THE SUPREME COURT

328/00
Denham J.
McGuinness J.
Hardiman J.

Between:

PATRICK VESEY
                                                                      Plaintiff/Respondent
and
BUS EIREANN/IRISH BUS
                                                                     Defendant/Appellant

JUDGMENT of Mr. Justice Hardiman delivered the 13th day of November, 2001. [Nem Diss.]
	This is the Defendant’s appeal against the order of the High Court of the 14th November, 2000 awarding the Plaintiff damages for personal injuries in the total sum of £72,500.00.

	The Plaintiff was involved in a traffic accident on the 9th September, 1996.   He was stationary at traffic lights on the Stillorgan Road when a bus the property of the Defendant drove into the rear of his vehicle.   The action was heard in the High Court on the 7th, 8th and 9th of November, 2000.  Judgment was reserved overnight and delivered on the 10th November.

The issues.
	Liability for the accident was not disputed by the Defendant and the substantive plea was a denial of the injuries and loss alleged.   

	Despite the apparent simplicity of the issues the trial was a very difficult one.  The nature of these difficulties is graphically set out in the judgment of the learned trial judge.   He said:-
	“.......It should be a very simple case and the facts of it are very simple indeed.   The Plaintiff was hit from behind by a bus.   Let me say that the only fact in this case about which I am absolutely certain is that the accident took place and I am only certain of that because the Defendants have admitted it.  Had the Defendants not admitted it, I would possibly have the gravest difficulty in coming to that conclusion..... It is necessary to notice that that is the end of the simplicity in the case”.

	Later the trial judge said:-
	“I am now going to say something that I have never said about any Plaintiff in the last 13½ years on the bench.   The Plaintiff has lied to me, he has lied to his own doctors, he has lied to the Defendants’ doctors in a manner which has rendered the opinions of the doctors almost useless because they admit themselves, they depend on the veracity of the history given to them by the Plaintiff to form their opinions.   The Plaintiff did not tell the doctors the truth regarding his history.

	Turning the Plaintiff’s work history the learned trial judge said:-
	“The history of work in the case is one of the great mysteries because the only time on which we have any detail of the Plaintiff’s work was in the six months prior to the accident and, undoubtedly, he was working then but ...... I accept that only because of (the evidence of a former employer).......”

	As will be gathered from these extracts, the difficulties in the case revolved around the ascertainment of the precise physical injuries and disability referable to the accident and in respect of which damages could be awarded on the one hand, and the Plaintiff’s work history in so far as it bore on his pre-existing condition and on his likely loss of earnings for the future on the other.   The  assessment of the first of these matters was rendered complicated by the fact that the Plaintiff had at least four previous accidents, three of them while in the employment of  a company for which he worked for a total of only six or seven months.   In these cases,  he had made claims of various sorts of injuries which would have the effect of rendering him fit for only light work.  However, in the six months or so prior to the present accident he had been working in the building trade and earning an average of £365.00 per week.

	In relation to these matters the learned trial judge held:-
	“..... Having regard to the condition from which the Plaintiff was suffering..... two months prior to the accident..... it is very hard to say that his present condition is any way worse than this but I am happy to accept the evidence of Mr. Harold Browne when he says that his pre-existing condition was shaken up......”
He also held:-
	“I accept that he suffered some damage but as to what the damage was I can only speculate”.

	The judge also held:-
	“With regard to general damages, as I say, the Plaintiff has not helped me, he has lied to his doctors, but I accept  Mr. Browne and I accept Dr. McGrath, the Defendant’s doctors that he (a) has no psychiatric problem or demonstrated no sign of them and (b) that what happened to him, he was shaken up and he had a bad condition beforehand, though he was able to work with it and I do not think that at this late stage he has suffered or is anyway really worse off than he was before the accident, or he certainly has not proved that to my satisfaction on the balance of probabilities”.

	None of these findings were appealed against by the Plaintiff.   The Defendant, however, appealed on the following grounds:-
“(1)	That the learned trial judge erred in law and on the facts by making an award of general damages to the Plaintiff which was excessive and was unsupported by the evidence.
(2)	That the learned trial judge erred in law and on the facts in making any award of damages in respect of loss of earnings to the Plaintiff, there being insufficient evidence to support such an award.
(3)	Having regard to the dishonesty of the Plaintiff, the learned trial judge erred in law and on the facts in making any award of damages to the Plaintiff in that the Plaintiff had failed to discharge the burden of proof upon him to satisfy the Court as to the injuries he had allegedly sustained.”

