Hertz “set-up” defence fails in High Court

A recent High Court case demonstrates how difficult it can be to prove that a suspicious accident is actually a “set up”.

Background

The accident in question took place at a roundabout near Lifford in Donegal late at night and involved 2 cars, one of which was a hire car. There were 7 occupants between the 2 cars, each of whom brought a separate claim for personal injuries.

The Defence

Hertz alleged that the accident had been a “set-up” on the basis that:

1. Photographic evidence supported its belief that some or all of the Plaintiffs knew each other before the accident;
2. A ‘jovial’ conversation took place between the driver of the hire car and the driver of the other vehicle following the accident. This conversation was overheard and meant that it could be inferred by the Court that both drivers knew each other well;
3. The likelihood of two vehicles being on the roundabout at that time of night would allow the Court to infer that the accident was a “set-up”.
4. The Plaintiffs activities prior to the accident left lengthy periods of unexplained time, which could be inferred as being part of the planning process for the “set-up” of the accident.

Hertz also alleged that each of the Plaintiffs’ had exaggerated the extent of their injuries.

Judgment

Judge Meenan in the High Court held that the evidence put forward by Hertz was insufficient to establish that the collision was a “set up”.  While he accepted that the plaintiffs had been ‘less than forthright’ about their prior knowledge of each other, he found that the evidence put before the Court did not convince him, on the balance of probabilities, that the collision was, in fact, a “set up”. He accepted that there may have been a conversation between one of the plaintiffs and the driver of the hire car following the accident which may have appeared “jovial”, but the purpose of that conversation was to swap insurance details and nothing could be inferred from this. Judge Meenan considered that it would be a stretch for the Court to infer anything from two cars being on the same roundabout at the same time and the periods of unexplained time pre-accident. Judge Meenan rejected the contention that the injuries had been exaggerated by each of the 7 Plaintiffs. He held that the plaintiffs had been upfront about their recovery times and had not claimed for any ongoing injuries, nor had they claimed for medical expenses or loss of earnings. Finally, he noted that notwithstanding the concerns about the circumstances of the accident, all of the medical reports obtained by Hertz essentially agreed with the medical reports provided by the Plaintiffs. Each Plaintiff was awarded varying amounts between €6,000 and €9,500. Interestingly, the Court did not address nor does it seem it was requested to award exemplary damages to each of the Plaintiffs for the manner in which Hertz defended each of the claims. A full copy of the Judgment can be found here.