How an injury claim took eight years to be dismissed

If one is to believe Ian Butler, he was sitting in the driver’s seat of his silver-coloured Transit van, talking to his mother who was standing on the pavement, when another van hit the side of his, causing an injury to his back.

The problem for Mr Butler is that the Circuit Court did not believe him. The judge threw his case out, branding it “not credible” and “highly suspicious” and said there was “no evidence” to support the central proposition – that Mr Butler sustained an injury for which he should be compensated.

Notwithstanding this, Mr Butler appealed to the High Court. But here again, his assertions were found to be unbelievable and, on the first day of this month, his case was thrown out for a second time.

Mr Justice Donald Binchy declared that he was not persuaded an “accident” had occurred as described, and neither was he persuaded that Mr Butler sustained any injuries.

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To reach this conclusion, however, took almost eight years, involving along the way the expertise of publicly-funded judges and court staff, plus the time of two courts.

The case also involved two legal teams – one senior and one junior counsel for Mr Butler, and two senior counsel for the defending insurance company, plus two sets of solicitors, one for each side – along with two doctors, a consultant and a general practitioner, who gave evidence about X-rays, an MRI scan, referrals for physiotherapy and prescriptions for painkillers.

While all costs in the case were awarded against Mr Butler, it is unknown if he has the wherewithal to discharge his legal debts, let alone those of the insurance company, Aviva. If not, the company will have to pay its own costs with money derived from premiums paid by its customers.

Legal sources suggest that in defending the action, Aviva will have clocked up a bill close to €20,000. There is no reason to suppose that had Mr Butler won, his legal costs would have been any different and in that instance, they too would have been paid by the insurance company.

As it is, sources indicate that Mr Butler’s lawyers are unlikely to be paid.

Nothing turns on the case, as lawyers might put it, but it illustrates how a relatively minor claim for compensation, twice judged to be without merit, wends its way through the system for years, gobbling up time and money.

While this case was disposed of quickly once it got to court, and hence costs were not vast, other cases can be more costly – both in terms of time and money.

Crash

The case originated with an incident, said by Mr Butler to have occurred sometime between 11.30pm and 1am on the night of November 26th/27th, 2011. The absence of a precise time is because his evidence varied between the two trials but it is largely irrelevant.

According to his own evidence, Mr Butler was sitting in his van outside his mother’s house on Downey Street in the Killalee area of Limerick city, and was chatting to her as she stood on the pavement.

He had pulled up with the driver’s side next to the kerb and sat there, with his seatbelt on. His mother came out of her home, walked over to the van and stood there chatting when something happened. Allegedly.

Another van, this one driven by an Adam Lipper, a man in his 20s whom Mr Butler knew, having earlier that day been discussing with him the purchase of chrome bars, crashed into the side of Mr Butler’s van, according to Mr Butler.

“I got a shock,” Mr Butler told the court, “there was a big bang, like. There was a heavy impact on the van.”

In due course, however, Mr Lipper’s account of what occurred would differ markedly from that of Mr Butler.

“There were loads of people around,” Mr Butler (32) told the Circuit Court hearing of his claim on July 19th last. So these alleged witnesses, not mentioned by Mr Butler, until giving evidence in court, might be expected to be available to corroborate his evidence.

Mr Lipper, who was insured with Aviva, admitted causing the collision with Mr Butler’s car, and the company paid some €3,600 to have Mr Butler’s van repaired.

There is no reason to suppose that Mr Lipper had any involvement at all in Mr Butler’s compensation claim to which Aviva was not prepared to accede – because it didn’t believe Mr Butler’s version of events.

Statement

Mr Lipper gave a statement to company investigators in which he said Mr Butler’s van was empty when he hit it and his description of the crash tallied with the actual damage. Crash inspectors took the view that the crash, as described by Mr Lipper, probably happened.

Mr Butler insisted in evidence that he was sitting in the van when Mr Lipper crashed into it and was not, as Mr Lipper asserted, in his mother’s house when Mr Lipper knocked on the door after the accident.

He had to be in the van order to sustain the alleged back injury for which he was claiming compensation.

He did not tell the insurance company that he was in the van when asked for details, through his solicitor, after the crash.

Why? He was asked in court.

“I don’t know,” he replied.

“What’s there to hide by not telling us?” asked defending barrister Michael Collins SC for Aviva.

“I’m not hiding anything,” said Mr Butler.

But none of the “loads” of people around at the time of the crash, identified in court by Mr Butler to include his brother, his cousin and his girlfriend, was called by him to give evidence supporting his story.

In court, Mr Butler was questioned closely, by defending counsel and by Judge Terry O’Sullivan, as to the plausibility of his claim that, as Mr Collins put it, “at half past midnight, one o’clock in the morning, in the middle of the depths of a Limerick winter . . . you happened to pull up outside your mother’s house . . . [and] that she was standing on the footpath”.

Mrs Butler gave evidence supporting that of her son.

Mr Butler claimed that he sustained lower back injuries and went to Limerick Regional Hospital the next day. “They gave me X-rays and painkiller and things,” he said for “soft-tissue damage” to his lower back.

He also went to his GP.

“How is your back now?” Mr Butler was asked in court.

“I still suffer with pain in it,” he told his barrister, Elaine Power. “It comes to me if I do any heavy lifting or anything.”

A consultant gave evidence of Mr Butler’s spine showing, about 4½ years after the crash, some long-standing pre-existing and moderate degeneration.

Mr Butler’s GP agreed in evidence that it was “quite clear” there were no objective findings to support Mr Butler’s assertions of back pain.

“So, what you’re left with is a subjective recounting of symptoms from the patient, isn’t that right?” asked Mr Collins.

“Yes,” said the GP, Dr Ronan Ryder.

For the judge, Mr Butler’s version of events on Downey Street was “highly suspicious”.

“I have, let us just say, considerable hesitation in accepting the plaintiff’s version of events,” he said. “I haven’t been given a credible version of events, in my opinion, about the plaintiff . . . There’s no evidence objectively that he was injured at all so I’m going to dismiss his case.”

High Court

Eight months later, on March 1st in the High Court, the evidence was rehearsed once more by both legal teams; Mr Butler gave evidence in person and medical reports were presented to the court.

It all cut no ice with Mr Justice Binchy, however, and he affirmed the Circuit Court judgment, saying it was “quite bizarre” that none of the people allegedly in the vicinity of the incident had been called to support Mr Butler’s testimony.

Proceedings arising from the November 2011 “accident” had run their course. During them, it emerged that the unfortunate Mr Butler had had another accident, on January 15th, 2012, less than two months after the incident on Downey Street.

Represented by the same firm of solicitors, Holmes, O’Malley Sexton, against another insurance company, a settlement was reached.

Mr Butler told Mr Justice Binchy that he had got money from that case.

Which means that his lawyers will also have been paid.

Asked about the case, a spokesman for Holmes, O’Malley Sexton said: “It is not appropriate for the firm to comment on client business. However, it goes without saying that together with the barristers involved in this case, we will review both the judgment and the comments made by the judge with care.”

Rob Smyth, head of fraud at Aviva Insurance, said: “We very much welcome the court’s decision in dismissing the appeal, it is a vindication of our approach and we will continue to fully defend similar spurious claims.

“Although defending these claims is a costly exercise, settling a claim for a lower financial amount is not an option. We will allow the judge to decide the outcome and where appropriate make all efforts to recover our costs.”