Judgment
Title: | Shelly-Morris -v- Bus Átha Cliath - Dublin Bus |
Neutral Citation: | [2002] IESC 74 |
Supreme Court Record Number: | 357/01 |
High Court Record Number: | 1997 No. 72p |
Date of Delivery: | 12/11/2002 |
Court: | Supreme Court |
Composition of Court: | Denham J., McGuinness J., Hardiman J. |
Judgment by: | Hardiman J. |
Status: | Approved |
Result: | Allow And Set Aside |
 | |
| Judgments by | Link to Judgment | Concurring | Denham J. | | McGuinness J. | Hardiman J. | | McGuinness J. | |
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[2002] IESC 74
THE SUPREME COURT
357/01
Denham J.
McGuinness J.
Hardiman J.
SIWSAN SHELLY-MORRIS
Plaintiff
and
BUS ÁTHA CLIATH
Defendants
JUDGMENT of Hardiman J. delivered on the 11th day of December, 2002.
1. The Plaintiff, who is a Welsh lady now aged 52, was involved in an accident in Dublin on the 22nd September, 1995. She was a guest at a wedding and was conveyed in the Defendant’s double decker “Wedding Bus” to the Church and from the Church to the reception. On the latter journey she suffered a fall on the stairs of the bus. The circumstances of this incident will be discussed later. The initial focus at the hearing of this appeal was on the question of Special Damage, specifically loss of earnings. It was argued that the Plaintiff’s case on this aspect was consciously false and that this fact had consequences for the case as a whole.
The Plaintiff’s proceedings
2. The Plaintiff instituted proceedings in respect of this incident on the 7th January, 1997. In her Statement of Claim delivered the following month she claimed, by way of special damages, loss of earnings which were described as “unascertained and continuing”. At the time of the accident she was employed as a community worker by a public authority in London.
3. On the 8th November, 1999 the Plaintiff’s solicitors provided further particulars of the claim stating that she had post traumatic degenerative arthritis which is progressive in nature and would require a knee replacement at some time in the future. The letter ended:-
“She has had to retire from her work on health grounds and has suffered a loss of income to date and will do so into the future in respect of which actuarial evidence will be led”.
4. On the 26th June, 2001 the Plaintiff’s present solicitors gave particulars of special damage claiming £114,281.37 in respect of loss of earnings to date and £298,037.00 loss of earnings into the future. These sums, totalling £412,318.37 clearly represent a substantial claim, for loss of earnings alone.
5. The basis of the claim for loss of earnings was that, according to a further letter from the Plaintiff’s solicitor of the 4th July, 2001 she was “incapable by reason of ill health of discharging her duties with the Hammersmith and Fulham Social Services”. She had been employed by that body as co-ordinator of Independent Living Schemes and retired from it on the 22nd September, 1996. Subsequent to this, according to the letter, she moved to Wales “where she has been unable to find similar employment”.
6. She also advanced a substantial claim in respect of loss of pension.
The opening and the Plaintiff’s evidence at trial.
7. The trial took place in the High Court (O’Higgins J.) on the 24th to the 26th October, 2001. In opening the case, her counsel stated:-
“She was declared unfit for work by her local borough in June, 1997 but, in fact it seems to have been backdated to September of 1996 so the actual declaration made in June of 1997 was dated back to some examination that was carried out in September, 1996. That was permanent employment and she could have remained there until retirement age and she was on a pension scheme or contributing to it and she would have retired with a nice pension. Since then she has moved to various places in Wales. At the moment she is living in an isolated rural area in Wales and there is no employment there for her. She does not drive a car, she did have a provisional licence at one stage but with her injury she cannot really drive a car and has not got a full licence. The bus service is fairly limited. She is from Wales herself so she is happier living there than in a big urban environment like London but, unfortunately, for her earning capacity it is very difficult and practically non-existent. There are some jobs in Wales for which she would be qualified but she physically would not be in a position to carry out those jobs because they involve and commuting and being able bodied”.
8. Notwithstanding this, and notwithstanding the particulars of special damage in the nature of loss of earnings quoted above, counsel had the following to say about the claim for loss of earnings:-
“It may well be a case that for some of the time in the past or for some of the time in the future it may be more appropriate to deal, certainly in the future, deal with the loss of earnings figure as an item included in the general damages rather than a distinct heading of future special damages”.
