Wednesday 13 December 2017

Judge overturns seven whiplash awards after mini-bus was rear-ended by 'mysterious car'

The High Court (Stock Image)
The High Court (Stock Image)

Tim Healy

THE High Court has overturned awards for alleged whiplash to seven people who claimed they suffered the injuries when a mini-bus they were travelling in was rear-ended by what a judge described as a "mysterious car".

Ms Justice Marie Baker said while all the claimants had clinical signs of whiplash type injury, that in itself did not mean the injuries were caused in the way they claimants described.

They had claimed the mini-bus was hit from behind by a car on August 9, 2008, at a t-junction known as Snips Bridge, near the border at Drumgoole, Silverstream, Co Monaghan, as they were on their way to a night out at the dogs in Dundalk.   They claimed the car sped off and no one got its registration and only two people said they actually saw a car.

They sued the Motor Insurers Bureau of Ireland (MIBI), which compensates victims of uninsured or untraced drivers.

In the Circuit Court, the seven were awarded between €3,000 and €8,000 compensation.

Two other men, who were also passengers in the bus, had their claims rejected by the Circuit Court.

All nine were friends or relatives, whether by birth or marriage.

The MIBI appealed the awards to the seven and opposed appeals brought by the two who had not been successful.

The appeal was heard over four days in the High Court by Ms Justice Baker.

Today, the judge allowed the MIBI's appeals against the seven and dismissed the appeals by the two men.

The judge said the claimants had not satisfied the burden of proof.

She was satisfied most of the plaintiffs had, in the course of their evidence, "expressed little confidence or enthusiasm for a version of events that implicated a mysterious car".

Essentially, the case came down to the fact that, of the nine, two said they saw a vehicle neither of whom was clear as to the type of vehicle or number plate, and no debris was found on the road.

The two who said they saw a car were sisters Lyndsey (33) and Amanda (44) Gervin, both from Coalisland, Co Tyrone.

The judge said Lyndsey Gervin had told the court, in direct evidence, that ever since the 2008 accident she had not gone back to her previous hobby of going to the gym every day.

However, her Facebook page was put to her in cross-examination, in which she stated she had returned to they gym by 2013. 

The judge was satisfied from those Facebook entries she had returned and she rejected Ms Gervin's claim the evidence had been obtained in breach of her privacy.  At the relevant time, Ms Gervin did not have a privacy restriction on her Facebook account, the judge said.

Ms Gervin's evidence about the inability to visit the gym might not be sufficent to reject all aspects of credibility of her evidence.  However, she was one of the witnesses who saw the car speeding off and only one of two to say "the incident was caused by the mystery car".

What might seem like a minor fact or discrepancy in her evidence, whether she did or did not attend the gym in the years following the accident, "throws doubt on the credibility of her evidence in general", the judge said. 

But it must be seen as particularly significant in light of the fact that she was only one of two witnesses who could link the incident to the mystery car, she said.

The court heard from two gardai who said when they arrived at the scene, they saw no evidence of an accident, including no debris on the road.

The judge did not consider it credible that the plaintiffs would not have made every effort after the accident to ascertain the damage to the bus.  While their memories or the incident have faded, they had several opportunities over the years to refresh or support those memories, she said.

The other seven who sued were the bus driver David Morgan (40), Paul Campbell (38), his wife Deidre Campbell (40),  Joanne McGirr (35), her sister Fiona McGirr (38), and Kevin Kernaghan (43), all from Coalisland, along with Bernadette McBride (58), mother of Ms Campbell, from Glasslough, Co Monaghan.

All except Mr Campbell and Mr Kernaghan were awarded compensation in the Circuit Court.

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