Vesey v Bus Éireann

JudgeMr. Justice Hardiman
Judgment Date13 November 2001
Neutral Citation[2001] IESC 93
CourtSupreme Court
Docket Number[S.C. No. 328 of 2000]
Date13 November 2001





[2001] IESC 93

Denham J.

McGuinness J.

Hardiman J.




- [2001] 4 IR 192

Facts: The plaintiff had been involved in a road accident and as a result was awarded £72,500 in damages against the defendant. The defendant did not dispute liability but denied the injuries and the loss alleged by the plaintiff. The trial judge had averted to the difficulties that the evidence of the plaintiff presented. The trial judge had stated that the plaintiff had lied to the court and that it was difficult to assess the damages allegedly suffered. The defendant contended that the general damages awarded were excessive and not supported by the evidence. The defendant also disputed the amount awarded for loss of earnings.

Held by Hardiman J (Denham J, McGuinness J) in reducing the amount of damages awarded. The observations of the trial judge were not unduly harsh or unjustified. It was not the responsibility of a trial judge to "disentangle" the plaintiff's case when it had become entangled as a result of lies and misrepresentations systematically made by the plaintiff himself. The procedure in the courts was an adversarial one and the defendant was entitled to have the plaintiff's case presented by him and accepted on its merits or otherwise as these appeared from the plaintiff's presentation and cross-examination. The learned trial judge had attempted to perform the very difficult task of deciding what should be awarded to a plaintiff who undoubtedly had an entitlement to some award, in circumstances where the plaintiff himself had made the exercise all but impossible by persistent lies in and out of court. The award in relation to future loss of earnings was largely speculative and should be set aside. The plaintiff had almost entirely failed to adduce credible evidence in this regard and was accordingly entitled to no award. The plaintiff's damages were assessed at £7,500.00 in respect of special damages, £15,000.00 in respect of general damages and £7,500.00 in respect of loss of earnings, making a total of £30,000.00.

Obiter: There was plainly a point where dishonesty in the prosecution of a claim could amount to an abuse of the judicial process as well as an attempt to impose upon the other party.



CRAWFORD V KEANE UNREP BARR 7.4.2000 2000/4/1535


KELLY V BUS EIREANN UNREP SUPREME 16.3.2000 1999/15/4173


JUDGMENT of Mr. Justice Hardiman delivered the 13th day of November, 2001. [nem diss]


This is the Defendant's appeal against the order of the High Court of the 14th November, 2000 awarding the Plaintiff damages for personal injuries in the total sum of £72,500.00.


The Plaintiff was involved in a traffic accident on the 9th September, 1996. He was stationary at traffic lights on the Stillorgan Road when a bus the property of the Defendant drove into the rear of his vehicle. The action was heard in the High Court on the 7th, 8th and 9th of November, 2000. Judgment was reserved overnight and delivered on the 10th November.

The issues.

Liability for the accident was not disputed by the Defendant and the substantive plea was a denial of the injuries and loss alleged.


Despite the apparent simplicity of the issues the trial was a very difficult one. The nature of these difficulties is graphically set out in the judgment of the learned trial judge. He said:-

" .......It should be a very simple case and the facts of it are very simple indeed. The Plaintiff was hit from behind by a bus. Let me say that the only fact in this case about which I am absolutely certain is that the accident took place and I am only certain of that because the Defendants have admitted it. Had the Defendants not admitted it, I would possibly have the gravest difficulty in coming to that conclusion.....It is necessary to notice that that is the end of the simplicity in the case".


Later the trial judge said:-

"I am now going to say something that I have never said about any Plaintiff in the last 13½years on the bench. The Plaintiff has lied to me, he has lied to his own doctors, he has lied to the Defendants" doctors in a manner which has rendered the opinions of the doctors almost useless because they admit themselves, they depend on the veracity of the history given to them by the Plaintiff to form their opinions. The Plaintiff did not tell the doctors the truth regarding his history."