9. In her oral evidence the Plaintiff gave the following evidence relevant to the loss of earnings claim. She said she was born in Pembrokeshire in January, 1950. After school she studied dress designing and embroidering. She moved to London in the late 1960’s and worked in the art department of a magazine. In 1969 she moved to Formentor in the Balearic Islands where she was self employed:-
“I did dressmaking and I found houses for people, I did embroidery and crotchet work, made jewellery”. She gave birth to a son in the year 1970 returned to the UK and “I started up a school with my son, an alternative education school and I was involved in education at home. Again I was still making clothes for people as commissions and making jewellery as self employed.” She moved back to Spain in the early 1970’s and then back to Wales. She became involved in the music business as a percussionist/drummer, playing drums, timpani, drum bongos and “generally all percussion”. From about 1980 onwards she had been involved with her (then ten year old) son “working with young people and I decided I would use my skills with young people, teenagers in a youth club”.
10. The Plaintiff appears to have spent the succeeding years “educating my son at home and also working with teenagers. Young people would come to our house and I started to work as a youth worker at that time”. This, however, was on a voluntary basis. She then “began to train as a part time youth worker”. She did a two year certificate in Reading University in 1986/1987 which allowed her to get a job working in youth clubs. This qualification is also referred to, in the transcript, as a diploma and as a degree. In 1988/89 she got a job with Hammersmith and Fulham Social Services, at which time she would have been about thirty-nine years old. She says she worked with black people, Bangladeshi, unemployed people, single mothers and travellers. Subsequently “they decided to redeploy the community workers into positions and into groups for service. I was redeployed into the position of co-ordinator of Independent Living Services”.
11. This involved working with disabled people. She described it as follows:-
“I would visit a service user who was disabled in their own home and assess them with a Social Worker for their availability for community care. That would mean that they would be able to receive direct payments in order to enable them to employ their own personal care assistants. I had to supervise all the carers at work for disabled people.”
12. She said she would go out to see and assess people on referrals from social workers. She travelled by bicycle because the area is a small one and there is very little parking available. Travelling to these peoples’ homes was the only physical activity involved in the job.
13. In subsequent evidence, the Plaintiff said that her effective complaint related to her right knee. No medical witness was called but a number of reports were, by agreement, given to the Court. She could not kneel on her knee, she could not do weight training or body building as she had done before the accident. She had put on a lot of weight. She could not cycle, she had much less strength in her knee. She had originally been on crutches. At page 72 of the transcript of Day 1 of the trial she was asked “Do you need anything for walking now that the two crutches?” and replied “a stick”. She used this “pretty much everyday” but did not use it in her home “because we have got banisters”, also because the house “is very small”. She complained that she had “slowed down in every way. I am completely slow now compared to how I used to be”. Asked whether she needed a stick in order to walk or more as a psychological crutch she said “No no, I need to use the stick for the walking, it helps me”. She could not stand or sit for long.
14. On the topic of her employment, she confirmed that she had never gone back to work after the accident. For the first year she “wasn’t able to walk”. Asked what was to prevent her from going back to work after that period she said “Because I was told by my doctor that it would never get better unless I had the plate removed from my knee”. Asked specifically if she would have been able to work after the removal of the plate (April 1998) she said “By that time I was living in Wales. I had gone back home to live in that year, 1996/1997”. Furthermore, she claimed “I couldn’t walk”. The pain was “terrible, unbearable”. Equally, she was “very very depressed”. She was seeing her doctor once a month and also had physiotherapy. At this time she was unemployed and was on “incapacity benefit”. She said that she was not able to work. She did not think of looking for work of any sort “because I couldn’t physical (sic)work at all with my knee because I knew I had to wait for the operation to have the plates removed”. She was also minding her daughter who was born in 1994.
15. Asked whether her knee had improved after the plate was removed she said “When the plate was removed the heat that I was experiencing and the swelling was diminished but I would still get it occasionally depending on whether I moved in a jerky way or what I did”.
16. She went on to describe how she had not done any work since the accident, except a very small amount of teaching young people and one musical “gig” for which she received £50.
17. In cross-examination she confirmed that she was making the claim for loss of earnings described above on the basis that she was completely incapacitated from working in the job she was doing, or any other work of the same kind.
18. One of her own medical reports, from Mr. Simerton FRCS, dating from August, 1998 was put to her. This stated:-
“She was seen for a final time on the 26h June, 1996 at which point it is recorded that the result was excellent. She was walking without a stick, with no significant pain and had a full range of movement in the knee. The wound had completely settled and the patient was reported as being extremely happy with the result”.
19. The surgeon summarised her position as being that she had “suffered a very significant injury to her right knee, a fracture of the lateral tibial plateau damaging the articular surface on that side. Although this was reconstructed well, the operation notes record there was a central defect in the articular surface after the operation. However she has made an excellent recovery from this operation and has, according to the note, regained the full range of movement and is fully mobile with only minimum pain”.
