Title:	Shelley-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:	Denham J.
Status:	Approved
Result:	Allow And Set Aside
Judgments by Link to Judgment Concurring Denham J. Link McGuinness J. Hardiman J. Link McGuinness J.

This is an appeal by Bus Atha Cliath – Dublin Bus, the defendant/appellant, hereinafter referred to as the defendant, from a judgment and perfected order of the High Court (O’Higgins J.) of the 26th October, 2001 and the 10th December, 2001, respectively. The proceedings were commenced by Siwsan Shelley Morris, the plaintiff/respondent, hereinafter referred to as the plaintiff.

2. High Court Judgment

The facts were found by the learned trial judge. As to the facts and the issues of negligence and contributory negligence he held:

“On Saturday, 22nd September 1995 the plaintiff, who at the time of the incident was 45-year-old, was a passenger in a bus, the property of the defendants. The bus was privately hired to bring people to a wedding in Monkstown and after that to a reception in Killiney.

The bus initially brought the plaintiff and other passengers from Malahide to the church in Monkstown, and the plaintiff’s evidence is that during that time the journey was just normal. However, on the journey from the church in Monkstown to the reception in Killiney, the plaintiff maintains that the diving (sic) was different, that it appeared faster and more jerky.

The plaintiff stayed in the lower deck somewhere beyond halfway up the bus towards the back, her two-year-old daughter was sitting beside her and another witness was beside the child. The child got bored. The bus having stopped at a red light, the plaintiff took the opportunity to bring the child upstairs. She picked up her, (sic) held her on her right hip and started to go up the stairs holding the left-hand rail. She was approximately one step from the top when the bus jerked forward and then carried on accelerating.

The plaintiff was thrown backwards., Her left hand had been on the railing but she let go because of the jerking of the bus. She fell backwards but managed to hold the railings again and ram her right leg and right heel into the third step up and used it as a foot ramp. She swung out and landed on her back on the floor with her daughter on top of her. She felt her knee creak.

Her dress was torn and up around her waist. She felt stupid and embarrassed and her knee was very painful and swollen. She could not stand up and the heel of her shoe came out in the incident. That is the plaintiff’s account of the accident.

This account was disputed hotly by the driver of the bus, Mr. Collins. He says that on the day in question his driving from Malahide to Monkstown was uneventful. He also maintains that the driving from Monkstown to Killiney was similar and no different than his previous driving.

He was unfamiliar with the route from Monkstown to Killiney and a person going to the wedding offered to show him the way and told the bus driver to follow his car. There was no mention of him putting the boot down and no mention of hurry or delay, and the driver said that he had no difficulty in keeping up the car (sic) because of the heavy traffic. His driving was normal and there was nothing unusual.

When the bus had nearly reached the hotel he heard a commotion on looked (sic) in the mirror and saw the plaintiff on the floor at the bottom of the stairs. He flashed his lights, sounded the horn to stop the car which was guiding him and that car pulled in as did the bus. The driver does not think that there were any traffic lights just at or near the scene of the accident, the bus was moving normally and had not been stationary for some time before the incident.

He asked the plaintiff if she was all right and she said she was. He asked her if she wanted an ambulance and she declined. He said that she told him, although she denies this, that she went upstairs and on the way down the heel of her shoe broke and she fell.

The driver denies that there was any jerking movement of the bus. He denied that he was going faster than normal. He denied that he was pulling away abruptly upon being stopped. There were no complaints about his driving. He said that the red light would stay on long enough to allow a person to go up the stairs.

The version given by the plaintiff varies substantially with that given by the bus driver, and were it a matter of balancing the evidence of one against the other, the job of the Court would be very, very difficult indeed.”

However, the trial judge accepted the evidence of Ms. Conlon as to the way the bus was being driven and the circumstances of the event in issue. He held:

“. . . I am unable to disregard the evidence of Trudy Conlon, who 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 being (sic) 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.

Moreover, the account of the accident given by the plaintiff herself when she was admitted to St. Mary’s Hospital in Paddington was consistent with the account that she has given to the Court. Were she to be involved in some sympathetic reconstruction to suit her own purposes, I doubt that she would have done that at that stage.

