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False and misleading evidence in personal injuries claims

By: Mark Tottenham BL

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Recent news stories suggest that there has been an increase in fraudulent personal injuries claims. In May 2018 RTÉ reported that the insurance company Aviva had collected data that showed a ‘nationwide detected fraud rate of 2.14%’, and specified that ‘3.97% of all claims in Offaly in 2016 and 2017 were detected as fraud’. Aviva’s spokesman claimed that the ‘true figure’ was probably closer to between 7% and 10%.

It is not clear what constitutes fraud in the Aviva data. It could be that the alleged accident never took place at all or was a ‘set-up’. Alternatively, it could mean that the claim involved a dishonest element, such as an exaggeration of the injuries sustained.

In 2004 the personal injuries regime  changed substantially with the introduction of the Personal Injuries Assessment  Board (PIAB). At the same time, the Civil Liability and Courts Act 2004 introduced measures to counter dishonest claims. Plaintiffs are required to swear a ‘verifying affidavit’ concerning the claim and any particulars of claim. Under section 14(5),  any plaintiff who knowingly makes a statement in such an affidavit that is false or  misleading in any material respect is guilty of an offence. Section 25 of the Act goes  further and makes it an offence to give dis- honest instructions to a solicitor in respect  of a personal injuries action.

Section 26 provides that, where a plaintiff in a personal injuries action knowingly gives false or misleading evidence, the court is obliged to dismiss that action unless it would result in injustice being done.

It is not known how many cases are actually dismissed by the courts for false or misleading evidence. However, Decisis has reports on over 8,000 written judgments delivered since January 2011, of which just twenty concern applications to dismiss personal injuries actions for false or misleading evidence. Eleven of these were dismissed and nine were not (including one where the Court of Appeal overturned a High Court decision to dismiss).

In Higgins v. Caldark Ltd [2010] IEHC 527, the claim was dismissed because the plaintiff had given misleading evidence as to his post-accident earnings. In Folan v. Ó Corraoin [2011] IEHC 487, a claim arising from a fall from a scaffold was dismissed because both the accident and the injuries were found to have been exaggerated.

In Goodwin v. Bus Éireann [2012] IESC 9 (Supreme Court, Fennelly J, 23 February 2012), however, the Supreme Court upheld the refusal by the High Court to dismiss a claim. There were some inconsistencies between the instructions given to a medical practitioner and the evidence given in court. In addition, a DVD showed that the plaintiff had a reasonable range of movement. The High Court declined to find on the evidence that the plaintiff had knowingly given false and misleading evidence. In the absence of any such finding, the Supreme Court found that it could not reach a different conclusion.

In Lackey v. Kavanagh [2013] IEHC 341, a claim was defended on the basis that the plaintiff had exaggerated her injuries. The plaintiff succeeded in her claim but the court refused to award aggravated or exemplary damages, on the grounds that it had not been unreasonable on the available evidence to challenge the truthfulness of the plaintiff’s account.

In Nolan v. O’Neill [2016] IECA 298, the Court of Appeal overturned a decision by the High Court to dismiss a personal injuries claim in which there had been conflicting evidence on loss of earnings. The appeal court held that the defendant had failed to discharge the burden of showing that the plaintiff had acted intentionally in misleading the court.

It goes without saying that fraudulent claims should be dismissed and that—where appropriate—the fraudsters should be prosecuted. What is not clear is whether fraudulent claims are as large a problem as the media have been reporting. The evidence from the decisions of the superior courts would suggest otherwise.

(This opinion piece was originally published in Law Ireland in February 2019.)

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