Ahern v Bus Eireann

Factual and Procedural Background

The Respondent, a 78-year-old widow, was injured on 13 November 2004 while travelling on the Appellant’s bus in The City. The driver braked sharply to avoid a collision, causing the Respondent to fall and sustain injuries to her face, chest, left thumb and lower left leg.

Liability for the accident was admitted. A three-day High Court hearing took place on 8–10 May 2006 before Judge Feeney. On 16 May 2006 the court awarded the Respondent general damages of €25,000 (pain and suffering to date) and €15,000 (future pain and suffering), totalling €40,000, together with costs (two-day basis) but disallowed the costs of an actuary’s report and a nursing report. The High Court rejected the Appellant’s application to dismiss the claim under s. 26 of the Civil Liability and Courts Act 2004 (“the 2004 Act”).

The Appellant appealed to the Supreme Court, contending that the action should have been dismissed under s. 26(1) and/or s. 26(2) because the Respondent had allegedly advanced false or misleading evidence and sworn a false affidavit.

Legal Issues Presented

1. Whether the Respondent’s action should be dismissed pursuant to s. 26(1) of the 2004 Act for allegedly giving, adducing, or dishonestly causing to be given or adduced, evidence that was false or misleading in a material respect and known to be so.
2. Whether the action should be dismissed pursuant to s. 26(2) of the 2004 Act on the basis that the Respondent had sworn an affidavit that was materially false or misleading and known by her to be so.
3. The correct standard and burden of proof borne by a defendant invoking s. 26.

Arguments of the Parties

Appellant's Arguments

• The High Court should have dismissed the action under s. 26(1) because the Respondent allegedly exaggerated her need for future care, her psychological sequelae, and her capacity to travel unaccompanied.
• The Respondent’s second verifying affidavit (17 February 2006) was allegedly false or misleading in asserting a need for paid care and should have triggered dismissal under s. 26(2).
• The trial judge applied an unduly high evidential standard, equating the s. 26 inquiry with an allegation of fraud requiring more than the balance of probabilities.

Respondent's Arguments

• The High Court correctly found that any inaccuracies were minor, understandable, and not knowingly false or misleading.
• The Appellant bore the burden of proof on s. 26 and failed to discharge it on the balance of probabilities.
• The contested care claim and related reports were withdrawn before evidence closed; therefore, s. 26(2) could not apply.

Table of Precedents Cited

Court's Reasoning and Analysis

Onus and Standard of Proof: The Court (per Judge Denham) confirmed that while the Respondent bore the ordinary civil burden to prove her damages, the Appellant bore the burden—on the balance of probabilities—to establish the elements of s. 26. The High Court’s approach to that burden was upheld.

Section 26(1): The Court noted that to invoke s. 26(1) the Appellant had to prove (i) materially false or misleading evidence, (ii) knowledge of falsity, and (iii) dishonesty. The trial judge had expressly found the Respondent to be “overall a truthful witness,” and the Supreme Court saw no basis, under Hay v. O’Grady, to disturb that finding. Moreover, the disputed actuarial and nursing reports were never introduced in evidence; they could not therefore constitute false evidence within s. 26(1).

Section 26(2): The allegedly offending verifying affidavit merely reflected the Respondent’s genuine (though possibly mistaken) belief that she needed assistance. The Court agreed with the trial judge that the affidavit was neither materially false nor knowingly misleading. Because knowledge of falsity is a subjective test, the Respondent’s honest belief defeated the Appellant’s claim.

Future Care Claim: The Respondent withdrew her future care claim at the close of her case. This eliminated the factual foundation for most of the Appellant’s allegations, further undermining reliance on s. 26.

In sum, the Court held that none of the statutory pre-conditions for discretionary dismissal were met. Even if they had been, the Court noted that dismissal would risk injustice to an elderly litigant whose underlying injuries and damages were not disputed.

Holding and Implications

APPEAL DISMISSED; the High Court’s award of €40,000 in general damages and order for costs are affirmed.

Immediate consequence: the Respondent retains her judgment and costs (with the specified exclusions). Broader implication: the decision reiterates that defendants invoking s. 26 of the 2004 Act must strictly prove dishonesty and knowledge of falsity; minor inaccuracies or subjective over-statements by plaintiffs will not suffice.