Ahern -v- Bus Éireann
Neutral citation number: (2011) IESC 44.
Supreme Court
Judgment was delivered on December 2nd 2011 by Chief Justice Ms Justice Susan Denham, Mr Justice John Murray, Mr Justice Adrian Hardiman, Ms Justice Fidelma Macken and Mr Justice Joseph Finnegan concurring.
Judgment
An appeal by Bus Éireann against a High Court judgment of an award of €40,000 in damages to a 78-year-old woman who had suffered injuries in a bus accident, where liability was not an issue, was rejected by the Supreme Court.
Background
The respondent, Mrs Ahern, was travelling as a passenger on a bus in Limerick in November 2004 when the driver was forced to brake heavily and she fell from her seat and injured her face, chest, left thumb and lower left leg. Liability was not an issue in the High Court, which gave its judgment in May 2006.
Nonetheless, the company contested the legitimacy of the claim. Mrs Ahern had originally claimed for a carer into the future at a cost of €177,000, but this claim was withdrawn during the case. The High Court assessed damages for pain and injury at €25,000 up to the time of the case, and €15,000 into the future, bringing a total of €40,000.
The defendant, Bus Éireann, had pursued its case on the basis that the claim was a fraudulent action under the Civil Liability and Courts Act 2004.
Specifically, Bus Éireann stated the respondent did not require the services of a carer into the future, false affidavits had been drawn up to support this claim, and she had provided false and misleading evidence as to the psychological consequences of the accident. It argued that the case should be dismissed.
The High Court held that the onus of proof was on the defendant/ appellant to establish this. The judge said that at the time of the accident, the plaintiff was an independent 78-year-old woman who received considerable support and assistance from her family, particularly a number of daughters. She was on medication for stress and had osteoarthritis.
He held the physical injuries and their after-effects lasted a number of months.
Noting that she had noticed a deterioration in her capacity for physical independence since the accident, he said that if objectively she could be said to have overstated the connection between this and the symptoms, it was no more than an understandable exaggeration of her subjective belief. He also accepted her increased anxiety was linked to the accident.
Referring to her need for care, he said that any reliance on the need for increased care, as a result of the accident rather than the passage of time, had not been deliberately exaggerated, and her evidence was not false or misleading.
“The court found the respondent to be overall a truthful witness even if every detail of her narrative was not necessarily precise,” he said.
“The court is satisfied that she did not give, or cause to be given, any false or misleading evidence.”
The defendant appealed the judge’s High Court judgment to the Supreme Court on the grounds that he erred in law in failing to dismiss the action and in failing to determine that the respondent gave false or misleading evidence.
Decision
Giving judgment for the Supreme Court, the Chief Justice pointed out that the onus of proof was on the plaintiff to prove her claim on the balance of probabilities. However, when section 26 of the 2004 Act was raised, the onus of proof lay on the appellant/defendant to prove that false or misleading evidence had been given, also on the balance of probabilities.
The High Court judge, who heard all the evidence and could judge the demeanour of the plaintiff, held her to be an honest woman. The Supreme Court was bound to uphold the findings of fact of the trial judge.
There was another element in the legislation, relating to causing others to give false or misleading evidence, she said. This did not arise in this appeal. The report of the nurse and the actuary, regarding care into the future, was never put into evidence and the claim for care into the future was withdrawn.
The woman’s evidence related to her care by her daughters and son. The appellant’s case, resting on the claim for care into the future, had no basis.
The full judgment is on courts.ie