Failure to Disclose Results in Dismissal - DAC Beachcroft

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Failure to Disclose Results in Dismissal

Published 22 septiembre 2022

Muhammad Khalid v Gerard Davis and Louth County Council 2022 IEHC 519

Hyland J in the High Court recently heard an appeal from the Circuit Court involving Section 26 of the Civil Liability and Courts Act, 2004. The Plaintiff issued proceedings in respect of an accident on 25 March 2015 and he had been involved in two other accidents in very close temporal proximity to the index accident. The case focused on his non-disclosure of two of the accidents.

 The timeline is:

18.03.15      Plaintiff driving - rear ended another vehicle travelling 120kmph. Attended his GP the same day and complained of neck and chest injury. He later attended hospital with back pain. Car written off and his wife, brother and two children issued proceedings against him. Hyland J surmised that this must have been a serious accident.
25.03.15  Plaintiff driving - stopped at traffic lights and Defendant dumper truck rolled back into his vehicle. He felt very sharp pain and thereafter was in very severe pain. Taken to hospital and thereafter attended his GP with issues with neck/back.
23.07.15   Plaintiff driving - hit by another car and spun around on quays. Attended hospital with neck and lower back rib pain.

The Plaintiff issued proceedings in relation to the 25 March 2015 accident. There was no mention of the other two accidents in his Personal Injury Summons. Further, he stated in Replies to Particulars that were later verified on Affidavit that he had no other accidents/injuries. At various times medical attendants wrote letters/reports and failed to reference the other two accidents. Two reports do make reference to the other accidents, however, these are dated after the Plaintiff had disclosed his medical records.

The Plaintiff, who was unrepresented at the Appeal, maintained he did not suffer neck and back pain in the earlier accident on 18 March 2015 and Hyland J outlines in her judgement that the Plaintiff gave “passionate evidence” that he is convinced that it was only the accident on 25 March 2015 that caused him injury.

In her decision Hyland J outlines that had the Plaintiff disclosed his other accidents, attempts would have been made, both by the Plaintiff’s medical experts and the Defendant, to establish, as best as possible, what accident caused what injuries. She goes on to say that it is particularly notable that in each of the accidents reference is made to neck and back pain. She says it is impossible to now try and disentangle the injuries/accidents and determine whether the injuries complained of were caused by the Defendant’s negligent act.

Hyland J dismissed the case on the basis that the Plaintiff failed to discharge the burden of proof showing that injuries were caused/contributed by the 25 March 2015 accident. She also made orders under Section 26 of the Civil Liability and Courts Act, 2004 that the Plaintiff gave evidence that was false/misleading and swore an Affidavit that was false/misleading.

It is clear that in this case the failure to disclose was material to the issues to be determined and, from a defendant point of view, emphasises the importance of focused Notice for Particulars and ensuring Affidavits of Verification are received in respect of all pleadings.

Authors

David Kennedy

David Kennedy

Dublin

+353 (0) 1 231 9630

Edmond Stafford

Edmond Stafford

Dublin

+35 312 319 620

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