENDANTS

[2020] IEHC 641

Bernard J. Barton

[Record No. 2011/1351P]

[Record No. 2012/7831P]

THE HIGH COURT

Damages – Road traffic collision – Negligence – Plaintiff seeking damages – Whether the plaintiff had established on the balance of probabilities that the alleged road traffic collision occurred as a result of negligent driving by the first defendant

Facts: The plaintiff, Mr Olaru, brought proceedings against the first defendant, Mr Bogoysky, in negligence and for breach of statutory duty and as against the second defendant, the Motor Insurers' Bureau of Ireland, pursuant to the provisions of the Motor Insurers Bureau Agreement, 2009. The defence delivered on behalf of the second defendant put the plaintiff on full proof of all material allegations pleaded in the summons. On the 24th March 2014 an order was made for substituted service of the proceedings on the first defendant by advertisement in a national newspaper; he did not appear. No motion for judgement in default of appearance or defence was brought; the action proceeded against the second defendant alone. The proceedings arose as a result of a road traffic accident which occurred on the 10th April 2009 on the Manorfield Estate roundabout, Clonee Co. Dublin. On the face of the summons, the plaintiff’s case was a straightforward road traffic collision between two vehicles on a roundabout which occurred when the one vehicle, driven by the first defendant, failed to yield right of way to the other, driven by the plaintiff; the first defendant fled the scene. The Plaintiff claimed he was the victim of a ‘hit and run’ accident, hence the involvement of the second defendant. At trial the plaintiff advanced the proposition that the collision was an attempted murder whereas the case made by the Bureau was that the collision had been staged and was a ‘set up’ designed to wrongfully extract compensation from the Bureau.

Held by Barton J that, in respect of the case against the Bureau, the law required, inter alia, the plaintiff to establish on the balance of probabilities that the alleged collision occurred as a result of negligent driving by the first defendant, his servant or agent. The Court found that the plaintiff had failed to discharge the onus of proof placed upon him by the law in that regard. The Court also found that the plaintiff gave evidence which he knew to be false or misleading in a material respect and that in the particular circumstances of the case the prosecution of the claim amounted to an abuse of the judicial process.

Barton J held that apart from reporting and making a claim in respect of sequelae which did not occur or were not causally related to the events of the 10th April 2009, the magnitude of the claim for general and special damages advanced by the plaintiff to the effect that he would be chronically injured for the rest of his life was wholly disproportionate to and in material respects was unsupported by the available medical evidence, a conclusion which had consequential implications for what, on the face of it, was a grossly exaggerated claim in special damages. Insofar as the application rested on the provisions of s. 26 of the Civil Liability and Courts Act 2004, Barton J was satisfied, and the Court found in all the circumstances that no injustice to the plaintiff would result from the dismissal of the action. Barton J held that the Court would so order.

Action dismissed.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the day of 19th day of November, 2020.

Introduction

1 These proceedings arise as a result of a road traffic accident which occurred on the 10th April 2009 on the Manorfield Estate roundabout, Clonee Co. Dublin. Plaintiff brings the proceedings against the first Defendant in negligence and for breach of statutory duty and as against the second Defendant pursuant to the provisions of the Motor Insurers Bureau Agreement, 2009, (the 2009 Agreement). The defence delivered on behalf of the second Defendant puts the Plaintiff on full proof of all material allegations pleaded in the summons. On the 24th March 2014 an order was made for substituted service of the proceedings on the first Defendant by advertisement in a national newspaper; he did not appear. No motion for judgement in default of appearance or defence was brought; the action proceeded against the second Defendant alone.

2 On the face of the summons, the Plaintiff's case is a straightforward road traffic collision between two vehicles on a roundabout which occurred when the one vehicle, driven by the first Defendant, failed to yield right of way to the other, driven by the Plaintiff; the first Defendant fled the scene. In brief, the Plaintiff claims he was the victim of a ‘hit and run’ accident, hence the involvement of the second Defendant (the MIBI/ the Bureau). However, for reasons with which this judgement is concerned, the circumstances are anything but straightforward. At trial the Plaintiff advanced the proposition that the collision was an attempted murder whereas the case made by the Bureau was that the collision had been staged and was a ‘set up’ designed to wrongfully extract compensation from the MIBI.

