Litigation & Dispute Resolution
Recent media coverage of personal injury litigation and the knock on effect of awards on premium holders has yet again highlighted the need for change and reform in our courts in both the determination of wrong doing and the awards ultimately handed down. The recent case of O’Connell v Martin; Ali v Martin has marked a step in the right direction by the courts in this regard by illustrating the significant and influential role of medical experts in personal injury proceedings and re-iterating the longstanding principles to be considered in assessing fair and appropriate awards.
Twomey J delivered Judgment on 10 May 2019 dismissing one fraudulent and one exaggeraged personal injury claim, both arising out of a minimal impact incident between two cars.
The role of medical experts
The claims were undermined by a common factor; the referral to consultants for a medical/psychological examination of the alleged injuries of each plaintiff were by the solicitor and not, as is usual practice, by a GP. The Court concluded that there was no medical need for the referral, only a legal need to support a claim for damages.
To compound the Court’s suspicions, both plaintiffs had attended their GP some days after the alleged accident but prior to the referral, and neither mentioned anything about the back and neck pain they later alleged was as a result of the impact. Ms O’Connell did not inform the GP of her attribution of back pain to the impact until nine GP visits later.
The O’Connell case, the dismissal of which supports the Defendant’s claim that the plaintiff had not even been in the car at the time of impact, highlights the need for professionals to be wary of the possibility of their services being used to facilitate fraudulent claims.
The Court noted that it would be good practice in order to avoid being misled that where medical reports are being relied upon by plaintiffs, the court should be advised if they came into existence for legal rather than medical reasons. This could then influence the court’s determination of whether the claims were fraudulent or exaggerated.
The Court also noted it is not good practice, therefore, for solicitors to refer clients to medical specialists. In fact, the making of such a referral by a person with no medical expertise, and duly accepted by the consultant, risks devaluing personal injury litigation for those who are genuinely injured and deserving of compensation.
The Court considered the special position of medical professionals as expert witnesses in the Irish legal system. The privileged position they hold in being able to express views, rather than mere factual observations, is potentially open to abuse, allowing the expert to express a view corresponding all too favourably with the interests of the party who retained their services. The reports in question in the cases at hand, for example, provided subjective evidence from the plaintiffs regarding the extent of their pain.
There was no dispute between the parties that Mr Ali was in the car at the time of the impact. However, he gave evidence that Ms O’Connell was in the car at the time. Having dismissed Ms O’Connell’s claim on the basis that the Court believed she was not involved in the incident, the Court felt it was right to also dismiss Mr Ali’s under s26 of the Civil Liability and Courts Act. The Court concluded that Mr. Ali had given misleading evidence regarding the circumstances of the accident, the nature of the impact and in particular the effect of that accident on his neck and back.
Core principles in assessing damages
Despite dimissing the claim, the Court also concluded the level of award it felt would have been appropriate had the claim not been dismissed. Mr. Ali had been awarded €17,500 in the Circuit Court and Twomey J. stated that the award he would have allowed, taking into consideration the principles set down by the Supreme Court, was €3,000. He also noted that should such an award have been received that this would have been negated by a differential costs order, given that the District Court was the more appropriate court. In relation to the discretion of a judge to make a differential costs order he agreed with Hardiman J. who in a previous Supreme Court decision had confirmed that the sole fact which triggers the discretion is that the Plaintiff was awarded a sum which a lower court would have power to award.
Twomey J. went on to state that where a claim is for minor soft tissue/whiplash injuries, the plaintiff should carefully consider taking the case in the District rather than Circuit Court so as to have an appropriate award made and not risk it being reduced or eliminated by the differential costs order.
The Court also set out the principles that bind the courts in awarding damages;
- Award should be fair to both the plaintiff and the defendant;
- The award should be just, equitable and proportionate (e.g. minor injuries = modest damages);
- The award should be reasonable and proportionate to where injuries stand on the scale of minor to catastropic and proportionate to the damages awarded for other injuries and noting that the cap for general damages which applies is €450,000 so as to avoid the “concertina effect”;
- The award of damages should be reasonable in light of “the ordinary living standards in the country” and “the general level of income” in this country. Therefore, in considering the reasonableness of any award, the fact that it takes the average person a full year to earn €47,596 gross which amounts to €35,500 net pay after tax should be borne in mind.
In relation to the Book of Quantum, the Court confirmed that this is not binding on trial judges as is clear from s.22 of the Civil Liability and Courts Act 2004. In contrast, it noted that the decisions of the Court of Appeal (which it noted has been approximately halving damages) and the Supreme Court (which has expressly adopted the principle that modest damages should be made for modest awards) are binding.