Damages
	The damages awarded to the Plaintiff were sub-divided as follows:-
(i)	Special damages £7,500,
(ii)	Loss of earnings to date and into the future £35,000,
(iii)	Pain and suffering to date and into the future £30,000.

Aspects of the evidence
	As will be gathered from the extracts set out above, the evidence in this case took a number of unusual turns.  The Plaintiff gave contradictory evidence on a considerable number of points both in relation to his medical condition and his work history.  He also had the difficulty that particulars of his medical state had been furnished by another firm of Solicitors acting on his behalf in relation to an earlier accident.  The particulars were dated July, 1993.   These contained the allegation that:-
	“His incapacity is such that he will be unable to compete with others with realistic hope of obtaining even lighter work”.

Moreover, the Plaintiff claimed that his pre-accident work history was a generally good one and that, in particular as a result of work he carried out in the Isle of Man and in Jersey, he had earned enough money to buy a house.  However, in the particulars already referred to, delivered in 1993 but in respect of an accident in 1984, the Plaintiff was asked to identify all of his employers since the date of  that accident.  To this he replied:-
	“After the accident the Plaintiff endeavoured to continue his existing employment, but was not physically fit to do so.   He subsequently tried to work as a steel fixer with Kavanagh Steel Fixing Service in James’s Street, but found that he was physically incapable of work”.

	When, in the same action, the Plaintiff was asked to state the amount of his earnings in respect of each employment and he replied:-
	“The periods (of employment) were of such short duration that these figures are of no significance”.

	These were not the only difficulties afflicting the Plaintiff in relation to his medical history, his work history and the correlation between them.  He claimed to have been employed outside the country at periods when, according to what he told the doctors treating him, he had been out of work and he claimed again to have been employed abroad at periods during which he was drawing social welfare in Ireland.   He replaced one untrue account with another equally untrue.

	It also became perfectly clear that the Plaintiff had made only a very partial disclosure of his history to certain of his own medical advisers.  In particular, Dr. Lorna Browne, a pain specialist, stated in cross-examination that she was unaware of the history set out in the statement of claim in the Plaintiff’s prior proceedings.   She conceded that she would have expected to have been told about these symptoms.   

	On a careful re view of the evidence I am quite satisfied that the learned trial judge’s observations quoted above were fully justified. 

Submissions in relation to the foregoing
	Although no appeal was taken from any of the trial judge’s findings by the Plaintiff, it was suggested in argument that the findings quoted above were too harsh.  In particular, it was submitted that far too much weight was put on the contradictions between the Plaintiff’s evidence and the particulars delivered in previous litigation because “we all know these are drafted by someone else”.

	Equally, it was submitted that, while the evidence was unsatisfactory and unreliable it was the obligation of the learned trial judge to “disentangle” the Plaintiff’s contradictions and that he had done so in a manner which was either satisfactory or was not sufficiently unsatisfactory to justify this Court in intervening.    In that regard, the Plaintiff relied on the well known passage from the judgment of McCarthy J. in Reddy v. Bates [1984] ILRM 197 at 205, to the effect that the Court should not intervene with the trial court’s award of damages unless there is a very significant disparity between the sums awarded in the High Court and that which this court would consider appropriate.

	The Defendant, on the other hand, submitted that, having regard to the learned trial judge’s unappealed assessment of the Plaintiff’s evidence, he was wrong in making any award at all to the Plaintiff in respect either of general damages or of loss of earnings.   It was emphasised that the onus of proof lay on the Plaintiff and it was submitted that, having regard to what the learned trial judge said, he had plainly failed to discharge it.  Accordingly, there should have been no award except for special damages.  Additionally, the Defendant submitted that the specific sums awarded were excessive and unsupported by the evidence.

	In argument in this Court Mr. Finbarr Fox S.C. on behalf of the Defendant, made a further interesting submission.   He referred to the well established principles whereby exemplary damages may be awarded to a Plaintiff if the Defendant’s evidence or conduct of the case has been such that the Court wishes to mark its disapproval of it.   Mr. Fox referred to a recent personal injuries case (Crawford v Keane, High Court, unreported, 7 April 2000) where this had been done.   In effect, he argued, the same principle should apply in reverse against a Plaintiff such as this, whose conduct of the case clearly merited the Court’s strong disapproval.  Accordingly, any award to which the Court might think the Plaintiff was entitled should be reduced or extinguished on this basis.  Mr Fox conceded, however, that he had found no Irish or English authority for the proposition that this could be done.

