Amy Lackey, a mother of 2 children who sustained injuries to her neck, shoulder and back when she was travelling as a passenger in the upstairs compartment of a bus when it was rear ended by a vehicle on the Ballyfermot road on 16th April 2008 has been awarded £45,000 in damages by the High Court.
Ms Lackey gave evidence in court that she was chatting to a fellow passenger when she felt a bang which caused her to suffer injuries to her neck, shoulder and back. She was pregnant at the time of the accident. The defendants claimed that the collision could not have caused Ms Lackey’s injuries. They claimed that she had been guilty of exaggeration and that her injuries could not have been caused in the crash.
Judge Kevin Cross found on the evidence that the plaintiff did indeed suffer soft tissue injuries when she was sitting on the top floor of the bus when it was struck.
As the defendants were in effect pleading fraud on the part of the plaintiff regarding the circumstances of the accident and the nature of her injuries the plaintiff also claimed aggravated/exemplary damages to penalise the defendants .
The judge said in his decision “ I am of the view that since the introduction of the 2004 Act which clearly impact upon plaintiff’s disproportionately more than on a defendant, the issue of aggravated/exemplary damages must always be in the mind of the court where it is alleged that the plaintiff is deliberately exaggerating his/her claim and/or being guilty of fraud…”.
The Judge also went on to say “I think the issue of aggravated/exemplary damages is the only real deterrent to an irresponsible or indeed an over enthusiastic invocation of such a plea. I believe the Courts should be at least as rigorous as they were of old when such a defence is maintained.”
The Judge also said “as was submitted on behalf of the defendant there is no such case to be made against the defendant here. Be that as it may, I believe the court must be vigilant in not allowing an unwanted allegation of fraud or any unwanted invocation of the provisions of the s.26 of the 2004 Act to go unpunished if the circumstances allow”.
The judge however held that it was not unreasonable for the defendant to question the plaintiff and to raise issues concerning the impact of the accident upon her during the course of the trial or the questioning of her medical witness. The judge therefore held that the plaintiff was only entitled to compensatory damages for the pain, suffering, loss and damage she had sustained and that she was not entitled to aggravated/exemplary damages.