The High Court has allowed a defendant to amend his defence in a personal injuries case, so that the dispute over the plaintiff’s injuries can proceed with a seatbelt issue in play.
Virginia O’Gorman alleges that she was a front-seat passenger in a car driven by Damien Hally when it went out of control and rolled over in June 2010. She claims she suffered serious injuries and related losses. Hally admitted liability in his 2013 defence but put her to proof of her injuries and losses.
The judgment says later investigations by Hally’s insurer, AXA Insurance Limited, and disclosure of medical records changed the understanding of events. Hally later told AXA that he had consumed alcohol that evening and that he and O’Gorman had argued in the car. Medical notes disclosed in 2014 recorded that O’Gorman appeared to have told a hospital doctor she had left a birthday celebration with Hally in her husband’s car and did not think she was wearing a seatbelt. Her earlier replies to particulars had stated that she was wearing one.
AXA sought to amend the defence to plead, among other matters, that O’Gorman was negligent or contributorily negligent. She objected, citing the time between discovery of the medical notes in May 2014 and AXA’s solicitors contacting her solicitors in January 2016. AXA attributed the delay to reporting suspected fraud to An Garda Síochána under section 19 of the Criminal Justice Act 2011, reviewing the records and Hally’s changed account.
Mr Justice Max Barrett considered the application under Order 28, rule 1 of the Rules of the Superior Courts, which allows pleadings to be amended where just and necessary to determine the real issues. He also considered prior decisions on amendments and prejudice. The judgment describes prejudice as needing to arise from the late change in the case, such as making it impossible or significantly harder to respond or disrupting proceedings.
The court found no such prejudice to O’Gorman and said the delay had been adequately explained. It considered that refusing the amendment risked the case being decided on a mistaken understanding of the facts. The court granted Hally leave to serve an amended defence. The judgment does not decide whether O’Gorman was wearing a seatbelt, whether she was contributorily negligent, or the underlying personal injuries claim.