20. The Plaintiff said this report was inaccurate. She did not agree that the results were excellent. The surgeon was wrong when he said she had no significant pain. He was wrong when he said she had full range of movement in the knee. She claimed “he never actually saw me for that” apparently meaning the report. She said that Mr. Simerton’s conclusions could not have been based on her medical notes. She said she always had a stick and he was quite wrong in his observation to the contrary. She said that the portion of the report headed “Opinion and Prognosis” was not an accurate record of the progress she had made in Mr. Simerton’s hospital. She stressed several times that she always had a stick, which she regarded as essential for her to enable her to get around “and also it gives a sign to people to take a wide berth around me”.
21. The Plaintiff agreed that she had told Mr. Roberts, the surgeon who removed the plate for her in 1998 that she could not walk for more than a 100 yards and that she carried a stick continuously outdoors. After that operation, she said, her range of activity improved only slightly. She said that she generally needed a stick outdoors but some times, sitting down in the sun or getting washing in off the line she might not need a stick. There was not much else she could do outdoors without a stick. She needed a stick in all her outdoor movements with those exceptions. She confirmed what she had earlier said, that she could only go up steps one step at a time but said that “some days I might feel strong and I might be able to walk up in an ordinary way”. She had not made this qualification in direct evidence. She would only be able to mount steps in the ordinary way once or twice a year. Asked how she would descend the steps she said “It depends if I was carrying anything, it depends if I have my daughter in my arm, it can depend on a lot of things”. She immediately amended this to “If I had my daughter in my hand”. She denied that she carried her daughter on occasion; she said there was “no way” she could lift or carry her, or indeed any child. She would not like to carry anything requiring two hands, especially on a downward slope.
The Rehabilitation Consultant.
22. The Plaintiff also relied on the evidence of a Dr. Alan Dodds, a rehabilitation and employment consultant based in Nottingham. His instructions in relation to the details of the Plaintiff’s working history and her potential for the future derived from information given to him by the Plaintiff herself. This was very clear. He said:-
“The Plaintiff reported to me that she had been designated as unfit for work, medically, and it is my understanding that she is still considered medically unfit for work”.
23. In relation to her ability to drive, he said:-
“The Plaintiff led me to believe that although she possessed a provisional licence, she did not in fact drive a motor vehicle. She told me she could sustain travel as a passenger in a motor vehicle for a distance of some twenty miles before experiencing discomfort.”
24. In relation to her ability to walk Dr. Dodd said:-
“The Plaintiff told me that she could walk up to a distance of 200 yards with the aid of a stick”.
25. In cross-examination, Dr. Dodds confirmed that the Plaintiff had led him to believe that without a stick her walking tolerance would extend to perhaps 50 or 100 yards only. Thereafter, he was led to believe, she was unable to continue walking because of her physical disability.
26. Dr. Dodds accepted that, if she were physically able to perform it, employment as a social worker in South Wales was available. He confirmed that if she had got the additional qualification she had been studying for at the time of her accident she would be still more employable; that there were many social work jobs available which did not involve any field work at all. He also stated that “One would expect an employer or health authority to be particularly compliant or careful or sensitive to the needs of one of their employees”. He added that:-
“Many Social Service Departments actively encourage applications for people with disabilities”.
27. It should also be noted that the Plaintiff called the evidence of an actuary and of a person from her former employers to give evidence of her pension entitlements at various ages.
The letter of the 26th June 2001.
28. This was the letter, referred to above, in which the Plaintiff claimed a total of £412,318.37 in respect of loss of earnings. These were plainly calculated on the basis that she would be at a total loss of earnings from now until her expected retirement date. Only social welfare payments were contemplated in a reduction of this figure, insofar as these payments were legally reckonable.
Cross-examination and video evidence.
29. It transpired in the course of cross-examination that on the 24th September, 2001, exactly a month before the trial in the High Court, the Plaintiff had been observed by an investigator retained by the Defendant over a considerable period of time and a video tape of her movements over much of that day was made. This video tape was played in the High Court and again in this Court. It shows the Plaintiff, generally in the company of other persons especially her father-in-law and sister-in-law, walking on the public street, crossing the road to a restaurant, getting in and out of a car, walking up and down a sloping drive while carrying items in one hand and in two hands, holding a child in one arm at hip level and playing with two boxer dogs.
