FRAUDULENT AND EXAGGERATED INJURY CLAIMS PART 1

Transcription

1 FRAUDULENT AND EXAGGERATED INJURY CLAIMS PART 1 Section 26 of the Civil Liability and Courts Act 2004: Fraudulent Actions 26. (1) If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that (a) is false or misleading, in any material respect, and (b) he or she knows to be false or misleading, the court shall dismiss the plaintiff's action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done. (2) The court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under section 14 that (a) is false or misleading, in any material respect, and (b) he or she knows to be false or misleading when swearing the affidavit, dismiss the plaintiff's action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.

2 (3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court. (4) This section applies to personal injuries actions (a) brought on or after the commencement of this section, and (b) pending on the date of such commencement. The section applies to false or misleading evidence actually adduced in court.

3 Damien Carmello v. Terence Casey and Geraldine Casey [2008] 3 IR 524. At the hearing, the defendants contended that facial numbness, which the plaintiff alleged was attributable to the accident, was actually caused by a subsequent accident in May Peart J. held in dismissing the plaintiff's claim that, the question for the court, under section 26 of the Civil Liability and Courts Act 2004, was whether on the balance of probability the court could be satisfied that in relation to his evidence and/or his verifying affidavit, the plaintiff had knowingly given false and or misleading evidence in a material respect. The section was mandatory in its terms once the court was satisfied on the balance of probability, unless to dismiss the action would result in injustice. Plaintiffs need to take care when giving their pre-accident history to both treating and reporting doctors.

4 Katherine Singleton v. Brian Doyle [2009] IEHC 382, Unreported, Peart J. 13 th of July 2009 The Plaintiff sued in respect of injuries suffered in a road traffic accident in She was involved in a previous accident in 1990 and she failed to inform some of her medical professionals of precisely what sequelae she suffered in that accident. Peart J. It must on the other hand be borne in mind that this previous accident occurred some nine years ago prior to the present accident, and was one from which she was of the view that she had recovered completely.

5 Phyllis Donovan v. Susan Farrell, the Motor Insurers Bureau of Ireland and Mark Gaffney [2009] IEHC 617, Unreported, Peart J. 4 th of December The Trial Judge was satisfied that the back pain which the Plaintiff experienced during her pregnancy and for which she had received treatment at the time many years previously was not relevant to the progress of the injury which she sustained to her back in the accident, the subject matter of the proceedings.

6 Intentionally provocative and insulting behaviour - Terence Gammell v. William Doyle t/a Lee's Public House and David White [2009] IEHC 416, Unreported, Hanna J. 28 th of July Hanna J. held the plaintiff through his wanton conduct, negligence and want of care contributed substantially to the injury which he suffered. Hanna J. stated he could see no good reason why intentionally provocative and insulting behavior carried out over a period of some minutes cannot come within the ambit of contributory negligence and the assault would not have occurred were it not for the persistent misconduct and verbal vitriol of the plaintiff.

7 Section 26 trivial misleading evidence In Higgins v Caldark Ltd (2010) IE HC 527 Quirke J gave some indication of which might amount to an injustice such as would prohibit a court from dismissing a claim under s.26 when he said the following: The fact that the dismissal of an action will deprive a Plaintiff of damages to which he or she would otherwise be entitled cannot by itself be considered unjust. Section 26 of the Act contemplates and requires such a consequence. Evidence in some proceedings may disclose the likelihood of injustice consequence upon a dismissal. For instance, it may be unjust if the claim of a catastrophically injured claimant for the cost of ongoing care is dismissed because he/she has knowingly adduced some (perhaps trivial) misleading evidence in respect of some other categories of damages. Similarly, the dismissal of a fatal injuries claim, based upon misleading evidence knowingly adduced by an adult Plaintiff, may unjustly penalize infant or incapacitated dependents.

8 Section 26 and Abandoning Part of the Plaintiff s Claim Plaintiffs should be very wary of making large claims which are not properly grounded as the Courts will not allow Plaintiffs to simply jettison parts of their claim for which they fear they cannot maintain evidence at the trial of the action. In Mary Farrell v. Dublin Bus [2010] IEHC 327 Unreported, Quirke J. 30 th of July In relation to the abandonment of the claim for future loss of earnings Quirke J. did not accept that this head of claim could simply be discontinued without some evidence as to why the claim was made in the first place. Where a claim for particular losses is simply abandoned when challenged, there is an obligation, in such circumstances for the plaintiff, preferably at the commencement of the hearing, to provide the court with an adequate explanation why the claim was advanced in the first place and why it was abandoned. In Ahern v Bus Eireann (2011) IEHC 44 the Supreme Court emphasised the role of the trial judge and the particular weight the court will attach to the trial judge s assessment of the Plaintiff s demeanour in giving evidence. Denham C.J. ruled, that there were no grounds under which s.26(1) could succeed as the trial judge had held the Plaintiff to be an honest witness, nor had she procured anybody to give false evidence on her behalf because the claim for care and the expert evidence in that regard had been abandoned prior to hearing. The Plaintiff s need for a carer, and the reference to it in her second affidavit of verification, was stated as being a case that were it not for the accident I would not have required such assistance. I have already indicated that such a view was not a deliberate false or misleading statement, but rather a genuine statement of the Plaintiff s subjective belief. The court therefore determines that the provisions of section 26(2) do not apply to this action.

