Dunphy  v O’Sullivan

This is another example wherein the Courts have not been persuaded to the view that the absence of any significant material damage to a Plaintiff’s vehicle is, in and of itself, a reliable indicator as to the likelihood or possibility of injury to the occupants of the vehicle, or indeed to the level of severity of any such injuries.

The claim arises out of a road traffic accident wherein the Plaintiff was driving his Mercedes taxi when it was struck from behind by the Defendant who was driving a Golf.  The Defendant did not deny that she drove negligently, the primary issue in the case was that the impact was so minor or trivial to be incapable of causing injuries to the Plaintiff as alleged.

The Plaintiff’s evidence was that immediately prior to the impact he was stationary at a yellow box as there was a line of traffic in front of him.  As this line began to move, he took his foot of the brake but before he moved, the Defendant’s vehicle collided with him propelling him forward.  The cost of the repairs to the Plaintiff’s vehicle was estimated at €563.82 which primarily consisted of labour and paint, no parts required replacement.  However, the Defendant’s vehicle endured quite extensive frontal damage which was estimated to cost over €4,000 and this rendered the vehicle an economical write off.  The Plaintiff advised his Engineer that his car travelled about a car length as a result of being struck from behind and his Engineer estimated that this meant that the Plaintiff’s vehicle went from 0 to 11.5 miles per hour during the impact and then stopped.  The Plaintiff’s Engineer agreed that the impact was not that severe to the Plaintiff’s vehicle however it had taken a hit sufficient to cause injury.  He said that he was not saying it was severe but agreed it was a minor impact but sufficient to cause injury.

The Defendant gave evidence to advise that she was 37 weeks pregnant at the date of the accident.  She stated that she did not make contact with the steering wheel as a result of the impact nor did the air bags in her car inflate and she described the impact as mild.  The Defendant’s Engineer described the impact to the Plaintiff’s vehicle as light with no distortion of the rear bumper reinforcement and he described the damage to the Defendant’s vehicle as being “moderate impact damage”.  The Defendant’s Engineer are of the opinion that the impact had the effect of increasing the speed of the Mercedes by 4.3 km/h.  In cross examination he accepted that the impact was not minimal and he conceded that it was little more than that.

The Plaintiff was 64 years of age when the accident occurred, he suffered injuries to his left shoulder, chest and lower back.  While he did not immediately appreciate that he was injured and the damage to his car was very slight and it could still be driven.  He continued to work that evening dropping his fare to her destination.  He said it was on the following Thursday that he found himself unable to get out of bed as a result of pain and limitation of movement.  His GP referred him for an x-ray which showed degenerative changes in his lumbar spine, his MRI scan subsequently showed multi-level disc protrusion, facet joint hypertrophy and spinal stenosis.  He was treated with oral analgesics, muscle relaxants and physiotherapy.  Of importance was his GP’s evidence wherein she told the Court that the Plaintiff was a patient of her practice since 2005 and had no previous complaints of back pain except for a brief mention of backache during a consultation in April 2010 being seven years prior to the accident.  Her opinion was that his lower back pain was attributable to an exacerbation of the spinal stenosis.  It was noted that the Plaintiff had been referred by his Solicitor to Professor Gary O’Toole Consultant Orthopaedic Surgoen.  Mr O’Toole noted that the Plaintiff’s imaging had degenerative disc disease throughout the lumbar spine.  He agreed that somebody with a perfectly good spine might not have problems following a low velocity injury, but the outcome was unsurprising in a spine that had inherent pathology.

The Defendants called Professor Garry Fenelon who examined the Plaintiff and noted that he had some restriction of rotation of his neck but this was pain free, he described the Plaintiff’s lower back as extremely stiff.  His summary was that the Plaintiff had suffered a low velocity accident and he was surprised that he had not made a full recovery and he did not think treatment would be of benefit as the Plaintiff had severe arthritis.  He believed that the Plaintiff’s vehicle had been damaged to the extent of €900 rather than €500.  He admitted that he had not been told of the extent of the damage to the Defendant’s vehicle however he nonetheless maintained an opinion that the Plaintiff’s complaints now were unrelated to the accident but were a consequent of the degeneration already present in his spine.