30. The video commenced when the Plaintiff was returning from the premises of a consultant employed by the Defendants. She was driven to this meeting by her father-in-law and brought her stick along. For the bulk of the time which the Plaintiff is in shot she is not using the stick at all. When she has a stick in her hand, as in crossing the road to a restaurant, she appears to be trailing it rather than leaning on it. Her movements, in walking on the street, in reeling in some form of wire or line and in crossing the road with her father-in-law after doing so, appear natural and unhindered despite the fact that she is not using a stick. She does not show undue difficulty getting into or out of a car. Her counsel conceded that the video tape did not give the impression of a woman who is disabled or impaired.
High Court findings on the above.
31. The learned trial judge, having set out the substance of the 1998 medical report quoted above, remarked that subjective and objective assessments of pain might be different. He continued:-
“However, I have to say that in her evidence overall I am bound to say that I found that the Plaintiff was exaggerating her symptoms from time to time. In particular I have to say that what was evident to the Court on the video tape was at variance at least to the general picture of her disability than the Plaintiff offered to the Court.
As for her explanation that this was a combination of a good day and emergency, the Court was unable to accept that as being a full explanation of the discrepancy, particularly in view of the fact that while the question of the fallen, or the would be fallen electric wires could indeed be thought to constitute an emergency, the Plaintiff’s evidence about the emergency because of the removal of the items from her father-in-law’s house was singularly unconvincing to the Court.
So the Plaintiff’s case is more difficult to evaluate because of the fact that the Court has found that she deliberately exaggerated some of her symptoms to the Court”.
32. This Court has no doubt whatever that the learned trial judge was correct in this assessment and indeed that his findings are conservatively phrased. The Plaintiff told a number of deliberate falsehoods in relation to her symptoms and capacities. In particular, she appears to have realised that her reference to having her daughter in her arm was inconsistent with the general picture painted, retracted it, and said that she could not lift her or any child. The picture painted in her evidence of gravely limiting and continuous impairment is false. Her statements, not summarised above, about her grave difficulty in driving a car and doing so only occasionally for distances such as 2½ miles are inconsistent with the fact that, in relatively straitened financial circumstances, the family, consisting of two adults and one child, maintains two cars. She admitted this with difficulty and reluctance.
33. The Plaintiff’s manifest falsehoods, and the overall impression of her performance on the video tape give rise to a considerable difficulty. As the learned trial judge said, the assessment of her case is more difficult because of her deliberate exaggerations. This Court has previously held in Patrick Vesey v. Bus Eireann/Irish Bus (Supreme Court unreported 13th November, 2001) that it is not the responsibility of a trial judge to disentangle the Plaintiff’s case when it has become entangled as a result of lies and misrepresentations systematically by the Plaintiff himself. The reason for this is that:-
“The procedure in our courts is an adversarial one and the Defendant is entitled to have the Plaintiff’s case presented by him and accepted on its merits or otherwise as these appear from the Plaintiff’s presentation and cross-examination. For the trial judge to make on behalf of the Plaintiff the best case he can in such circumstances would risk the loss of the appearance of impartiality”.
34. It must also be noted that the Plaintiff’s falsehoods did not simply relate to her medical condition and capacity but extended to a false explanation to do with the level of excitement or emergency caused by the necessity to move her father-in-law’s goods. This is quite inconsistent with the leisurely activity shown on the video during which the Plaintiff holds the child for an appreciable period, stands chatting to her father-in-law and other bystanders and plays with two large boxer dogs. This explanation was quite rightly rejected by the learned trial judge.
The loss of earnings claim.
35. Notwithstanding the findings summarised above the learned trial Judge made an award of damages in respect of loss of earnings to age 60. He did so on the basis of taking the capitalised loss of earnings as a sum of £99,600.00. He then reduced it, saying:-
36. Further on this topic, the learned trial judge held:-
“I do not accept that she is not in a position to go back to gainful employment. I do not accept that she will have any huge difficulties in getting that employment”.
37. The learned trial judge also held that, on the balance of probabilities, he believed the Plaintiff would have retired at the age of sixty rather than sixty-five.
Observations on the foregoing.
38. It is clear from the foregoing that the Plaintiff presented her case in court, through the information she supplied to her own consultant Dr. Dodds, and in the particulars of special damage which she delivered on the 26th June, 2001, on the basis that she would be at a total loss of the earnings she would otherwise have had until the date of her retirement, and that this was a result of the accident. In the letter referred to, she specifically mentioned only the social security in diminution of this loss. Any other earnings to which, on her own evidence, she might aspire would be extremely small.
39. It is equally clear that this picture is a false one. She is capable of working. Work of a sort she can do is available in Wales and even more so elsewhere. In pretending to be unable for any significant work, the Plaintiff is guilty of serious falsehood.
