For a while there it was all beginning to look very bleak indeed, as if they were going to secure their pernicious objective unimpeded. But thankfully the courts have finally begun to flex their muscles to ensure that big business doesn’t trample on the rights of the citizen.
For over a decade now the insurance industry’s star has been in the ascendant. This run of luck was kicked off with Mary Harney gifting insurance companies with the Personal Injuries Assessment Board (since relabelled as ‘the Injuries Board’) in 2003 thereby stripping victims of negligence of their long-established right to recover the legal costs incurred by them in securing payment of the compensation to which they were entitled.
This was followed in 2004 by the enactment of the Civil Liability and Courts Act 2004, a statute which introduced measures aimed at tackling the supposed epidemic of claims fraud which insurance lobbyists were insistent was plaguing the land.
Their tails up, the insurance companies rolled out a sustained propaganda campaign aimed at vilifying anyone who had the audacity to seek to recover damages for the injuries caused by the wrongdoing of others. You’ll recall the ads on television and on billboards: a greasy haired and unshaven gentleman wearing a neck brace and sporting a diabolical grin was depicted as your typical compensation claimant.
And so it went for the last ten years, with the insurance industry pushing harder and harder to maximise its profits by cowing people with genuine injuries out of seeking to recover their lawful entitlement.
One of the tactics which they had increasingly resorted to was attempting to rely on section 26 of the 2004 Act which provides that if a plaintiff in a personal injuries action gives evidence that is false or misleading the court hearing the action must dismiss the plaintiff’s claim.
Now of course no-one in their right mind would attempt to argue that it is not entirely proper that someone who is attempting to secure compensation under false pretences should have their claims unceremoniously thrown out the minute that the court hearing the action smells a rat.
The problem was, however, that the emboldened insurance companies starting flinging mud at claimants in circumstances where there was absolutely no question of there being any untruthfulness on their part. It was a ‘no-brainer’ for them: if the claimant was as honest as the day was long but of a nervous disposition they would be intimidated into discontinuing their claim for fear of being savagely accused of being a liar and a crook by lawyers skilled in the black art of strong-arm cross examination.
Mercifully, however, two High Court decisions handed down in July of this year have shown us that the judiciary has decided that enough is enough by sending out a clear signal that if insurance companies cry wolf by bringing an unjustified section 26 application they will not do so with impunity.
In Smith v. Health Service Executive Mrs Smith, a married woman from Clonmel with two grown up children, sued the HSE, for whom she had been employed as a household assistant for some eighteen years, for compensation for injuries which she sustained in a work-related injury.
In preparing its defence the HSE trawled through the notes of her entire medical history going back to 2004 and sought to suggest that she had not been forthcoming about minor episodes of back and hip pain which were recorded in her GP’s notes on a few occasions over that period of years with the intention of misleading the court regarding her medical complaints prior to the accident.
Mr Justice Iarlaith O’Neill was decidedly unimpressed by the defence’s cynical tactics, noting that he was quite satisfied that Mrs Smith gave her evidence “so far as accuracy was concerned, to the best of her ability and recollection and at all times, honestly.”
After stating that he had no hesitation in dismissing the defendant’s application under section 26, the learned judge went on to add that “this section is there to deter and disallow fraudulent claims. It should not to be seen as an opportunity to prey on the frailty of human recollection or the accidental mishaps that so often occur in the process of litigation, to enable a concoction of error to be assembled so as to mount an attack on a worthy plaintiff in order to deprive that plaintiff of the award of compensation to which they are rightly entitled…It behoves defendants to use prudent discernment before taking the very serious step of making a section 26 application.”
In Lackey v. Kavanagh the plaintiff was a twenty-four-year-old single mother of two from Ballyfermot who was an upstairs passenger on a double-decker bus which was impacted by a motor car being driven by the defendant. The ensuing impact caused Ms Lackey to suffer soft tissue injuries.
Not contented to confine their assault to traducing the good character of Ms Lackey by asserting that she had suffered no injury whatsoever, alleging that the claim was an utter fabrication, the defendant’s lawyers went on to allege that the orthopaedic surgeon who had treated her was a charlatan who had carried out pointless treatments on Ms Lackey as part of a money-making racket.
In dismissing the defendant’s application under section 26 Mr Justice Kevin Cross clearly signalled that the days of defendants wrongly smearing truthful claimants’ reputations with impunity were over.
Significantly, he noted that the most effective way of dissuading defendants from wrongly making such applications was to hit them where it hurts by awarding plaintiffs extra compensation where this was warranted when he stated: “I think the issue of aggravated/exemplary damages is the only real deterrent to an irresponsible or indeed an overenthusiastic invocation of such a plea. I believe the courts should be at least as rigorous as they were of old when such a defence is maintained…I believe the court must be vigilant in not allowing an unwarranted allegation of fraud or any unwarranted invocation of the provisions of section 26 of the 2004 Act to go unpunished if the circumstances allow.”
It will be heartening for all fair-minded people to see that the judiciary has now taken a very firm line to ensure that any abuse of the section 26 mechanism by defendants will not be tolerated and will be penalized appropriately. While no-one wants to see a fraudster making money out of false pretences, neither should deserving claimants be put through the wringer for doing nothing more than pursuing their legal entitlement.