By Ruth Mercer
The High Court has dismissed a Kilcoole labourer's damages claim over an assault in a local pub after finding that he deliberately gave false and misleading evidence about what happened before he was punched.
Terence Gammell suffered a fractured left cheekbone when David White struck him in Lee's Public House in Kilcoole, County Wicklow, on St Stephen's Day 2005. White later pleaded guilty to assault and received a two-and-a-half-year suspended prison sentence.
Gammell's civil case initially included the pub owner, William Doyle, but that part was settled before trial. The remaining claim against White turned heavily on the events immediately before the punch.
Gammell told the court that the attack came effectively without warning. White and other witnesses gave a different account. They said Gammell was drunk, had long been barred from the pub, made crude sexual remarks about White's wife, insulted the family of a young man whose wake was taking place and repeatedly poked White while pressing close to him.
Mr Justice Hanna preferred the evidence of White, his wife and other defence witnesses. He found that Gammell had engaged in prolonged, highly provocative behaviour which triggered White's unlawful and dangerous response.
The judge stressed that the provocation did not justify the assault. Had the damages claim otherwise proceeded, he would have assessed general damages at €15,000 for pain and suffering to trial and €25,000 for future symptoms. He would then have reduced the award by 50% for contributory negligence because of Gammell's conduct.
However, the court went further under section 26 of the Civil Liability and Courts Act 2004. That provision requires dismissal of a personal injuries action where a plaintiff knowingly gives materially false or misleading evidence, unless dismissal would cause injustice.
Hanna J found that Gammell's account was deliberately false and intended to avoid blame that could reduce his damages. The judge concluded that dismissing the action would not cause injustice, noting that White had already been dealt with through the criminal courts.