Morrissey v Starrus Eco Holdings Limited and Anor

Jackson J. FOR PUBLICATION THE HIGH COURT CIRCUIT APPEAL CORK CIRCUIT COUNTY OF CORK [2026] IEHC 215 RECORD NO.: 2023/01354 JOHN MORRISSEY Plaintiff AND STARRUS ECO HOLDINGS LIMITED AND THOMAS WALL Defendants Judgment of Ms. Justice Nuala Jackson delivered on the 23rd March 2026. INTRODUCTION 1. On the 30th November 2021, at approximately 3.30 in the afternoon, the Plaintiff was driving his taxi in the centre of Cork city. He had a passenger (customer) in the rear of the vehicle and, at the relevant time, was stationary at a red traffic light. His vehicle was hit from behind by another vehicle. The drivers of both vehicles, the Plaintiff and the Second Named Defendant, got out of their respective vehicles and there was some small, appropriate and amiable conversation between them. The Plaintiff enquired as to whether the other driver was alright. The Plaintiff checked his vehicle. The Second Named Defendant took photographs of both vehicles and the gardai, who happened to be close by, attended at the scene. 2. The damage to the vehicle being driven by the Plaintiff was not significant in nature. 3. The drivers both left the scene. 4. All of this is agreed as between them. 5. What seems to be a very straight forward, albeit unfortunate, road traffic incident has become extremely contentious and there are many unsatisfactory elements which emerged thereafter. 6. The matter came before me by way of a Circuit Appeal and, in circumstances in which there was considerable factual and legal controversy as between the parties, I reserved my decision. BACKGROUND AND CONTROVERSY 7. The Plaintiff was not the owner of the taxi vehicle being driven by him. He leased this vehicle from a third party, paying the sum of €200 per week for the use of it. This is not an unusual arrangement. In the context of this accident described above, there were thus two potentially injured parties: the Plaintiff who asserts that he suffered personal injuries and the third party who claimed for material damage to the vehicle and loss arising from loss of its use. 8. The evidence of the Plaintiff is that he did not experience any significant discomfort immediately following the incident but that he did return home thereafter. His evidence is that he experienced pain and discomfort in the days afterwards and attended his General Practitioner in this regard. His evidence was that he continued to work as a taxi driver in this vehicle until up to and including Christmas but at a lesser level of work than previously (due to his injuries) and that he continued to do so until asked by the vehicle owner to bring the vehicle for insurance inspection in early January 2022, which he did. It was his evidence that, after this inspection, he got the car back and continued to use it for a period of time but, a number of months later, he ceased leasing this car and moved to another vehicle, leased from a different person. 9. It would appear that the car involved in this incident had, separate altogether from the events to be determined before me, some issue concerning its electric battery (which issue appears to have pre-dated and continued subsequent to the incident). I am satisfied from the engineering evidence adduced on behalf of the Plaintiff that the battery issue was unrelated to the incident giving rise to the claim before me. Regrettably, there was some degree of conflagration between this issue and the damage caused to the vehicle in this incident but this does not appear to have any basis in fact. I will return to this below. 10. Aside from the above issue, a most extraordinary factual issue emerged subsequent to the late November incident. When the insurance inspection was carried out in early January 2022, the damage to the vehicle was very considerably greater than that which is obvious from the photographs taken by the Second Named Defendant immediately after impact. The matter became still more curious as it emerged that, shortly before Christmas 2021, on or about the 21st December 2021, another insurance inspection was carried out. I heard from the inspector who carried out this inspection which was most thorough and the evidence of this person was very clear. The comprehensive range of photographs taken by this inspector showed damage consistent with that evident from the photographs of the Second Named Defendant at the time of the incident. It is without doubt that additional damage was caused to the vehicle between the date of this inspection and the date of the second inspection in early January 2022 and efforts were made to present the more serious damage as resulting from the road traffic event currently under consideration. I have no evidence as to who occasioned this additional damage or when it occurred. However, it is without doubt that additional damage was done to the vehicle between the 21st December 2021 and the 5th January 2022, which damage had nothing whatsoever to do with the incident of the 30th November 2021. 