Judgment delivered on the 2nd day of December, 2011, by Denham C.J.
1. This is an appeal by Bus Éireann, the defendant/appellant, referred to as “the appellant”, from the decision of the High Court (Feeney J.) made on the 16th May, 2006, at Limerick, insofar as the said order provides that the plaintiff/respondent, referred to as “the respondent”, is entitled to recover damages and costs of her action against the appellant.
2. The undisputed facts of the case in the High Court were that on the 13th November, 2004, the respondent was travelling as a passenger on the appellant’s bus near the junction of Hartstonge Street and O’Connell Street in Limerick when the driver was forced to brake heavily to avoid a collision with a car which pulled out in front of the bus.
3. As a consequence, the respondent fell from her seat and injured her face, chest, left thumb and lower left leg.
4. Liability was not in issue in the High Court.
5. However, the nature and extent of the injuries suffered by the respondent as a result of the accident were in contest. In particular, there was a dispute about the respondent’s claim that she needed a carer as a result of the accident, which grounded a special damages claim of €177,000.00.
6. The case came on for hearing before the High Court in Limerick on the 8th, 9th and 10th May, 2006. Judgment was delivered on the 16th May, 2006.
7. At the conclusion of the respondent’s case, the claim for special damages for care into the future was withdrawn, after the cross-examination of the respondent.
8. The respondent succeeded in her claim against the appellant in that the High Court assessed damages and awarded general damages of: (a) pain and suffering to date: €25,000; and (b) pain and suffering into the future: €15,000; being a total of €40,000.
9. The High Court also ordered that the respondent receive the costs of the action against the appellant on the basis of a two day hearing, when taxed and ascertained. However, it was ordered that the costs of the actuary’s report and the report of Nurse Noreen Roche be refused.
High Court Judgment
10. At the commencement of his judgment, the learned High Court judge pointed out that the defence proceeded on the basis that the conduct of the claim was a fraudulent action within the terms of s. 26 of the Civil Liability and Courts Act, 2004, referred to as “the Act of 2004”, and that the claim should be dismissed. The appellant had relied on s. 26 of the Act of 2004 with three factual bases:-
(a) The respondent did not require the assistance of a carer and that there was no consequence of the injuries she received properly giving rise to such a claim;
(b) the respondent had provided false and misleading evidence, averments, information, relating to the psychological consequences of the accident, including her ability to travel alone; and,
(c) the second affidavit of verification sworn by the respondent on the 17th February, 2006, was false or misleading in a material respect, and known to be false by the respondent.
On this basis the appellants argued in the High Court that pursuant to s. 26 of the Act of 2004, the plaintiff’s claim should be dismissed.
Onus of Proof
11. The learned High Court judge held that the onus of proving the applicability of s. 26 of the Act of 2004 rested on the appellant.
The Respondent
12. The learned High Court judge described the respondent. He stated that at the time of the accident she was a 78 year old widow, determinedly independent, and in receipt of considerable family support and assistance, particularly from a number of daughters. She had a history of suffering from stress and had required medication; the stress was controlled by drugs. There had been a history of mild elevated blood pressure but not sufficient to require medical intervention, and that such a condition was not unexpected at her age. She also had extensive pre-existing osteoarthritis. The learned High Court judge held:-
“It was accepted that due to the history of stress that the [respondent] was a somewhat fragile candidate for an accident even given her age and pre-existing osteoarthritis.”
Physical Injuries and Sequelae
13. The High Court held that the physical injuries and their sequelae lasted a number of months. The learned High Court judge held:-
“It is difficult with a person, such as the [respondent], to disentangle continuing complaints concerning her knee, mobility, and endurance, from her pre-existing medical history and her increasing age. This problem is not as a result of any invention of continuing physical problems, but rather as a consequence of age and osteoarthritis.”
The learned High Court judge pointed out that the respondent had noticed a deterioration in her capacity for total physical independence since the accident.
He held:-
“If the [respondent] was failing to give a detached medical assessment of which continuing symptom or symptoms are due to the accident, and could objectively be said to have overstated the connection, it can be no more than an understandable exaggeration of the [respondent’s] subjective belief.”
Stress
14. The High Court found that the position with regard to stress following the accident was also complicated by a pre-accident history of stress. Reference was made to the evidence of Dr. Malone that the accident damaged the respondent’s confidence and that the anxiety suffered by the respondent had an acute period in November/December 2005 which caused panic attacks at night and required additional medication. The High Court held:-
“The probability is that this increased anxiety was linked to the accident and I accept the evidence to that effect.”
The High Court was not persuaded that the diagnosis of a depressive disorder had been established. However, the High Court did accept that the respondent had always been a worrier and somewhat fragile for this type of accident. Thus the presence of significant anxiety from the accident was accepted.
