FRAUDULENT PERSONAL INJURY CLAIMS
Compensation claim fraudsters could face jail if the Minister for Justice makes perjury a statutory offence. Lying on insurance claims forms would amount to perjury, which could result in a jail sentence if perjury becomes a statutory offence, as it is in other common law jurisdictions. Currently it is an offence at common law.1
This follows a thread on Boards.ie which raised the issue of fraudulent personal injuries claims. Jessie Jane from Meath said: “My friend had a minor accident 2 years ago at a roundabout. Another car tipped her car causing very minor damage. She was OK, but was told by her husband to play up to it and go to doctors etc. She got a damn good offer from the Injuries Board, which she refused because she got greedy, even though she had nothing wrong with her. We told her to take the offer and leave it at that. Her solicitor says she will get her even more money, but I think she [the solicitor] was trying to milk it for herself. More money for her if she brings the case to court. Then her solicitor started court proceedings and eventually she had a meeting with the other side, who say they had proof she was not as bad as she was making out. [They] had a statement from the woman who tipped her in the car park and that woman was willing to go to court. She is wishing now she had taken the first offer and run. Can this happen and is it common now for insurance companies to look into exaggerated claims?”2
Much of the response was predictable, with many Boards members criticising the behaviour of the ‘friend’. Some of the responses might almost have come from members of the insurance industry.
Pro Hoc Vice replied: “It’s very common. I have seen cases [where] the insurance company looked at Facebook, employed investigators and looked in detail into past claims and medical history.” ABajaninCork said: “Of course it is! Insurance companies have a duty to mitigate their losses. Did you really think they’d just pay up and that’s the end of it?”
Santa Cruz said: “Hopefully she will be hit for all legal costs. Insurance companies employ accident investigators and private investigators to check claims. I’d say they saw your friend coming a mile away.” Jackboy said: “You should report this info to the guards. She has broken the law and people like her are the reason why insurance is so high.” Bepolite cautioned: “Frankly, Facebook et al has made the job child’s play.”
Meauldsegosha said she worked as a secretary in an investigation company about 20 years ago, and 90 per cent of the work came from insurance claims. “Of course the insurance company are going to investigate. They see cases like this every day and are wise to the tricks people play.” And Bepolite added the warning: “People also don’t seem to realise the effect of being on the receiving end of a good barrister in cross-examination mode.”
Civil Liability and Courts Act 2004
It’s always been open to the courts to decide that a claim is fraudulent. In Banco Ambrosiano Spa v Ansbacher,3 Mr Justice Henchy held that: “If the court is satisfied, on balancing the possible inferences open on the facts, that fraud is the rational and cogent conclusion to be drawn, it should so find.” But section 26 of the Civil Liability and Courts Act 2004 also requires a judge to dismiss a personal injuries claim if a plaintiff knowingly gives (or causes to be given) false or misleading evidence, unless dismissal if the action would result in injustice. The same penalty applies to knowingly swearing a false or misleading affidavit. As Mr Justice Peart said in Carmello v Casey,4 the section is mandatory and deliberately draconian, in the public interest.
But as Mr Justice O’Neill pointed out in Dunleavy v Swan Park Ltd,5 section 26 was enacted “to deter and disallow fraudulent claims. It is not and should not be seen as an opportunity to seize upon anomalies, inconsistencies and unexplained circumstances to avoid a just liability. Great care should be taken to ensure, in a discriminating way, that clear evidence of fraudulent conduct in a case exists before a form of defence is launched which could unjustly do grave damage to the good name and reputation of a worthy plaintiff”.
If a plaintiff is elderly or simply forgetful in court, the court may decide not to dismiss the claim. In 2011, for example, Bus Éireann appealed to the Supreme Court6 against the decision of the High Court in Limerick that 78-year-old widow Rose Ahern was entitled to damages against the bus company. Mrs Ahern had been a passenger on a bus in Limerick when the driver had to brake heavily to avoid hitting a car which pulled out in front of him. She had fallen from her seat and been injured.
