Sunday 22 September 2019
Judge criticises lawyers and doctors as fraudulent claim case is dismissed by court
A High Court judge has been highly critical of a Limerick solicitor, a senior counsel and a consultant physician in a judgment in a case in which he dismissed one claim as fraudulent and another as exaggerated and misleading.
Mr Justice Michael Twomey has warned solicitors, barristers and medical consultants about the risks their services will be used to facilitate the bringing of fraudulent claims.
In the same judgment, he dismissed another claimant’s case as “exaggerated”. The court did not accept the evidence of either claimant.
The judge concluded that claimant Rosaleen O’Connell managed to use the services of two lawyers and two doctors to create the appearance of a legitimate claim for damages.
He makes several references in his judgment to her claim being fraudulent. “This case highlights therefore the need for, not just lawyers, but also doctors and other professionals to be alive to the possibility of their services being used to facilitate the bringing of fraudulent claims,” he wrote.
The case involved a claim for personal injuries after Ashraf Ali, of Dooradoyle, Co Limerick, claimed his car was rear-ended in 2015.
Ms O’Connell, of Dock Road, Co Limerick, claimed she was in Mr Ali’s car at the time.
Both claimed they suffered soft tissue injuries.
In his High Court appeal decision, Mr Justice Twomey, sitting in Ennis, said there was only minor damage to the car.
He dismissed Mr Ali’s claim as “exaggerated” and decided on the evidence he had heard that Ms O’Connell was not in fact in the car at the time and that, on the balance of probabilities, she had made a fraudulent claim.
The Circuit Court had previously dismissed Ms O’Connell’s claim. The driver of the other car involved, Dr Ruth Martin of Co Mayo, appealed a damages award to Mr Ali in Limerick Circuit Court. Mr Justice Twomey was highly critical of the fact that the cases were appealed.
And he criticised solicitor Gerard O’Neill, of Limerick, medical consultant Dr Aideen Henry, and senior counsel Murray Johnson for their role in the cases.
Mr O’Neill, the solicitor for the plaintiffs, referred both Ms O’Connell and Mr Ali to a consultant to progress their claims. This was despite him having no medical expertise, the judge commented, leading him to the “unavoidable conclusion that there was no medical need for the referral of the plaintiffs to the consultant, but a legal need to support a claim for damages”.
The judge said a referral by the solicitor to a psychiatrist risked “devaluing personal injury litigation” for those who are genuinely injured.
Mr Ali had made no reference to neck or back pain when he visited his GP.
But the day after he visited Mr O’Neill, he was referred to Dr Henry.
Dr Henry’s medical report on the cause and extent of Ms O’Connell’s back injury had the potential to “mislead” a defendant and a court, the judgment says.
She is a consultant physician in orthopaedic and sports medicine in Limerick, according to the judgment.
The judge said the reports of medical consultants need to be treated with caution in personal injury cases. He said Ms O’Connell was not in the car and the appeal court did not accept Dr Henry’s statement that Ms O’Connell had suffered injury from a jolt to be accurate.
“it had all the appearance of a statement of fact …when it was simply a summary of what Ms O’Connell had said to her [Dr Henry] during her consultation”.
Quoting from a previous judgment, the judge warned experts: “Despite the privileged position held by experts in the Irish courts, it is clear that this position has sometimes been abused by expert witnesses who instead of complying with their ‘higher duty of independence to the court’ have expressed views or opinions which ‘all too often appeared to correspond too favourably with the interests of the parties who retained them’.”
The judge said he found it curious that barrister Mr Johnson had sought to ‘punish’ Dr Martin for suggesting that Ms O’Connell was lying about being in the car.
The judge said: “Senior counsel for Ms O’Connell suggested the very fact that Dr Martin was alleging that Ms O’Connell was lying about being in Mr Ali’s car, merited not only general damages against Dr Martin for Ms O’Connell’s ‘pain and suffering’ for her alleged back injury, but also punitive damages against Dr Martin for, it seems, her temerity to question Ms O’Connell’s honesty.”
The case, the judge said, illustrated how unmeritorious claims were appealed by plaintiffs with no money to force defendants into settling their action.
This was because an award of €7,000 can generate legal costs of €40,000.
When contacted about the case, Mr Johnson said: “I am satisfied that I conducted the cases properly and in accordance with the code of ethics of the Bar of Ireland.
“It would be inappropriate for me to comment further.”
Dr Henry had no comment to make on the judgment, and Mr O’Neill did not respond to emails and calls.
Both the Alliance for Insurance Reform and business group ISME have written to the Law Society, the Bar of Ireland and the Medical Council asking them to consider the issues raised by the judgment.