Claim for Care
15. The High Court held:-
“The main area relied on to support a finding under s. 26 by the [appellant] relates to a claim for care. Absent the [respondent’s] daughters, it might be the case that the [respondent] has reached the age and a health condition where some help, or care, or minding, might be required. On the physical side the Court is satisfied that the [respondent’s] deterioration is more likely to be linked to her age and her pre-accident osteoarthritis, but the Court does not, and should not, draw any adverse findings in forming that view. Such linkage is, in this Court’s view, within category B in Ms. Justice Denham’s categorisation, and the Court is satisfied that any reliance on the need for increased care or minding has not been deliberately exaggerated, and it cannot be said that the [respondent’s] evidence, or the evidence adduced by her, or in her affidavits, is in this respect knowingly false or misleading.”
Travel by Bus and Requirement to be Accompanied
16. A further area considered was the claim as to her ability to travel by bus and the requirement to be accompanied. The learned trial judge reviewed the facts and held:-
“The overall picture is not one of deliberate falsehood or intention to mislead, but of a history which is not precisely correct on every detail as recorded, but which provides a substantially correct overview. The Court found the [respondent] to be overall a truthful witness even if every detail of her narrative was not necessarily precise. The Court is satisfied that she did not give, or cause to be given, any false or misleading evidence, and any inaccuracies were neither material or knowingly false or misleading.
The Court is also of the view that Section 26(1) refers to the giving of evidence or adducing of evidence, and that such subsection is not dealing with information provided outside the Court, and the Court rejects any interpretation to such effect. Even if I am wrong on that point, the Court is of the view that on the evidence it cannot be said that the [respondent] knew evidence to be false or misleading.”
17. The High Court addressed specifically the claims under s. 26 of the Act of 2004 and determined that the provisions do not apply to this action
Notice of Appeal
18. Against the order and judgment of the High Court the appellant has appealed. The grounds of the appeal filed include the following:-
(a) The learned trial judge erred in law and in fact in failing to dismiss the action of the respondent under the provisions of s. 26(1) of the Civil Liability and Courts Act, 2004.
(b) The learned trial judge erred in law and in fact in failing to dismiss the action of the respondent against the appellant under the provisions of s. 26(2) of the Civil Liability and Courts Act, 2004.
(c) The learned trial judge erred in law and in fact in failing to determine that the respondent gave or adduced or dishonestly caused to be given or adduced evidence which was false or misleading in any material respect and which she knew to be false or misleading.
(d) The learned trial judge erred in law and in fact in failing to determine that the respondent had sworn an affidavit under s. 14 of the Civil Liability and Courts Act, 2004, which was false or misleading when swearing the affidavit.
(e) The learned trial judge erred in law and in fact in determining that the respondent was a truthful witness overall and in determining that the respondent did not know that her evidence was false or misleading or in determining that the respondent did not have an intention to mislead the Court.
(f) The learned trial judge erred in law and in fact in determining that the section 14 affidavit filed by the respondent in these proceedings was not false or misleading in a material respect or in determining that the respondent, when swearing the said affidavit, did not have a deliberate intention to tell an untruth or to mislead the Court.
(g) The learned trial judge erred in law and in fact in determining that the appellant failed to establish that s. 26 of the Civil Liability and Courts Act, 2004, applied to the facts of this case.
(h) The learned trial judge erred in law and in fact in determining that the burden of proof on the appellant under s. 26 of the Civil Liability and Courts Act, 2004, was higher than simply on the balance of probabilities but instead was on the basis of the balance of probabilities having regard to the additional burden the appellant had to meet having alleged fraud.
(i) The learned trial judge erred in law and in fact in approaching s. 26 of the Civil Liability and Courts Act, 2004, on the basis that it approximated to an allegation of fraud at common law and that the burden of proof on the appellant was not discharged unless the appellant met the proofs to the standard required when such an allegation was made. In short, the learned trial judge applied the wrong test.
Submissions
19. Written and oral submissions were made to the Court on behalf of the appellant and the respondent.
Legislation
20. The appeal in this case raises issues on s. 26 of the Act of 2004. Section 26 provides:-
“26.—(1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that—
the court shall dismiss the plaintiff's action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.
(2) The court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under section 14 that—
(a) is false or misleading in any material respect, and
(b) that he or she knew to be false or misleading when swearing the affidavit,
dismiss the plaintiff's action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.
(3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court.
(4) This section applies to personal injuries actions—
Onus of Proof
21. It is for a plaintiff in a civil action to prove their claim. Thus the respondent had the onus of proving her claim on the assessment of damages before the High Court. Such an onus is on the balance of probabilities.