Liability wasn’t an issue in the High Court, but the bus company argued about the nature and extent of Mrs Ahern’s injuries, particularly her claim for a carer costing €177,000 – a claim that was withdrawn after she was cross-examined. The High Court awarded her €40,000 damages and most of her costs.
The bus company claimed that Mrs Ahern’s injuries did not require a carer and said she had given false and misleading evidence by claiming that she could no longer travel alone. The judge said that, if she had overstated the connection between her symptoms and the accident, this could be just “an understandable exaggeration”. He said the need for increased care had not been deliberately exaggerated, and her evidence was not knowingly false or misleading.
While her history was “not precisely correct on every detail”, it was “substantially correct”. Overall, Mrs Ahern was a “truthful witness, even if every detail of her narrative was not necessarily precise”. It was “both understandable and human” for her to attribute some of her loss of independence to the accident, rather than the passage of time. The judge also said that section 26(1) referred to evidence, and not to information provided outside court.
In the Supreme Court, the Chief Justice said that, where an insurance company or defendant pleaded section 26 of the 2004 Act, it bore the onus of proof. According to the judgment in the case of Mary Farrell v Dublin Bus,7 the defendant had to establish a “high probability” of proof on the balance of probabilities that a plaintiff had knowingly given or adduced false or misleading evidence for the purpose of invoking section 26.
The Chief Justice said the High Court judge had heard all the evidence, could see the demeanour of Mrs Ahern and had decided she was an honest witness. The claim for care into the future was withdrawn at the conclusion of the respondent’s case, so the bus company’s case had no basis in the claim under section 26(1). Mrs Justice Denham said that the test for a misleading statement being made “knowingly” was subjective. The High Court judge was entitled to hold that Mrs Ahern did not knowingly mislead the court. She dismissed the appeal.
In a similar appeal by Bus Éireann two months later, 8 the Supreme Court said the bus company was seeking the “radical remedy” of the dismissal of the entire claim of the plaintiff, who had suffered serious injuries in an accident for which Bus Éireann admitted liability. On a visit home to Ireland in 1999, the plaintiff, a nurse who lived in the United States, was read-ended by a bus, pushing her car across an intersection. She suffered whiplash and was taken to Tallaght Hospital but was detained for only a short time and returned to the United States after a few days.
Before the accident, the plaintiff played camogie and jogged. However, subsequent X-ray examination revealed that she was suffering from significant early deterioration of her cervical spine. She claimed that, following the accident, she could walk only three city blocks, that she had great difficulty getting in and out of a car, had problems lifting and with housework and had been unable to work at all.
The action was heard at the High Court in Cork, and Finlay Geoghegan J awarded damages totalling €260,779 in July 2008. The trial judge noted that it was undisputed that the plaintiff had been significantly hampered in her daily life and was unfit to work, but accepted that there was a “very significant element of psychological overlay” in the claim. However, she was not prepared to find that the plaintiff’s evidence was false and misleading because, as she put it, she did not “find it to be so”.
In the Supreme Court, Fennelly J said that, in order to seek dismissal of a claim under s 26 of the Civil Liability and Courts Act 2004, the defendant had to establish that the plaintiff had given evidence which she knew was false or misleading. “It is obvious that the defendant, upon whom the burden lies, faces a daunting task in making its case on appeal in circumstances where the trial judge, invited expressly to do so, declined to make such a finding,” he said. “This court cannot substitute itself for the trial judge in the assessment of credibility of witnesses.” He dismissed the appeal.
Even where evidence is “somewhat fragile”,9 and a plaintiff has not sought formal medical intervention immediately after an accident, a judge may decide not to dismiss a claim under section 26.
The use of private investigators to try and prove that a claim has been exaggerated is not unusual. In the 2006 High Court case of Corbett v Quinn Hotels Ltd,10 a 46-year-old woman claimed that damage to her knees caused by a fall at the Hillgrove Hotel Monaghan resulted in difficulty in walking for three weeks. An insurance company private investigator videoed her walking “for a protracted distance briskly and without any apparent difficulty” three years after the accident.
