Ireland: Exaggerated & Fraudulent Claims – A Step In The Right Direction?

Last Updated: 8 August 2019
Article by Louise Smith and Kate Duffy
Most Popular Article in Ireland, August 2019

Recent media coverage of personal injury litigation and the knock on effect of awards on premium holders has yet again highlighted the need for change and reform in our courts in both the determination of wrong doing and the awards ultimately handed down. The recent case of O’Connell v Martin; Ali v Martin has marked a step in the right direction by the courts in this regard by illustrating the significant and influential role of medical experts in personal injury proceedings and re-iterating the longstanding principles to be considered in assessing fair and appropriate awards. 

Twomey J delivered Judgment on 10 May 2019 dismissing one fraudulent and one exaggeraged personal injury claim, both arising out of a minimal impact incident between two cars.

The role of medical experts

The claims were undermined by a common factor; the referral to consultants for a medical/psychological examination of the alleged injuries of each plaintiff were by the solicitor and not, as is usual practice, by a GP. The Court concluded that there was no medical need for the referral, only a legal need to support a claim for damages.

To compound the Court’s suspicions, both plaintiffs had attended their GP some days after the alleged accident but prior to the referral, and neither mentioned anything about the back and neck pain they later alleged was as a result of the impact. Ms O’Connell did not inform the GP of her attribution of back pain to the impact until nine GP visits later.

The O’Connell case, the dismissal of which supports the Defendant’s claim that the plaintiff had not even been in the car at the time of impact, highlights the need for professionals to be wary of the possibility of their services being used to facilitate fraudulent claims.

The Court noted that it would be good practice in order to avoid being misled that where medical reports are being relied upon by plaintiffs, the court should be advised if they came into existence for legal rather than medical reasons. This could then influence the court’s determination of whether the claims were fraudulent or exaggerated.

The Court also noted it is not good practice, therefore, for solicitors to refer clients to medical specialists. In fact, the making of such a referral by a person with no medical expertise, and duly accepted by the consultant, risks devaluing personal injury litigation for those who are genuinely injured and deserving of compensation.

The Court considered the special position of medical professionals as expert witnesses in the Irish legal system. The privileged position they hold in being able to express views, rather than mere factual observations, is potentially open to abuse, allowing the expert to express a view corresponding all too favourably with the interests of the party who retained their services. The reports in question in the cases at hand, for example, provided subjective evidence from the plaintiffs regarding the extent of their pain.

There was no dispute between the parties that Mr Ali was in the car at the time of the impact. However, he gave evidence that Ms O’Connell was in the car at the time. Having dismissed Ms O’Connell’s claim on the basis that the Court believed she was not involved in the incident, the Court felt it was right to also dismiss Mr Ali’s under s26 of the Civil Liability and Courts Act. The Court concluded that Mr. Ali had given misleading evidence regarding the circumstances of the accident, the nature of the impact and in particular the effect of that accident on his neck and back.

Core principles in assessing damages

Despite dimissing the claim, the Court also concluded the level of award it felt would have been appropriate had the claim not been dismissed. Mr. Ali had been awarded €17,500 in the Circuit Court and Twomey J. stated that the award he would have allowed, taking into consideration the principles set down by the Supreme Court, was €3,000. He also noted that should such an award have been received that this would have been negated by a differential costs order, given that the District Court was the more appropriate court. In relation to the discretion of a judge to make a differential costs order he agreed with Hardiman J. who in a previous Supreme Court decision had confirmed that the sole fact which triggers the discretion is that the Plaintiff was awarded a sum which a lower court would have power to award.

Twomey J. went on to state that where a claim is for minor soft tissue/whiplash injuries, the plaintiff should carefully consider taking the case in the District rather than Circuit Court so as to have an appropriate award made and not risk it being reduced or eliminated by the differential costs order.

The Court also set out the principles that bind the courts in awarding damages;

  1. Award should be fair to both the plaintiff and the defendant;
  2. The award should be just, equitable and proportionate (e.g. minor injuries = modest damages);
  3. The award should be reasonable and proportionate to where injuries stand on the scale of minor to catastropic and proportionate to the damages awarded for other injuries and noting that the cap for general damages which applies is €450,000 so as to avoid the “concertina effect”;
  4. The award of damages should be reasonable in light of “the ordinary living standards in the country” and “the general level of income” in this country. Therefore, in considering the reasonableness of any award, the fact that it takes the average person a full year to earn €47,596 gross which amounts to €35,500 net pay after tax should be borne in mind.

In relation to the Book of Quantum, the Court confirmed that this is not binding on trial judges as is clear from s.22 of the Civil Liability and Courts Act 2004. In contrast, it noted that the decisions of the Court of Appeal (which it noted has been approximately halving damages) and the Supreme Court (which has expressly adopted the principle that modest damages should be made for modest awards) are binding.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions