Cork woman Anne Hegarty has been awarded €35,000 compensation for injuries sustained by her when she was a passenger on a CIE bus travelling near Fermoy, Co Cork on the 29th of November 2003 when it was caused to stop suddenly.

Ms Hegarty was pitched forward in her seat, thrown backwards and sustained injuries as a result. Ms Hegarty attended her GP within a few days of the accident complaining of pain in the left side of her neck and headaches.

She issued proceedings against the Defendants CIE and Thomas Roche claiming damages for negligence.

Over the next two years she was seen by a number of medical specialists and by doctors engaged by the Defendants.  She subsequently developed problems with her lower back.  An MRI scan was carried out on her cervical spine which showed degenerative changes.  It was her doctor’s opinion that the accident had exacerbated a preexisting degenerative condition.

Dr F. Matthews a General Practitioner engaged by the Defendants gave evidence as having examined Ms Hegarty on three occasions.  On two of these occasions when the Plaintiff was on the examining couch she was able to raise both legs to 80 degrees.  This he said demonstrated she had little or no back pain as she had done indirectly what she claimed she could not do directly because of the pain.

Furthermore when Ms Hegarty was lying on his examination couch she was able to get herself to a seated position and could touch her ankles with her hands.  He said this was a movement she had claimed she could not do because of pain.  It was his firm opinion that she was exaggerating her symptoms.

Armed with this opinion  when the matter came on for trial before the High Court the Defendants relied on the provisions of Section 26 of the Civil Liability and Courts Act 2004 which states that “if a Plaintiff in a Personal Injuries Action gives evidence that-

1. is false or misleading in any material respect and
2. He or she knows it to be false or misleading, the Court shall, dismiss this Plaintiffs action unless, for reasons the Court shall state in its decision, the dismissal of the action will result in an injustice being done.

in seeking to have Ms Hegarty’s claim dismissed.

Judge Dan Herbert agreed with Dr Matthews that the Plaintiff had seriously exaggerated her physical symptoms.  He said that this was a very serious matter as it presented an image of her symptoms getting progressively worse with the passage of time.

However, crucially, he said that he had not formed the opinion that the Plaintiff in the course of her own evidence was exaggerating her symptoms or seeking to mislead the Court.

The Judge concluded that Ms Hegarty had become stressed and anxious because of the ongoing problems with her neck and the fact that she had gained weight and had become unduly worried about the pending litigation.  He found that these factors caused her emotional and adjustment difficulties which may have led her to exaggerate her symptoms to the medical professionals.

He found that she had not breached the provisions of Section 26 of the Civil Liability Act and as a result he refused to dismiss her claim and awarded her the sum of €35,000 general damages.

This decision follows on a number of High Court decisions where applications to  dismiss  Plaintiffs claims under Section 26 have failed.

Insurance Companies are now instructing their doctors to look for any evidence of exaggeration either through their physical examination of a patient or through oral accounts given to them. They then use this information either as a bargaining tool to reduce compensation payments or to damage the  plaintiffs credibility at the Trial.

If someone sustains an injury in an accident they would be well advised to keep a diary listing all complaints made to their own doctors, Defendants doctors and any other specialists attended by them.

In the personal injuries case of  Maggie Yung V MIBI the High Court has increased the “cap” on general damages.

This case related to a twenty year old Chinese national who suffered serious injuries when travelling as a rear seat passenger in a car involved in a road traffic accident.  The injuries included a compression fracture of her first lumbar vertebra and a collapse of the superior end plate kyphosis.  She also developed very significant post traumatic stress disorder.

Unfortunately Miss Yang fell through the “gaps” in the Health System and only got proper medical treatment in the year 2003/2004.  At that stage her surgeon advised her that she should undertake surgery to remove a hump in her back which caused her back to bend forward.  This would reduce her pain but also carried with it a risk of paraplegia.  While the risk being advised to her was small she had developed at that stage a very significant phobia and was not willing to undergo the operation.

Judge Quirke in the High Court found that she had devastating physical injuries and also had a significantly depressed mood disorder.  The Plaintiff was not in a mental position to make a determination that she should have the operation.

In regard to the cap on general damages the Judge confirmed that the court was required to place the Plaintiff in so far as money can do so, in the position she would have occupied had she not suffered her injuries.  The Judge awarded her general damages of €325,000.00 together with a very significant sum for loss of earnings and cost of future care making a total award of €1,826,380.12.

Dealing specifically with the issue of the cap on general damages the Judge said where an award is largely an award of general damages for the consequence of catastrophic injuries there will be no “cap” placed upon the general damages awarded.  Each case will depend upon its own facts so that:-

1. An award for general damages could, if the evidence so warranted,  make provision for factors such as future loss of employment opportunity or future expenses which cannot be precisely calculated or proved at the time of the trial.
2. Life expectancy may be a factor to be taken into account and
3. c. A modest or no award for general damages may be made where general damages will have little or no compensatory consequences for the injured person

The bad weather which resulted in hundreds of people seeking medical attention in A&E’s across the country for suspected fractures and broken bones will inevitably lead to litigation claims.  Many of the injuries consist of fractures which traditionally attract significant compensation awards.

There has been some discussion recently concerning the legal duties owed by Local Authorities and occupiers of land to road users and pedestrians.  The traditional legal position is that public authorities will not be liable for damages arising from their failure to maintain public roads.

Section 60(1) of the Civil Liability Act 1961 did provide that “a road authority shall be liable for damage caused as a result of their failure to maintain adequately a public road” but successive Governments have refused to sign the appropriate Ministerial Order to give this provision legal effect.

However claimants could rely on Section 13 of the Roads Act 1993 which provides that “the maintenance and construction of all national and regional roads shall be a function of the council or county borough, corporation of that county”.  Therefore there is some inconsistency in the statutory provisions.

The legal position is that Local Authorities will not be liable for their failure to maintain the highway but could be liable for accidents arising from negligence regarding the maintenance or repair of the highway.  The issue then is would gritting of roads and putting other substances on roads and footpaths amount to acts of repair?

There are also issues concerning the types of substances placed on roads and footpaths by Local Authorities and their contractors.  An injured victim could argue that these types of materials did not adequately grit roads but contributed to the occurance of an accident.  This would be a matter for engineering evidence in each separate case.

Many people have also sustained falls outside business premises such as hotels and supermarket car parks.  This is the area of occupier’s liability. The Occupiers Liability Act 1995 imposes a duty of care on occupiers to take such care as is reasonable in all the circumstances to ensure that a visitor to premises does not suffer injury or damage by reason of any danger existing thereon.

In many cases the failure by occupiers to take steps to ensure that pathways were treated with salt and grit and to place mats at or near the entrance to their premises could create liability problems for them.  It is more likely that claims against occupiers would have a greater chance of success as courts might be reluctant to impose liability on public authorities which could lead to a huge number of claims being taken.

There is also the issue of discovery of documentation.  Under the rules of court the Local Authorities and other Defendants may have to produce documents supporting the efforts taken by them to reduce the hazards on roads and on their properties.  In many cases these records simply would not exist as given the urgency attached in treating roads and footpaths and other areas this may not have been considered a priority by them.

If the court orders discovery of documents they must be discovered.

Certain claimants could also argue that causing an obstruction on the public highway amounted to a public nuisance.  A nuisance is not confined to an obstruction of the highway it could also consist of anything which makes use of the highway unsafe or dangerous to the public.

Therefore it is clear that the whole area of litigation arising from the weather freeze is a legal minefield with many potential avenues available to injured parties to seek compensation.