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The rationale behind the enactment of Section 26 of the Civil Liability and Court Act 2004 (2004 Act) was to discourage plaintiffs from bringing frivolous personal injuries claims, and also to provide defendants with a defence to an exaggerated claim. However, two recent cases involving fraudulent or exaggerated personal injuries claims, Rose Ahern v Bus Eireann (2011) and Teresa Goodwin v Bus Eireann (2012), both of which were appealed to the Supreme Court, have shown that this section is not in fact being used to dispense with exaggerated claims and is not a useful tool for a defendant.

In Rose Ahern v Bus Eireann the defendant appealed the decision of Feeny J to the Supreme Court on the basis that the plaintiff was exaggerating her injuries and that the case should have been dismissed pursuant to Section 26 of the 2004 Act. Ms Ahern was involved in a collision while travelling on the defendant’s bus. The nature and extent of the injuries suffered by the respondent as a result of the accident were in contest. The appellant relied on Section 26 of the 2004 Act on three grounds;

1. The respondent did not require the assistance of a carer as she had claimed,
2. The respondent had provided false and misleading evidence relating to her psychological injuries, and,
3. The affidavit of verification was false and misleading.

The Supreme Court upheld the decision of the High Court, holding that the respondent was “an honest woman”. In order to succeed in having a claim dismissed pursuant to Section 26 of the 2004 Act there must be, amongst other things, a finding of dishonesty.

Furthermore, the documents which were in dispute, the report of the nurse and the actuary, were never put into evidence and neither gave oral evidence. The claim for care into the future was also withdrawn after cross examination of the respondent.

Finally, it was held that the factually incorrect information in the respondent’s affidavit of verification was not “a deliberate false or misleading statement, but rather a genuine statement of the respondent’s subjective belief”.

Rose Ahern v Bus Eireann set the bar extremely high for a defendant to prove on the balance of probabilities that the plaintiff’s claim should be struck out pursuant to Section 26 of the 2004 Act. In February 2012, the Supreme Court delivered its decision in Teresa Goodwin v Bus Eireann. Ms Goodwin was awarded €260,779 in the High Court as compensation for injuries she sustained while travelling on the defendant’s bus.

The appellant appealed to the Supreme Court on the basis that the injuries were exaggerated pursuant to Section 26 of the 2004 Act.  The plaintiff’s testimony and the information she had provided the medical practitioners who had examined her were contrasting. The applicant had provided video footage of the plaintiff’s comparatively active and unhindered behaviour. The doctor called on behalf of the applicant also gave evidence that he was sceptical about the extent of her injuries. He had used certain test to evaluate her. He used what is known as “minimal axial compression” which involves light pressing down on the patient’s head, and should cause no discomfort whatsoever. The plaintiff gave the impression she was going to collapse in pain when he carried out this test, leaving the doctor to believe she was exaggerating her injuries.

The Supreme Court upheld the finding of the High Court in respect of the video evidence, that her evidence was not “sufficiently at variance with the video evidence as to warrant a finding… that the defendant had discharged the onus” under Section 26 of the 2004 Act.  The Supreme Court held the plaintiff had not given evidence in court which was inconsistent with her actual injuries. She had not been precise but had given a general overview.

These cases are illustrative of the “daunting task” faced by defendants seeking to invoke Section 26 and Section 26 is not a readily available defence to a personal injuries claim.