Platt v OBH Luxury Accommodation Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 28 July 2017
• Neutral Citation: [2017] IECA 221
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 71 of 2016],Neutral Citation Number: [2017] IECA 221 Record No. 2016/71
• Date: 28 July 2017

BETWEEN/

JASON PLATT

PLAINTIFF/APPELLANT

- AND -

OBH LUXURY ACCOMMODATION LIMITED

AND

CIARAN FITZGERALD

DEFENDANTS/RESPONDENTS

[2017] IECA 221

Irvine J.

Finlay Geoghegan J.

Peart J.

Irvine J.

Neutral Citation Number: [2017] IECA 221

Record No. 2016/71

THE COURT OF APPEAL

Negligence – Damages – Liability – Appellant seeking damages for negligence – Whether the appellant had knowingly given false and/or misleading evidence to the court as to the extent and nature of his injuries

Facts: The plaintiff/appellant, Mr Platt, sustained significant injuries when he fell out the window from a window seat in a bedroom of the hotel premises of the defendants/respondents, OBH Luxury Accommodation Ltd and Mr Fitzgerald, in Kinsale on the 15th February, 2009. Mr Platt commenced proceedings claiming damages for negligence against the hotel. The defendants applied to the High Court judge to dismiss Mr Platt’s claim pursuant to the jurisdiction conferred on him by s. 26 of the Civil Liability and Courts Act 2004. The defendants maintained that: (i) the plaintiff himself at trial had knowingly given false and/or misleading evidence to the court as to the extent and nature of his injuries in breach of s. 26(1); (ii) he had knowingly caused false and/or misleading evidence to be adduced on his behalf in breach of s. 26(1) in that he had given a false account of his abilities and disabilities to each expert witness retained to examine him with the purpose of inflating his claim; and (iii) he had, in breach of s. 26(2)(a) and (b), sworn three affidavits of verification two dated the 7th December, 2011, and the final one dated 30th April, 2015, verifying a range of disabilities and alleged financial consequences knowing them to be false and/or misleading in several material respects. The High Court judge (Barton J), by his order of the 19th January, 2016, dismissed the plaintiff’s claim pursuant to the provisions of s. 26. The plaintiff appealed to the Court of Appeal against that order submitting that there was insufficient evidence to support the finding of the trial judge that he knowingly exaggerated his symptoms and disabilities as is required before the section may be invoked.

Held by Irvine J that the trial judge was entitled to conclude on the evidence before him that Mr Platt gave false and misleading evidence which was material to his claim, knowing it to be false, and that he did so for the purposes of recovering damages to which he was not entitled. Irvine J was also satisfied that the third affidavit of verification which Mr Platt swore on the 30th April, 2015 for the purpose of supporting his claim in respect of past and future special damages in the region of GBP£1.49m was false and misleading and that he swore that affidavit with the intention of misleading the court. Irvine J noted that in each instance the evidence that was false and misleading was clearly material to his claim as required under the section. Irvine J was satisfied that, notwithstanding the seriousness of his injuries, it was neither unfair nor disproportionate of the High Court judge to dismiss Mr Platt’s action in the circumstances.

Irvine J held that she would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Irvine delivered on the 28th day of July 2017

1 Did the learned High Court judge (Barton J.) err in law or in fact when by his order of the 19th January, 2016, he dismissed the plaintiff's claim pursuant to the provisions of s. 26 of the Civil Liability and Courts Act 2004? That is the core issue on this appeal.

Background facts

2 The plaintiff/appellant, Mr. Jason Platt (‘Mr. Platt’), now a man of some 45 years, sustained very significant injuries when he fell out the window from a window seat in a bedroom of the defendants' hotel premises in Kinsale on the 15th February, 2009.

3 It is not in dispute that Mr. Platt's injuries were life threatening at the outset and that he will never fully recover therefrom. He sustained, inter alia, five fractures to his vertebrae, seven fractured ribs and a fractured right femur. He also developed psychological problems as a result of his physical injuries.

