Fraudulent
Personal Injuries
Claims
Ronan Kyle BL
Dublin Solicitors CPD
Overview
• Traditional common law approach
• The Civil Liability and Courts Act, 2004
• Issues arising in case-law under the 2004 Act:
– Indivisibility of claim once fraud established
– Importance of characteristics & demeanour of
plaintiff/injustice criterion
– Onus and standard of proof
– Potential dangers for defendants in using s.26
– Social media and surveillance
– Criminal Prosecutions under ss.14 and 25
Fraud in Personal Injuries Law
• Common Law: Shelley Morris v Dublin Bus [2003] 1 IR 232 –
Denham J described three categories:
(i) pure concoction = simple fraud
(ii) genuine but subjective exaggeration =no fraud
(iii) deliberate exaggeration of genuine = fraud
• Civil Liability and Courts Act, 2004 ss. 14, 25, 26: expands
the courts’ jurisdiction to dismiss fraudulent claims and
despite its title, also creates new criminal offences
• Per Barton J in Lukasz Waliszewski v McArthur Steel [2015]
IEHC 264: the Act “places in the hands of the defendant a
weapon to attack and destroy a plaintiff’s case…and when
successfully invoked there are serious and potentially penal
consequences for the plaintiff”
Civil Liability and Courts Act, 2004
• S.14 (1) requires all parties to personal injuries
actions to swear affidavits verifying the assertions
and allegations contained in pleadings
• S.14 (5) creates a new criminal offence:
• “If a person makes a statement in an affidavit
under this section—
(a) that is false or misleading in any material
respect, and
(b) that he or she knows to be false or misleading,
he or she shall be guilty of an offence”
Civil Liability and Courts Act, 2004
• S.25 also creates a new offence: “any person
who dishonestly causes to be given or adduces
evidence in a personal injuries action which is
false or misleading in any material sense, and he
or she knows it to be false or misleading, shall be
guilty of an offence”
• Penalties for offences under ss. 14 & 25:
-on indictment: fine up to €100,000 and/or
imprisonment for up to 10 years
-on summary conviction in District Court: fine up to
€3,000 and/or prison for up to 12 months
Civil Liability and Courts Act, 2004
• s. 26.(1) “If…a plaintiff in a personal injuries
action gives or adduces, or dishonestly causes to
be given or adduced, evidence that (a) is false or
misleading, in any material respect, and (b) he or
she knows to be false or misleading, the court
shall dismiss the plaintiff's action unless, for
reasons that the court shall state in its decision,
the dismissal of the action would result in
injustice being done”
Civil Liability and Courts Act, 2004
• 2) “The court in a personal injuries action shall, if
satisfied that a person has sworn an affidavit
under section 14 that (a) is false or misleading in
any material respect, and (b) that he or she knew
to be false or misleading when swearing the
affidavit, dismiss the plaintiff's action unless, for
reasons that the court shall state in its decision,
the dismissal of the action would result in
injustice being done”
Civil Liability and Courts Act, 2004
• (3) For the purposes of this section, an act is done
dishonestly by a person if he or she does the act
with the intention of misleading the court
• Key criteria:
– evidence must be “material”
– subjective, plaintiff-focused test: “knows to be”
– mandatory requirement to dismiss: “the court shall
dismiss”
– “injustice” proviso allows court to refuse to dismiss,
even when all the criteria have been met
Case-law under the 2004 Act
• Mulkern v Flesk [2005] IEHC 48: lie to
employer to obtain job was held not to be
“false or misleading evidence” to the Court.
Fraud must be something more than “mere
anomalies or inconsistencies”
• Carmello v Casey [2008] 3 IR 524: Plaintiff
could not recall subsequent accident causing
facial numbness for which he was also
claiming. S.26 applied – claim dismissed.
Case-law under the 2004 Act
• Singleton v Doyle [2009] IEHC 382:Plaintiff
claiming for injuries in RTA – had been
involved in previous RTA 9 years before - failed
to mention to her doctor precise lasting
symptoms of previous RTA. Peart J held: Pl was
“poor historian” of previous RTA but no
attempt to “deliberately conceal material
information to exaggerate her claim or
mislead the Court”. S. 26 application refused.
Case-law under the 2004 Act
• Donovan v Farrell [2009] IEHC 617: Pl failed to
mention previous occurrence of back pain
when she was pregnant. Also filmed by private
investigator carrying lawn mower. Peart J held:
pregnancy back pain not relevant to back pain
complained of in the instant case and lawn
mower was not heavy. Despite lack of
candour, not sufficient to establish fraud –
s.26 application refused.
Case-law under the 2004 Act
• Gammell v Doyle [2009] IEHC 416: Pl struck in
the face by Def suffering serious nose and eye
injuries. Def claimed Pl had provoked him by
making threats and lewd comments about him
and his wife and poking him with his finger.
Hanna J granted s.26 application finding Pl
was “venomous, rude and provocative” and
his account “fanciful, self-serving and
deliberately so”.
• Q – does s.26 apply to assault and battery?
Case-law under the 2004 Act
• Indivisibility of claim: given mandatory nature
of s.26, important for practitioners to make
sure claim is properly grounded:
• Farrell v Dublin Bus [2010] IEHC 327: Pl rearended by bus – whiplash. Pl claimed €71,000
loss of earnings to date of trial and future loss
of earnings of €343,000. Def sought
adjournment to investigate. When trial came
on Pl dropped future loss of earnings claim…
Case-law under the 2004 Act
• Farrell v Dublin Bus (cont.) Pl was also unable
to provide evidence of existing loss of earnings
and unable to account for a comfortable
lifestyle when she claimed to be on Social
Welfare. Quirke J: “When Pl simply abandons
claim for €343,000 when challenged, it is
inappropriate…to proceed as if nothing
unusual has occurred. Something unusual has
occurred and must be explained.” S. 26
applied – claim dismissed.
