The published judgments of the High Court in 2022 highlight that the majority of section 26 applications have involved allegations by defendants that a plaintiff has failed to disclose other accidents or relevant similar previous injuries.
Foxe v Codd
This matter involved a 2017 road traffic accident. Liability was not in dispute. The defendant alleged that the plaintiff had failed to disclose a previous back issue in his replies to notice for particulars, nor had he mentioned them to a medical expert. It was also alleged by the defendant that it was not recorded in the plaintiff’s initial medical records that the plaintiff complained about suffering from back injuries despite the plaintiff specifically pleading that he initially sustained back injuries.
During cross-examination, the plaintiff accepted that he did not initially complain about a back injury, possibly as a result of being in shock. He maintained that a 2016 MRI which showed issues with his back, was carried out at the request of his GP in response to unrelated issues and he had therefore not connected that MRI with his back.
Mr Justice Sanfey refused the defendant’s section 26 application. He accepted that the plaintiff had proven that he suffered injuries to his neck, back and shoulder as alleged. He found that while there was evidence from the plaintiff that was “perhaps misleading”, the plaintiff was generally an “honest and credible witness”, who had subjectively explained how the inconsistencies arose.
Harty v Nestor and Anor
In this case, before Mr Justice Barr, the second defendant also unsuccessfully applied to dismiss the plaintiff’s claim. The second defendant in this case contended that the plaintiff had not been fully upfront about his medical history. The plaintiff was involved in a road traffic accident in 2017. It was accepted that the defendant was liable for the accident. The plaintiff had previously been involved in a 2008 road traffic accident. This accident was disclosed; however the plaintiff told his medical experts that his back injuries from that accident settled in about six months. He failed to disclose to any medical expert that he suffered neck injuries in the 2008 accident. The plaintiff’s medical records, provided as part of the discovery process, highlighted that the plaintiff suffered both neck and back injuries in the 2008 accident. The medical records also highlighted that he received treatment for episodes of back pain in 2014 and 2015, 2016 and an episode of neck pain in 2015, none of which were disclosed.
Refusing the second defendant’s section 26 application, Mr Justice Barr said that he was not convinced that the act of providing false information to a treating or reporting doctor was by itself enough to satisfy the provisions of section 26. He said that a plaintiff would have to provide evidence which was found to be false at the hearing of the action, or swear an affidavit verifying evidence which was found to be false or misleading before the provisions of section 26 could be triggered. He also found that because the plaintiff had provided his medical records and all pleadings from the 2008 accident, he had met their allegations with his “cards face up”.
Khalid v Davis & Anor
In this case, the defendant enjoyed a rare section 26 success before Ms Justice Hyland. The plaintiff was involved in a road traffic accident on 25 March 2015 and sustained injuries to his neck and back. He was also involved in two other serious road traffic accidents, one a week earlier and one a few months later in July 2015. It was also recorded by his GP that he suffered injuries to his neck and back in both of these accidents.
The plaintiff denied he had suffered any injuries in any accident either before or after the accident on 25 March 2015. He also failed to reveal these other accidents to three medical experts who examined him at various different stages. When challenged by the defendant, the plaintiff maintained that it was his honest belief that the accident of the 25 March 2015 was responsible for causing all of his injuries.
Ms Justice Hyland dismissed the plaintiff’s claim on the basis of section 26 and found that he had provided false and misleading evidence. She held that it was not the function of the court to “disentangle” the injuries that might have been caused. She also found that that the plaintiff had consistently avoided mentioning the accidents to medical experts and that he swore an affidavit verifying replies to notice of particulars which he must have known were incorrect.
These decisions illustrate the significant latitude given to plaintiffs to explain inconsistencies in their evidence. However, it appears that a defendant has a better chance of successfully making a section 26 application if they can show:
- That the non-disclosed event is significant
- That the injuries in the other accidents are similar and were suffered in close proximity in time to those in the claim they are dealing with
It may also improve a defendant’s prospects of success if it can be proven that the plaintiff has failed to disclose the relevant event on multiple occasions.
However, in light of the case law, even if a defendant is armed with all of these elements, it will be difficult for them to approach a section 26 application with any significant degree of confidence.
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The content of this article is provided for information purposes only and does not constitute legal or other advice.
  IEHC 351
  IEHC 108
  IEHC 519