11. Unfortunately, although the same insurer was involved, there would not appear to have been any contemporaneous correlation of the two inspections. The claim of the third-party owner of the vehicle proceeded on the basis of the second inspection and a material damage claim was paid out by the insurer on the basis of the more serious damage. Additionally, the third-party vehicle owner made a claim for loss of use which would appear to have considerably exceeded what he was in fact going to receive for the vehicle under the leasing agreement and, indeed, considerably in excess of any actual loss as it would appear that the Plaintiff continued to drive the vehicle at all material times. I did not hear any explanation as to why there were two inspections and why there was no correlation between them. In addition, the claims made by the third-party vehicle owner (whether in relation to material damage or loss of use) are not before me and therefore it is not for me to make any determinations concerning them. 12. There are two Defendants, the Second Named Defendant being the driver of the second vehicle involved and the employee of the First Named Defendant, which owned that vehicle. The contention of the defence herein is that this is a claim which is tainted by the surrounding circumstances but the issue is the degree to which it is so tainted and whether or not this impacts upon the Plaintiff’s claim. 13. The Defence asserts: 1. That the claim of the Plaintiff should be dismissed pursuant to section 26(1) or section 26(2) of the Civil Liability and Courts Act, 2004 (‘the 2004 Act’); 2. Alternatively, that this was a minimal impact event and that the injuries allegedly sustained by the Plaintiff are inconsistent with the damage occasioned to the vehicle. I heard evidence, and there was no dispute, that personal injuries may result in minimal impact situations but the defence contends that where it is contended that significant injuries ensue from such a situation, credibility becomes of increased importance and, it is contended, there are significant credibility gaps in the evidence of the Plaintiff in this instance. 14. The Plaintiff contends: A. That the section 26 allegations of the defence are without foundation and should result in aggravated damages and/or costs on a broader scale being awarded; B. That he sustained injury to his neck and shoulder and that this has significantly impacted upon his day-to-day activities including his work and his sporting activities. He seeks to be compensated for these personal injuries. He makes no claim for loss of earnings (although he does say that he has been obliged to reduce his work levels due to his injuries). He claims very modest special damages and general damages. The latter must, obviously, be assessed by me in accordance with the Personal Injuries Guidelines. EVIDENCE (a) Affidavits of Verification (AOV) 15. These were introduced by section 13 and section 14 of the 2004 Act. 16. Three such Affidavits were sworn in this matter. An AOV was sworn by the Plaintiff on the 28th September 2023 in relation to the Personal Injuries Summons which he had issued. An AOV was sworn by the Plaintiff on the 23rd February 2024 in relation to Replies to Particulars furnished by him. An AOV was sworn on the 17th October 2025 relating to Updated Particulars of Personal Injury of the Plaintiff. 17. The evidence contained therein is of particular significance in the context of the section 26(2) application of the defence herein. (b) I heard oral evidence from the Plaintiff and the Second Named Defendant. (c) Agreed reports. A very significant number of medical reports and the report of the insurance inspector from January 2022,1 were admitted without the authors of them being called. The correspondence indicated that these were being admitted “on the usual terms” but it became clear that no one was clear what this meant. It appears that the reports were admitted into evidence but on the basis that evidence could be called and witnesses cross-examined as to the accuracy of the factual premises upon which they were based as those premises related to information conveyed by the Plaintiff to the medical practitioners concerned. I was and remain unclear how I was to recalibrate the medical conclusions reached in the event that I determined that the doctors had been provided with inaccurate factual information in circumstances in which there was to be no expert medical testimony to address the implications of such inaccuracies. I will provide a synopsis of such reports below. (d) Oral testimony. I heard oral testimony from two road traffic/engineering experts for the Plaintiff. I did not receive reports from them. I received oral testimony and a report from a private investigator for the defence. I received oral evidence from a motor inspector for the defence (but who was not the actual inspector in this case) and I received oral evidence from the motor inspector who carried out the first inspection in December 2021. Evidence of the Plaintiff 18. It is necessary to analyse this evidence in some considerable detail having regard to the engagement of section 26 by the defence. I intend to do so in relation to contested and allegedly inconsistent evidence only. 1 A witness from the inspection business was called but he was not the person who had carried out the inspection which had been done by a colleague of the witness I heard. 