4 Because it is of significance to issues that will be dealt with later in this judgment it is convenient at this point to note that it was initially believed that the stabilisation of the fracture of Mr. Platt's right hip had been a success. However, as a result of x-rays requisitioned by Mr. Michael O'Driscoll, consultant orthopaedic surgeon, in July, 2014 it became apparent for the first time that the subtrochanteric fracture had not achieved bony union and that the interlocking nail that had been used in the stabilisation procedure had fractured.

5 As a result of these events Mr. Platt commenced proceedings claiming damages for negligence against the hotel. He maintained that his injuries had been caused as a result of the defendants' negligence in having a defective and dangerous window ope in the bedroom that had been allocated to him. It is not necessary to dwell upon the circumstances surrounding Mr. Platt's fall as the same are not material to this appeal. Suffice to state that the High Court judge in his judgment found the defendants liable to compensate him in respect of his injuries subject to a finding that his damages should be reduced by 40% to reflect his own blameworthiness for the circumstances in which he sustained his injuries.

The pleadings and pre-trial procedures

6 The personal injury summons which was issued on the 3rd March, 2011, claimed that as a result of his injuries Mr. Platt was unable to live independently and was very much dependent upon his partner for assistance. It was, he maintained, anticipated that such assistance would be required on an ongoing basis and that he would need ‘limited assistance during the day and care at night’.

7 In replies to particulars delivered on the 13th September, 2011, Mr. Platt's condition was stated to have deteriorated. He was, according to the information provided, unable to keep medical appointments and had been referred to a pain clinic. It was stated that he required two crutches to stand and that he needed a significant amount of assistance to mobilise. It was also asserted on his behalf that he could not bear any weight on his right leg albeit that he had been advised by Mr. Manning, his own consultant orthopaedic surgeon, that the fracture to his right femur had healed in a good position. It was stated that his disabilities were such that he required two carers to attend him four times each day, a cost which was at that time being defrayed by the NHS. Mr. Platt's claim as pleaded and particularised at that time was verified in two affidavits of verification dated the 7th and filed on the 16th December, 2011.

8 The last of three disclosure schedules was forwarded to the defendants on the 2nd June, 2015. Further, on a date which is not obvious from the book of pleadings, a 25 page schedule of special damages and future loss was delivered to the defendants. This is exhibit ‘JP1’ to the third affidavit of verification sworn by Mr. Platt on the 30th April, 2015, some five weeks prior to trial. It was the delivery of this schedule that warranted the swearing of the said affidavit. In his affidavit Mr. Platt deposed to the fact that he had studied the contents of the schedule and was in a position to confirm that it was correct, true and accurate in every respect and that it had been drafted pursuant to his instructions. The total sum claimed in the schedule of special damages was GBP£1.493m.. Some of the more significant component claims therein specified include the following:-

GBP£

- Personal care support: 115,776.78

- Future loss of earnings 278,965.96

- Future personal care and support 224,521.19

- Future aids and equipment 151,418.12

- Future accommodation 285,448.33

9 In the schedule of special damages, it was stated that the sums claimed were based on the recommendations and reports of a number of Mr. Platt's treating doctors as well as those of the expert witnesses therein identified. Ms. Gail Russell, occupational therapist, Ms. Jane Toplis, rehabilitation consultant, Mr. Paul Jackson, vocational rehabilitation and employment consultant, Mr. Michael O'Driscoll, consultant orthopaedic surgeon and Prof. Green, consultant psychiatrist are amongst those identified in the schedule.

10 As to the witnesses he intended to call to support his claim and as to the substance of the evidence that they would give, Mr. Platt delivered his final disclosure schedule on the 2nd June, 2015, identifying his witnesses and the reports upon which they would rely.

The High Court hearing

11 The within proceedings were heard by Barton J. in the High Court over a period of seven days in June, 2015. Following the conclusion of the evidence the defendants applied to the High Court judge to dismiss Mr. Platt's claim pursuant to the jurisdiction conferred on him by s. 26 of the Civil Liability and Courts Act 2004 (‘the Act’). It is convenient at this point in the judgment to refer to that section which provides as follows:-

‘(1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, 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 section 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...