IRL High Court Section 26 Application- Dismissal of Personal Injuries case- Review by Damian McGeady
FOLAN .V. Ó’CORRAOIN AND OTHERS
This is a personal injuries claim; The Plaintiff was an apprentice who it is alleged fell and suffered an injury on the 5th April 2007. The first named Defendant was a roofing contractor and the Plaintiff’s Employer on a site which it was claimed was under the control of the second named Defendant Company whose Directors were the other Defendants.
The Defendants denied liability (nobody witnessed this incident). They further attempted to rely on the failure of the Plaintiff to serve a letter of claim as required by Section 8 of The Civil Liability and Courts Act 2004, within two months from the accrual of the cause of action. They further alleged contributory negligence.
The Plaintiff’s evidence is set out in a very lengthy written Judgment by Justice Murphy http://bit.ly/AdPaFL . It is fair to say that there were a number of inconsistencies with the Plaintiff’s evidence in terms of the accident circumstances but also in terms of the injuries that were allegedly sustained. For example the Plaintiff appeared to have an inexplicable limp and was using a crutch for no apparent reason, despite the fact that he had not sought medical attention from his own General Practitioner for several years. He also appeared to lead a very active life which belied the description of the injuries sustained.
The Court assessed the credibility of the Plaintiff and relied on the statement of Lord Pearce in the House of Lords case of Onassis .v. Pergottis  2 Lloyd’s Rep. 403 at 431. Using that test the Court found the Plaintiff to be a truthful person but one who was maybe telling something less than the truth on the issue of his fall and on the deterioration of his health since the fall.
At the close of the Plaintiff’s case an Application was made by the Defendants for a Direction. The Defence, referring to the Plaintiff’s Replies to the Notice for Particulars and subsequent Affidavit of Verification in respect of same, said that the Plaintiff was exaggerating his claim and referred to the case of Carmello .v. Casey and Another  IEHC 362 where Judge Peart dismissed a claim for lack of disclosure of an intervening accident under Section 26 of The Civil Liability and Courts Act, 2004 http://bit.ly/wRjNsq .
The Court acknowledged the decision of The High Court in Mary Farrell .v. Dublin Bus  IEHC 327 http://bit.ly/dezIQS that the burden of proof for a successful Section 26 Application fell to the Defendant and that the appropriate standard of proof to prove that a Plaintiff had knowingly given or adduced false or misleading evidence for the purposes of the Application required a high probability.
The Court in this instance decided to refer the Direction to the close of the case.
Only medical evidence was called on behalf of the Defendants.
The Court was satisfied in this instance that the Plaintiff had exaggerated the consequences of his fall. It had misgivings regarding the history recounted by the Plaintiff to the Medical Consultants. It found that the use of a crutch at consultation could be interpreted as a deliberate attempt to exaggerate his symptoms. It found that that attempt caused Medical Consultants to adduce evidence that his injuries were more serious than which appeared from the Medical Records from the Plaintiff’s Accident & Emergency Department on initial attendance.
The Court considered whether the dismissal of the action would result in an injustice being done to the Plaintiff. It did not accept the argument that the Court should disallow that part of the claim which was based on false or misleading averments.
The Court noted that no Section 8 letter was sent to the Defendants within two months prescribed by The Civil Liability and Courts Act 2004 (but did not choose to comment upon that as to its contribution towards the ultimate Judgment).
The Plaintiff’s claim was dismissed.
Although just recently published this Decision was handed down in November 2011 and would have preceded The Supreme Court Judgment in Ahern .v. Bus Eireann  IESC 44 http://bit.ly/xJgKbN , which is the only Surpeme Court Judgment on the interpretation of a violation of Section 26 of The Civil Liability and Courts Act 2004.
In that case The High Court found that the Plaintiff whilst misleading the Court did not intend to do so. The Supreme Court did not interfere with that Judgment.
Section 26 Applications depend on the individual circumstances of the case, clearly and is a subjective test.
In the right case Section 26 clearly has teeth http://bit.ly/xHRn2R .