19. There was some dispute between the Plaintiff and the Defence position as to the speed of the truck at the time of impact. The Defence position was that the Second Named Defendant took his foot off the clutch thinking the truck to be in neutral when it was, in fact, in gear. The Plaintiff had no issue with such being the circumstances. Importantly, the Plaintiff was shown the pictures taken by the Second Named Defendant at the scene and he confirmed that this was the damage occasioned. His evidence was that he carefully examined his car at the scene and that the damage he saw accorded with the damage in the photographs proffered by the defence. He referenced his head impacting with the sun visor and his chest with the steering wheel. He accepted that he stepped out of the car at the scene and that he subsequently drove home. There was some dispute in relation to the duration of the relationship between the Plaintiff and the lessor of the taxi post-accident. I do not consider much turns on this. There was a suggestion that the Plaintiff’s medical attendance coincided with the date of the insurance inspection of the car. Again, I was unclear as to the significance of this. It is clear that the Plaintiff was aware of the inspection of the vehicle that day (he brought the car to the assigned garage for inspection at the direction of the car owner) and he would appear to have referenced the car being “written off” to the doctor. There is no doubt that there could be no suggestion of writing the car off based upon the damage sustained in this accident but issues may have arisen due to the pre-accident mechanical issues arising, unrelated to the events the subject of this application. I do accept based on the evidence before me that the report of the accident and of the damage to the vehicle which he was driving was exaggerated by the Plaintiff to his General Practitioner when he attended him on the 5th January 2022, according to the medical report proffered. However, I am uncertain that this had any significant impact on the within proceedings or the litigation commenced by the Plaintiff. It is amply clear that the Plaintiff did not benefit from the arrangements and, importantly, did not attempt to do so in the context of the litigation. When questioned at hearing about the additional damage to the vehicle evident at the January 2022 inspection, the Plaintiff responded that this damage “definitely wasn’t” occasioned by the incident the subject of these proceedings. Medical evidence 20. I received three reports from Professor Michael O’Sullivan, Consultant Neurological Surgeon. There is consistency throughout these reports. The Plaintiff reported injuries to his neck, right shoulder and elbow, the last mentioned resulting in numbness to the right index and middle finger. The limitations being experienced by the Plaintiff as reported to Professor O’Sullivan are enumerated. Radiology is reported to have shown “age-appropriate degenerative changes in the cervical discs”. Soft tissue injury is diagnosed with the 6 – 24-month expectation of recovery. There was no change in the doctor’s opinion over his three reports dating from May 2024 to October 2025. The report of Dr. Donal F Harney (September 2024) was less optimistic referencing “ongoing severe whiplash” and the likelihood of “significant flare up of pain” in the long term. However, Dr. Harney appears to have been given (at least his report referenced) an account of the accident which was considerably more severe than was proved before me. In particular, there is reference to the Plaintiff’s vehicle being rear-ended “at speed”, that the Plaintiff’s car was “pushed upwards in the air” and that the Plaintiff developed severe pain “almost immediately”. These descriptions did not accord with the evidence heard by me. Dr. Harney reported on the ongoing need for pain management interventions but it is clear from the report of Professor O’Sullivan that the Plaintiff had pain management injections on two occasions only, both prior to October 2025. Dr. Harney spoke of two such per annum but these have not occurred (the Plaintiff indicated that he did not find these beneficial). There was evidence of two/three sessions of physiotherapy and pain relief medication being taken by the Plaintiff. 21. I also considered the medical reports from Dr. Brian Coffey, Dr. Vlad Nutu, Dr. Davarinos and Mr. David Mulcahy. Dr. Coffey’s report was the most proximate to the accident. Again, the narrative of the report contained discrepancies in terms of the nature of the accident from the facts as proved before me. This was particularly evident in terms of the degree of absence from work and there was a reference to the vehicle driven by the Plaintiff potentially being written off. There was consistency in terms of injury sustained and the report concluded that the injuries sustained were “soft tissue in nature and of relatively minor degree”. Dr. Nutu’s report references only upper back and neck injuries (although later in the report there is reference to pins and needles over the right index and middle finger). MRI reports were awaited and, in consequence, the report is incomplete. Tenderness on neck flexion is reported but clinical findings in respect of shoulder, elbow and fingers is report as “normal bilateral”. Dr. Davarinos’ report, related to examination on the 1st April 2023, had the benefit of MRI examination. There is reference to the Plaintiff taking pain relief medication and applying topical cream. Right trapezius tenderness and strain is diagnosed and deficits with reaching and carrying/lifting are identified. The report concludes that the Plaintiff was recovering slowly, that he suffered soft tissue injuries to his cervical spine and that he had aggravated previously asymptomatic degenerative and congenital changes affecting his cervical spine. Mr. David M. Mulcahy concluded that the Plaintiff sustained soft tissue injury to his neck with radiation to right shoulder. The report states that an “MRI scan has shown evidence of congenital narrowing of his spinal canal with multiple level degenerative disc disease.” 