High Court: Man loses claim against motorist who accused him of deliberately causing accident
A man who brought personal injuries proceedings against a motorist who drove into the back of his vehicle has lost a claim for aggravated damages which he said were necessary to show the Court’s disapproval for the conduct of the defence.
Commenting that the “sting” of the “entirely unsubstantiated allegation” of deliberately causing the accident was removed by the fact that the allegation was not pursued, Mr Justice Garrett Simons awarded the man €25,000 in general damages for pain and suffering.
On 1 August 2017, Michael Doyle was driving in his work van when a woman flagged him down. He decided to stop and pull in, moving down a gear and putting on his indicators. He was then hit by the car being driven by Marie Donovan.
Mr Doyle said that his van was “hit very hard and that his whole head and body were thrown forward. He describes himself as being in shock, and states that he needed to take time to compose himself”. In the days immediately after the accident, Mr Doyle did not experience any pain; however, two weeks later, he attended the Mater Smithfield Rapid Injury Clinic with pain down his neck and his right shoulder. He submitted that he had continued discomfort in the performance of his work as a general operative in the maintenance of bus shelters.
In the Circuit Court, Ms Donovan contested liability and initially pleaded that Mr Doyle had deliberately caused the collision. However, in her evidence-in-chief, there was no suggestion that the crash had been anything other than an accident. Furthermore, on cross-examination, Ms Donovan declined to stand over the plea that the collision had been deliberately caused – instead she suggested that Mr Doyle had braked suddenly and this may have been negligent.
Ultimately, the Circuit Court dismissed Mr Doyle’s claim for damages.
In Mr Doyle’s appeal against the order of the Circuit Court, Ms Donovan conceded liability.
Mr Justice Simons said the case was “unusual” in that Mr Doyle sought aggravated damages “to mark the court’s disapproval” of how the defence was conducted. Mr Doyle submitted that the plea to the effect that he had deliberately caused the collision involved “an imputation of dishonesty and criminality” and had “blackened his name”.
In support of the claim for aggravated damages, Counsel for Mr Doyle relied on Swaine v Commissioners of Public Works  IESC 30 and Conway v Irish National Teachers Organisation  2 I.R. 305 (at 317) which described the jurisdiction to award aggravated damages as including the “conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action”.
Mr Justice Simons said this was not an appropriate case to make an award of aggravated damages for the following reasons:
- Having regard to the Civil Liability and Courts Act 2004, criminal prosecution will follow if it is established that a defendant has made an assertion or allegation which is “false” or “misleading”. Therefore, it would not usually be “necessary or appropriate for the Court to impose an additional sanction” such as awarding aggravated damages.
- Considering the conduct of the defence “in the round”, and it was relevant that the allegation of deliberately causing the accident was not put to Mr Doyle in cross-examination, nor did Ms Donovan stand over this allegation when she was cross-examined. Moreover, Ms Donovan conceded liability in the appeal. Considering Mr Doyle’s argument that the allegation continued to blacken his name since it was not removed from the pleadings, and that Ms Donovan and her insurer were benefitting from the privilege attached to legal proceedings under the Defamation Act 2009; Mr Justice Simons said this argument was “too much”, that there was a public interest in this provision, and this was counterbalanced by other legislative provisions (such as those under the Civil Liability and Courts Act 2004).
- Reliance on the jurisdiction to award aggravated damages to sanction litigation misconduct would give rise to an asymmetry as between plaintiffs and defendants because the measure could only be used as against a defendant.
- Courts can show their disapproval of the conduct of litigation by making an appropriate costs order.
On his final point, Mr Justice Simons explained that costs are typically measured on a “party and party” basis and that costs allowed may be less than those actually incurred. However, Courts have the discretion to order or direct that costs are adjudicated on a “legal practitioner and client” basis under Order 99, rule 10(3) RSC (which to some extent mirrors the previous concept of “solicitor and client” costs).
Stating that the award of aggravated damages based on litigation misconduct alone should be reserved to exceptional cases, Mr Justice Simons said that the award of costs on the “legal practitioner and client” basis would be sufficient sanction for any litigation misconduct.
Entirely unsubstantiated allegation
Mr Justice Simons said it was “most regrettable” that Ms Donovan and her insurer “chose to make the entirely unsubstantiated allegation” that Mr Doyle had deliberately caused the accident, but that “much of the sting” of that allegation was “…removed by the fact that the plea was not pursued at the hearing before the Circuit Court and, ultimately, liability was conceded in its entirety before the High Court”.
Allowing the appeal against the decision of the Circuit Court, Mr Justice Simons made an order directing Ms Donovan to pay Mr Doyle €25,000 for general damages and €397 for special damages.
On the question of costs, Mr Justice Simons said he would hear further submissions on whether an award of costs should be made against Ms Donovan on a “legal practitioner and client” basis pursuant to Order 99, rule 10(3) (as amended).
© Irish Legal News Ltd 2020