Cork woman Anne Hegarty has been awarded €35,000 compensation for injuries sustained by her when she was a passenger on a CIE bus travelling near Fermoy, Co Cork on the 29th of November 2003 when it was caused to stop suddenly.
Ms Hegarty was pitched forward in her seat, thrown backwards and sustained injuries as a result. Ms Hegarty attended her GP within a few days of the accident complaining of pain in the left side of her neck and headaches.
She issued proceedings against the Defendants CIE and Thomas Roche claiming damages for negligence.
Over the next two years she was seen by a number of medical specialists and by doctors engaged by the Defendants. She subsequently developed problems with her lower back. An MRI scan was carried out on her cervical spine which showed degenerative changes. It was her doctor’s opinion that the accident had exacerbated a preexisting degenerative condition.
Dr F. Matthews a General Practitioner engaged by the Defendants gave evidence as having examined Ms Hegarty on three occasions. On two of these occasions when the Plaintiff was on the examining couch she was able to raise both legs to 80 degrees. This he said demonstrated she had little or no back pain as she had done indirectly what she claimed she could not do directly because of the pain.
Furthermore when Ms Hegarty was lying on his examination couch she was able to get herself to a seated position and could touch her ankles with her hands. He said this was a movement she had claimed she could not do because of pain. It was his firm opinion that she was exaggerating her symptoms.
Armed with this opinion when the matter came on for trial before the High Court the Defendants relied on the provisions of Section 26 of the Civil Liability and Courts Act 2004 which states that “if a Plaintiff in a Personal Injuries Action gives evidence that-
- Is false or misleading in any material respect and
- He or she knows it to be false or misleading, the Court shall, dismiss this Plaintiffs action unless, for reasons the Court shall state in its decision, the dismissal of the action will result in an injustice being done.
Judge Dan Herbert agreed with Dr Matthews that the Plaintiff had seriously exaggerated her physical symptoms. He said that this was a very serious matter as it presented an image of her symptoms getting progressively worse with the passage of time.
However, crucially, he said that he had not formed the opinion that the Plaintiff in the course of her own evidence was exaggerating her symptoms or seeking to mislead the Court.
The Judge concluded that Ms Hegarty had become stressed and anxious because of the ongoing problems with her neck and the fact that she had gained weight and had become unduly worried about the pending litigation. He found that these factors caused her emotional and adjustment difficulties which may have led her to exaggerate her symptoms to the medical professionals.
He found that she had not breached the provisions of Section 26 of the Civil Liability Act and as a result he refused to dismiss her claim and awarded her the sum of €35,000 general damages.
This decision follows on a number of High Court decisions where applications to dismiss Plaintiffs claims under Section 26 have failed.
Insurance Companies are now instructing their doctors to look for any evidence of exaggeration either through their physical examination of a patient or through oral accounts given to them. They then use this information either as a bargaining tool to reduce compensation payments or to damage the plaintiffs credibility at the Trial.
If someone sustains an injury in an accident they would be well advised to keep a diary listing all complaints made to their own doctors, Defendants doctors and any other specialists attended by them.