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1. It is not unusual in running-down actions that the alleged circumstances of the accident in question as deposed by each party have little in common. It does not follow that any such witness is deliberately untruthful. In most instances the explanation for the disparity in recollection is that their purported memory of events has been coloured by their own particular interest. However, in this action the disparity between the rival accounts of the accident is profound and raises an issue of deliberate falsehood.

2. The plaintiff is 50 years of age. He is a married man and resides in Manorhamilton, Co. Leitrim where he carries on practice as a solicitor. At about 6.30 p.m. on 17th July, 1996 he drove his BMW motor car from the Dublin city centre towards Clontarf. As he approached Fairview Park there was heavy outgoing traffic in three lanes. He was driving in that nearest to the centre of the road. As he approached the Malahide road junction the lights turned red against the outgoing traffic which was brought to a halt. He stated that he was about the twentieth vehicle from the lights when he stopped and that he was the last car in his line. The lights changed and the vehicles ahead of him moved off in sequence. As he was about to move forward he heard a screech of brakes behind him and he looked in his mirror. He saw a van with a protecting bullbar heading towards him and about ten feet away at that time. His car was still stationary. There was what he described as "a huge impact". Substantial damage was done to the rear of his vehicle and the cost of repairs was admitted as being £3,273.00. The impact was such that it drove the chassis forward and also the rear section of the car which jammed one of the back doors. The plaintiff says that he suffered severe shock which caused him to vomit when he got out of the car. His neck felt very sore and also his shoulders and lower back. The plaintiff also stated that the defendant, who was the driver of the van, came over to him and said that he was sorry for what he had done and added "I thought you were moving forward. I braked but couldn't avoid hitting you". The defendant accepted full responsibility and never alleged that the plaintiff had any fault in the matter. The plaintiff enquired "will I get the guards" and the defendant responded that there was no need to do so as the accident was his responsibility. He suggested that they should move their vehicles to the side of the road as they were obstructing traffic. He then took out a piece of paper which was produced in evidence on which he wrote his name and address; the name and address of his insurance brokers; the name of his insurance company; his policy number; registration number; mobile phone number and home phone number. The plaintiff wrote on the paper "white Nissan van diesel" and later that night when he returned home his wife, who works with him in his practice, added "RTA 17/7/96 6.40 p.m."

3. The plaintiff says that he gave the defendant his name and address but does not know whether the latter wrote it down. He denied having reversed into the van. He does not recall any third party appearing on the scene. At the end of the incident the parties shook hands and went their separate ways. Both vehicles were drivable. The plaintiff denied that the defendant at any stage left the scene for the purpose of phoning the police or for any reason.

4. A full defence was delivered in due course in which it was alleged by way of contributory negligence that the plaintiff had suddenly and without warning reversed into and collided with the defendant's van and that at the time the plaintiff was driving his motor car he knew or ought to have known that it was unsafe so to do by reason of his consumption of alcohol. In fact the plaintiff has been a total abstainer from alcohol all his life and has been a member of the Pioneer Total Abstinence Association since his school days. This fact was unreservedly conceded by Mr. McKenna on behalf of the defendant at the commencement of the trial and that aspect of the defence was withdrawn.

5. The defendant's evidence was in stark contrast to that of the plaintiff. He said that there was no bullbar on his van. He was travelling in the same line of traffic as the plaintiff and, with him, was stationary at the Malahide lights. There was one other car between the vehicles. As they were all waiting for the green light the latter car indicated an intention to move into the middle lane and did so. At that point the defendant moved forward to take its place behind the plaintiff. As he was doing so the latter reversed back at speed. He applied his brakes. At the time when the defendant moved forward there were only two vehicles ahead of him i.e. the BMW and a vehicle immediately in front of it which he thought had broken down. In the event it drove away and the defendant ultimately conceded that it had not broken down but its engine may have stalled temporarily. He described the impact between the BMW and the van as being "soft". Only £150 worth of damage was done to his vehicle. He did not make any claim on the plaintiff as he thought that his insurers were doing so on his behalf even though he had only third party cover. In fact no claim was made on the plaintiff by or on behalf of the defendant.