3 In this context the following matters in respect of which the Plaintiff is on proof merit express mention:

(i) that the first Defendant was the owner of the Mitsubishi Pajero (Shogun), registration number TBZ 6287, (the Mitsubishi) which the Plaintiff alleges collided with his vehicle;

(ii) that there was a valid policy of motor insurance in respect of the use of the Mitsubishi or alternatively that there was no such policy in place at the material time;

(iii) that an accident occurred in the way manner and circumstances alleged;

(iv) that the first Defendant, or his servant or agent with his consent, was the driver of the said vehicle;

(v) that the Plaintiff used his best endeavours to ascertain whether the first Defendant his servant or agent was the driver of the said vehicle;

(vi) that on the occasion of the alleged accident the Plaintiff was driving a Grand Cherokee Jeep registered letters 00-D-111230 (the Cherokee);

(vii) whether the Plaintiff had any dealings with or knew the first Defendant prior to or at the time of the accident, the driver having allegedly fled the scene.

4 The liability of the MIBI to meet unsatisfied judgements under the 2009 Agreement in cases arising from the negligent use of uninsured vehicles is subject to compliance by the claimant with certain conditions precedent, amongst which the following are relevant, namely:

(i) the requirement to furnish information relating to the relevant accident,

(ii) full cooperation with An Garda Síochana or any other authorised person in their investigation of the circumstances giving rise to the claim,

(iii) the furnishing of relevant correspondence and documentation in relation to the accident and any proceedings,

(iv) the use of best endeavours to establish if an approved policy of insurance covering the use of any vehicle involved in the accident exists by making a demand for insurance particulars in accordance with the provisions of s. 73 of the Road Traffic Act, 1961 as amended,

(v) where a claim pursuant to the agreement arises from an accident caused or contributed by an untraced motorist making oneself available for interview by the MIBI or its authorised agents, and

(vi) the furnishing of answers to all reasonable questions relating to the circumstances of the accident.

5 Apart altogether from the assertion at trial that the collision was a murder attempt by the first Defendant, there were other circumstances, highlighted by what follows, which border on the bizarre. The Plaintiff initially maintained to the police, his solicitors, the Bureau and the Injuries Board that he did not know the identity, and thus the gender, of the other driver; he caused proceedings to be issued against the Bureau on that premise. However, it subsequently transpired that not only did he have business dealings with the first Defendant, the alleged driver of the Mitsubishi, in 2008, he also had details of his motor insurance which begs the question as to how he came to be in possession of this information, particularly given his assertions that he had been knocked unconscious and the other driver had fled.

6 Notwithstanding, a few days post-accident he not only reported the occurrence accident to the first Defendant's Insurer, the Aviva, (formally the Hibernian), but also named him as the driver of the vehicle involved in the collision. Nevertheless, as mentioned above, he subsequently caused his solicitors to issue proceedings against the Bureau on the 11th February 2011, upon the premise that the owner and driver of the Mitsubishi were unidentified and/or untraced. [emphasis added] when at the time he clearly knew the allegation was not only misleading but was also untrue. However, in these proceedings, which were issued on the 7th August 2012, the driver of the other vehicle is named as the first Defendant. For reasons which will become apparent, the allegations and assertions in the pleadings and the particulars of claim together with the averments contained in the affidavits of verification sworn by the Plaintiff in the first set of proceedings are relevant to the issues which have arisen in these proceedings.

7 On the 9th August 2009, two days after the issue of these proceedings, the Plaintiff swore an affidavit of verification of the summons issued in the first set of proceedings. Replies to particulars followed on the 3rd May 2011 and the 12th July 2012. A full defence was delivered thereafter on the 23rd March 2013, naming the first Defendant herein as the driver of the other car. Finally, an affidavit of verification of...