9 Section 26 and Social Media Plaintiffs should be very wary of materials they post on Facebook. Alan Danagher v. Glantine Inns Limited [2010] IEHC 214, Unreported, Irvine J. 26 th of March 2010 As a result of his assault, the plaintiff claimed that he has suffered soft tissue injuries to his neck and back. He maintained that these injuries forced him to abandon his involvement in rugby, boxing and GAA. He further maintained that he developed Post Traumatic Stress Disorder with symptoms of low mood, nightmares and flashbacks of the assault. Irvine J. held his injuries were sustained by him becoming involved in the fight and by his refusal to comply with the request of the security staff to leave the premises. Not only did the plaintiff fail to substantiate liability as against the defendants Irvine J. held he also sought to mislead the court by grossly and deliberately exaggerating his claim in alleging that for several years he suffered from persistent neck and back pain to the extent that these persistent and disabling physical symptoms wreaked havoc with his third level studies and sporting activities. During cross examination the plaintiff denied that he had participated in a parachute jump for charity in July 2006, an event covered by a report in the local newspaper.

10 Irvine J. noted the plaintiff also contended that he had developed Post Traumatic Stress Disorder as a result of his alleged assault which caused him not to return to any of his sporting activities. Entries on the plaintiff s Facebook page were produced to undermine his evidence in this regard and a number of self-authored entries recorded the plaintiff s participation in hurling, rugby and other sport. One such entry stated as follows:- Activities: playing hurling, rugby and Gaelic football. Favourite music: anything that will get me dancing and hitting the roof. Another stated as follows:- Ya I tink we mit be going out alrite, ul probably come across me drunk on a dance floor d night anyways. somewhere during

11 Nolan v Mitchell [2010] IE HC 151 In Mohammed Sameur Rahman v Craigfort Taverns Limited, Judgment of O Neill J. delivered on the 11 th of October 2012 Into the picture comes a Private Investigator. On three occasions in October 2010, November 2011 and February 2012, the plaintiff was put under surveillance. What did this reveal? Over the days on which the plaintiff was surveyed, he was shown getting into his motorcar, a Jeep which he purchased in 2010; doing deliveries for a number of takeaway Indian restaurants in Naas; getting into and out of his vehicle many times; walking to his vehicle - on one occasion, jogging between it and another vehicle. He was shown going into a supermarket; going upstairs; coming out of another shop carrying large packages, shifting these from one hand to the other in order to get the keys out of his pocket. He was shown carrying bags and going down a steep slope. He was shown hoovering in Islamic Centre in Naas.

12 Meehan v- B.K.N.S. Curtain Walling Systems Ltd [2012] IEHC441 Not open to this court to separate out the good from the bad. That is what the court might have done before s.26, but the situation is different now and the cases make it clear that the sanction is to be applied, unless there are quite specific features that would lead to injustice.

13 Ludlow v Unsworth [2013] IE HC 153 Ryan J. Dismissed the Plaintiff s case stating But a Plaintiff cannot play fast and loose with the truth, cannot tell some truth but not the whole of it, cannot tell a mixture of lies and truth and leave it to the court to try and winkle out the good from the bad. The circumstances of the case are material. They include the events before the critical incident in which the injuries were sustained as well as what happened after. The Plaintiff in her evidence to the court told some of the truth but stops substantially short of telling the whole truth and nothing but the truth. Salako v O Carroll [2013] IE HC 17 Peart J was completely satisfied that she had deliberately exaggerated her injuries so as to enhance her claim. In Creane v Gavin Waters, (13th December, 2013), de Valera J found that the Plaintiff had knowingly misled a number of expert witnesses and had exaggerated his injuries. Although he suffered serious injuries, the judge dismissed the claim.

14 In Mary Nolan v- Rafal Wirenski, Judgment of Ms. Justice Irvine delivered on the 25 th of February 2016, the Court of Appeal heard the defendant s appeal against a judgment of the High Court wherein Barr J. awarded the plaintiff the total sum of 125, damages and costs of the action. The Defendant on appeal maintained firstly that a number of the findings of fact made by the trial judge were not supported by credible evidence thus impugning the validity of the award of damages based on those findings. Secondly the Defendant argued that, even accepting the appropriateness of the facts as found by the trial judge, the sum awarded in respect of both categories of general damages was excessive. Accordingly the Defendant ought to have the said award set aside.

