O'Sullivan v Brozda

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Faherty,Mr Justice Maurice Collins
• Judgment Date: 14 July 2022
• Neutral Citation: [2022] IECA 163
• Docket Number: Appeal Number: 2020/122

Between

Joanne O'Sullivan

Plaintiff/Respondent

and

Agnieszka Brozda, Mary Coughlan and Jason Coughlan

Defendants/Appellants

[2022] IECA 163

Whelan J.

Faherty J.

Collins J.

Appeal Number: 2020/122

THE COURT OF APPEAL

Assessment of damages – Road traffic accident – Quantum – Appellant appealing against the judgment and order awarding damages to the respondent – Whether the judge erred in law in the manner of his assessment of the general and special damages awarded to the respondent

Facts: A road traffic accident occurred on 27 August 2016. Following a hearing in the Circuit Court between the defendants, Ms Brozda, Ms Coughlan and Mr Coughlan, liability for the accident was admitted by the first defendant/appellant. Ultimately, the case of the plaintiff/respondent, Ms O’Sullivan, proceeded in the High Court as an assessment of damages. The trial of the action took place over six days in January 2020. The appellant appealed to the Court of Appeal against the judgment of the High Court (Barr J) delivered on 12 March 2020 and the subsequent order dated 22 April 2020, awarding damages to the respondent in the sum of €302,445.48. The grounds of appeal were as follows: (1) The alleged error of the Judge in failing to apply s. 26(2) of the 2004 Act or otherwise sanction the respondent for the manner in which she prosecuted her loss of income claim; (2) the alleged error in the assessment of general damages for pain and suffering; (3) the alleged error in the calculation of the respondent’s loss of income; and (4) the alleged error in the assessment of special damages.

Held by Collins J that the High Court Judge’s conclusion that there was no basis for the section application made by the appellant followed from the Judge’s detailed findings on the evidence. Collins J held that no basis whatever for impugning those findings had been identified. Collins J held that the appellant’s appeal on the s. 26 issue must fail. In Collins J’s view, there was never any basis for bringing that appeal. Faherty J held that the appellant had not made out a persuasive case that the Judge erred in law in his assessment of general damages such as would warrant the intervention of the Court. Faherty J held that the Judge outlined clearly and rationally the basis upon which he arrived at the figure of €105,480.54 by way of loss of earnings to the date of trial, namely that a period of three years and two months had elapsed from January 2017; based on the findings he made with regard to the respondent’s condition from January 2017 to the date of trial (which was supported by medical evidence), the Judge could not but compensate the respondent for her loss of income during that time. Faherty J held that, based on the evidence before him, the Judge was entirely within jurisdiction in approaching the matter as he did. The Court had not found any basis upon which any of the Judge’s findings and conclusions should be disturbed.

Faherty J held that as the appellant had not made out any of the grounds challenging the Judge’s decision on quantum, she would dismiss the appeal. Faherty J held that the respondent should be awarded her costs.

Appeal dismissed.

Unapproved

No Redaction required

Judgment of Mr Justice Maurice Collins delivered on 14 July 2022

PRELIMINARY

1 The background to this appeal, and the issues and arguments arising in it, are fully set out in the judgment of Faherty J. As she explains, the appeal essentially involves two issues. The first is whether the High Court Judge (Barr J) was wrong not to dismiss the Plaintiff's claim pursuant to section 26(2) of the Civil Liability and Courts Act 2004 (“ the 2004 Act”). The second issue relates to the Judge's assessment of quantum. No issue of liability arises. For the reasons that she gives in her judgment, Faherty J concludes that the appeal on quantum fails. I agree fully with her analysis and conclusions and have nothing to add to her judgment on that issue. This judgment addresses the other issue on the appeal, concerning section 26(2) of the 2004 Act. For the reasons that I shall set out, I conclude that the Judge made no error in his assessment of that issue and there is no basis for interfering with this conclusions. Accordingly, this ground of appeal also fails.