The former president of the High Court, Mr Justice Joseph Finnegan, said that, while Ingrid Corbett’s bruised knees caused her “considerable difficulty for perhaps one month”, she had probably sustained a mild condition “which causes her occasional but not significant discomfort”. When the proceedings were resolved, as was often the case, she would no longer concentrate on her injuries and her condition would probably resolve in the short term. He awarded her €58,500 damages.
In another case in 2012, Billy Nolan claimed that he was so badly hurt in a 2005 road accident that he had to give up working as an alarm fitter.11 He said he’d had to give up his hobby of “car-drifting”, but photographs and videos showed him still taking part in this hobby and even throwing another man over the counter of a chip shop.
Nolan also claimed more than €450,000 loss of earnings, though his P60 showed earnings of just €356 per week. In the High Court, Mr Justice Esmond Smyth said his loss of earnings claim and his evidence about giving up “car-drifting” were false and misleading. He dismissed the claim. But in the Court of Appeal,12 Mrs Justice Irvine said the High Court judge had failed to distinguish between the onus of proof on a plaintiff to prove the claim for loss of earnings on the balance of probabilities, and the onus on a defendant who seeks to have the entire claim dismissed under section 26.“It is for the defendant to establish that the plaintiff intentionally sought to materially mislead the court,” she said. She reinstated the claim. She also ruled that the High Court finding of 40% contributory negligence by Nolan was “grossly disproportionate in all the circumstances” and she substituted a finding of 20%.
Telling the whole truth
In a 2013 case,13 Mr Justice Sean Ryan threw out a claim by Lisa Ludlow for injuries in a car crash. Ludlow said she had handed her car keys to her ex-boyfriend, Darren Unsworth, but he was drunk and incapable of driving. The judge said “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 to winkle out the good from the bad”.
Mr Justice Ryan said the car was probably driven negligently, and alcohol consumption was probably the major cause of the collision. He said Ludlow had told the court “some of the truth but stopped substantially short of telling the whole truth and nothing but the truth”. He dismissed her claim.
In the 2011 case of Bertie Folan v Mairtin Ó Corraion and others,14 24-year-old Folan claimed damages for back injuries suffered when he fell off a scaffold at a housing development in Loughrea in April 2007.He said he had not been able to return to work or play sports, and had attended his GP on more than twenty occasions since the accident. The defendants claimed that Folan had been negligent and pointed out that he hadn’t sent a claim letter within two months, as required by section 8 of the Civil Liability and Courts Act 2004.
Folan said he could do light work as a carpenter, but would not be able for the heavier and more demanding aspects of the job. He claimed his loss of earnings for 2007 to the end of 2009 would have been €31,200. But Folan admitted that, after the accident, he had used a friend’s crutches and limped when visiting the doctor, had taken part in Galway hooker races for three months, had learned to scuba dive and had participated in a horse fair. He had also worked full time for a windscreen repair company while being paid unemployment assistance, and had even done some roofing work following his fall.
The judge said he was satisfied that the injuries from the fall were “relatively minor in nature”, and that was borne out by the time it took to consult a GP after the accident. Folan had not seen his doctor for more than three years before the trial, and his use of crutches and an affected limp at a medical consultation could only be interpreted as “a deliberate attempt to exaggerate his symptoms”. While Folan was a truthful person, he might be telling “something less than the truth” about his fall and its effect on his health. The judge said that Folan’s evidence was probably intended to mislead the court, so was dishonest. He dismissed the claim.
Similarly, in Meehan v BKNS Curtain Walling Systems Ltd and others,15 where a glazier claimed for damage to his heel after a fall from first-floor scaffolding, CCTV footage showed that the plaintiff’s claim was “wrong in important matters”. While there was “ very heavy contributory negligence”, the plaintiff’s version of the accident in the pleadings and particulars was “fundamentally wrong”. The plaintiff had also mitigated his income loss by selling tickets to concerts and sports matches as a “professional ticket tout”. The defendants sought a dismissal under section 26.
