Seán O’Halloran reviews the judgment of Twomey J in O’Connell v Martin and Ali v Martin [2019] IEHC 571
The High Court recently dismissed the appeals of two personal injury plaintiffs holding that their claims were fraudulent and misleading.
Mr Justice Twomey, who heard both appeals, was critical of not only the evidence given by the two appellants, but also the actions of their solicitors, counsel, and doctors.
Noting the difficulties faced by defendants where they are faced with fraudulent or exaggerated claims by plaintiffs who are not marks for costs, the judge questioned whether any disincentive exists for such claimants from pursuing appeals should they lose in the Circuit Court in the High Court where they get another “free go”.
In his lengthy judgment, he went on to outline seven principles which he identified from recent judgments of the Supreme Court and Court of Appeal applicable when assessing damages in personal injury cases. Applied widely, the principles should see a reduction in awards of damages in the courts for minor or moderate injuries.
The Facts
On 10 February 2015, Mr Ali’s car was hit from behind at low speed by Ms Martin’s vehicle at a junction in Limerick city. No ambulance was called, and the drivers exchanged details and left the scene. Following the accident, repairs were made to Mr Ali’s rear bumper costing €400 – €500, which Ms Martin agreed to pay to him. Ms Martin had no damage to her car.
Mr Ali later issued proceedings against Ms Martin, as did Ms O’Connell, who claimed to be a back-seat passenger in his car. Ms Martin denied that Ms O’Connell was a passenger, or present at the scene. Her evidence was that when she exchanged details with Mr Ali, she saw three passengers in Mr Ali’s car: his wife and two children.
Both Mr Ali and Ms O’Connell issued proceedings in Limerick Circuit Court. The Circuit Court rejected Ms O’Connell’s Claim and awarded Mr Ali €17,500.
In dismissing both appeals, Twomey J delivered a forceful and extensive judgment that was not only critical of both claimants but also their solicitors, counsel and experts. He held that it was not credible that Ms O’Connell was a passenger in Mr Ali’s car, and described her claim as fraudulent.
In respect of Mr Ali, Twomey J found his injuries to be exaggerated and dismissed his claim for misleading evidence. However, he went on to set out seven principles that he noted were applicable when assessing awards. Based on these criteria, had he made an award, Twomey J said that Mr Ali would not have received more than €3,000 for his soft tissue injuries.
Solicitors are not doctors
Twomey J noted that Mr Ali was referred to Dr Aideen Henry, a consultant in orthopaedic and sports medicine, by his solicitor, not his GP. Mr Ali attended with Dr Henry on five occasions between March 2015 and November 2018, resulting in the preparation of five medical reports. These reports stated that Mr Ali was in “constant pain day and night” due to neck and back complaints. However, the judge noted nine days after the accident, prior to seeing both Dr Henry and his solicitor, the plaintiff had attended with his GP, to whom he made no complaints of neck or back pain.
Ms O’Connell was also referred to Dr Henry by her solicitor. Dr Henry noted that Ms O’Connell had experienced “a big jolt” in the accident and suffered back pain arising from same. However, like Mr Ali, when Ms O’Connell met with her GP during the same period her principal complaints related to sinus issues. Her GP did note that she suffered back pain, but Ms O’Connell had advised her GP that this was due to her falling down a staircase.
Twomey J frowned upon solicitors referring their clients to medical experts. Holding that even in cases of genuine personal injuries, a referral by a solicitor (rather than a GP) to a consultant indicates that the client likely did not have medical needs which justified the referral, noting,
“…if a referral is made by a solicitor to a consultant of a client for back pain, or indeed for any other condition, this is not indicative of medical need, for the very reason that a solicitor is not qualified to make any call on the medical needs of a client. Indeed, the fact that this referral was made, not by a GP, but by a solicitor, supports the contrary proposition, namely that there was no medical need for this referral, and the only logical conclusion, therefore, is that it was made solely for a legal reason.”
Mr Justice Twomey noted that medical reports which are generated solely for legal reasons provide the necessary ingredient for nuisance claims.
Double or nothing? An incentive for nuisance claimants to appeal
As costs were unlikely to ever be recoverable from them, Twomey J noted that there are no restrictions on an indigent plaintiff who lost in the Circuit Court from having a “free go” by generating a second set of irrecoverable legal costs as an appellant in the High Court.
Observing that settling a claim typically costs defendants less than winning so-called nuisance claims, particularly in the High Court, a defendant considering settling was, in Twomey J’s view, dealing not with the merits of the case but rather with the issue of who is going to pay the costs.
He was critical of the fact that there was no restriction, such as the requirement to provide security for costs, to dissuade a plaintiff in such circumstances from generating ever more costs in an appeal that would create ever more pressure on defendants to settle fraudulent claims.
