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 Defendant's bus on 16 May 2006. The Defendant appealed that decision to the Supreme Court. The substance of the Appeal was that the Trial Judge had erred in law in failing to dismiss the Plaintiff's action pursuant to the provisions of the Section 26.  The Defendant's allegation of fraud centred around the claim which was made by the Plaintiff in the amount of €177,000 for care costs into the future.  That claim was made by the Plaintiff on the basis of a deterioration in her capacity for total physical independence following her accident.  It was decided by the High Court that the deterioration in the Plaintiff's health was more likely related to her age and her pre-accident osteoarthritis.  However, the High Court formed the view that the Plaintiff had not deliberately misled the Court and that her linking of the deterioration in her independence with her accident was a genuine and understandable statement of her own subjective belief. On Appeal, the Supreme Court found no basis on which to overturn the decision of the High Court and dismissed the Appeal. The key feature in Section 26 is the issue of intent. In a number of cases over the last few years, applications based on Section 26 have failed because, even though it was accepted that false evidence had been adduced, it was not proven that the false evidence was knowingly adduced. The Ahern case serves as a strong reminder that whilst the standard of proof in proving that a Plaintiff gave false or misleading evidence is on the balance of probabilities, the requirement to prove intent is likely to mean that, inevitably, many Defendants will fall short of the mark in terms of evidence when seeking to avail of the provisions of Section 26. For a full copy of the decision in Folan .v. O'Corraoin, click here. For a full copy of the decision in Ahern .v. Bus Éireann, click here. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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