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    Don`t exaggerate Injury Claims

    A warning to those who make Dishonest Personal Injury Claims: If you are a claimant in a Personal Injuries Claim arising from an accident, whether it is a Road Traffic Accident, a Factory or Workplace Accident or otherwise, and you exaggerate your injuries to the Court you are likely to have your Claim dismissed by the Court. Hearings of this nature will examine whether the Claimant had knowingly given false and/or misleading evidence to the court as to the extent and nature of his injuries. It is very important also to bear in mind that the Court will review, not just the oral evidence given at the Court but also, the Pleadings filed by the solicitors which will have given rise to that evidence.

    In a recent Hearing Platt, Jason v OBH Luxury Accommodation Limited and Ciaran Fitzgerald 28/7/2017 No. 2017/71 [2017] IECA 221 the Court considered this very issue. (Where the Claimant is referred to as the “Plaintiff”, he was the person who was injured and brought the Personal Injury Claim before the Court. Where he is also referred to as the “Appellant”, his Claim before the High Court was dismissed and he appealed the Decision of the High Court to the Court of Appeal).

    The Facts
    The plaintiff/appellant, Mr Platt, sustained significant injuries when he fell out the window from a window seat in a bedroom of the hotel premises of the defendants/respondents, OBH Luxury Accommodation Ltd and Mr Fitzgerald, in Kinsale on the 15th February, 2009. It is important to bear in mind that the appellant had sustained very serious injuries. In the words of Ms Justice Irvine of the Court of Appeal, when giving the background to the case in her Decision, the appellant then “a man of some 45 years, sustained very significant injuries when he fell out the window from a window seat in a bedroom of the defendants’ hotel premises in Kinsale on the 15th February, 2009….It is not in dispute that Mr. Platt’s injuries were life threatening at the outset and that he will never fully recover therefrom. He sustained, inter alia, five fractures to his vertebrae, seven fractured ribs and a fractured right femur. He also developed psychological problems as a result of his physical injuries.”

    The Pleadings
    Mr Platt commenced proceedings claiming damages for negligence against the hotel. The Personal Injury Summons claimed that, as a result of his injuries, Mr. Platt was unable to live independently and was very much dependent upon his partner for assistance. It was, he maintained, anticipated that such assistance would be required on an ongoing basis and that he would need “limited assistance during the day and care at night”.

    A reading of the Court Decision records how Mr Platt set out his case – in his Personal Injuries Summons, in his Replies to Particulars and in his Disclosure Schedules. To each of these Pleadings he swore Affidavits of Verification, as required by the Civil liability and Courts Act 2004, confirming the accuracy of the Pleadings filed by him.

    s. 26 of the Civil Liability and Courts Act 2004
    This section, newly introduced by the 2004 Act, records:
    (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) that he or she knew 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.
    (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 Defendant`s Application
    The defendants applied to the High Court judge to dismiss Mr Platt’s claim pursuant to the jurisdiction conferred on him by s. 26 of the Civil Liability and Courts Act 2004. The defendants maintained that: (i) the plaintiff himself at trial had knowingly given false and/or misleading evidence to the court as to the extent and nature of his injuries in breach of s. 26(1); (ii) he had knowingly caused false and/or misleading evidence to be adduced on his behalf in breach of s. 26(1) in that he had given a false account of his abilities and disabilities to each expert witness retained to examine him with the purpose of inflating his claim; and (iii) he had, in breach of s. 26(2)(a) and (b), sworn three affidavits of verification two dated the 7th December, 2011, and the final one dated 30th April, 2015, verifying a range of disabilities and alleged financial consequences knowing them to be false and/or misleading in several material respects.


    Damaging Video Evidence
    Core to the defendants’ application was seventeen minutes of video surveillance footage capturing Mr. Platt’s movements and activities on seven separate occasions over the period March, 2014 to March, 2015. This was critical to the findings of the High Court judge and his decision to invoke his jurisdiction under s. 26 of the Act.

