Shelley-Morris v Bus Átha Cliath

• Jurisdiction: Ireland
• Judgment Date: 22 January 2003
• Date: 22 January 2003
• Docket Number: 357/01
• Court: Supreme Court

THE SUPREME COURT

Denham J.

McGuinness J.

Hardiman J.

357/01

BETWEEN/

SIWSAN SHELLEY-MORRIS

PLAINTIFF/RESPONDENT

and

BUS ATHA CLIATH - DUBLIN BUS

DEFENDANT/APPELLANT

Abstract:

Tort - Personal injuries - Litigation - Loss of earnings - Damages - Contributory negligence - Video evidence - Abuse of process - Whether plaintiff unfit for work - Whether evidence tendered by plaintiff credible.

Facts: The plaintiff had been involved in an accident whilst on a bus and as a result had sustained injuries. As part of her proceedings subsequently brought the plaintiff submitted a claim for loss of earnings. At the trial in the High Court it emerged by way of video evidence that the plaintiff’s injuries were not as serious as originally thought and had in fact been exaggerated. O’Higgins J in the High Court awarded £172,500 in damages with a reduction made for contributory negligence. The defendants appealed to the Supreme Court arguing that the finding of only 25 per cent contributory negligence against the plaintiff and the amount of damages awarded were in error.

Held by the Supreme Court (Denham J and Hardiman J delivering judgment; McGuinness J agreeing) in allowing the appeal and reducing the damages. Denham J held it was clear that the plaintiff had suffered a significant injury. However the plaintiff had deliberately exaggerated her symptoms and had lost credibility as a consequence. The damages awarded would be reduced to £90,000 and contributory negligence assessed at 50 per cent resulting in an award of £45,000. Hardiman J held that the plaintiff’s manifest falsehoods and the overall impression of the video evidence had given rise to a considerable difficulty. The original award of the High Court would be set aside and a decree in the sum of £45,000 awarded.

1 Judgment delivered on the 22nd day of January, 2003 by Denham J.

2 1. On the 11th December, 2002 reserved judgments were delivered by the Supreme Court (Denham J. and Hardiman J.) in the above entitled action.

3 2. On the 18th December, 2002 the parties made submissions to the court on the issue of costs.

4 3. On the 26th October, 2001, The High Court ordered that the defendant was negligent, that there was contributory negligence by the plaintiff, that the apportionment of fault to the defendant was75per cent and to the plaintiff 25per cent. The total award was determined at £172,500.00. It was ordered accordingly that the plaintiff recover against the defendant the sum of £129,375.00, being 75 per

5 cent of the total award of £172,500.00 and the costs of the action when taxed and ascertained.

6 4. The defendant appealed the said order and judgment. The judgments of this court on the 11th December, 2002 allowed the appeal. The determination of the contributory negligence of the plaintiff was varied to a finding of 50 per cent. The damages awarded were reduced from a total award of £172,500.00 by the High Court to a sum of £90,000.00. Having determined the contributory negligence of the plaintiff at 50 per cent, the sum to which the plaintiff was entitled was £45,000.00.

7 5. Counsel for the defendant submitted that the defendant had won on both the quantum and the issue of contributory negligence and that costs should follow the event and that the defendant was entitled to the costs of the appeal. Further, he submitted that in relation to the High Court order the damages had been reduced by the Supreme Court and the High Court order as to costs should be disallowed or reduced. He referred to the Rules of the Superior Courts Order 99, rule 4 and sought a set off of the costs of the High Court against the damages, or that the court direct that one set of costs be set off against another. Counsel submitted that even though there had been a stay on the High Court order there had been a glitch in that despite that order the matter of the costs of the plaintiff had proceeded to taxation and a sum had been certified. He stated that the defendant had paid 44,000 euro to the solicitor of the plaintiff He argued that this should not have occurred. In these circumstances he sought an order under the Rules of the Superior Courts, Order 99, rule 4 for a set off.

8 6. Counsel for the plaintiff submitted that the appeal to the Supreme Court was carefully crafted: it related to liability and damages and there was no mention of the matter of costs. Further, he argued that the defendant had not appealed or stayed the order for costs in the High Court. He submitted that the defendant is estopped from seeking an order interfering with the order for costs in the High Court. He argued that in the Supreme Court every issue had been opened and that the plaintiff won in that the defendant was determined to be 50 per cent liable, for while the Supreme Court ordered an...