Mr Justice Sean Ryan said: “Section 26 is mandatory. If it applies to the case, the legitimate parts of the claim cannot survive with only the false or misleading elements dismissed.” The court was not entitled to “separate out the good from the bad”. He dismissed the claim.
And in Higgins v Caldark Ltd and Michael Quigley,16 the plaintiff’s case was dismissed because he had failed to disclose in his verifying affidavit that his brother had paid him earnings of €40,000 through Caldark, a limited company. The court found that the plaintiff’s loss of earnings claims were largely based on his false and misleading information.
Even when section 26 is not specifically pleaded, the court may refuse costs. In the Supreme Court in Morris v Bus Atha Cliath/Dublin Bus,17 Mrs Justice Denham said: "The issue of an abuse of process by the plaintiff in view of her exaggeration of her claim was not argued specifically in the High Court. There was no finding as to such a situation. If there was such it would have more weight as an issue relevant to the determination of costs in a trial court and on appeal."
Earlier or later injuries
It’s also important to give full details of any other injuries. In Carmello v Casey and another,18 Damien Carmello claimed he experienced numbness on the left side of his face following a road accident. But the defendant claimed the numbness was due to another incident six months after the car accident, in which the branch of a tree hit the plaintiff on the face. He was treated for this injury in Limerick Hospital, but did not mention it in his replies to particulars, although he disclosed other past accidents. He said the incident must have slipped his mind.
But Mr Justice Michael Peart said there was not “the slightest possibility that he would not recall such a thing. It would defy any credibility in a young man such as the plaintiff, and I simply would not believe him when he says that he does not recall it”. He said Carmello had been “deliberately untruthful” and he dismissed the “substantially fraudulent” claim.
And in Behan v Allied Irish Banks Plc,19 where the plaintiff claimed damages for loss of earnings after falling off an office chair, counsel for the bank said Mary Behan had claimed she had “no illness, sickness, disease, handicap, surgical operation or medical complaint, physical or otherwise relevant to these proceedings, either prior to or subsequent to the alleged incident”, although “there had been relevant injuries and relevant treatment”.
Mr Justice Roderick Murphy said the plaintiff had failed to disclose “a number of injuries and treatments” in her reply to particulars, including pre-existing arthritis, a left knee injury, falls from a bench in a hotel and in James's Street and a gashed leg after hitting against a filing cabinet. He dismissed the claim.
An increasing number of the s.26 cases involve claims of ‘set-ups’. In Darragh and Ors v Feeney and Hertz Rent A Car,20 Hertz claimed on appeal from Letterkenny Circuit Court that the plaintiffs and defendants knew each other before the accident, which involved a hire car, and that they had “significantly exaggerated” their injuries. In the High Court, Mr Justice Meenan said: “Though I believe the evidence of the plaintiffs concerning their prior knowledge of other plaintiffs was, in some instances, less than forthright, I do not believe such evidence went so far as to establish the collision was a ‘set up’.” He noted that each of the plaintiffs had recovered fully shortly after the collision, none claimed any ongoing ill effects and there were no claims for medical expenses or loss of earnings. He confirmed damages awards of between €5,050 and €9,550.
1 Irish Independent, 28 August 2017
2 http://www.boards.ie/vbulletin/showthread.php?t=2057239442, 29 June 2014
3  ILRM 669
4  IEHC 362
5  IEHC 232
6 Ahern v Bus Éireann  IESC 44
7  IEHC 327
8 Goodwin v Bus Éireann  IESC 9
9 Nolan v Kerry Foods Ltd  IEHC 208
10  IEHC 222
11 Nolan v Mitchell & anor  IEHC 151
12 Nolan v O’Neill & anor  IECA 298
13 Ludlow v Unsworth and Zurich Insurance  IEHC 153
14  IEHC 487
15  IEHC 441
16 Unreported, High Court, Quirke J, 18 November 2010
17  IESC 2
19  IEHC 554
20  IEHC 514
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