6. The defendant stated that when he got out of his car, he was very irate and swore at the plaintiff. He contended that the latter explained that the car in front of him had remained stationary when the lights had changed and he was trying to manoeuvre around it. He put his hand on the back of his neck and said that he had a slight pain there. The defendant asked if he would get medical assistance for him, but the plaintiff assured him "not to worry that he was okay". He did not see the plaintiff vomiting. He stated that they were unsure what to do at that point as there was a considerable build-up of traffic. The plaintiff suggested that they should move their vehicles to the side of the road. The defendant added that he was beginning to calm down then and the plaintiff told him not to worry that he would sort everything out and fix things up. The defendant told him that he would ring the guards and asked the plaintiff to hold on until he found a telephone. In the event he couldn't find a phone in neighbouring shops and when he came back to the scene the plaintiff had left. When asked about his mobile phone he alleged that when he returned to the van for the purpose of driving it to the side of the road he found that the phone had been damaged in the accident and, therefore, was not available to him for phoning the police.

7. Notwithstanding Mr. McKenna's formal withdrawal of the allegation about alcohol and his acceptance that the plaintiff is a lifetime total abstainer, the defendant persisted in alleging in evidence that the plaintiff's manner was very unusual and that he had smelt alcohol from his breath. He alleged that he reported the accident at Clontarf Garda Station that evening. An officer questioned him about the incident but made no record of it when he learned that there had been no personal injury involved.

8. The defendant also contended that when he returned to the scene having made an abortive effort to find a telephone, a man who he previously did not know came over to him with a piece of paper on which he had written his name and address. He handed that to the defendant and told him that he had witnessed the accident from a nearby bus-stop. They had no other discussion at that time and the man walked back to the bus-stop again. His name was Frank Roche and the defendant stated that he called to him about a week later and then found out what he had seen.

9. Mr. Roche gave evidence on behalf of the defendant. He said that he was standing at a bus-stop on the Fairview Park side of the road near the place where the accident happened. He was waiting with two or three others for a bus to bring him into the city. He stated that there were three rows of outward going vehicles stopped at the Malahide road traffic lights. There was a car between the van and the BMW which drove out of the line and "the van moved up a small bit and the BMW backed into him". He stayed at the bus-stop but after the vehicles had moved to the other side of the road he crossed over using a nearby footbridge and gave the defendant a piece of paper on which he had written his name and address. About 15 minutes had elapsed by then since the happening of the accident. Subsequently he was interviewed at his home by an official from the defendant's insurance company. He was given a form which he completed in the presence of the latter. The form included the following question 9:- "Was there anything to obstruct the view of either driver?" In answer he wrote down "Car broke down in front of BMW". His description of the accident on the form was "Car broke down in outer lane going to Clontarf. BMW reversed back and hit the van. Both drivers got out. I heard the van driver ask the BMW driver why he reversed. BMW driver never answered the other driver." In the course of his evidence Mr. Roche stated that he did not hear any conversation between the parties. He indicated that he was hard of hearing and he had heard no screech of brakes. It had also emerged from the evidence of the defendant, if true, that the plaintiff had left the scene before Mr. Roche approached him with his piece of paper.

