Ireland: Nolan v Kerry Foods

[2012] IEHC 208 - Irvine J.

Defendant's application to have Plaintiff's claim dismissed on foot of Section 26 of the Civil Liability and Courts Act 2004 was refused.  Insufficient evidence to support the Defendant's contention that the Plaintiff had deliberately adduced false evidence.

Facts

The Plaintiff sustained injuries to his back as a result of a road traffic accident which occurred on 10th April 2006. Liability was not in issue. At the time of the accident, the Plaintiff was working as a gardener and was also heavily involved in rugby coaching.  The Plaintiff had a significant and very relevant pre-accident medical history, namely a severely compromised back which he had had from a very young age.  He had a history of chronic back pain and left-sided sciatica.  The Plaintiff alleged that his back had not given him much trouble since early 2006 and that in the aftermath of his accident, his back became extremely symptomatic.  He further alleged that his involvement in the accident required him to undergo back surgery sooner than would have been required, had the accident not occurred.

The Defendant contended that none of the Plaintiff's back complaints post-accident were accident-related but were in fact related to the Plaintiff's pre-existing medical condition. The Defendant also contended that the Trial Judge should invoke Section 26 on the basis that the Plaintiff had failed to disclose to certain medical advisors the fact that he had suffered from significant back problems prior to his accident, had provided inconsistent information regarding the onset of his back pain post-accident and had inflated a claim for loss of earnings.

Judgment

Whilst accepting that portions of the Plaintiff's evidence were "fragile", Irvine J did not accept that the Plaintiff had deliberately adduced false evidence. Irvine J held that inconsistencies in the Plaintiff's evidence relating to when his symptoms commenced post-accident were not sufficient to convince her that his evidence was untruthful.  It was of assistance to the Plaintiff that his own evidence regarding the onset of his symptoms post-accident was corroborated by his physiotherapist. Irvine J accepted that the Plaintiff had sustained a back injury as a result of his accident.  She attached particular importance to the evidence of Dr O'Flanagan, who, for a number of years, had been the doctor to Bective Rugby Club where the Plaintiff coached.  Dr O'Flanagan gave evidence to the effect that the Plaintiff appeared to be in the whole of his health prior to 2006 and did not demonstrate any signs of significant incapacity. 

In relation to the Plaintiff's claim for loss of earnings, it was noted by Irvine J in her Judgment that the claim being advanced by the Plaintiff in that regard was limited to seeking augmented general damages to take account of the fact that he was required to undergo back surgery sooner than would otherwise have been required.  In that regard, Irvine J did not accept that this element of the Plaintiff's claim was misrepresented or deliberately falsified.

In describing the Plaintiff's injury arising out of the accident as a "seriously debilitating soft tissue injury of approximately 2 – 3 years duration", Irvine J awarded the Plaintiff a sum of €45,000 which included a modest uplift to cover any minor loss of income referable to the accident.

Comment 

In her Judgment, Irvine J makes reference to a number of landmark cases relating to Section 26 of the Civil Liability and Courts Act 2004 including the cases of Carmello v Casey and Ahern v Dublin Bus.  Having considered the principles which emerged from those cases and having heard the extensive submission made by both sides in the case, Irvine J was not satisfied, on the balance of probabilities, that the Plaintiff had deliberately sought to mislead the Court.  It is clear from this case and a number of other recent decisions relating to Section 26 that the mere fact that there may be inconsistencies in relation to certain aspect of a Plaintiff's claim is unlikely to be sufficient to bring a claim within the realms of Section 26. There must be strong evidence of a deliberate attempt to mislead the court in respect of a material aspect of a claim.  There is no doubt that in this case the cooroborating evidence of the Plaintiff's physiotherapist and of Dr O'Flanagan was crucial. That evidence may very well have been the determining factor in tipping the balance of probabilities in favour of the Plaintiff in terms of the Defendant's application pursuant to Section 26.

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