As for the evidence of the bus driver, that she told him that she fell because the heel came off her shoe, I have no doubt that that is the bus driver’s recollection of what happened and I have no doubt that he is not in any way trying to mislead the Court. However, it seems to me very likely that there was some mention of a heel of a shoe and I would not attach any significance to the fact that he took that message out of the conversation, which on my view was not factually a correct account of how the accident happened.

So it seems to me that in the circumstances that the bus jerked off abruptly and that that was the primary cause of the accident in question.”

Having determined the negligence in issue the learned trial judge then addressed the issue of contributory negligence. He held:

“The question of contributory negligence arises then. While I feel that the plaintiff herself must take a share of the responsibility for the accident, it is true that there is no embargo on people going up to the top of the bus and they are entitled to go up. The evidence indeed of the driver is that people would in ordinary journies (sic) be going up the bus while the bus was moving and there are handrails provided, but to do so with a small child on one’s hip when it is not necessary to do so seems to me to be not what a prudent person would do.

To do so with a small child on the hip in circumstances where one had already noticed the jerky nature of the bus when moving off seems to me to amount to a considerable degree of contributory negligence. I penalise the plaintiff in contributory negligence to 25%.”

Having found that the defendant was negligent and that there was contributory negligence on the part of the plaintiff, the trial judge apportioned the degrees of fault as to 75% to the defendant and 25% to the plaintiff. The court assessed damages as follows:

Special Damages:

Loss of pension and gratuity: £37,500.00

Loss of earnings for the future: £25,000.00

General Damages:

Pain and suffering to date: £70,000.00

Pain and suffering in the future: £40,000.00

Total award: £172,500.00

Thus, in accordance with the apportionment determined, the High Court ordered that the plaintiff should recover £129,375.00 being 75 per cent of the total award of £172,500.00 and the costs of the action.

3. Appeal

The defendant appealed against the judgment and order on the grounds that:

(a) That the learned High Court judge erred in his findings that the defendant was the prime cause of the accident the subject matter of these proceedings;

(b) That the learned High Court judge erred in his finding that there was 25% contributory negligence only by the plaintiff in light of her actions;

(c) That the learned High Court judge erred in his assessment of the appropriate damages that should be paid to the plaintiff as a result of the personal injuries suffered by the plaintiff in the accident the subject matter of these proceedings and by virtue of the deliberate exaggeration by the plaintiff of those injuries;

(d) That the learned High Court judge erred in his assessment of the appropriate damages for which the plaintiff should be entitled by reason of the future loss of pension/earnings when there was insufficient evidence to support such an assessment.

4. Evidence

In this case there was oral, documentary and video evidence before the High Court. On the issue of liability the plaintiff’s evidence was supported by two other passengers on the bus being Mr. Trudy Conlon and Mr. Paul McEvoy. The only witness for the defendant on this issue was the bus driver. The learned trial judge, on the issue of liability, accepted the evidence of the plaintiff, it being corroborated by Ms. Conlon.

As to the issue of damages, it was agreed between the parties that the reports of the treating specialists and doctors from the United Kingdom would be received into evidence in substitution for viva voce evidence. Thus reports were admitted into evidence from Mr. Richard Hampton, F.R.C.S., dated the 27th June, 1996; Mr. R. Sinnerton, F.R.C.S., dated August, 1998; Mr. M. Roberts, Consultant Orthopaedic Surgeon, dated the 20th November, 1997 and Mr. M.Y. Zakaria, Locum Consultant Orthopaedic Surgeon, dated the 3rd March, 1999. Viva voce evidence was given on behalf of the plaintiff on the issue of quantum by Mr. Eric Kersey who was Payroll and Pensions Manager with the plaintiff’s employers, by Mr. Alan Dodds, a rehabilitation consultant and Mr. Peter Delaney, an actuary. No medical evidence was called by the respondent. The defendant called only one witness on the issue of quantum, and that was Mrs. May Feeley, a rehabilitation consultant. However, by agreement, the defendant introduced into evidence a video film of the plaintiff showing her engaged in activities. Thus in this case this appellate court is in the same position as the trial judge in relation to the evidence from the medical reports and the video evidence.

5. Exaggeration

The learned trial judge found that the plaintiff had deliberately exaggerated some of her symptoms. He held:

“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 with the general picture of her disability that the plaintiff offered to the Court.

