Meehan v. BKNS Curtain Walling Systems Ltd.  IEHC 441 (High Court, Ryan J, 26 October 2012)
In previous BLOGS I have advised of the entitlement of the Court to dismiss a Plaintiff`s Claim where there has been exaggeration of the Plaintiff`s symptoms or the Plaintiff fails to reveal a material fact which he knows to be false or misleading. Another Decisions has been made by the High Court where it has dismissed a personal injuries claim on basis that plaintiff had given false and misleading evidence as to his earnings before and after the accident.
The Plaintiff sustained personal injuries in a workplace accident as a result of defective scaffolding. While liability was in dispute an issues also arose as to whether false or misleading evidence had been given by the plaintiff. An application was made for dismissal of action under s.26 Civil Liability and Courts Act 2004. CCTV footage of accident by the employer was at odds with plaintiff’s version in the pleadings and particulars. The claim in negligence was dismissed but there was a finding that employer did not have safe system of work. It was however decided that there was contributory negligence with liability for accident being apportioned 2/3 against the plaintiff and 1/3 against the defendants.
There was a significant loss of earnings claim. There was an admission by the Plaintiff that he was working as professional ticket tout. An issue therefore arose on the interpretation of s.26. In determining the mandatory nature of s.26 under the Act the Court stated that it was not possible to dismiss false elements of claim and allow legitimate parts of claim to survive. The issue was whether the plaintiff knowingly gave false or misleading evidence in a material respect re work and income pre and post accident and whether dismissal of the action would result in an injustice. The Court determined that there would be no injustice and the action was dismissed.
Ryan J stated :“The plaintiff’s evidence in relation to his claim for loss of earnings in the past and the future was knowingly false and misleading in a material respect. This applies particularly to his evidence as to his income and as to his work history after the accident. In doing so, he knowingly gave false or misleading evidence in a material respect. The fact that in relation to liability the defendants were in possession of the CCTV film and therefore knew the correct position is not material to whether the plaintiff gave false or misleading evidence. It is the plaintiff’s conduct of the litigation that is in issue, not whether he actually succeeded in misleading or deceiving another party or the court. The plaintiff’s abandonment of his original account of the accident is unexplained in the sense that his purported explanation that he was confused has no basis in fact and is improbable. It was obviously material and the inference is that it was knowingly false and misleading. On these findings, the action must be dismissed in accordance with section 26 unless that would result in injustice. The court is required to state in its decision the reasons for deciding that the dismissal of the action would result in injustice being done. What constitutes injustice in this context? One of the examples given in the cases is if a plaintiff who told a relatively trivial lie had catastrophic injuries then it would be wholly disproportionate in that situation and accordingly unjust to dismiss the whole action because of a relatively unimportant or peripheral or trivial untruth. It cannot be said that the matters that arose in this case were in any way trivial or insignificant. Having regard to the terms of the section and to the decided cases, there is no basis on which the exemption to dismissal might be applied in this case.”
Defendant`s insurers are nowadays rigorously investigating Claims particularly where there is a loss of earnings claim included. Plaintiffs have been warned again that failure to reveal a source of earnings in a loss of earnings Claim will more than likely result in the Dismissal of the whole Claim.