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Published 5 October 2017
Darragh, Kevin and Ivan Hunter, Aaron Keely and ors v Feeney, Gareth and Ryans Investments (N.I.) Ltd, trading as Hertz Rent a Car
This case was an appeal from the Circuit Court whereby seven Plaintiffs had been awarded various levels of damages for personal injuries sustained in a road traffic accident.
The appeal was unsuccessful in that the Defendant's allegation that the accident was staged was not supported by sufficient evidence to enable the court to dismiss the proceedings.
This case is a good example to insurers of the need for strong factual forensic and witness evidence in order to mount a successful defence under Section 26 of the Civil Liability and Courts Act 2004.
On 28 June 2011, a collision involving two cars on a roundabout in Lifford, County Donegal, resulted in seven men suffering soft tissue injuries. The injured parties claimed compensation for injuries sustained against the driver of the vehicle responsible for causing the accident and also against Ryans Investments NI Ltd - trading as Hertz Rent-a-Car from whom the negligent driver´s car was hired.
In 2015, the Plaintiffs were awarded damages of between €5,050 and €9,550 by Buncrana Circuit Court. The Insurers of Ryans Investments NI Ltd subsequently appealed the award, alleging the incident had been staged and the injured parties had exaggerated their injuries. The appeal hearing was heard at the High Court in July before Mr Justice Charles Meenan and judgement was delivered recently.
Ryans Investment NI Ltd appealed the decision on the basis that the Plaintiffs were all known to the negligent driver and that the accident had been fabricated with the sole purpose of extracting compensation from the driver's insurance company.
The court heard that the negligent driver had telephoned one of the injured men when returning his hire car to the Hertz office to get the details of the other vehicle he had damaged in the incident. The call was overheard by a Hertz employee and it was suggested that the friendly tone of the conversation was evidence that the road traffic accident was staged. Additional evidence was presented that the parties were known to each other through their membership of two well known Republican societies. It was further alleged the Plaintiffs had exaggerated the nature, extent, and effects of their various injuries in order to maximise the value of their damages awards. In this regard, evidence was adduced of some of Plaintiffs engaging in strenuous physical activity in the years following the accident.
Judge Meenan upheld the awards made by the Buncrana Circuit Court. In respect of the overheard telephone call, he commented that if the accident was a set up, then "the information sought in the telephone call would already have been firmly fixed in his (the negligent driver's) mind prior to returning the hire car.” In the view of Judge Meehan "this information would be an essential part of the whole operation."
The Plaintiffs medical reports were admitted into evidence by insurers. The reports indicated that the Plaintiffs had made a full recovery within a short period after the accident. Owing to the fact that the medical evidence was consistent with the evidence given by each of the Plaintiffs, Justice Meehan did not find there was sufficient evidence to make an order pursuant to Section 26. Total damages of €52,350 were awarded against the Defendants.
Section 26 enables the court to dismiss a plaintiff’s personal injuries action where a Plaintiff gives or adduces, or dishonestly causes to be given or adduced, evidence that is false or misleading in any material respect that he or she knows to be false or misleading. The onus of proof is on the Defendant to show that the Plaintiff gave evidence which was materially false or misleading and that the Plaintiff knew it to be so. The standard of proof is the balance of probabilities.
Judge Meehan's decision demonstrates that a Defendant requires more than just circumstantial evidence in order to succeed in a Section 26 application. Presenting evidence that invites the court to only infer that a road traffic accident was staged will not be enough to satisfy the burden of proof required. In general, in making a determination on whether to defend suspected fraudulent RTA claims to trial, insurers are advised to ensure that they have very strong factual evidence and/or credibility evidence that either undermines the Plaintiff's evidence at trial or undermines the very occurrence of the alleged accident. Careful consideration of whether to plead Section 26 is always required.
In addition, care should be taken when deciding on the admission of medical reports into evidence without the requirement of proof from the relevant expert. By agreeing medical evidence that corroborates a Plaintiff's pleadings, this can significantly reduce the scope that a Defendant has to prove that injuries were not sustained as alleged and that the Plaintiff's evidence is therefore false or misleading to the court.
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