    The High Court judge expressed himself satisfied that the video evidence established that Mr. Platt could negotiate the steps of his house unaided, that he could open the gates to his driveway, that he could do the supermarket shopping and could walk without the use of crutches and that he could raise his arm above his head to close the boot of his car. This was in contrast to his presentation at his medical appointments when he attended using crutches and a wheelchair. He described the presentation of plaintiff on the video as being in “stark contrast” to how he had reported to his own experts and those retained on behalf of the defendants.

    The High Court judge (Barton J), by his Order of the 19th January, 2016, dismissed the plaintiff’s claim pursuant to the provisions of s. 26. The plaintiff appealed to the Court of Appeal against that Order, submitting that there was insufficient evidence to support the finding of the trial judge that he knowingly exaggerated his symptoms and disabilities as is required before the section may be invoked.

    Mr Platt`s Submissions on Appeal
    It had been argued on Mr. Platt’s behalf that whilst he had exaggerated the extent of his injuries and disabilities when giving his evidence in chief and in the course of his reporting to the experts who had been retained to examine him, s. 26 did not apply as he had an honest subjective belief that he was seriously injured to the extent claimed. It was further submitted on Mr. Platt’s behalf that even if the Court was satisfied that he had knowingly given false evidence it would be unjust to dismiss his claim as he had serious physical injuries and his witnesses had given their evidence having taken into account his capabilities as demonstrated on the video surveillance footage.

    Decision of the Court of Appeal

    Round Hall

    The Round Hall, The Four Courts

    It was held by Irvine J that the trial judge was entitled to conclude on the evidence before him that Mr Platt gave false and misleading evidence which was material to his claim, knowing it to be false, and that he did so for the purposes of recovering damages to which he was not entitled. Irvine J was also satisfied that the third affidavit of verification which Mr Platt swore on the 30th April, 2015 for the purpose of supporting his claim in respect of past and future special damages in the region of GBP£1.49m was false and misleading and that he swore that affidavit with the intention of misleading the court. Irvine J noted that in each instance the evidence that was false and misleading was clearly material to his claim as required under the section. Irvine J was satisfied that, notwithstanding the seriousness of his injuries, it was neither unfair nor disproportionate of the High Court judge to dismiss Mr Platt’s action in the circumstances. Irvine J held that she would dismiss the appeal.

    Judge`s Reasoning:
    Referring to the genesis for the enactment of s.26 the Civil Liability and Courts Act 2004 Irvine J stated:
    58. What is clear from the Act as a whole is that it was designed to ensure that false or misleading assertions, allegations or information will not lightly be tolerated in the context of personal injury litigation, and that any material failure to meet the statutory requirements will be met, save in the limited circumstances….. , with a mandatory sanction provided for, whose objective is to deter and eliminate false and/or misleading claims.
    59. When s. 26 is invoked it has what can only be described as draconian consequences for a plaintiff. Their claim must be dismissed as the section is mandatory save for where the court considers that dismissal would result in an injustice. The change heralded by the Act is perhaps even more acutely evident from the fact that the statute makes it a criminal offence for a litigant to give false or misleading evidence or to give false or misleading instructions to their solicitor or to any expert. Such an offence is, under s. 25 of the Act, punishable by significant penalties. On indictment, a fine of up to €100,000 or a prison term not exceeding ten years or both may be imposed.

    Lessons learned?
    This case should be a salutary lesson to all Claimants that, even if they are seriously injured, they should not exaggerate their symptoms, thus seeking to increase their compensation. A Claimant who does so before the Courts – and who initially gives inaccurate instructions to his solicitor and Medical Consultants / Experts during the course of the Claim from the accident leading up to the Hearing – runs the risk of having his Claim dismissed and being prosecuted before the Criminal Courts.

    For further information and guidance on Personal Injury Claims contact:

    Brian Morgan, Morgan McManus Solicitors

    Ph. No. 003534751011

    Email: bmorgan@morganmcmanus.ie