Personal Injuries 2019 “False and Exaggerated Claims”
Section 26 of the Civil Liability and Courts Act, 2004 was enacted to “deter and disallow fraudulent claims”.
However, it has also been stated that “it is not and should not be seen as an opportunity to seize upon anomalies, inconsistencies and unexplained circumstances to avoid a just liability”.
Where a defendant pleads s26 it bears the onus of proof which is that of the civil standard and the degree of probability required is at the high end of the scale. It is also clear that s26 relates to evidence rather than information provided outside of court prior to the commencement of proceedings. Thus, in Mulhearn v Flesk and Flaherty the point at issue was information given at a pre- employment medical; it was decided that the plaintiff may have given false and misleading evidence to her employer, but that she did not do so before the court, consequently the provisions of s26 did not apply.
What constitutes “knowledge”?
In general, it is sufficient if the evidence is “substantially correct” even if it is “not precisely correct in every detail”. In determining what constitutes knowledge, the court will take the age of the plaintiff into consideration and whether there is a deliberate intention to mislead the court. Furthermore, the courts have displayed leniency towards elderly plaintiffs where deterioration of memory from old age and “understandable exaggeration” can occur: Ahern v Bus Eireann. The overall truthfulness of the witness is also a factor that will weigh in a plaintiff’s favour “even if every detail of the narrative was not necessarily precise”. This is especially so in the case of elderly plaintiffs. In addition, the courts have refused applications under section 26 where there is confusion on the part of the plaintiff and /or injuries which are difficult to explain. In Corbett V Quinn Hotels Limited the judge held that whilst the plaintiff’s evidence was misleading, he was satisfied that she gave her evidence honestly believing the same to be true and had not intended to mislead the court.
If a plaintiff gives false and misleading evidence, then all the evidence is tainted. Peart J in Carmello v Casey emphasised the mandatory nature of the section once the evidentiary threshold is reached. He held that a dismissal was mandatory once the court was satisfied on the balance of probability that the plaintiff had knowingly given false or misleading evidence, unless a dismissal would result in injustice. He stated that the section is “deliberately draconian, in the public interest”. In Carmello, the plaintiff exaggerated about suffering numbness in his face as a result of a car accident. He also claimed that he had suffered a fractured nose, but this was not supported by the doctor’s report. The defendant contended that the injury was caused by another accident which was not disclosed in the Replies to Particulars. When questioned about this, the plaintiff said that he could not remember and that the accident must have slipped his mind. The court had no hesitation in applying the provisions of s26.
Exaggerated claims for loss of earnings will also justify the invocation of s26 as this constitutes evidence which is false and misleading in a material respect. In Farrell V Dublin Bus, a claim for future loss of earnings was discontinued without any explanation and it was inferred that the evidence was false and misleading.
S26 states that the section will not be invoked if to do so would be an injustice. In determining whether a dismissal would lead to an injustice, the courts have taken into account whether a claim for loss of earning has been made. In Kerr v Molloy and Sherry (Lough Eglish) Ltd and Another the absence of a claim for loss of earnings led the court to infer that the plaintiff had not sought to profit from his exaggeration and that it would be disproportionate and unjust to dismiss the claim. In Patrick Higgins v Caldark and Quigley Mr. Justice Quirke outlined further examples of where an injustice might arise. He instanced a claim for the cost of care for catastrophic injuries where the plaintiff had adduced “some, perhaps trivial, misleading evidence in respect of some other category of damages”.
The manner in which the defence is conducted is also a relevant consideration. Attempts to bully the witness by launching a “forensic assault” over minor matters” will, in all probability, lead to a dismissal under s 26. In Dunleavy v Swan Park Ltd t/a Hair Republic, the judge stated that “clear evidence of fraudulent conduct” must be present before “a form of defence is launched which could unjustly do grave damage to the reputation of a worthy plaintiff”.
It is self- evident that s 26 will be at its most potent in an out of court settlement. However, the judgment of Mr. Justice Cross in Lackey v Kavanagh also makes it clear that a defendant who brings a S26 application where it is unreasonable to do so, will be exposed to an award of aggravated damages.
To learn more about “How the Courts have dealt with False and Exaggerated Claims”
Join us at this year’s eagerly awaited Personal Injuries 2019 Conference.
2 Regulatory and 1.5 General CPD hours,
Tuesday 14 May 2019, 2pm – 6pm,
The Chartered Accountants House Ireland, Dublin 2