Scott Hardy v Bridhge Bible and The Motor Insurers' Bureau of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 22 June 2021
• Neutral Citation: [2021] IEHC 614
• Docket Number: [RECORD NO. 2018/170]
• Court: High Court

Between

Scott Hardy

Plaintiff

and

Bridhge Bible and The Motor Insurers' Bureau of Ireland

Defendant

Between

Damien Hennessy

Plaintiff

and

Bridhge Bible

Defendants

[2021] IEHC 614

[RECORD NO. 2018/170]

[RECORD NO. 2017/237]

THE HIGH COURT

CIRCUIT APPEALS

JUDGMENT of Mr. Justice Twomey delivered on the 22nd day of June, 2021

SUMMARY

1 This case involves a claim for personal injuries which this Court has found, on the balance of probabilities, to be false. It is important to consider how these false claims were supported by apparently credible medical evidence. The issues which arise from this case therefore can be summarised as follows:

(i) False claims opportunistically made, arising from a genuine accident

As noted in detail below, there was a very minor ‘tip’ between the defendant's (“Ms. Bible's”) car and the first plaintiff's car (“Mr. Hardy”) and therefore, technically speaking, there had been a ‘car accident’. The matter appears before this Court as an appeal from the Circuit Court. It seems clear that the Circuit Court, based on the evidence heard before that Court, did not believe the extent of the car damage claimed by Mr. Hardy, or the extent of the personal injuries claimed by Mr. Hardy and the second defendant (“Mr. Hennessy”). This is because the Circuit Court gave an order for only €1,250 in respect of the alleged car damage (although as noted below, Mr. Hardy produced a very significant estimate of €7,850 for the damage, considering it was a tip to his tow bar) and the Circuit Court awarded a sum of €5,000 in respect of general damages for personal injuries sustained by both plaintiffs, namely at the District Court level (which is between €0 and €15,000), rather than at the Circuit Court level (€15,001-€60,000). In addition, the Circuit Court only awarded legal costs on the District Court scale to the plaintiffs.

However, based on evidence heard before this Court as outlined below, this Court would go further than the Circuit Court and find that, on the balance of probabilities, there was in fact no damage to the car or any personal injuries to the plaintiffs and so it will dismiss the proceedings. Just because there has been a genuine accident does not give rise to a right on the part of a plaintiff to falsify any part of their claims, which this Court finds has occurred in this case.

This case, where there was a claim of special damages of €7,850 for damage to a car that received just a ‘tip’ to a tow-bar, is also an example of why, Noonan J. stated in Daly v. Health Service Executive [2014] IEHC 560 at para. 43 that it behoves lawyers involved in personal injuries litigation ‘ to exercise considerable care in the analysis of claims for special damage before advancing them’. It seems to this Court that part of that reasonable care may be to emphasis to plaintiffs the dangers that their claims, even if they arise from a genuine accident, will be dismissed in their entirety if they make any false claims regarding their injuries or damage to property (or indeed if they make any exaggerated claims). There is of course no reason to believe that the lawyers in this case did not do so and of course it is important to emphasise that the lawyers are simply acting on the instructions of their clients and it is not their role, but the role of the Court, to determine the veracity of the claims.

(ii) ‘Inappropriate’ referral by solicitor of client to consultant

The second issue considered in this case is the fact that in a claim regarding personal injuries, which this Court has found to be false, the referral to the consultant was made, not by the plaintiffs' GPs, but rather by their solicitor. However, it must be emphasised, that it is not being suggested that that solicitor was aware of the fact that the claim was false.

This referral was made despite the fact that the High Court (Barr J.) has described this practice of solicitors referring their clients directly to consultants as ‘inappropriate’ ( Dardis v. Poplovka [2017] IEHC 149 at para. 156). As noted below, this practice, it must be assumed, is done for no good medical reason (since solicitors do not have any medical expertise), but rather for legal reasons to support a claim in damages. One of the problems with such referrals is that, because they are made for no good medical reason, such referrals can end up being used to support fraudulent (or exaggerated) claims. Accordingly, the existence of a referral to a consultant, not by a GP, but by a solicitor (and therefore for no good medical reason), can amount to supporting evidence, as in this case, that the claim was false (or indeed exaggerated).

