Courts appear to be scrutinising personal injury claims more closely in a climate of widespread scepticism about the personal injury culture in Ireland.
Evidence of this can be seen in the High Court decision in an appeal from the Circuit Court in O’Connell -v- Martin; Ali -v- Martin  IEHC 571.
The High Court held that one of these claims was fraudulent and the other one involved exaggerated injuries and dismissed both claims.
The Judge in this case also criticised a solicitor for referring the claimants to a medical consultant when a solicitor ‘has no medical expertise’ and held that the expensive medical reports came into being for legal reasons and to support the claims, not on medical grounds.
Mr Ali’s case was dismissed because he gave misleading evidence-for example that Ms O’Connell was in the car-and Ms O’Connell’s claim was dismissed because the Court did not believe she was actually in the motor vehicle at the time of the gentle, minimal impact between two cars.
Ms O’Connell’s claim had previously been dismissed in the Circuit Court as fraudulent.
The Court noted that expert medical witnesses hold a privileged position in the Irish legal system because they are allowed to give their opinion rather than make factual observations.
Assessment of damages
The Court also looked at what might have been awarded to the claimants if their cases had not been dismissed. Mr Ali had been awarded €17,500 in the Circuit Court but the High Court held a more appropriate sum would have been €3,000.
The High Court also pointed out where the real power lay in cases with an ‘impecunious plaintiff’.
37. This case also illustrates why unmeritorious claims by impecunious plaintiffs are usually settled. It is not because there has been negligence on the part of the defendant, but rather because settling a claim costs less than winning such ‘nuisance claims’, as the legal costs incurred in winning will not be recoverable from the plaintiff. Logic also dictates that the greater the legal costs being threatened, the greater the economic imperative to settle for a defendant. So, in this case, with legal costs so high (say €40,000), compared to the level of the award (€17,500 was awarded to Mr. Ali in the Circuit Court), a likely settlement (of say €7,000) makes economic sense.
38. In many of these unmeritorious cases, where the legal costs dwarf any likely award of damages, a defendant considering settling, is in reality dealing, not with the merits of the case, but rather with the issue of who is going to pay the very significant legal costs. Thus, the real issue for a defendant is:
• whether, in the case of an impecunious plaintiff with an unmeritorious claim, settling makes economic sense in order to avoid the defendant having to pay his own very large legal costs even after winning, or
• whether in the case of a wealthy plaintiff with an unmeritorious claim, settling makes economic sense in order for the defendant to buy off the very small risk of having a very large legal bill (which may dwarf the value of the claim itself).
Two sets of legal costs
The Judge also noted that an impecunious plaintiff can inflict significant costs damage on a defendant in these types of cases.
Plaintiff with fraudulent claim can inflict two sets of irrecoverable costs
40. This case also illustrates that where an impecunious plaintiff such as Ms. O’Connell takes an action which is dismissed by the Circuit Court, it seems, as a fraudulent claim, and thereby inflicts irrecoverable legal costs on a defendant, there appears to be no restriction (e.g. the requirement to provide security for costs) on such a plaintiff from inflicting a second set of irrecoverable legal costs on the defendant in an appellate court. Thus, in this case, the defendant, Dr. Martin (or her insurance company), will likely have to pay her own legal fees for fighting and defeating a fraudulent claim on two occasions. On the other hand, the plaintiff, Ms.O’Connell had a ‘free go’, (in the sense that Ms. O’Connell is unlikely to pay the defendant’s legal costs) not once, but twice, in taking a fraudulent claim, in the hope of receiving damages or a settlement.
Not good practice for solicitors to refer clients to medical consultants
41. Against this backdrop and in order to ensure that Medical Reports are not generated without any medical need, it is this Court’s view that it is not good practice for solicitors to refer clients to medical specialists. The more usual way in which Medical Reports come to be relied upon in court cases, is that a client, if and only if he/she has a medical need, is referred by a person with medical expertise, usually the client’s own GP, who has knowledge of the client’s medical history, to a Consultant. Only after this threshold of ‘medical need’ is passed, would it be usual for there to be a Medical Report which then can be provided to the client’s solicitor for the purposes of litigation.
Principles in assessing general damages
The Judge looked at the guiding principles in assessing general damages:
the following principles derived from decisions of the Court of Appeal and the Supreme Court, which bind the High Court, the Circuit Court and the District Court
- Fair to the plaintiff and defendant
- Minor injuries/modest damages, middling injuries/moderate damages etc
- Award proportionate to other awards and cap on damages
- Award to be reasonable in light of general level of after-tax incomes
- Appropriate scepticism applied to litigants’ claims
- Common sense applied to the parties’ claims
- Caution when relying on medical and other expert reports
Ms O’Connell’s claim was dismissed for being fraudulent as her evidence was not accepted as truthful; Mr Ali’s claim was dismissed for giving misleading evidence and for exaggerating the claim.
Even if Mr Ali’s claim was found to be valid he would only have been entitled to €3,000 for general damages which would have been swamped by the costs of pursuing his case in the Circuit Court and then on appeal to the High Court.