Observations on submissions
	I do not accept that the learned trial judge’s observations on the Plaintiff were in any way unjustified or unduly harsh.   Nor do I accept that he placed too much emphasis on the particulars given by the Plaintiff in his other litigation.   I would specifically deprecate the submission made that particulars in another action should be disregarded, or regarded with less seriousness, on the basis that “everybody knows” that they are not drafted by the Plaintiff personally.   It is quite true that, in providing the particulars which a Defendant is entitled to require a Plaintiff may rely on the advice of his lawyers, doctors, engineers and other professionals.  But none of these professional advisers are responsible for the factual content of the replies.  These replies are the Plaintiff’s document for which he is personally responsible.  In relation to the matters in question here, the Plaintiff’s capacity for work after an accident and his employment history, these are matters peculiarly within the Plaintiff’s knowledge and about which his lawyers or doctors can have no direct knowledge other than on the basis of his instructions to them.   It is essential, and as far as I know is the general practice, that a Plaintiff’s solicitor should carefully go through with him replies to particulars in the form in which it is proposed to send them to the Defendant, and obtain his assent.  The fact that particulars of negligence or breach of statutory duty are necessarily expressed in legal terms, and particulars of injuries or prognosis in medical terms, in no way exempts the Plaintiff from ensuring, with the assistance of his solicitor, that the underlying facts are correctly stated.

	I cannot agree, either, that it is the responsibility of a trial judge to “disentangle” the Plaintiff’s case when it has become entangled as a result of lies and misrepresentations systematically made by the Plaintiff himself.   The procedure in our courts is an adversarial one and the Defendant is entitled to have the Plaintiff’s case presented by him and accepted on its merits or otherwise as these appear from the Plaintiff’s presentation and crossexamination . For the trial judge to make on behalf of the Plaintiff the best case he can in such circumstances would risk the loss of the appearance of impartiality.  The learned trial judge was  quite correct  to point out that the onus was on the Plaintiff and that he had, in significant respects, failed to discharge it.  It may be the submissions in relation to “disentangling” are more relevant to the learned trial judge’s eventual decision when, having eloquently pointed out the shortcomings in the Plaintiff’s evidence, he went on to make the awards summarised above.   I will return to that topic later in this judgment.

	In general, I agree with the main thrust of Mr. Fox’s submissions.  The learned trial judge himself said:-
	“I accept that he suffered some damage but as to what the damage was, I can only speculate”.

	It seems to me that this is not a correct basis on which to approach the assessment of damages and that a Defendant is entitled to have the exercise approached in a more specific and evidence based fashion.  The learned trial judge was, of course, attempting to perform the very difficult task of deciding what should be awarded to a Plaintiff who undoubtedly had an entitlement to some award, in circumstances where the Plaintiff himself had made the exercise all but impossible by persistent lies in and out of court.   

Decision
	I believe that the award in relation to future loss of earnings is largely speculative, as the learned trial judge himself said, and should be set aside.  I take the view that the Plaintiff had almost entirely failed to adduce credible evidence in this regard and was accordingly entitled to no award. In view of the utterly sporadic nature of proved employment, the Plaintiff’s lies and deceptions in relation to his employment history, and the medical evidence summarised above, I do not believe that the Plaintiff has established on the balance of probabilities that he is entitled to any award in respect of loss of earnings into the future.

General damages
	A court is not obliged, or entitled, to speculate in the absence of credible evidence.  Here, the Plaintiff was contradicted out of his own mouth both in relation to his history of working, which appears in reality to have been extremely sporadic and in relation to his pre-accident medical condition.   In these circumstances, it appears to me that the learned trial judge was correct in his decision that the only reliable evidence was that of the Defendant’s medical witnesses.   It is quite clear from the transcript that the evidence of the Psychiatrist, Dr. Desmond McGrath, does not support the existence of any psychiatric injury and no award falls to be made under this heading.   The evidence of Mr. Harold Browne, the well known surgeon, is supportive of the existence of modest injury only as a result of the accident involving the Defendant.   There are, plainly, other sources of injury, in the form of the previous accidents, and the Plaiintiff’s condition is also contributed to by  his obesity.

	Mr. Browne stated his conclusion as follows in direct evidence:-
	“My conclusion was that he had three injuries to his back;   the primary injury was in 1984, the second injury was in 1993 and the third injury was in 1996.   Once you injure your back it makes it much more vulnerable to subsequent injury.  Also, from the files I had, I found that he had a condition called spinal stenosis which, per se, can also cause backache and pain on bending.  His obesity also was contributing to his backaches.   He also had degenerative changes in his back pre accident.  All these factors:   one accident, two accidents, three accidents, one dovetailed into another, resulting in the so called chronic back pain”.

