Section 26 Of The Civil Liability And Courts Act 2004 - A Matter Of Intent?

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

Section 26 of the Civil Liability and Courts Act 2004 has come under scrutiny again in recent months. Two decisions in particular highlight the different ways in which Section 26 is being interpreted and applied in situations where a Defendant alleges that a Plaintiff has adduced false or misleading evidence. The key issues in both cases related to the issue of intent and whether the Plaintiff had adduced (or caused to be adduced) evidence which they knew to be false.

In the case of Folan .v. O'Corraoin (High Court, 16 November 2011), the Plaintiff claimed that he sustained injuries on 5 April 2007 whilst he was working as an apprentice on a building site. He alleged that he fell from scaffolding which had been improperly erected and/or he maintained that a ladder was not made available to him to carry out his work. The Plaintiff's accident was not witnessed. There were a number of inconsistencies and irregularities in the Plaintiff's evidence relating to both the circumstances of the accident and the alleged deterioration in his health following the accident. Having heard all of the evidence in the case, Mr. Justice Murphy formed the view that the Plaintiff had exaggerated the consequences of his accident and had knowingly given evidence which was false and misleading in a material respect. The Plaintiff had turned up to a medical examination with a crutch and affecting a limp. Murphy J described this as a "deliberate attempt to exaggerate his symptom". The Plaintiff also failed to disclose to doctors that he had returned to certain sporting and recreational activities, participation in which was inconsistent with the level of symptoms which the Plaintiff was reporting to those doctors. The Plaintiff's deliberate attempt to mislead medical doctors as to the extent of his complaints lead the Court to decide that the Plaintiff had knowingly adduced (or caused to be adduced) false evidence and which resulted in his claim being dismissed.

The above case can however be contrasted with the Supreme Court decision in the case of Ahern .v. Dublin Bus (Supreme Court, 2nd December 2011). The Plaintiff, who was 78 at the time of her accident, was awarded €40,000 by the High Court for injuries which she sustained whilst she was travelling on the...

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