Turning the Plaintiff's work history the learned trial judge said:-

" The history of work in the case is one of the great mysteries because the only time on which we have any detail of the Plaintiff's work was in the six months prior to the accident and, undoubtedly, he was working then but......I accept that only because of (the evidence of a former employer)......."


As will be gathered from these extracts, the difficulties in the case revolved around the ascertainment of the precise physical injuries and disability referable to the accident and in respect of which damages could be awarded on the one hand, and the Plaintiff's work history in so far as it bore on his pre-existing condition and on his likely loss of earnings for the future on the other. The assessment of the first of these matters was rendered complicated by the fact that the Plaintiff had at least four previous accidents, three of them while in the employment of a company for which he worked for a total of only six or seven months. In these cases, he had made claims of various sorts of injuries which would have the effect of rendering him fit for only light work. However, in the six months or so prior to the present accident he had been working in the building trade and earning an average of £365.00 per week.


In relation to these matters the learned trial judge held:-

".....Having regard to the condition from which the Plaintiff was suffering.....two months prior to the is very hard to say that his present condition is any way worse than this but I am happy to accept the evidence of Mr. Harold Browne when he says that his pre-existing condition was shaken up......"


He also held:-

"I accept that he suffered some damage but as to what the damage was I can only speculate".


The judge also held:-

"With regard to general damages, as I say, the Plaintiff has not helped me, he has lied to his doctors, but I accept Mr. Browne and I accept Dr. McGrath, the Defendant's doctors that he (a) has no psychiatric problem or demonstrated no sign of them and (b) that what happened to him, he was shaken up and he had a bad condition beforehand, though he was able to work with it and I do not think that at this late stage he has suffered or is anyway really worse off than he was before the accident, or he certainly has not proved that to my satisfaction on the balance of probabilities".


None of these findings were appealed against by the Plaintiff. The Defendant, however, appealed on the following grounds:-


2 " (1)That the learned trial judge erred in law and on the facts by making an award of general damages to the Plaintiff which was excessive and was unsupported by the evidence.


3 (2)That the learned trial judge erred in law and on the facts in making any award of damages in respect of loss of earnings to the Plaintiff, there being insufficient evidence to support such an award.


4 (3)Having regard to the dishonesty of the Plaintiff, the learned trial judge erred in law and on the facts in making any award of damages to the Plaintiff in that the Plaintiff had failed to discharge the burden of proof upon him to satisfy the Court as to the injuries he had allegedly sustained."


The damages awarded to the Plaintiff were sub-divided as follows:-


(i) Special damages £7,500,


i (ii)Loss of earnings to date and into the future £35,000,


(iii) Pain and suffering to date and into the future £30,000.

Aspects of the evidence

As will be gathered from the extracts set out above, the evidence in this case took a number of unusual turns. The Plaintiff gave contradictory evidence on a considerable number of points both in relation to his medical condition and his work history. He also had the difficulty that particulars of his medical state had been furnished by another firm of Solicitors acting on his behalf in relation to an earlier accident. The particulars were dated July, 1993. These contained the allegation that:-

"His incapacity is such that he will be unable to compete with others with realistic hope of obtaining even lighter work".


Moreover, the Plaintiff claimed that his pre-accident work history was a generally good one and that, in particular as a result of work he carried out in the Isle of Man and in Jersey, he had earned enough money to buy a house. However, in the particulars already referred to, delivered in 1993 but in respect of an accident in 1984, the Plaintiff was asked to identify all of his employers since the date of that accident. To this he replied:-

"After the accident the Plaintiff endeavoured to continue his existing employment, but was not physically fit to do so. He subsequently tried to work as a steel fixer with Kavanagh Steel Fixing Service in James's Street, but found that he was physically incapable of work".


When, in the same action, the Plaintiff was asked to state the amount of his earnings in respect of each employment and he replied:-

"The periods (of employment) were of such short duration that these figures are of no significance".


These were not the only difficulties afflicting the Plaintiff in relation to his medical history, his work history and the correlation between them. He...

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