Ireland: Nolan v Mitchell & O’Neill

[2012] IEHC 151 - Smyth J.

Plaintiff found to have given false evidence in relation to the extent of his ongoing complaints, his ability to work and in his claim for loss of earnings. 

Facts

The Plaintiff's claim arose out of a road traffic accident which occurred on the 17th November 2005. The Plaintiff sustained injuries when his motorcycle collided with the Defendant's motor vehicle. Liability was apportioned between the parties – 60% attaching to the Defendant and 40% attaching to the Plaintiff.  As part of his claim, the Plaintiff alleged that he was unable to return to his work as an alarm fitter and that he would have difficulty in engaging in any work which involved heavy lifting, prolonged standing, squatting or kneeling.  The Plaintiff's claim for loss of earnings into the future was estimated at approximately €450,000 and was based on a pre-accident earning figure of €500 per week.

Judgment

In his Judgment, Smyth J stated that he did not accept the Plaintiff's evidence in relation to the extent of his ongoing disability. The Defendant introduced evidence showing the Plaintiff participating in his hobby of "car drifting".  Smyth J found that this activity required agility and physical competence and that the Plaintiff's involvement in this sport was inconsistent with the extent of the physical disability which he was alleging.  Smyth J also found that evidence put forward by the Defendant which showed the Plaintiff lifting a man up and throwing him over a counter was inconsistent with the Plaintiff's claim that lifting weights was a problem for him.

Smyth J was of the view that whilst the Plaintiff's injuries would preclude him from certain work, there were many occupations or areas of employment which would be suitable for the Plaintiff in the future.  

In relation to the Plaintiff's claim for loss of earnings, Smyth J noted the discrepancies between the Plaintiff's earnings as disclosed in his pre-accident P60s and the amount being claimed by him in terms of his ongoing weekly loss. No adequate explanation was provided to the Court with regard to this discrepancy. Furthermore, Smyth J did not accept the Plaintiff's contention that had he been in a position to continue working, he would have benefited from increases in his earnings of approximately 30% year-on-year.

Smyth J awarded the Plaintiff general damages of €125,000. He awarded him €27,444.30 in respect of loss of earnings to date and €40,000 in respect of loss of job opportunity into the future.

In relation to the Defendant's submission that the Plaintiff provided false evidence in relation to the extent of his disability and in relation to his loss of earnings, Smyth J accepted that the Plaintiff's claim for loss of earnings had been deliberately exaggerated.  He also accepted that the Plaintiff gave false evidence when he advised Paula Smith, Vocational Assessor, that he was no longer able to participate in his hobby of "car drifting".  Smyth J stated that "once a finding of falsehood in respect of one aspect of a claim is made, it necessarily follows that it is fatal to the whole of the claim".  In this case, Smyth J was of the view that the successful parts of the Plaintiff's claim could not be rescued from the provisions of Section 26 of the Civil Liability and Courts Act 2004 and he dismissed the Plaintiff's claim in its entirety. 

Comment

This decision, once again, demonstrates that if a Plaintiff is found to have provided false evidence in relation to one aspect of their claim, it will taint the entire claim.  It is of no assistance to a Plaintiff to argue that they should recover damages for the portion of the claim in respect of which no false evidence was adduced.   The decision also demonstrates the importance, from a Defendant's perspective, of being able to satisfy a Court that the provision of false evidence was done knowingly and intentionally.  In this case, there was no doubt that the Plaintiff deliberately sought to mislead the Court both in terms of his injuries and his loss of earnings.

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