As for her explanation that this was a combination of a good day and emergency, the Court is 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 removing 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 factor that the Court has found that she deliberately exaggerated some of her symptoms to the Court.”

This finding of deliberate exaggeration by the learned trial judge is at the core of the defendant’s case.

The issue of exaggeration by a plaintiff in court proceedings is not new. It may arise in different ways in different cases. There are many possible circumstances. Three of these are as follows:

First, there is the case where the whole claim is concocted. The accident did not happen or did not happen as claimed. This is a fraudulent claim and will be dismissed by the trial judge.

Secondly, there is the situation where there is a genuine claim but the effect of the injuries is exaggerated by the claimant because of a subjective belief that the injuries have had a worse effect than they have. This type of approach involves no conscious lying by a claimant. The trial judge would determine the value of the damage suffered in accordance with the evidence, but would not condemn the evidence of the plaintiff.

A third scenario exists where there is a genuine case made establishing negligence but the plaintiff deliberately exaggerates the injuries, knowing that he or she is exaggerating the injuries and their effects. This may take on the appearance of a fraudulent claim. The lies of the plaintiff are apparent to the judge. It is at this stage that the trial judge (who has heard all the evidence and seen the witnesses) must exercise his or her judicial discretion. At issue is the credibility of the witness. If the credibility is so undermined that the burden of proving the claim has not been met then the trial judge will dismiss the claim. However, to achieve a fair result in all the circumstances, the trial judge may assess the credibility of the witness in light of the evidence of other witnesses. It may be that the negligence of the defendant is established but that the evidence of the plaintiff as to the injuries or some of the injuries may not be credible. This may arise in circumstances where injuries are not easily assessed objectively but great reliance has to be made on the evidence of the plaintiff, for example in soft tissue injuries. The evidence of a plaintiff is critical. In a situation where the plaintiff has told a mixture of the truth and lies his or her credibility is completely undermined. It is for the plaintiff to prove his or her case on the balance of probabilities. It may be that the deliberate exaggeration is such that the credibility of the witness is called into doubt and the burden of proof is not carried. Consequently, the plaintiff will not succeed in proving the claim to which such deliberate exaggeration applies.

This principle has been stated recently in Vesey v. Bus Éireann [2001] I.R. 192 where it was held that it was not the responsibility of a trial judge to disentangle the plaintiff’s case where it had become entangled as a result of lies and misrepresentations systematically made by the plaintiff. For the trial judge to make on behalf of the plaintiff the best case he could in such circumstances would risk a perception of bias.

In this case the medical evidence was in admitted medical reports. The learned trial judge held, as regard the injuries, as follows:

“Following the accident the plaintiff was taken to Loughlinstown Hospital where she received an injection, x-rays and tubigrip bandage was applied. A tentative diagnosis of ligamentous injury was made and she returned to the wedding reception. She returned to London the following day and she was in considerable pain.

Approximately a week later she received a letter saying that there was a possibility that the injury was more than the ligamentous damage which had been previously thought and advising her to see a specialist. The plaintiff was seen in a fracture clinic on 4th October 1995 and it was recorded that she had sustained a depressed fracture of the right tibial platter. She was admitted to hospital that day under the care of Mr. Hunt with a view to operative reduction and fixation of the fracture.

On 10th October 1995 the plaintiff underwent the operation on right knee, arthroscopy and elevation of the lateral tibial platter with bone grafting and external fixation. At the operation the depressed lateral tibial platter was elevated and the defect in the cancerous (sic) bone was grafted using a bone graft taken from the right iliac crest of the plaintiff. Fixation was provided by a laterally placed T-shaped buttress plate with screws attached. There was a long protrudial peripheral scar on the lateral meniscus which did not require surgical intervention.

Post-operatively she received continuous passive movement in order to prevent knee stiffness. It is recorded in the report of 27nd (sic) June that she made an uneventful recovery. She was mobilised with crutches and she described of having to use the crutches for a period of nearly a year. She described a heavy casing that was imposed on her for sometime as well. Also I have to say that she is left, as a result of the operation and the subsequent operation to remove the metal from the knee, with what has to be considered an ugly and unpleasant scar.