22. A number of the medical reports referenced other medical attendances or prognoses in respect of which I did not have reports. 23. I formed the view that the medical reports (which were agreed) and, in particular, the Plaintiff’s reportage of symptomology to the medical professionals concerned must be considered in the context of the defence challenges to the de facto extent of impact of his complaints on the Plaintiff’s day to day activities and the evidence adduced by the defence demonstrating that the impact of such complaints was not as significant as contended for by the Plaintiff. Issues arising I. Knowledge of vehicle inspections – on the evidence of the Plaintiff I believe that he was aware of both vehicle inspections and, in consequence of his involvement with the vehicle over the time in question, he must have been aware of the additional damage to the taxi between the date of the accident/first inspection and the second (January) inspection. However, his awareness must be distinguished from his instigation or involvement with this. The evidence does not support that this was a plan or enterprise of the Plaintiff but rather of the vehicle owner who was the only beneficiary of it; II. Interactions with the third-party owner of the taxi – the evidence of the Plaintiff supports that he did have some such interactions in so far as the owner of the taxi instructed him to bring it to specified venues for inspection. However, there is no evidence that the Plaintiff interfered with the condition of the vehicle or that he in any manner benefitted from additional damage inflicted upon the vehicle; III. Information told to expert witnesses by the Plaintiff – there is no doubt that the Plaintiff overstated the seriousness of the accident at his appointment with his General Practitioner in January 2022. This has not had any significant impact on this litigation or the outcome(s) of it; IV. The degree of his disability arising from his injuries. I have had regard to the medical reports and also to the evidence adduced in relation to the degree of curtailment of the Plaintiff’s activities, especially in the context of his sporting activities. It is clear that the sequelae for the Plaintiff were not as significantly impacting upon his day-to-day activities as he indicated to medical personnel. That is not to say that there were no sequalae but is a matter of the degree of injury sustained. 24. The responses of the Plaintiff to these issues are important in the context of the section 26 application and also in the context of credibility generally. CONCLUSION 25. (i) Section 26(1) of the Civil Liability and Courts Act, 2004 concerns fraudulent actions and requires that a number of elements be proved. They are: (a) The plaintiff must give or adduce or dishonestly cause to be given or adduced in personal injuries action evidence that is false or misleading and (b) which he knows to be false or misleading. Where these elements are provided, the court shall dismiss the Plaintiff’s claim unless such dismissal would result in injustice being done and where a court concludes that the claim should not be dismissed due to such injustice, it must state its reasons for reaching such decision. (ii) Section 26(2) provides likewise in relation to matters sworn in a verifying Affidavit. (iii) “dishonestly”, for the purposes of sub-section (1), is defined as being an act done with the intention of misleading the court. 26. The approach to be taken to section 26 applications has been the subject of a detailed and most helpful decision by Collins J. in O’Sullivan v. Brozda and Ors [2022] IECA 163. The principles applicable are: (a) The onus of establishing that the legislative provision is satisfied rests with the Defendant; (b) The alleged falsehoods must have materiality in terms of the claim being advanced by the Plaintiff and must be false and misleading to a material degree; (c) The provision having been described as “draconian” (Carmello v. Casey [2007] IEHC 362 (Peart J.), Collins J. stated that “the threshold requirements must be clearly established”; (d) The Plaintiff must be afforded a clear opportunity to be heard in respect of the allegations being made against him; (e) The legislative provision has an exception in the context of “injustice being done”. 27. I have considered the cases of Khalid v. Davis and Anor [2022] IEHC 519 (Hyland J.) and also the decision of the Supreme Court in Vesey v. Bus Eireann [2001] 4 IR 192. I am satisfied that the circumstances in those cases were entirely distinguishable from the present. Those authorities involved a failure to disclose prior accidents and clearly involved actions or non-disclosures by the Plaintiff of matters known to him which were materially relevant to the claim being pursued, the case having been, as described in the latter case by Hardiman J., “entangled as a result of lies and misrepresentations systematically made by the Plaintiff himself”. This is not the position here. Arguably, here there were lies and misrepresentations made by a third party in relation to a separate claim being made by such third party on his own behalf arising out of this incident. The Defendant herein seeks to visit the actions or misdeeds of the third party upon the Plaintiff. While the Plaintiff, in my view, must have had some knowledge of the actions of the third party, I do not consider that the dishonesty envisaged in the legislation arises here in the context of the Plaintiff’s behaviour concerning the