	In cross-examination Mr. Browne somewhat expanded his view in relation to the specific topics posed to him as follows:-
“Q.	He had, undeniably, a pre-existing back condition is that not so?
A.	Yes.
Q.	He was not improved by the accident and the severe impact that occurred?
A.	But at the same time, I do not think that the accident at issue made his previous conditions any worse.
Q.	Are you seriously suggesting that an impact that wrote off the car, which broke the seat, which took it away from its moorings, that would not make his condition any worse?
A.	He was described, Mr. Maguire, in 1994 in the charts of St. Vincent’s Hospital, as having chronic progressive backache and that is a pretty definitive statement 2½ years before the present accident.
Q.	That goes to show how bad his condition was before the accident, I am asking you a separate question as to whether this accident, I am suggesting to you it hardly improved his back condition.
A.	I would agree with you there, yes.
Q.	Would you say it made it any worse?
A.	I do not think it made it any worse than the pain he had in 1994, which is described as serious pain at St. Vincent’s Hospital, and the injury that he had was soft tissue injury at the time of the 1996 accident”.
	
	In these circumstances, I would reduce the award for general damages, past and future, to £15,000.00

	The claim for past  loss of earnings, again, is extremely problematical.  The Plaintiff supplied the names of five employers with whom he said he had worked over the years.  It transpired, however, in cross-examination that he had worked for some of these only for a small number of weeks.   He mentioned other employers, some only vaguely identified, for whom he had worked abroad.   His major point was that he was in good employment at the time of the accident.  It appears that he had worked for a major company from February to May of 1996 and he claimed to have been re-employed in August of that year.  This was supported by the employer’s representative.  However it was also established that he was drawing social welfare at the relevant time.   The employment, even looking at it at its height from the Plaintiff’s point of view, was not continuous but depended on the existence of particular projects.   

	In relation to loss of earnings between the date of the accident and the date of trial, the position is again very unsatisfactory and the Plaintiff’s evidence entirely unreliable.   However, it was conceded by Mr. Browne that it was not unreasonable for the Plaintiff to have been off work for nine months after the accident.   Counsel for the Plaintiff said that his net loss would have been £200.00 a week and on that basis I would be prepared to allow him £7,500.00.   

	In the circumstances I assess  the Plaintiff’s damages at £7,500.00 in respect of special damages, £15,000.00 in respect of general damages and £7,500.00 in respect of loss of earnings, making a total of £30,000.00.
Reduction or extinguishment of damages
	I have considered Mr. Fox’s submission to the effect that the damages to which the Court considers the Plaintiff is entitled should be reduced or extinguished as a mark of the Court’s disapproval of the sustained dishonesty which characterised the Plaintiff’s prosecution of his claim.   I am not satisfied that there is a direct analogy with an award of exemplary damages to mark the Court’s disapproval of the conduct of a  Defendant.   Such exemplary damages are a graft upon the Plaintiff’s entitlement to compensatory damages and an award of damages of the latter sort is a condition of the award of exemplary damages.   Even if, contrary to the view I have expressed, there is an inherent power to reduce damages in circumstances such as the present it would not be appropriate to exercise it without warning in the circumstances of the present case.   

	It is interesting to note, however, that in the United States there is a well established jurisprudence on the inherent power of a court to dismiss an action for “flagrant bad faith” :   see National Hockey League v. Metropolitan Hockey Club Inc. 427 US 639.   The power will be exercised in circumstances such as dishonest conduct by a litigant, obstruction of the discovery process, abuse of the judicial process or otherwise seeking to perpetrate a fraud on the Court:    see Link v. Wabash Railroad Company 370 US 626.   The rationale is stated in the Hockey League case as follows:-
	“Here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the District Court in appropriate cases, not merely to penalise those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.”.

	The American context is of course rather different from that prevailing here:   in particular the American courts usually lack the power to penalise conduct of the relevant sort by an appropriate order as to costs.   But there is plainly a point where dishonesty in the prosecution of a claim can amount to an abuse of the judicial process as well as an attempt to impose upon the other party.

Need for submissions
	In my judgment in Kelly v. Bus Eireann delivered 16 March 2000, I expressed the view that Counsel could probably assist the trial Court in many personal injuries actions by making brief submissions as to the issues arising and the salient evidence bearing on them.   Obviously, this will not be necessary in an entirely straightforward case but the present action could not possibly be regarded as being in this category.  It was a case where the evidence underwent several dramatic changes.   I consider that the Court might have been assisted by a brief statement of each sides contentions at the end of the evidence.