On 13th November 1995 it was recorded that she was making good progress. On 28th February it was recorded that she was fully weight bearing with occasional need of help from crutches. The range of movement in her knee from full flexion to 90 degrees. At that stage when reviewed in the clinic 6 months after the operation it was considered that she had made a good result following her knee injury, but further examination was required. I have had the benefit of that report which is 27th June 1996.

The next report was in November 1997, that of Mr. Roberts, the consultant orthopaedic surgeon, dated 20th November 1997. That stated that the plaintiff’s complaint was of a constant intermittent general ache around the right knee which became painful at times, the joint swelling periodically. She complained of pain for standing in excess of 15 minutes and walking in excess of 100 yards was impossible without a rest. She carried a walking stick continuously outdoors.

At that stage it was considered that she had made a very good recovery, but the general changes are present. The report say (sic) that at the moment these are not gross, but progression over the years is likely. After the metalwear has been removed some of the pain will resolve. Indeed the plaintiff gave evidence to the Court that some hotness which was associated with the metal plate was absent after that. It is recorded there that the osteoarthritis is not gross, but she is significantly limited in her ability to function normally.

The next report is undated but received by Bruce St. John Blake Limited the then solicitors for the plaintiff in August 1998. That is the report compiled from the notes which I accept as being accurate by Mr. Sinnerton, consultant surgeon.

He says she was seen for a final time in June 1996 at which point it was recorded that the result was excellent. She was walking without a stick with no significant pain and had a full range of movement of the knee. The wound had completely settled and the patient was reported as being extremely happily (sic) with the result. X-rays showed a united fracture. It was not thought that there was any indication for removing the metalwork unless it was for a specific reason or strong desire from the plaintiff.

At that stage the opinion was that she had suffered a very significant injury to right knee, a fracture of the lateral tibial platter damaging the articular surface on the side, but it was reconstructed well. The operation notes record central defect and the articular surface of the operation. At that stage there was a prognosis as to the likelihood of arthritis, that is (sic) prognosis is irrelevant now as it is common case that the lady has arthritic condition in the knee.”

This then was the medical evidence from the reports. It described a significant injury with an excellent result but for arthritis. However, the plaintiff claims differently. It is at this stage of the case that the evidence of the plaintiff and the video evidence are in conflict and are relevant, together with the medical reports. The learned trial judge held:

“However, the plaintiff disputes the finding that the result was excellent at the time. She disputes that she was walking without a stick. In relation to no significant pain she says it depends what you mean by significant. I am ready to accept that subjective and objective assessments of pain are different.

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 lease with the general picture of her disability that the plaintiff offered to the Court.

As for her explanation that this was a combination of a good day and emergency, the Court is 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 removing 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 factor that the Court has found that she deliberately exaggerated some of her symptoms to the Court.

However, there is no doubt that she had a significant injury. There is no doubt as well that while she complained of ache, afterwards she said that it was a pain, pain on a daily basis, the Court simply does not accept the evidence of the plaintiff that she is unable to go about her business without a walking stick. Nor does the Court accept that the plaintiff is unable to drive a car for any distance of time. The Court also does not accept that the plaintiff has made all reasonable efforts to obtain further employment and to get back into the workforce.

However, apart from the nasty injury she sustained, the Court accepts without reservation that the plaintiff was depressed and upset and demoralised following and as a result of the accident. She suffered a real depression and diminution in the quality and enjoyment of her life.

However, 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 getting that employment.

However, I have to say that it is actually common case, but that her job prospect and her career prospects are diminished by the following factors; (1) Undoubtedly by her age, which I think will come against her. (2) By the fact that she has been out of the workforce for a number of years. (3) Notwithstanding the fact that I do not accept her evidence, as I have made clear in relation to the level of her disability, there is no doubt that she unfortunately has to look forward to the prospect of pain in the future and a strong possibility, if not a likelihood of surgical intervention to replace the kneecap. Those circumstances are bound to have some repercussions on her job prospects.”

Having considered the transcript of the oral evidence, the medical reports and the video I would affirm the finding of the High Court that the plaintiff deliberately exaggerated symptoms. Consequently, she lost credibility on these issues. As the burden of proof is on the plaintiff the loss of credibility undermines her case as to her injuries suffered. The burden is on the plaintiff to prove her case, on the balance of probabilities, on credible evidence. Consequently, the plaintiff was in danger of losing her entire claim.

