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Contributory negligence and Section 26 of the Civil Liability and Courts Act 2004
The High Court recently examined the legal principles in relation to contributory negligence and a defendant’s application to have a plaintiff’s claim struck out for being fraudulent or exaggerated in accordance with Section 26 (1) & (2) of the Civil Liability and Courts Act 2004.
Background
The plaintiff, Jason Platt sued The Old Bank House hotel in Kinsale for personal injuries arising from his fall from a window in the hotel.
Mr Platt gave evidence that he had consumed a number of pints of Murphy’s Stout during the day and evening on 15 February 2009. After a number of arguments with his financé over the course of the day, she returned to their hotel room without him and refused Mr Platt entry upon his return. This resulted in Mr Platt forcefully shouldering the door open resulting in damage to the door lock and door surround.
Having resolved their differences, Mr Platt opened the double windows in the hotel room, sat on a low shelf like seat in front of the windows and lit a cigarette. While flicking away the end of his cigarette, Mr Platt lost his balance and fell out of the window, sustaining multiple life threatening injuries.
Evidence was provided by an engineer on behalf of Mr Platt that the double windows, opening as they did with no rail or guard, along with the low shelf like seat, posed an inherent danger to the occupant of the hotel room. The hotel did not provide any evidence to the Court to counter this argument. The Court accepted that the window in question was unsafe and constituted a danger to lawful visitors and the hotel was liable in both common law negligence and for breach of its statutory duty of care under the Occupiers Liability Act 1995.
Contributory Negligence
The Court then went on to consider the intake of alcohol by Mr Platt during the course of the day and evening leading to the incident. Evidence was provided by Mr Platt as to the number of pints of Murphy’s Stout he had consumed during the 24 hours prior to the incident, the House Manager of the hotel who had interacted with Mr Platt prior to the incident and the Gardai that attended on scene after the incident. The Court also considered evidence of Mr Platt’s engineer that the danger of the open window would have been obvious to an ordinary householder. When all of the evidence was taken into account, the Court decided that it would be just to apportion responsibility of 40% to Mr Platt and the remaining 60% to the hotel.
Section 26 of the Civil Liability and Courts Act 2004
The Court then went on to consider an application by the hotel for Mr Platt’s claim to be struck out on the basis that he had both sworn an Affidavit of Verification which was false or misleading and that he had provided evidence at the hearing which was also false and misleading.
Mr Platt had provided evidence at the hearing that his injuries had had a catastrophic effect on him. He claimed that he could not bear weight on his legs, could only leave his house with the assistance of a wheelchair or crutches and that on some days he could only manage to move 5ft from his bed to his sofa. To this end, he was claiming special damages in the region of €1.8m.
The hotel provided evidence by way of surveillance video which showed Mr Platt moving around without the use of his wheelchair, or indeed his crutches. The surveillance also showed Mr Platt driving, grocery shopping and placing shopping in the boot of his car.
The Court placed a lot of weight on the surveillance evidence and the fact that Mr Platt, in the obtaining expert medical reports, had mislead those medical experts in relation to his complaints, capabilities and activities.
The Court concluded that the level of disability presented by Mr Platt to both his own medical experts and the defendant’s medical experts was not consistent with what was seen on the surveillance video and was a gross exaggeration of his injuries.
The Court was also satisfied that when Mr Platt swore the various Affidavits of Verification during the course of the proceedings, he knew that the presentation of those injuries was grossly exaggerated and that his intention in doing so was to maximise the damages he sought to recover from the defendant.
Finally the Court considered if dismissing Mr Platt’s claim, would it result in an injustice to Mr Platt, especially given that the Court had already found the hotel to be liable regarding Mr Platt falling out of the window. Judge Barton concluded that, in view of the gross exaggeration of Mr Platt’s injuries, no such injustice would take place.
Mr Platt’s claim was dismissed on this basis.
This case serves as a reminder to plaintiffs of the importance of being upfront and honest regarding injuries sustained and of the importance of the Affidavit of Verification that accompanies important aspects of the pleadings. The Affidavit of Verification verifies to the Court that the contents of pleadings are true and accurate.
Defendants in personal injuries proceedings are reminded of the importance of fully investigating claims and injuries. Surveillance is a useful tool in covertly obtaining information on Plaintiffs at a relatively low cost, but defendants should be aware that the Data Protection Commissioner recently announced that she will be targeting Private Investigation firms and those that engage those firms to carry out such surveillance to ensure that the Data Protection Acts are complied with during the surveillance process.
A full copy of the judgment is available here.
Jason Platt v OBH Luxury Accommodation Limited and Ciaran Fitzgerald [2015] IEHC 793
Author: Mark Kelly