Experts must be sceptical of plaintiffs and courts must be sceptical of experts
Citing the judgment of O’Donnell J in the Supreme Court case of Rosbeg Partners v LK Shields [2018] IESC 23 Twomey J noted that “appropriate scepticism and common sense has to be applied to claims for damages, not because of any dishonesty on the part of litigants, but simply because human nature is such that memories and accounts, as to the extent of the damage claimed, tend to become ‘unwittingly adjusted’ because of the potential financial consequences for plaintiffs of their evidence”.
Similarly, Twomey J noted the judgment of Irvine J in the Court of Appeal in Shannon v O’Sullivan [2016] IECA 93, calling for doctors to carefully evaluate a plaintiff’s subjective evidence regarding the extent of their pain and to consider whether there might be other objective factors which could be applied.
Noting that, as per MacMenamin J in the Supreme Court case of O’Leary v Mercy Hospital [2019], experts enjoy a privileged position in the courts, Twomey J relied upon the judgment of Irvine J in Byrne v Ardenheath Company Ltd [2017] IECA 293 in calling for caution by judges when facing expert reports, including medico-legal reports, which are obtained on behalf of one party to litigation.
Applicable principles in assessing damages
Pointing out that the Book of Quantum, is not binding on judges, Twomey J elucidated seven principles applicable to the assessment of damages for personal injuries. These principles follow a pattern of reframed personal injury awards by the superior courts, particularly the decisions of the Court of Appeal in Payne v Nugent [2015] IECA 268 and Nolan v Wirenski [2016] IECA 56, together with a “common sense” approach as outlined in Byrne v Ardenheath Company Ltd [2017] IECA 293.
The seven principles are:
- The award should be fair to both the plaintiff and the defendant (Nolan v Wirenski [2016] IECA 56);
- The award must be just, equitable and proportionate (MN v SM [2005] IESC 17; Nolan v Wirenski [2016] IECA 56);
- The award must be proportionate not only to other awards but also to the general cap on damages (MN v SM [2005] IESC 17; Payne v Nugent [2015] IECA 268);
- The award must be reasonable in light of the general level of after-tax incomes (Sinnott v Quinnsworth [1984] ILRM 52, Kinsella v Kenmare Resources [2019] IECA 54);
- Appropriate scepticism must be applied to litigants’ claims (Rosbeg Partners v LK Shields [2018] IESC 23; Shannon v O’Sullivan [2016] IECA 93);
- Common sense must be applied to the parties’ claims (Byrne v Ardenheath Company Ltd [2017] IECA 293, Donnelly v Dunnes Stores [2019] IEHC 347); and
- Courts must apply caution when relying on expert reports (Byrne v Ardenheath Company Ltd [2017] IECA 293; O’Leary v Mercy Hospital [2019] IESC 48).
Twomey J held that, based on the seven principles, he was obliged to award moderate damages for moderate injury and, in the circumstances, had he been making an award it would have been less than €3,000 based on the nature of Mr Ali’s injuries.
As mean after-tax income was €35,500, Twomey J could not understand how the award of €17,500 made in the Circuit Court to Mr Ali could be justified in circumstances where the average person would have to work for six months full time to earn same. He suspected that the Book of Quantum, which references awards of up to €18,400 for “minor” soft tissue injuries may have influenced the lower court. However, he noted that he and other judges are bound to follow judicial precedent in awarding moderate damages to minor injuries.
Analysis
This judgment will be welcomed warmly by insurers and defendants. Twomey’s seven clear principles, based as they are on examples of recent and relevant case law, particularly the Court of Appeal judgments of Ms Justice Irvine in cases such as Payne v Nugent, Nolan v Wirenski, Shannon v O’Sullivan, and O’Flynn v Cherry Hill Inns Ltd. A welcome restatement of the law, the judgment should aid judges not only in the High Court but also in the Circuit and District Courts in consistently assessing damages in personal injury claims.
However, there remains too much latitude available to judges in assessing damages, and too much inconsistency in awards, particularly in the Circuit Court. This unpredictability creates risks for plaintiffs as well as defendants and underlines the necessity of the rapid establishment of the Personal Injuries Guidelines Committee, as provided for in the Judicial Council Act 2019.
This case also serves as a cautionary tale for plaintiff solicitors and doctors to ensure that—consciously or inadvertently—they are not facilitating fraudulent or exaggerated claims. Despite Mr Justice Twomey’s strong words of criticism of the solicitors and experts in this matter in enabling and fostering what he termed nuisance claims, he was not blind to the economic reality that there is little or no risk of costs being recovered from destitute plaintiffs who bring falsified claims as legal costs are unlikely to ever be recovered from them.
As no financial disincentive exists to dissuade such claimants, and there appears to be a complete absence of any prosecutions being taken under sections 25 and 26 of the Civil Liability and Courts Act 2004, it is apparent that either fresh legislation is required, or genuine efforts by the authorities are required to enforce the laws.