10. If there had been no other liability evidence the plaintiff's version of events might not have been accepted by the court. However, there was another crucial witness whose identity was unknown to either party at the time of the accident or for some substantial time thereafter. Garda Peter Connolly of Clontarf Garda Station deposed that he had witnessed the accident. He was on leave at the time and was driving towards the city. As he moved from the traffic lights at Malahide road he saw the defendant's van "smash into the back of a black BMW". He did not stop but called to the station for the purpose of arranging for a police car to investigate the accident. Nearly a year later when the plaintiff called to the station to enquire whether the gardai had any information about the accident he learned that Garda Connolly had witnessed it. At the time when the latter witnessed the accident he said that he was close to the van and the BMW - so close that he feared the van would swerve out and strike his car also. He stated that the plaintiff did not reverse into the van. Garda Connolly also confirmed that it was the established practice at Clontarf Garda Station at that time to record in a ledger brief details of traffic accidents when reported by members of the public. He had checked the ledger and there was no record of the alleged report made by the defendant.

11. I unreservedly accept the account of the accident given by the plaintiff and Garda Connolly, a truly independent witness. I reject the defendant's testimony and also that of Mr. Roche. The defendant's evidence in particular must be deliberately false if (as I find) the plaintiff's testimony is truthful. As to Mr. Roche; it is highly improbable that 10 or 15 minutes after the accident he would have left the bus-stop and used the pedestrian bridge to get to the other side of the road for the purpose of handing his name and address on a piece of paper to the defendant without any discussion about what he had allegedly seen. On his own evidence he had been waiting for a bus into the city at that time for 25 minutes or thereabouts. Furthermore, I do not accept that the accident form was completed by him in the presence of an insurance official. If such a person had called to see him the probability is that the latter would have recorded the witness's answers - particularly as Mr. Roche is not a good writer. Furthermore, the description of the accident on the form and the answer to question number 9 suggests the likelihood of collaboration with the defendant. In the light of the plaintiff's and Garda Connolly's evidence it is impossible to avoid the inference that for whatever reason there has been collusion between the defendant and Mr. Roche for the purpose of establishing the innocence of the former as to responsibility for the accident by way of deliberately false testimony at least on the part of the defendant. This sinister conduct raises an issue as to whether in all the circumstances the plaintiff is entitled to exemplary damages arising out of the reprehensible behaviour of the defendant. I am satisfied that he is entitled to be compensated on that basis. In coming to that conclusion I have also taken into account the persistance of the defendant in falsely swearing that after the accident the plaintiff smelt of alcohol.

12. The law as to exemplary damages in this jurisdiction is defined in the judgments of the Supreme Court in Conway -v- Irish National Teachers Organisation [1991] 2 I.R. 305. Finlay C.J. specified the three headings of damages in Irish Law which are "potentially relevant to any particular case". The third category he described as follows:-

13. See also my judgments in Lyons -v- Elm River Limited and Another delivered on 16th February 1996 (unreported) and F.W. -v- British Broadcasting Corporation delivered on 25th March 1999 (unreported).

14. I have no doubt that the facts which I have found bring the instant case within the ambit of the foregoing precept ennunciated by Finlay C.J. in Conway -v- I.N.T.O. and amply justify an award of punitive damages.

15. It is not in dispute that the plaintiff suffered a significant soft tissue whiplash injury involving his neck and shoulders. There is also a lesser injury affecting the lumbar spine but that may not be wholly associated with the accident. The plaintiff travels about 40,000 miles a year in connection with his practice as a solicitor and this causes him substantial discomfort and pain which comes on in the evening. He continues to require four or five analgesic tablets a week. Cold weather causes pain. He has had substantial periods of physiotherapy which has not brought about much improvement. The plaintiff was referred to Mr. Martin Walsh, orthopaedic surgeon, who comments in a medical report that:-

16. Dr. Desmond McManus, who continues to treat the plaintiff, gave evidence and expressed the opinion that the whiplash injury suffered by him is one from which he will ultimately make a complete recovery but it may take up to five years for that to come about. It is evident that the plaintiff's working pattern is tending to militate against him and I accept that he is suffering a significant degree of ongoing pain and discomfort which may continue for another year or so.

17. Special damages have been agreed at £4,750.00. I assess general damages for pain, suffering and disablement up to now and into the future at £30,000.00. I assess exemplary damages at £7,000.00 making in all the sum of £41,750.