15 As to the trial judge s finding that the plaintiff s evidence as to the extent of her injuries was credible, the Defendant argued that he either failed to engage with or failed to have proper regard for the following matters, namely:- (i) The Plaintiff in her evidence stated that the road traffic accident had had no effect on a pre existing back injury which had caused her to have a spinal stimulator fitted. However, in her application form to PIAB and also in her Replies to the Defendant s Notice for particulars she claimed that her back pain had been exacerbated. (ii) While the plaintiff maintained that the collision had been ferocious the photographs of the car damage and the cost its repair ( 1,161.02) suggested that the contrary was the case. (iii) The plaintiff had advanced a claim for past and future care of in or around 350,000 ( 38, for past care and 17, per annum for future care) which she withdrew, according to the defendant, without adequate explanation, on the morning of the hearing. The sum so claimed was based upon a report that had been prepared by Ms Noreen Roche, Nursing Consultant. (iv) The plaintiff had asserted and had further demonstrated in the course of her evidence in chief that she could not raise her right hand above the horizontal. However, video evidence advanced by the defendant showed the plaintiff fully extending her right arm overhead and waving enthusiastically on three separate occasions within a very short period of time.

16 (v) The defendant had produced a video showing the plaintiff ironing for upwards of 25 minutes and photographs and other evidence depicting her resting on a beach on her right shoulder for in excess of 10 minutes in circumstances where she had told the court, in the course of her own evidence, that each of these activities caused her significant pain and discomfort.

17 Ms. Justice Irvine noted having considered the judgement of the trial judge against the backdrop of the evidence, she was satisfied that he made two findings of fact that cannot be supported by the evidence. The first of these was his finding that the plaintiff could not lift her right arm over the horizontal. The evidence was clearly to the contrary as shown on the video where she is to be seen vigorously waving overhead on a number of occasions in relatively quick succession. It would seem to follow that his related finding that the plaintiff was thus unable to carry out any overhead work was also misplaced. Secondly, he found as a fact that the plaintiff was still taking medication in respect of her injuries as of the date of trial. However, under cross examination she conceded that the medication she was taking was the same as that which she had in any event been taking for her unrelated back condition as of the date of her accident. These erroneous findings would have had the effect of significantly increasing the award of damages to which the plaintiff was lawfully entitled. Ms. Justice Irvine stated As to whether the award made by the trial judge was proportionate having regard to the findings of fact, findings which were in any event in error to the extent referred to in the last preceding paragraph, I regret to say that I am satisfied that the award was disproportionately large.

18 On the evidence the plaintiff was not in any major way restricted by her injuries. She was mobile from the outset and she remained able to enjoy normal family life and leisure activities, facts readily ascertainable from the video which this court had the benefit of viewing and in which she is shown engaging fully with her family in the context of a day out on the beach. In conclusion Ms. Justice Irvine held the injuries could at best be described as relatively modest when considered in the context of the entire spectrum of personal injury claims. Adopting the approach set out above and thus giving all credit to the plaintiff for the credibility finding in her favour, the reasonable and proper award is in her judgment 50,000 in respect of pain and suffering to date and a sum of 15,000 in respect of pain and suffering into the future.

19 PART II Detecting fraudulent claims I. Where a newly insured vehicle is involved in an accident; II. A low velocity impact with minor material damage; III. Multiple parties in the policyholder s motor vehicle and the defendants motor vehicle; IV. Family or social connections between the occupants of both (or multiple) vehicles involved in the accident. V. A single vehicle accident with multiple occupants; VI. Minor to moderate personal injuries claims arising from the accident.

20 PART III Low Velocity Impact Claims The measure of force transmitted to the struck vehicle is often expressed as a delta v which is the change in velocity. It is the acceleration or deceleration of the claimant s vehicle and is proportionate to the speed at which it is struck by the defendant s motor vehicle. The Low Velocity Impact defence, however, is unreliable due to a number of variables which are too wide to produce statistically significant results which the Court can rely upon. These variables are as follows: I.The injured party Plaintiffs vary in terms of age, sex, height or pre-existing pathology. Furthermore, account has to be taken whether at the moment of collision the Plaintiff relaxed or tensed and what position the Plaintiff is in (is his head back against the head rest, leaning forward, head/neck turned, looking straight ahead)

21 ii. Speed The actual speed of the impact in which the claimant was injured will rarely if ever be known with any accuracy as witnesses descriptions of speed are invariably unreliable. iii. Material damage Vehicle damage is unlikely to be a reliable indicator of impact speed as parts of different cars absorb or transmit force differently to others. There will rarely be clear and detailed evidence as to the precise nature and extent of vehicle damage. Sometimes there will be no, or no obvious, damage, especially in many modern vehicles. Vehicle damage reports are insufficient as they are generally prepared by insurance assessors simply enquiring into whether any damage is broadly consistent with the account given and whether the likely cost of repair exceeds the value of the vehicle. Photographs mostly depict only superficial damage and cannot indicate the extent to which force has been transferred to the occupant.

22 Iv. Seat belts Account must be taken as to whether seat belts or no seat belts were worn at the time of the accident v. Weight of the vehicles The relative weights of the two vehicles including the contribution of each of the vehicle's contents and whether they are secured or loose vi. Conditions The construction of the road surface the presence of water, oil, dirt or other substance on the road surface and weather conditions are factors that may affect an accurate analysis. Account must also be taken of brake distances and whether any brakes were applied and the construction of the tyres on the vehicle

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