40. Obviously, the position of the Plaintiff and her legal advisers after the video tape was played was one of some embarrassment. It appeared quite inconsistent with the picture the Plaintiff had painted of herself, and with the claim she had made. Certain particular arguments were advanced to this Court in that context. These focussed on the claim for loss of earnings for the entire of her working life, advanced in the letter already referred to several times.
41. Specifically it was argued:-
(a) That this letter should not be interpreted as a statement of the Plaintiff’s quantified future loss which she intended to claim as an entitlement from the Defendant. On the contrary, it should be regarded simply as reflecting the fact that the Plaintiff believed she would never be able to work again and, rightly or wrongly, attributed this to the accident. She had incurred the specified loss “in her own mind”.
(b) It was submitted that the contents of the letter, even literally construed, should not be attributed to the Plaintiff as a claim advanced by her. The basis for this submission was that the letter was the work of other persons. These other persons were her solicitors who presumably arrived at the actual sum specified with the input of her former employers and other advisers. It was said that the Plaintiff is not responsible for the particulars delivered.
(c) It was suggested that, even if the letter quoted was to be regarded as advancing a claim for the amounts specified that claim had been resiled from at trial. It was said that claims are often made in pleadings which are not supported in evidence.
42. I can see no merit whatever in any of these contentions.
43. It is quite untenable to regard the mention of the sum of £412,318.37, described as special damages and divided into loss of earnings to date and “future loss of earnings to date of retirement” (and transmitted in a solicitor’s letter beginning “Please note that the Plaintiff claims the items of special damage as set out hereunder”) as anything but a claim to that sum. It is impossible to accept that it is merely an impressionistic statement of the Plaintiff’s sincere but ill-founded expectation. Firstly it is quantified to the last penny; secondly the Plaintiff impresses from the transcript as an intelligent woman quite able to understand what she was and was not entitled to and thirdly, even if she had any misapprehensions on that score, they would hardly have survived consultation with her solicitor. The term “Special Damages” has a very precise meaning, which it has borne for well upwards of a hundred years. In Ratcliffe v. Evans [1892] 2 QB 424, special damages were described as “that particular damage (beyond the general damage) which results from the particular circumstances of the case and of the Plaintiff’s claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial.”
44. It is impossible to read the letter of the 26th June, 2001 as anything other than a statement that the Plaintiff had lost the very large sum mentioned in respect of loss of earnings alone.
45. I would entirely reject the submission that the letter mentioned is not the Plaintiff’s letter, and is not to be attributed to her. I was surprised to hear the submission made. In another recent case of serious dishonesty in the making of a personal injuries claim, Vesey v. Bus Eireann/Irish Bus (Supreme Court unreported 13th November, 2001), the same submissions was strongly deprecated as follows:-
“I would specifically deprecate the submission made that particulars in another action should be disregarded, or regarded with less seriousness, on the basis that ‘everybody knows’ that they are not drafted by the Plaintiff personally. It is quite true that, in providing the particulars which a defendant is entitled to require a plaintiff may rely on the advice of his lawyers doctors engineers and other professionals. But none of these professional advisers are responsible for the factual content of the replies. These replies are the Plaintiff’s document for which he is personally responsible it is essential and as far as I know is the general practice, that a plaintiff’s solicitor should carefully go through with him replies to particulars in the form in which it is proposed to send them to the Defendant and obtain his assent”.
46. I would repeat what was said in Vesey with even more emphasis in this case. It is inappropriate to contend that the particulars of the Plaintiff’s claim are not to be attributed to the Plaintiff himself or herself. It is very much to be hoped that no such submission will be made in the future. The claiming of a very large sum of money from a Defendant is a serious matter, and most Plaintiffs will know this quite well. It is in any event the responsibility of a solicitor to ensure that the Plaintiff is fully aware of the significance and, indeed, solemnity of advancing a claim for hundreds of thousands of pounds, or a lesser sum, before the claim is presented to the Defendant, not to speak of the Court.
47. I have already quoted what was said in court during the opening of this Plaintiff’s case in relation to loss of earnings into the future. It was emphatically not the case that the Plaintiff resiled from any such claim. Counsel stated that it might be accommodated in general damages rather than special damages. An actuary was called by the Plaintiff, who learnedly discussed the appropriate rate of return to be used by actuaries in order to determine an appropriate multiplier. This related to a claim that she would enjoy a reduced pension by reason of ceasing work as a result of the accident. The most that can possibly be said is that the itemised claim was not persisted in but the Plaintiff stoutly maintained a claim to future loss to retirement age. In relation to the amount of it, she was prepared to take as much as she could get. The Plaintiff on several occasions attempted to describe, or have described, at the trial the basis of her former employers acceptance of the proposition that she was unfit for work. The doctor who assessed her for this purpose was not called nor was any report from him or her tendered. The fact that the former employers may have accepted the proposition that the Plaintiff was permanently unfit for work could not, of course, be determinative of the Defendant’s liability in this regard. If this practitioner were called, he or she would undoubtedly have been asked to comment on the Plaintiff’s state of mobility as seen from the video tape.