22. However, in this case the appellant raised s. 26 of the Act of 2004. In such a circumstance the appellant carries the onus of proof, which also is on the balance of probabilities. Thus I would uphold the findings of the learned High Court judge as to the standard of onus of proof.
Decision
23. There were essentially two issues raised in this appeal by the appellant, the first was a claim under s. 26(1) of the Act of 2004, and the second was a claim under s. 26(2) of the Act of 2004. The second claim was the stronger of the submissions.
24. This is a relatively simple case of an elderly lady who suffered injuries as a result of a bus accident. Liability was not in issue.
25. The learned High Court judge, who heard all the evidence and who could see the demeanour of the appellant held her to be an honest woman. This Court is bound by the well established principles as set out in Hay v. O’Grady [1992] 1 I.R. 210 as to the findings of fact of the trial judge. A claim under s. 26(1) of the Act of 2004 requires that several elements be proved, including that if a plaintiff gives or adduces, or dishonestly causes to be given or adduced, evidence that is false or misleading in a material way and she knows it to be false or misleading, the Court shall dismiss the plaintiff’s action unless, for stated reasons, the dismissal of the action would result in injustice being done. In this case, there are no grounds for an appeal to succeed in relation to the appellant’s personal evidence, the learned trial judge having held her to be an honest witness.
26. There is another element in s. 26(1) – a situation where a plaintiff dishonestly causes someone else to give or adduce evidence that is false or misleading and he or she knows it to be false or misleading. This does not arise in this appeal. The report of the actuary and the nurse were never put into evidence. Neither gave oral evidence. Further, the claim for care into the future was withdrawn at the conclusion of the respondent’s case in the High Court. Thus the appellant’s case, resting on the issue of care into the future, has no basis in the claim under s. 26(1). This was considered carefully and ruled upon by the learned trial judge, as seen in his judgment, set out previously. Consequently I would dismiss this ground of appeal.
27. Indeed, as analysis of the evidence of the respondent shows that her evidence related to her care by her daughters and son.
28. The submission pressed strongly by counsel for the appellant was a claim under s. 26(2), and it was submitted that the learned High Court judge had erred.
29. The claim made by the appellant was grounded mainly on the second verifying affidavit of the respondent sworn on the 17th February, 2006. Reference was made especially to paragraphs 2 and 3, being:-
30. The evidence of the respondent was that she received 12 hours assistance/care from her daughters and son each week. Also, that her neighbours accompanied her on the bus.
31. The hours were added up and then an actuarial report was drawn up. However, neither was entered into evidence. Neither report was received in evidence nor was either author called to give evidence. This situation, taken together with the evidence of the respondent, takes the matter out of s. 26(2) of the Act of 2004.
32. The High Court judge considered the whole of the evidence before him, as he was entitled to do. He specifically addressed the issue of the s. 26(2) claim stating:-
“The Court is also of the view that in relation to section 26 subsection 2, that it has not been established that the section 14 affidavit was false or misleading in a material respect, or that it has been shown that the [respondent] knew it to be false or misleading. The Court must recognise in assessing the factual position, not only its view as to the [respondent’s] truthfulness, but also that the accident herein unquestionably had an effect on the [respondent’s] confidence and perceived independence. As indicated above that independence was likely to be reducing even without the accident, and the [respondent’s] linking of it to the accident is both understandable and in no way to be taken as a deliberate intention to tell a non-truth or mislead. The [respondent] showed herself to be highly determined to maintain her independence, and it is both understandable and human that she might wish to attribute some of that loss of independence to the accident rather than the passage of time.”
33. The High Court held that the provisions of s. 26(2) do not apply, stating:-
“I am therefore of the view that the [appellant] has failed to establish that section 26 applies to the facts of this case. It should also be noted that the main area upon which the [appellant] relied to support the section 26 finding, and in their own words, “essential contest” was whether the [respondent] is entitled to a carer as a consequence of her injuries. The [respondent’s] need for a carer, and the reference to it in her second affidavit of verification, was stated as being a case that ‘were it not for the accident I would not have required such assistance’. I have already indicated that such a view was not a deliberate false or misleading statement, but rather a genuine statement of the [respondent’s] subjective belief. The Court therefore determines that the provisions of section 26(2) do not apply to this action.”
34. I am satisfied that the learned trial judge approached this case correctly. He considered the overall evidence and found that the appellant was an honest woman and did not knowingly mislead the Court. “Knowingly” is a matter to which the test is subjective. On the evidence before the learned High Court judge he was entitled to hold, as he did, that the respondent did not knowingly mislead the Court, or swear an affidavit that is false or misleading in any material respect.
35. Consequently, for the reasons given, I would dismiss the appeal and affirm the order of the High Court.