Case-law under the 2004 Act
• Platt v OBH Luxury Accommodation [2015]
IEHC 793: Pl fell 7 metres from window of
hotel, suffering very severe injuries. HC
(Barton J) found Def liable in negligence but
applied s.26 and dismissed claim on the basis
of surveillance footage showing Pl engaging in
activities he claimed to be unable to do –
walking to shops, driving. When Pl became
aware of surveillance he modified original
claim for special damages of £928,000stg.
Case-law under the 2004 Act
• Barton J rejected this, holding that once fraud
established, not possible to sever the valid
and invalid parts of the claim. The court also
rejected as nebulous Pl’s argument that he
had a subjective, honest belief that he was
more disabled than he actually was. If that
was true, court found that there would be
consistency in Pl’s physical symptoms and
there was none. Pl “neither honest, credible
or reliable and had grossly exaggerated.”
Case-law under the 2004 Act
• Barton J went on to reject the argument that
the “injustice” proviso should apply, given the
serious nature of the Pl’s injuries and the
finding of negligence against the Def.
• Court gave a very narrow interpretation of
“injustice” centred on disproportionality:
– Trivial lie told by catastrophically injured Pl
– Fatal injuries claim based on false evidence which
would unjustly penalise infants/incapacitated
dependents.
Case-law under the 2004 Act
• Sympathetic plaintiffs: courts often seem to
adopt a more relaxed approach to s.26
applications based on their view of the
plaintiff.
• Ahern v Bus Eireann [2011] IESC 44: Supreme
Court (Denham J) refused to allow the Def’s
appeal from the High Court’s refusal to apply
s.26. “Determinedly independent 78 year old
widow” injured when she fell from bus seat.
Case-law under the 2004 Act
• Ahern v Bus Eireann (cont.) Pl claimed she
required a carer as a result of accident,
grounding a claim for special damages of
€177,000. She withdrew this claim after being
cross-examined. Supreme Court held that
reports of actuary and nurse grounding special
damages claim were never actually put into
evidence, so s.26 could not apply. Both HC and
SC seemed particularly impressed with the
honest demeanour of the Pl, contra Platt.
Case-law under the 2004 Act
• Court in Ahern also seemed to adopt a more
generous approach to the Pl’s subjective view
of their own symptoms and needs than in
Platt:
• “…it is understandable and human that she
might wish to attribute some of [her
symptoms] to the accident than to the
passage of time.”
• Key difference: honesty of Pl.
Onus and Standard of Proof
• Ahern, Supreme Court, per Denham J:
– “It is for the plaintiff in a civil action to prove their
claim on the balance of probabilities…”
– “However, under s.26 of the Act of 2004…the
defendant carries the onus of proof, which is also
on the balance of probabilities.”
Potential misuse of s.26
• Dunleavy v Swan Park t/a Hair Republic
[2011] IEHC 232: Pl asked for wash & colour –
hair started to fall out. Def applied for s.26
dismissal alleging Pl had concealed psychiatric
history, social activities, income – none of
which was relevant. O’Neill J:
– “s.26 is to deter and disallow fraudulent
claims…not an opportunity to seize on anomalies
and inconsistencies which would unjustly do grave
damage to the good name of a worthy plaintiff”
– Aggravated/Exemplary damages
Social Media and Surveillance
• Danagher v Glantine Inns [2010] IEHC 214:
Pub fracas, Pl removed by bouncers, claimed
for injuries to back and neck. Def brought s.26
application relying on:
1) newspaper report of a parachute jump
undertaken by Pl a few months after incident;
2) Pl’s Facebook account: “Favourite music:
anything that will get me dancing and hitting the
roof”… “ya I tink we mite be going out alrite, ul
probably come across me drunk on a dancefloor”
Social Media and Surveillance
• Rita Milinovic – claimed life changed utterly
after minor car accident….
Rita Milinovic – After the accident
- Facebook
Social Media and Surveillance
Facebook account showed bikini clad shots of
her posing at international body sculpture
competitions and working out at a gym. Judge
Raymond Groarke, President of the Circuit Court
stated in granting the s.26 application: “She is
clearly a very fine human specimen in the best
of physical condition”.
Criminal Prosecutions ss.14, 25
• So far, very few but likely to increase in future.
• First prosecution: DPP v Raymond Smith –
cage fighter claimed for back injury after car
accident – convicted under s.14 for swearing a
false affidavit after DVDs of his fights came to
light – Mary Ellen Ring J handed down a 3 year
suspended sentence in December, 2015.
• DPP v David Ward & Lynsey Ivory – couple
claimed they were strangers who had a car
accident…
Criminal Prosecutions
• FBD Insurance saw them in each other’s
Facebook profiles. Judge Martin Nolan
sentenced both to 2 years imprisonment, fully
suspended for Ivory, 1 year suspended for
Ward.
Conclusions & Practitioner
Guidelines
• 2004 Act has taken some time to bed down –
but more litigation, both civil and criminal can
be expected to flow from it in the future
• Given the mandatory nature of s.26 and the
indivisibility of claims, plaintiffs must be
carefully advised on:
– not exaggerating their loss of earnings, past and
present
– not exaggerating other aspects of their claim, for
instance symptoms or impact of their injuries
Conclusions & Practitioner
Guidelines
– posting inappropriate, inconsistent and potentially
claim-destroying material on Facebook and other
social media
Practitioners should be careful when drafting the
affidavit of verification under s.14. Any necessary
caveats as to matters pleaded should be included in
the affidavit
Defendants should be advised on the potential
damages implications of an inappropriate or
speculative s.26 application
Questions