48. It was also a feature of the Plaintiff’s claim that, as a result of her injuries, she was unable to complete a one night per week course which would have enhanced her earnings. But neither on the basis of her own 1998 report nor of her capacity as seen from the video tape could this claim be accepted.
Difficulty in assessment.
49. The Plaintiff undoubtedly suffered a major loss of credibility in the course of the trial. This was not disputed on the hearing of the appeal when it was specifically conceded that the learned trial judge “was satisfied that video evidence furnished to the Court was at variance with the Plaintiff’s account of her disability, and he rejected the Respondent’s explanation for discrepancies arising out of such evidence”. It was, however, submitted that the Plaintiff’s “deliberate” exaggeration related solely to her description of the effect of her injuries. It was submitted that, if a lie is told in the course of the prosecution of a claim for damages for personal injuries, that fact affects only the narrow aspect of the case to which the lie specifically relates. It was further submitted that a case such as this, of deliberate exaggeration of the effects of the injuries, is different in degree from a wholly invented injury. Thus, while it was conceded that the video tape would make one regard some of the Plaintiff’s earlier descriptions as suspect, or exaggerated, it should not be regarded as wholly undermining her credibility, or undermining it in relation to unconnected aspects of the case.
50. It was further submitted that the learned trial judge had given all proper weight to the very serious difficulties in credibility which the Plaintiff encountered as a result of her own deliberate falsehoods. He had very significantly discounted her claim in relation to special damages. This was an adequate reflection of what had happened at the trial. It was submitted that, “even if at the 11th or 12th hour” the full extent of the claim intimated in the letter giving particulars and the report of Dr. Dodds had been resiled from.
51. I cannot accept the latter submission. It is noteworthy that, at pages 124/125 of the transcript of the first day of the hearing the Plaintiff expressly confirmed that her claim in respect of loss of earnings was in the sum specified in the letter giving particulars. When the proposed evidence of Dr. Dodds “that you are incapable of earning a living or getting an income which is anyway equivalent to the income that you had been earning at the time of the accident” was put to her, she replied “yes, absolutely, yes”.
Approach to an exaggerated claim.
52. I wish to reiterate what was said by this Court in Vesey: that the onus of proof in these cases lies on the Plaintiff who is, of course, obliged to discharge it in a truthful and straightforward manner. Where this has not been done “a court is not obliged, or entitled, to speculate in the absence of credible evidence”. To do so would be unfair to the Defendant. Moreover, a Plaintiff who engages in falsehoods may expose himself or herself to adverse orders on costs. Furthermore, as was observed in Vesey “there is plainly a point where dishonesty in the prosecution of a claim can amount to an abuse of the judicial process as well as an attempt to impose on the other party”.
53. This last proposition is well established but has been little considered in the context of personal injuries claims. It is, perhaps, appropriate to comment on the Courts power to prevent, or remedy, abuse of process at greater length than was done in Vesey.
54. In Goldsmith v. Sperrings [1977] 2 AER 566 Lord Denning had this to say:-
“In a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men’s rights or the enforcement of just claims. It is abused when it is diverted from its true course as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. When it is so abused, it is a Tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer”.
55. In Arrow Nominees v. Blackledge [2000] 2 BCLC 167, the English Court of Appeal said:-
“It is no part of the Court’s function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the Court is to do justice between the parties; not to allow its process to be used as the means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke”.
56. I have no doubt that these principles are equally applicable in this jurisdiction. It must not be thought that a falsehood in respect of one aspect of a claim will, at worst, lead to that particular part of the claim being reduced or disallowed. The Courts have a power and duty to protect their own processes from being made the vehicle of unjustified recovery. In a proper case this will be done by staying or striking out the Plaintiffs proceedings.
57. Quite properly in the circumstance of the present case, the Defendant has not sought this drastic relief. That is not to say that this relief would be inappropriate in a similar case in the future. But it appears to me that a Plaintiff who is found to have engaged in deliberate falsehood must face the fact that a number of corollaries arise from such finding:-
(a) The Plaintiff’s credibility in general, and not simply on a particular issue, is undermined to a greater or lesser degree.
