Journal of the Bar of Ireland • Volume 17 • Issue 2 • April 2012 Juries and the Internet Fraudulent Personal Injury Claims Editorial Correspondence to: Eilis Brennan BL The Editor Bar Review Law Library Four Courts Dublin 7 DX 813154 Telephone: 353-1-817 5505 Fax: 353-1-872 0455 E: [email protected] Cover Illustration: Brian Gallagher T: 01 4973389 Editor: Eilis Brennan BL E: [email protected] W: www.bdgart.com Typeset by Gough Typesetting Services, Dublin Editorial Board: [email protected] T: 01 8727305 Gerry Durcan SC Mary O’Toole SC Conor Dignam SC Patrick Dillon Malone BL Brian Kennedy BL Vincent Browne BL Mark O’Connell BL Paul A. McDermott BL Tom O’Malley BL Volume 17, Issue 2, April 2012, ISSN 1339-3426 Patrick Leonard BL Paul McCarthy BL Des Mulhere Jeanne McDonagh Contents Jerry Carroll Consultant Editors: 26 Fraudulent and Exaggerated Personal Injury Claims – Dermot Gleeson SC Patrick MacEntee SC A Word of Warning Eoghan Fitzsimons SC ANTHONY BARR SC Pat Hanratty SC James O’Reilly SC 32 An internet enabled jury of one’s peers The Bar Review is published by Round Hall in association with KAREN MURRAY BL The Bar Council of Ireland. 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The views expressed in the articles herein are the views of the contributing authors and do not represent the views or opinions of the Bar Review or the Bar Council. The Bar Review April 2012 Fraudulent and Exaggerated Personal Injury Claims – A Word of Warning ANTHONY BARR SC Introduction Early Cases Section 26 of the Civil Liability & Courts Act, 2004 In Mulkern v Flesk,1 liability was not in issue between the (hereinafter referred to as the “2004 Act”) provides for a parties. However the Defendants applied to have the somewhat draconian remedy to be applied where a Plaintiff Plaintiff’s action dismissed pursuant to S.26 of the 2004 Act, has been found to have given false or misleading evidence. In because the Plaintiff had stated to a prospective employer short, his claim will be dismissed. This article looks at some that she did not suffer from any back injury. The Plaintiff of the leading cases, which have dealt with this topic with a admitted in evidence that that had been a lie, which she view to identifying the areas where Plaintiffs have got into had told to her prospective employer, because she wanted trouble. It also sets out the principles, which emerge from a to obtain the job on offer. Kelly J. refused the Defendant’s review of the relevant case law. application and stated: Section 26 of the Civil Liability & Courts Act, “I do not accept that the Plaintiff gave false or 2004 misleading evidence. It is not to her credit that she told untruths to her perspective employer. I am satisfied Section 26 of the 2004 Act comes under the heading of that she very much wanted and indeed needed to “Fraudulent Actions” and provides as follows: obtain employment with Boston Scientific. That may explain why she was untruthful in her dealings 26. (1) If, after the commencement of this section, a with that employer, although it does not excuse such Plaintiff in a personal injuries action gives or adduces, behaviour. But I do not accept that she gave false or or dishonestly causes to be given or adduced evidence misleading evidence to the Court.’’ that – (a) is false or misleading in any material One of the first cases to hold that S.26 did apply was respect, and Carmello v Casey2. In this case, liability had been conceded. (b) he or she knows to be false or The Plaintiff was a passenger in the car driven by the first misleading, named Defendant. The Plaintiff alleged that he had suffered the Court shall dismiss the Plaintiff ’s action unless, a number of injuries in the road traffic accident, including for reasons that the Court shall state in its decision, facial numbness caused by a blow to the side of his face. It the dismissal of the action would result in injustice transpired that he had not disclosed to his doctors that he being done. had been involved in a subsequent accident, when he had (2) The Court in a personal injuries action shall, if been struck in the face by the branch of a tree. In cross- satisfied that a person has sworn an Affidavit under examination, the Plaintiff stated that he simply did not recall Section 14 that – any such incident. The Defendants had learned of it from (a) is false or misleading in any material documentation obtained in a different case. Peart J. held respect and that on quantum, the Plaintiff would have been entitled to (b) that he or she knew to be false or damages in the sum of €50,000.00 for his injuries. However, misleading when swearing the Affidavit, the Judge dismissed the Plaintiff ’s action under S.26 of the dismiss the Plaintiff ’s action unless, for reasons that 2004 Act. the Court shall state in its decision, the dismissal of He held that the question for the Court under S.26 was the action would result in injustice being done. whether on the balance of probability, the Court could be (3) For the purposes of this section an act is done satisfied that in relation to his evidence and/or his verifying dishonestly by a person if he or she does the act with affidavit, the Plaintiff had knowingly given false and/or the intention of misleading the court misleading evidence in a material respect. He held that the (4) This section applies to personal injuries section was mandatory in its terms once the Court was actions – satisfied on the balance of probability, unless to dismiss the (a) brought on or after the commencement action would result in injustice. The Court first had to look of this section, and to the Plaintiff ’s evidence and then at all the surrounding (b) pending on the date of such circumstances, including what was contained in the pleadings, commencement. 1 (2005) IEHC 48, Unreported Kelly J. 15/2/2005. 2 (2008) 3 I.R. 524 Page 26 Bar Review April 2012 the Replies to the Notice for Particulars and the medical when examined by the Defendant’s doctor, the Plaintiff reports and arrive at a conclusion as to the truthfulness of had told him that she was unable to do any gardening. Four the Plaintiff on the balance of probability. days after that examination, the Plaintiff had been filmed by The Judge held that on the balance of probability, the a private investigator cutting the front lawn of her home, Plaintiff had been deliberately untruthful in his pleadings, in carrying the mower back into the house, and sweeping up his evidence and in his affidavit of verification in an effort the cut grass and other garden debris. All of these activities to obtain an award of damages to which he was not entitled involved bending and lifting. However the Judge noted that it from the Defendants. He held that the Plaintiff knowingly was accepted that the mower was an electric motor and was gave false and misleading evidence contrary to S.26 (1) of not heavy. He also noted that the Plaintiff was not totally the 2004 Act in relation to questions about his injuries, which unrestricted in her movements and she appeared to take was a material respect within the meaning of S.26. The Judge care in relation to how she bent down. In the circumstances, also held that he swore a verifying affidavit in respect of Peart J. was not inclined to penalise the Plaintiff in relation facts contained in the Statement of Claim and the Replies to stating her inability to do gardening so categorically, even to a Notice for Particulars, knowing that some of what was though she ought to have given a more comprehensive answer contained therein in relation to his injuries was false and to the doctor’s questions in that regard. misleading contrary to S.26 (2) of the 2004 Act. The Judge Gammell v Doyle5 was a very unusual case. The Plaintiff pointed out that to knowingly give false evidence under oath had attended at the licensed premises of the first named was a serious criminal offence. Proof of such offence was Defendant. The Plaintiff was bought a drink by the second beyond a reasonable doubt, but under S.26, the Court made named Defendant, who was there with his wife and another its finding on the balance of probability. couple, attending a wake for a young man who had lived Plaintiffs need to take care when they have a history of locally.