Trevor Murphy v Helen Palmer
| Jurisdiction | Ireland |
| Judge | Mr. Justice Bernard Barton |
| Judgment Date | 04 March 2021 |
| Neutral Citation | [2021] IEHC 154 |
| Docket Number | 2017/1896P |
| Court | High Court |
| Date | 04 March 2021 |
[2021] IEHC 154
2017/1896P
THE HIGH COURT
Damages – Personal injuries – Quantum – Plaintiff seeking damages – Whether the plaintiff had knowingly given evidence or had dishonestly caused evidence to be given which was false or misleading
Facts: The plaintiff, Mr Murphy, brought proceedings in negligence to recover damages for personal injuries and loss suffered and sustained by him as a result of a road traffic accident, which occurred on the 6th October, 2013 near Tallaght Stadium, Tallaght, Co. Dublin. The plaintiff was driving a car owned by his employer and had stopped behind another car in a stationary line of traffic when the car of the defendant, Ms Palmer, which was travelling behind the plaintiff, collided therewith. The collision impact forces shunted the plaintiff’s car into a further collision with the rear of the car behind which it had stopped. The case proceeded as an assessment of damages. The plaintiff and his wife gave evidence in relation to his injuries, the effect that these had on him and the impact thereof on his enjoyment of life, particularly his recreational and sporting life. In addition to a claim for general damages, the plaintiff made a claim for special damages totalling €10,612.72, of which the sum of € 4,712.72 was agreed. This head of claim covered loss of earnings, GP visits, X-rays and an MRI scan. The balance of the claim in the sum of €5,900 consisted of €1,350 in respect of gym membership and €4,550 in respect of physiotherapy and physical therapy. The amount was agreed but not the defendant’s liability therefor. The cost of remedial works to the car damage at €4,513.00 had been agreed by the defendant’s insurer and had been paid to the owner prior to trial. At the conclusion of the evidence an application was made pursuant to s. 26 of the Civil Liability and Courts Act 2004 to have the plaintiff’s claim dismissed on the grounds that he had knowingly given evidence or had dishonestly caused evidence to be given which was false or misleading.
Held by the High Court (Barton J) that, having applied the principles which emanated from the jurisprudence that had evolved since s. 26 was enacted to the circumstances and facts of the case, the defendant had not discharged the onus of proof required to establish, on the balance of probabilities, that the plaintiff gave evidence or information or caused evidence or information to be given material to the claim which he knew to be false and/or misleading. Barton J was satisfied that the plaintiff fell into an entirely different category of claimant than those whose claims were dismissed in the case authorities to which the Court was referred. In the circumstances, Barton J found that the use of s. 26 by the defendant to meet the plaintiff’s claim was not inappropriate and did not warrant an award of aggravated damages being made to the plaintiff; it was enough that the application was dismissed. Barton J added that, if he was wrong in coming to the conclusion that he had on the substance of the application, he considered that in the circumstances of the case an injustice would be done to the plaintiff by making the order sought.
Barton J held that a fair and reasonable sum to compensate the plaintiff by way of general damages for pain and suffering to date and into the future proportionate to and commensurate with his injuries was €50,000. Barton J was further satisfied that the treatments afforded to the plaintiff for physical therapy to date were appropriate and that the modest claim for special damages in this case should be allowed and added to the award of general damages making in total the sum of €60,612.72.
Damages awarded.
Judgment of Mr. Justice Bernard Barton delivered on the 4th day of March, 2021.
The Plaintiff is a HR director of the Irish division of DHL, the well-known international courier. He was born on the 28th March, 1974 and is married with three grown-up children. He resides with his family at 12 Pineview Drive, Dublin 24. These proceedings are brought in negligence to recover damages for personal injuries and loss suffered and sustained by the Plaintiff as a result of a road traffic accident, which occurred on the 6th October, 2013 near Tallaght Stadium, Tallaght, Co. Dublin. The accident circumstances may be summarised as follows. The Plaintiff was driving a car owned by his employer and had stopped behind another car in a stationary line of traffic when the Defendant's car, which was travelling behind the Plaintiff, collided therewith. The collision impact forces shunted the Plaintiff's car into a further collision with the rear of the car behind which it had stopped.