(b) In a case, or an aspect of a case, heavily dependant on the Plaintiff’s own account the combined effects of the falsehoods and the consequent diminution in credibility mean that the Plaintiff may have failed to discharge the onus on him or her either generally or in relation to a particular aspect of the case.
(c) If this occurs, it is not appropriate for a court to engage in speculation or benevolent guess work in an attempt to rescue the claim, or a particular aspect of it, from the unsatisfactory state in which the Plaintiff’s falsehoods have left it.
Liability.
58. In this case the deliberate exaggeration of the Plaintiff related to the extent and duration of the effect of her injuries. It was undisputed that the Plaintiff sustained a significant injury on the 22nd September, 1995. At the trial, there was a lively dispute as to liability for that injury. One of the Appellant’s principle contentions in this Court was that the findings on liability (that the Defendant was 75% responsible and the Plaintiff 25%) be reassessed is specifically in light of the Plaintiff’s diminished credibility. Alternatively, it was argued, the proportion should be reassessed even on the Plaintiff’s version of the facts.
The facts.
59. On the 22nd September, 1995 the Plaintiff, her husband and two year old daughter were part of a group of people who had attended a marriage ceremony in a church in Monkstown, Dublin. They were travelling in the wedding bus from the church to a wedding reception at a hotel in Killiney. Previously they had been brought to the church from the Grand Hotel in Malahide on the same bus. It was undisputed that the Plaintiff had suffered a fall on the stairs of the bus. The dispute related to the circumstances of the fall.
60. The Plaintiff said that she had no complaint about the driving of the bus from Malahide to the church: “It just seemed to be okay, just normal”. She said there were about fifteen people on the bus. She was seated on the lower deck, with her daughter. She said the driver did not know where the hotel was: when this transpired at the Church it was arranged that someone would drive ahead of the bus in order to show the driver the way. On this leg of the journey, the Plaintiff said, the mode of driving of the bus was very different: “It just seemed more faster and more jerky”. It pulled off from traffic lights very quickly; this was what she meant by jerky. She said her young daughter was getting “a bit agitated because we were going stop start stop start and she was getting bored with sitting downstairs”. She said that one of the other people on the bus had gone upstairs and come back down and the child said she wanted to go upstairs because of the view. The bus stopped at a light and she decided to take the opportunity to go upstairs with the child. She picked the child up and put her on her right hip and started to go up the stairs. She was holding on to the rail with her left hand. The bus was still stopped at lights at this stage. When she was about one step from the top of the bus it jerked forward and “with that I went flying backwards”. She had no warning from the driver or any indication that the bus was to start moving.
61. This account, broadly, was corroborated by Ms. Trudy Conlon, the Plaintiff’s sister-in-law.
62. The defence case as put to Mrs. Shelly-Morris was that she went up the stairs carrying the child and she stumbled and slipped. It was also put to the Plaintiff that her husband, who was present, believed that “the accident was caused by the heel coming of your shoe as you were either ascending or descending the stairs”. This, apparently, was on the basis of what the husband had said to the bus driver after the accident. However, the Plaintiff denied this and the husband and was not called to give evidence, despite having seen her fall. It was agreed that the heel had come off her shoe, and that she had kept the shoes but it was denied that the heel coming off was the cause of the fall.
63. The bus driver denied strongly that there was any variation in his standard or manner of driving between one leg of the journey and the other or that the bus jerked forward at any stage. He said that the bus was in motion in the normal fashion immediately prior to his noticing the commotion caused by the Plaintiff’s fall, and it had not been recently stopped.
64. The learned trial judge resolved this issue substantially on the evidence of Trudy Conlon. Of this he said that she “ in my view was an extremely impressive witness, careful accurate and in my view to be believed and I accept her account of the accident. She substantially corroborates the account of the Plaintiff, both as to the bus having been stopped and moving off abruptly causing her indeed to jerk forward as well as the Plaintiff who was upstairs on the bus. I believe her and she carries the Plaintiff’s case on the factual issue”.
Submissions on this issue.
65. On behalf of the Plaintiff it was strongly urged that Mrs. Conlon’s evidence should be discounted. This was on the basis that it coincided with that of the Plaintiff, who was discredited. Furthermore, it was submitted, the learned trial judge should have viewed her evidence with scepticism because she was a sister-in-law of the Plaintiff and is the woman shown talking to the Plaintiff on the video. Because she saw the Plaintiff’s actual capabilities on the occasion the video tape was made, it was submitted, she knew the Plaintiff’s evidence as to disability to be false. It was also suggested that the learned trial judge should have drawn an inference adverse to the Plaintiff from the failure to call the husband.
Decision on liability.