The Trial Judge in the High Court accepted that the Plaintiff was a credible witness who did not exaggerate his injury and she expressed a preference for the evidence of Professor O’Toole which she described as impressive.  She considered that it was relevant that the Plaintiff had no back difficulty for seven years prior to the accident but now had marked problems.  She was satisfied on the balance of probabilities that the impact of the Defendant’s vehicle could have exceeded the threshold of velocity which could result in the Plaintiff suffering the injuries he described.  She accepted the injury on behalf of the Plaintiff, but an impact can occur and cause minor damage which can cause injury to the occupant of the vehicle.  She assessed the Plaintiff’s damages having regard to the Book of Quantum as €50,000 for pain and suffering to date, €15,000 for pain and suffering into the future together with Special Damages of €4,000 totalling the sum of €69,193.82.

On Appeal, the Court of Appeal upheld the €69,000 award and the Court held that the Trial Judge was perfectly entitled to take the view that she did on the evidence and that she correctly applied the Book of Quantum and Notice of Appeal was described as uninformative but essentially claimed that the Trial Judge erred in holding that the evidence established that injuries could have been caused by the accident.  Delivering judgment in the case Mr Justice Seamus Noonan heard that the Court was not bound to slavishly follow the opinion of experts and it was also entitled to accept expert evidence which it found to be persuasive subject to giving reasons why any particular expert’s evidence was preferred over another.  Mr Justice Noonan heard that the Plaintiff’s Engineer was eminently qualified and gave evidence in a coherent and logical fashion.  His evidence was not contradicted to any significant degree by the Defendant’s expert and the evidence of the Plaintiff’s medical expert was consistent with an asymptomatic condition being symptomatic as a result of trauma and the Trial Judge was entitled to prefer this.

The Court acknowledged the potential for fraud in trivial and minor accidents but that a Plaintiff could also suffer real damage in a slight impact.  The Defendants made legitimate attempts to discredit the Plaintiff’s evidence on cross examination but these attempts largely failed.  The Court noted that the Defence was based on the lack of damage to the Plaintiff’s car and said that “it cannot be doubted here, particularly having regard to the extent of the damage to the Defendant’s vehicle that a reasonably appreciable impact did occur”.  The Court felt that the Defendant’s medical experts’ view was coloured to a significant extent by the minimal damage to the Plaintiff’s car and it was unfortunate that the expert was not told about the extent of the damage to the Defendant’s car.

Based on the above the Court dismissed the Appeal stating it’s provisional view was that the costs should be awarded to the Plaintiff.

National Claims Information Database Act commences

By Seán O’Halloran

28 January 2019 saw the commencement of the Central Bank (National Claims Information Database) Act 2019. The act provides a legislative basis for the Central Bank to establish and maintain a national claims information database, while also making some amendments to sections 8 and 14 of the Civil Liability and Courts Act 2004.

The establishment of a claims information database was first recommended by the Cost of Insurance Working Group in its Report on the Cost of Motor Insurance, published January 2017. The database is designed to facilitate analysis of trends in motor insurance claims. The Working Group considered this as key to developing an understanding of how claims costs are impacting motor insurance premiums, in particular understanding the relationship between the price paid by a customer for insurance and the cost to insurers.

The database is designed to do the following:

  • Increase the level of information around the relationship between the cost of providing insurance and the cost of a premium for consumers
  • Identify current and emerging trends within the sector
  • identify the factors that cause price movements in the relevant line of insurance
  • Present a statistical analysis of income and expenditure associated with providing the relevant type of insurance
  • Present a statistical analysis of information relating to claims and of each particular settlement channel used in respect of such claims

The act ensures that data is standardised in respect of the various settlement channels through which a claim may be finalised. This is designed to see trends or distinctions in the costs related to these channels, and also to analyse differences between insurers.

The Central Bank of Ireland has been tasked with establishing and administering the database. The Central Bank is now required to collect and analyse data supplied to it by insurers on the income and costs associated with carrying on the relevant class of insurance, before publishing this information annually in a report. The type of information that will now be collected includes data on different types of income, exposure, business expenses, the number and nature of claims, the costs and provisions associated with those claims, as well as the amounts paid in respect of claims resolved in different settlement channels and the costs associated with those claims. Although administered by the Central Bank, the database will be funded entirely by the insurance industry.

The act only deals with motor insurance. However, the act allows the scope of the database to be extended in the future to encompass other lines of insurance, such as employer liability insurance and public liability insurance.

In addition to providing for the establishment of the new database, the act amends section 8 of the Civil Liability and Courts Act 2004 to require that a letter before action be sent no later than one month after the loss. This brings the law into line with the standard retention periods of most businesses of CCTV, which is typically held no longer than 30 days. The act also amends section 14 of the Civil Liability and Courts Act 2004 to require the courts to draw inferences where affidavits of verification are not sworn within 21 days of a relevant pleading in personal injuries claims.