In light of the fact that the trial judge in this case had the benefit of seeing her and hearing her evidence and was satisfied that she did suffer some injuries her evidence stands and is credible insofar as it is corroborated by the medical reports. While that evidence is that she has made a good recovery, the injury has resulted in arthritis, which is progressive, and which causes pain and some limitation of movement. The condition of the plaintiff was described by Mr. M.Y. Zakaria on the1st March, 1999 as:

“She is currently complaining of dull aching pains in and around her right knee with recurrent swelling on exertion. Her range of movement is almost full and the knee is mildly tender along the joint line and the scar area laterally.”

In view of the video evidence, the medical reports and the finding of the learned trial judge that the plaintiff deliberately exaggerated some of her symptoms her evidence on this topic lacks credibility. She has failed to prove this aspect of her case on the balance of probability. Unlike the issue of liability where the learned trial judge found that the evidence of the plaintiff was corroborated by that of Ms. Condon there is no such corroboration on the issue of quantum. I have had the opportunity of viewing the video and considering the medical reports. In light of the deliberate exaggeration by the plaintiff as to some of her symptoms, that is giving untrue evidence, the credible evidence upon which the court may rely is that of the video evidence and the medical reports. Consequently, determining the matter on the video evidence and the medical reports it is clear that the plaintiff suffered a significant injury which had sequelae which the learned trial judge accepted. I would uphold the award of £70,000.00 for pain and suffering to date. However, in light of the credible evidence, I would vary the order of the High Court as to pain and suffering in the future and would award for future pain and suffering £20,000.00.

The information which grounded the evidence of Mr. Alan Dodds, as regards the plaintiff and her ability to work, came from the plaintiff. In view of her lack of credibility on this issue her evidence on this aspect of the claim may not be relied upon. As a consequence neither may the evidence of Mr. Dodds be relied upon. Thus, because of a lack of credible evidence the plaintiff has failed to prove on the balance of probabilities a basis for special damages as to loss of pension and gratuity and loss of earnings into the future. Consequently, I would determine the quantum as £90,000.00.

6. Abuse of Process

Deliberate exaggeration by a plaintiff may be such as to be an abuse of the process of the court. In such a case it may be appropriate to put this to a witness and for counsel to address the legal issues. However, that did not occur in these proceedings. Consequently, apart from raising the matter as an appropriate issue which may be considered in the future in such a case, I make no finding.

7. Contributory Negligence

The learned trial judge accepted evidence that on the journey from the church in Monkstown to the reception in Killiney the bus was driven in a way that was faster and more jerky. He had the benefit of hearing the evidence. An appellate court should be slow to interfere with such a finding of fact by a trial judge: Hay v. O’Grady [1992] 1 I.R. 210. However, having accepted that evidence of the plaintiff over the evidence of the bus driver, who maintained that his driving did not change during the trip from Malahide to the church in Monkstown and from Monkstown to Killiney, it was an important fact in the case. The learned trial judge having held that the driving did change, that it was faster and jerky on the latter run, consequences flow. Having accepted that evidence, it then becomes part of the circumstance in which the plaintiff decided to carry a two year old child upstairs. Accepting the evidence that the bus was being driven in a fast and jerky fashion it is in those circumstances that, at a red light, the plaintiff decides to pick up a two year old child, and, wearing high heels, climb the stairs to the upstairs of the bus. Before she reaches the top the bus jerked forward and she fell.

Given that the bus was being driven in a fast and jerky fashion the negligence of the plaintiff is clear. Given the factors, the proven way in which the bus was proceeding, the age and consequent weight of the child, the decision to move while the bus was making a journey, the footwear of the plaintiff, I am satisfied that the learned trial judge erred in apportioning the negligence to the plaintiff at 25%. Both the plaintiff and the defendant were equally negligent. I would apportion the negligence as against the plaintiff at 50%.

8. Conclusion

In conclusion, I would set aside the order of the High Court and I would assess the damages to the plaintiff at £90,000.00. Having determined the contributory negligence of the plaintiff at 50%, the sum to which the plaintiff is entitled is £45,000.00.