66. In light of the Plaintiff’s gravely damaged credibility there is a definite attraction to these submissions. However, in my view it would not be proper to accede to them. Firstly, the learned trial judge came to the conclusion that he did in the full knowledge of the Plaintiff’s gravely compromised credibility. Secondly, this Court must always bear in mind what was said by McCarthy J. in the well known case of Hay v. O’Grady [1992] 1 IR 210 at 217:-
67. I do not believe it would be fair to regard Mrs. Conlon’s evidence as falling outside the category of credible evidence merely because of her relationship to the Plaintiff and her presence with the Plaintiff on the occasion of the video tape. While she undoubtedly had an opportunity to observe the Plaintiff, walking, carrying loads, holding a child and playing with dogs on that occasion, and quite possibly to observe her on other occasions as well, there is no evidence to show that she was aware of the very far reaching nature of the claim the Plaintiff was making. In these circumstances one must regard her as a credible witness on whom the learned trial judge was entitled to rely.
68. The consequence of this finding is that one must accept that the immediate context of the accident was that described by the Plaintiff: a decision to go upstairs when the bus was stationary at traffic lights and a fall when the bus took it off from the traffic lights in a manner less smooth than would have been possible.
69. However, the Court is not bound by the learned trial judge’s assessment of the degrees of fault arising in those circumstances. I am of the view that the Plaintiff’s action in needlessly ascending the stairs of the bus carrying a two year child in her right arm was a significant contributory factor to the accident. The only reason given for ascending the stairs was that the child wanted to do so: it was plainly the responsibility of a parent to refrain from gratifying an impulse of the child that exposed both of them to danger. This danger was still more obvious if, as alleged, the manner of driving had deteriorated on the second leg of the journey. Having regard to the fact that there was ample accommodation downstairs for all passengers, that the driver had seen the Plaintiff and her child seated downstairs and that all passengers were going to the same destination, the driver had no positive reason to consider the possibility that a woman with a two year child in her arms would ascend the stairs. I would divide the responsibility for this accident in equal measure between the Plaintiff and the Defendant.
Damages.
70. The learned trial judge awarded damages as follows:-
“(i) Loss of pension and gratuity £37,500,
(ii) Loss of earnings for the future £25,000,
(iii) Pain and suffering to date £70,000,
(iv) Pain and suffering in the future £40,000.
71. The sums for general damages are expressed to take into account the omission to make any separate award for loss of earnings to date.
72. There is no doubt, as the learned trial judge has found, that the evaluation of damages is rendered more difficult by the fact that she deliberately exaggerated aspects of her symptoms. The learned trial judge specifically rejected the contentions that she was unable to go about her business without a walking stick, that she was unable to drive a car for any distance or time and that she had made all reasonable efforts to obtain further employment and get back into the work force. He held “There is no way of knowing what pensionable employment she will take on, and no way of knowing what loss of earnings she would have”. He accepted that she will be in a position to work and that earning capacity is diminished.
73. In my view, having regard to those findings, the awards for loss of pension and gratuity and loss of earnings into the future are purely speculative. From the point of view of the Plaintiff this was an extremely benevolent speculation because, having regard to her falsehoods, she had simply failed to discharge the onus of proof in these regards. Having regard to the principles set out earlier in this judgment, and in Vesey, it is not proper to engage in this benevolent speculation, nor is it fair to the Defendant to do so. Accordingly, I would set aside the awards made in respect of loss of pension and gratuity and loss of earnings for the future.
74. I would uphold the award of £70,000 made in respect of pain and suffering to date and including loss of earnings to date. There is no doubt, even on the medical report most favourable to the Defendants, that this was a significant injury, giving rise to a considerable measure of pain and discomfort and inconvenience. The learned trial judge also accepted that the Plaintiff suffered depression upset and demoralisation. Having regard to the evidence at trial, including the video tape, one may doubt how long these afflictions lasted but the sum assessed is not wrong in principle.
75. In relation to pain and suffering in the future, there is no doubt that there will be a measure of this but it is clearly much less than the Plaintiff suggested. One cannot fail to reflect, under this heading too, the manifest variation between her self-described condition at present and her actions and demeanour on the video tape. Bearing in mind the descriptions and prognoses of her own doctors substantial damages under this heading are appropriate. Bearing in mind the fact that she is now plainly much better than she described herself as being an award of £20,000 under this heading is sufficient.
76. I would accordingly set aside the award of the learned trial judge and assess damages, under the headings set out above, at a total of £90,000. Since the Plaintiff is at fault to the extent of 50% in relation to the accident I would grant a decree in the sum of £45,000.