This case is also an example of how a purely subjective medical assessment by a consultant of a soft tissue injury (i.e. based on the word of the patient) can appear to be objective evidence of injury, in order to support a claim for damages, even though the claim itself has been found by this Court to be false.

(iii) Self-referrals of plaintiffs to a hospital emergency department

This case also considers the fact that both plaintiffs decided not to seek a referral or medical advice from their GP regarding their alleged injuries from what this Court has found to be a ‘tip’. Instead they referred themselves to an accident and emergency department of a busy hospital, even though there was absolutely no indication that there was any medical emergency warranting Mr. Hardy and Mr. Hennessy occupying very valuable and scarce medical resources. Quite apart from the waste of valuable tax-payer funded resources, which should be deprecated in the strongest terms, and the delays thereby caused to seriously injured people at that hospital, a more general point can be made. It is that the failure of a plaintiff to seek medical advice from their GP or an opinion from their GP as to whether their alleged injuries warranted attendance at a busy accident and emergency department, can amount to supporting evidence that the claim was false (or exaggerated). This is because, like the referral by a solicitor, rather than a GP, to a consultant of a client, a self-referral by a client, rather than by a GP, to an accident and emergency department may also be made without objective medical grounds.

(iv) Negative effect of such claims on genuine claims and innocent defendants

This case also raises a fourth issue, namely the fact that there are many people who are injured and deserving of compensation arising from the negligence, or sometimes even the recklessness of others, and are awaiting compensation for many years due to the backlog in the courts. However, false claims brought by plaintiffs, as in this case, only delay those genuine claims being heard in the Irish courts.

Unfortunately, as noted by this Court in Ronan v. Tipperary County Council [2021] IEHC 492 and Hannon v. Tipperary County Council [2021] IEHC 514, where the plaintiffs are impecunious, as in this case, the prospect of having an order for legal costs made against them is not a sufficient financial disincentive for false or unmeritorious claims to be brought. Such claims may be brought in the hope that the cases will settle as a ‘nuisance claim’ – see Condon v. Health Service Executive [2021] IEHC 474 where this issue was raised. Based on the figures opened to the Court in that case, to settle a High Court nuisance claim (including legal fees), the plaintiffs in this case might have been hoping for a settlement offer of €10,000 to settle their claims, with a figure of €10,000 to their lawyers — thereby saving the defendant from having to expend €50,000 – €100,000 in legal costs to ‘win’ the case in the High Court.

The absence of any financial disincentive for impecunious plaintiffs to make such claims means that defendants are forced to litigate on the basis of an unlevel playing field as regards legal costs. This is because, as regards legal costs, it is win/lose for the plaintiff but lose/lose for the defendant, since even if the defendant wins the case, he will still have to pay his own legal costs. As such, defendants may feel they have no option but to ‘buy-off’ an unmeritorious claim, such as this one.

It seems to this Court that so long as this remains the case, the right of litigants, which it is important to remember includes defendants, ‘to have litigation fairly conducted’ (per the Supreme Court in Farrell v. Bank of Ireland [2012] IESC 42 at para. 5), is called into question. This is likely to continue in the absence of a financial disincentive for impecunious plaintiffs (while at the same time of course recognising litigants' right of access to the courts), where those plaintiffs take unmeritorious claims without ‘ any skin in the game’.

It seems therefore, that in the absence of a sufficient economic disincentive for the bringing of unmeritorious/false/exaggerated/speculative claims, the backlog in court cases and the waiting time for genuine claims is likely to continue.

However, of perhaps even more significance is that the absence of a sufficient economic disincentive for the bringing of false or exaggerated claims by impecunious plaintiffs brings personal injuries litigation generally into disrepute. Accordingly, those with genuine personal injury claims may be discouraged from pursuing them, since they may not want to be associated with the negative publicity which attaches to personal injury claims such as this one.

It seems to this Court therefore that it is important that opportunistic, speculative, exaggerated or fraudulent claims are not simply treated as nuisance claims to be bought off for the financial benefit of plaintiffs and their lawyers (who, it must be emphasised, are only acting on instructions from their clients). Settlement of such claims only encourages the taking of them and it seems to this Court that they should be litigated so as to discourage the taking of such claims. However it must be emphasised that this...