The Pleadings delivered in this suit set out the accident circumstances and particularise the injuries and loss suffered by the Plaintiff, and the impact which these have had on his enjoyment of the amenities of life. While the Defence, delivered the 31st October, 2018, admitted liability and put the Plaintiff on proof of his injuries and loss, his claim was otherwise met with a plea that the impacts involved in the collisions were minimal and incapable of causing injury. When photographs of the damage caused to the vehicles were produced before the commencement of the trial, the plea was quite correctly withdrawn; significant impact damage to the vehicles was evident.
It transpired that the plea had been based on the content of a vehicle assessor's report prepared following a forensic examination of the vehicles, but no explanation was offered for the conclusion drawn that the impacts involved between the vehicles were minimal; what's more, the plea had been verified on affidavit by the Defendant who had been scheduled as a witness to fact. It follows that until the trial commenced, the Plaintiff faced a plea which, if sustained, had serious implications for his credibility, carrying with it the dire consequence that his claim would be dismissed. This circumstance merits specific mention at the outset because even though the plea was withdrawn, the Defendant thereafter set about mounting a full frontal assault on the veracity of the Plaintiff and the claim he made, the object of which was to achieve the same result by having his claim dismissed.
On the face of it, the case proceeded as an assessment of damages. The Plaintiff and his wife gave evidence in relation to his injuries, the effect that these have had on him and the impact thereof on his enjoyment of life, particularly his recreational and sporting life. In addition to a claim for general damages, the Plaintiff made a claim for special damages totalling €10,612.72, of which the sum of € 4,712. 72 was agreed. This head of claim covered loss of earnings, GP visits, X-rays and an MRI scan. The balance of the claim in the sum of €5,900 consisted of €1,350 in respect of gym membership and €4,550 in respect of physiotherapy and physical therapy. The amount was agreed but not the Defendant's liability therefor. The cost of remedial works to the car damage at €4,513.00 had been agreed by the Defendant's insurer and had been paid to the owner prior to trial.
The Plaintiff suffered soft tissue injuries to his neck and mid/lower back; the lower back injuries resolving relatively quickly, within approximately six months of the accident. However, the upper back/neck injury failed to resolve and remains problematic. The sequelae of this injury are pain and referred headaches. Depending on the activity/ movement/ posture undertaken, pain radiates from the left trapezius muscle up into the forehead as a result of which the Plaintiff suffers headaches, on average three to four times per week. Moreover, the headaches can on occasion be severe and require treatment with painkilling medication, usually Ibuprofen.
The medical evidence adduced in respect of the Plaintiff's injuries consists of the testimony of several of the treating and/or examining physicians, together with the content of several medical reports commissioned by the parties that were admitted in evidence. The reports set out the diagnosis, treatment and prognosis for the injuries. It is not insignificant in the context of the first issue which the Court has to address that the opinions of the Orthopaedic experts contained in their initial reports were broadly similar; namely, that the Plaintiff had sustained soft tissue injuries as a result of the accident and that it was likely he would continue to be troubled thereby at some level into the future. However, the Defendant's expert resiled from this opinion when he was sent a series of publicly available photographs taken of the Plaintiff participating in his pre-accident sporting pursuits.
At the conclusion of the evidence an application was made pursuant to s. 26 of the Civil Liability and Courts Act, 2004 (the 2004 Act) to have the Plaintiff's claim dismissed on the grounds that he had knowingly given evidence or had dishonestly caused evidence to be given which was false or misleading. The question which arises is best placed in context against the background from which it emerged.
In the years leading up to and at the time of the accident, the Plaintiff had become an ‘uber’ fit triathlete and mountain bike rider. Amongst the many pre-accident athletic achievements were his participation in 3 national Sprint and 2 Olympic triathlons. For the benefit of the uninitiated, triathlons involve three disciplines: long-distance swimming, cycling and running. The distances involved in the disciplines vary and are material to the issues which have arisen. The Sprint triathlon distances are a 750-metre swim, a 20-kilometre road cycle and a 5-kilometre run, whereas the Olympic triathlon distances are 1500 metres, 40-kilometres and 10-kilometres respectively. The so-called mid-distance triathlon, better known as a...
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