claim made and pursued by him. I am not satisfied that section 26 arises or is engaged in this case either in respect of the Affidavits of Verification or in respect of the oral testimony of the Plaintiff at trial and, if I am wrong in this, I am not satisfied that section 26 has been proved. While I make no determination in this regard as it is not before me to be determined, it appears that a third party engaged in acts post the accident the subject matter of the within proceedings with a view to making enhanced claims and/or receiving additional sums in respect of vehicular damage occasioned. It appears that such person had some degree of success in this regard in terms of sums paid out to him by the insurers in respect of material loss (vehicle damage and loss of use). However, this was not done by the Plaintiff. The Plaintiff in no way sought to rely upon enhanced damage to the car as causing or exacerbating his injury. The Plaintiff accepted that the damage to the car was as per the photographs of the Second Named Defendant and he never advanced any position other than that the damage to the vehicle was minimal. Indeed, his medical evidence was based upon the fact that the injuries which he asserted could have been caused by a minimal impact collision such as occurred. Section 26 of the 2004 Act is an important piece of legislation but it is aimed at addressing the undesirability of fraudulent claims. Here I do not consider that there was such a claim brought by the Plaintiff. There was a collision. He was rear-ended. He did not give, adduce or dishonestly cause to be given or adduced any evidence other than that of a minimal collision. I expect that he must have had some knowledge of the actions of the third party (he was leasing the vehicle over the period when the minimal damage was enhanced) but he did not seek to nor did he in any way benefit or seek to benefit from such enhanced damage. 28. In relation to the personal injuries which he suffered, I am satisfied on the evidence that this was a minimal impact collision. The evidence supports that the Plaintiff was aware that his car had been hit from behind. It is undoubtedly the case that there was a conversation between the Plaintiff and the Second Named Defendant concerning the accident immediately after it occurred. I accept that the Plaintiff finished his shift immediately following the accident. He was in a position to alight from the vehicle post-accident and to drive home. He continued to work in the coming days and weeks and no claim for loss of earnings is made. I have considered all of the medical reports adduced. These appear to me to support a finding of soft tissue injury to the neck, right shoulder and elbow. I note that there is reference to multilevel degenerative changes in the cervical spine which would appear unrelated to the accident. I accept that the Plaintiff suffered neck and shoulder discomfort afterwards but I consider this to be at the lower end of the scale in respect of such injuries. On the evidence before me (including that of the private investigator), I cannot conclude that the extra- curricular activities of the Plaintiff were impacted to the degree which he indicated. I have formed the view that the neck injury was the dominant injury and that this lasted for a duration in the region of 12 – 24 months. I assess it as being in the lower moderate category. Having regard to the Personal Injuries Guidelines and to the decision of the Court of Appeal in Meehan v. Shawcove Ltd [2022] IECA 208 and to the decision of this Court in Somers v. Commissioner of An Garda Siochana and Others [2025] IEHC 388, I will award a sum of €15,000 in respect of this injury. I consider the secondary, non-dominant injury to relate to the Plaintiff’s shoulder and elbow with, perhaps, some pain radiation to his fingers, in the minor category. In this regard, I will award an uplift of €7,000. I will therefore award the Plaintiff general damages in the sum of €22,000. 29. I have had full regard to the decision of Simons J. in Doyle v. Donovan [2020] IEHC 11 and to the decisions referenced therein concerning the award of aggravated damages. Having considered all of the facts of this case, I am not satisfied that this is an appropriate case in which to award aggravated damages. I do not consider that there is anything in the manner in which this case was conducted by the Defendants which would justify a manifestation of disapproval by making such an award. 30. I will allow the special damages in accordance with the Schedule provided to me dated the 17th October 2025. The total on this Schedule is €985. 31. The total award of damages is €22,985. 32. Indicatively, on the basis of the foregoing, I am minded to award to the Plaintiff the costs of the Circuit Court on the basis that the award is within the Circuit Court jurisdiction. In relation to the appeal, there were two main arguments advanced by the Defendant namely that the claim should be dismissed pursuant to section 26 as discussed above and that the quantum of damages awarded was excessive. The Defendant has been unsuccessful in the former and successful in the latter. In consequence, as regards the appeal, indicatively, I will make no order as to costs, each of the parties being partially successful. I will grant to the parties’ liberty to mention this matter in respect of costs within 28 days of the date of this judgment but, failing such application, I will make an Order in accordance with the indication referenced above.