2 For the purposes of this judgment, I gratefully adopt the factual narrative in the judgment of Faherty J and her account of the course of the proceedings and the evidence given in the High Court. It will, however, be necessary to refer to certain aspects of the High Court proceedings in more detail in due course.

SECTION 26

3 So far as material, Section 26 is in the following terms:

“(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 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.

(3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court.”

4 Section 14 of the 2004 Act requires the plaintiff in a personal injuries action to swear an affidavit verifying any “ assertions or allegations” made in any pleading served on and/or “ further information” provided to the defendant in the action (section 14(1). The defendant or third party is similarly obliged to verify “ assertions or allegations” made in any pleading served on any other party (section 14(2)). It is an offence to make a statement in a section 14 affidavit that is false or misleading in any material respect and is known to be false and misleading (section 14(5)). Separately, section 25 of the 2004 Act makes it an offence for “ a person” to give or dishonestly cause to be given, or adduces to or dishonestly causes to be adduced, evidence in a personal injuries action that is false or misleading in any material respect and which that person knows to be false or misleading (section 25(1)). It is also an offence for a person to give, or dishonestly cause to be given, “an instruction or information, in relation to a personal injuries action, to a solicitor, or person acting on behalf of a solicitor, or an expert” that is false or misleading in any material respect and which that person knows to be false or misleading (section 25(2)).

5 Sections 14 and 25 operate symmetrically, applying to plaintiffs and defendants (and, where applicable, third parties) in personal injuries actions (Part 2 of the 2004 Act is, or course, applicable only to such actions). However, section 26 is asymmetric in its operation, applying as it does only to personal injuries plaintiffs. A defendant who knowingly makes a false and misleading statement in a section 14 affidavit of verification, or who gives or causes to be given false or misleading evidence at trial, may commit an offence under section 14 and section 25 respectively but does not – at least under the provisions of Part 2 of the 2004 Act — face the risk of having their defence struck out or suffering judgment against them even where they may otherwise have had a good defence in law. 1

6 There is by now a good deal of authority on the interpretation and application of section 26, including a number of decisions of this Court which have comprehensively identified the appropriate approach to the section, namely Nolan v O' Neill [2016] IECA 298, McLaughlin v Motor Insurers Bureau of Ireland [2018] IECA 5, and Platt v OBH Luxury Accommodation Limited [2017] IECA 221, [2017] 2 IR 382, in which Irvine J (as she then was) gave the judgment of the Court and Browne v Van Geene [2020] IECA 253, in which Noonan J gave the only judgment.

7 So far as appears to me, the following are the main points to emerge from the terms of section 26 itself and the authorities which have addressed it:

• • The onus of establishing that evidence given in an action and/or in a section 14 affidavit is “ false and misleading in any material respect” is on the defendant. The requirement of materiality appears to have two aspects. First, the evidence at issue must be material to the claim advanced (as to which see Nolan v O' Neill, at para 43, citing the observations of Fennelly J for the Supreme Court in Goodwin v Bus Éireann [2012] IESC 9, at para 62 of his judgment). In Nolan v O' Neill, Irvine J considered that the High Court was wrong to rely on what she considered to be false and misleading evidence as to the inability of the plaintiff to engage in “ car drifting” due to his injuries, on the basis that such evidence was not material in circumstances where no claim for general or special damages had been made based on his inability to engage in that activity (at paras 58–60). Second, the evidence must be false and misleading to a material degree. That does not mean that a defendant must establish that the entirety of the claim is false or misleading in order to succeed ( Nolan, para 44) but the false or misleading evidence must nonetheless “ be sufficiently substantial or significant in the context of a claim that it can be said to render the claim itself fraudulent” ( Nolan, at para 43, again citing the judgment of Fennelly J in Goodwin).

• • Similarly, the onus of establishing that the plaintiff knew that the...