Concurrent Wrongdoers
Civil Liability Act 1961
Chapter I
Liability of concurrent wrongdoers
Persons who are concurrent wrongdoers.
11.— (1) For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this Part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them.
(2) Without prejudice to the generality of subsection (1) of this section—
( a) persons may become concurrent wrongdoers as a result of vicarious liability of one for another, breach of joint duty, conspiracy, concerted action to a common end or independent acts causing the same damage;
( b) the wrong on the part of one or both may be a tort, breach of contract or breach of trust, or any combination of them;
( c) it is immaterial whether the acts constituting concurrent wrongs are contemporaneous or successive.
(3) Where two or more persons are at fault and one or more of them is or are responsible for damage while the other or others is or are free from causal responsibility, but it is not possible to establish which is the case, such two or more persons shall be deemed to be concurrent wrongdoers in respect of the damage.
(4) F4 [ … ]
(5) Where the same or substantially the same F5 [ defamatory statement ] or injurious falsehood is published by different persons, the court shall take into consideration the extent to which it is probable that the statement in question was published directly or indirectly to the same persons, and to that extent may find the wrongdoers to be concurrent wrongdoers.
(6) For the purpose of any enactment referring to a specific tort, an action for a conspiracy to commit that tort shall be deemed to be an action for that tort.
F6 [ (7) In this section ‘ defamatory statement ’ has the same meaning as it has in the Defamation Act 2009. ]
Annotations:
Amendments:
F4
Repealed (1.01.2010) by Defamation Act 2009 (31/2009), s. 19(4), S.I. No. 517 of 2009.
F5
Substituted (1.01.2010) by Defamation Act 2009 (31/2009), s. 7(2)(a)(i), S.I. No. 517 of 2009.
F6
Inserted (1.01.2010) by Defamation Act 2009 (31/2009), s. 7(2)(a)(ii), S.I. No. 517 of 2009.
Extent of liability.
12.— (1) Subject to the provisions of sections 14, 38 and 46, concurrent wrongdoers are each liable for the whole of the damage in respect of which they are concurrent wrongdoers.
(2) Where the acts of two or more persons who are not concurrent wrongdoers cause independent items of damage of the same kind to a third person or to one of their number, the court may apportion liability between such persons in such manner as may be justified by the probabilities of the case, or where the plaintiff is at fault may similarly reduce his damages; and if the proper proportions cannot be determined the damages may be apportioned or divided equally.
(3) Subsection (2) of this section shall apply to two or more persons whose acts taken together constitute a nuisance, even though the act of any one of them taken alone would not constitute a nuisance, not being unreasonable in degree.
Joinder of defendants.
13.— An action may be brought against all of concurrent wrongdoers or against any of them without joining the other or others, but the court shall have power—
( a) in an action for the execution of trusts, to require the trust estate to be properly represented;
( b) in an action where the title to property is in question, to require the joinder of all those interested or claiming to be interested in the property.
Judgments to be several.
14.— (1) Where judgment is given against concurrent wrongdoers who are sued together, the court may give judgment against the defendants together or against the defendants separately and, if the judgment is given against the defendants together, it shall take effect as if it were given against them separately.
(2) Subject to subsections (3) and (6) of this section and to sections 38 and 46, each of the said judgments shall be for the full amount of the plaintiff’s damages in respect of which the defendants are concurrent wrongdoers, together with any further damages in respect of which the particular defendant against whom judgment is given is individually liable and, if the same jury has in its verdict apportioned damages between the defendants on the basis that the total of the damages awarded is meant to be equivalent to the plaintiff’s loss resulting from the concurrent wrongs, the plaintiff shall be entitled to judgment against the defendants for the aggregate of such damages.
(3) The plaintiff may agree to accept an apportionment of his damages among the defendants according to their degrees of fault and, in this event, the following provisions shall take effect—
( a) satisfaction of one judgment shall not operate as satisfaction of the others;
( b) the defendants shall have no right of contribution among themselves;
( c) the plaintiff, at any time within the period limited by law for the enforcement of judgments and upon proof that, after taking reasonable steps, he has failed to obtain satisfaction of any judgment in whole or in part, shall have liberty to apply for secondary judgments having the effect of distributing the deficiency among the other defendants in such proportions as may be just and equitable.
(4) Where the court would be prepared to award punitive damages against one of concurrent tortfeasors, punitive damages shall not be awarded against another of such tortfeasors merely because he is a concurrent tortfeasor, but a judgment for an additional sum by way of punitive damages may be given against the first-mentioned tortfeasor.
(5) The judgment mentioned in subsection (4) of this section may specify that such additional sum is awarded by way of punitive damages, and no contribution shall be payable in respect thereof by a tortfeasor against whom such judgment could not properly have been given.
(6) Where, in F7 [ a defamation action under the Defamation Act 2009 ], one of concurrent tortfeasors would have been entitled to a mitigation of the damages payable by him had he been a single tortfeasor, but another of the said tortfeasors would not have been so entitled, the first-mentioned tortfeasor shall be entitled to the said mitigation of damages and shall not be compellable to make contribution except in respect of the amount of damages payable by him; and the judgment against him may be given accordingly.
Annotations:
Amendments:
F7
Substituted (1.01.2010) by Defamation Act 2009 (31/2009), s. 7(2)(b), S.I. No. 517 of 2009.
Judgment by default.
15.— (1) Where one of concurrent wrongdoers who are sued together makes default of appearance or defence, the plaintiff may obtain an interlocutory judgment against him and damages shall be assessed against him—
( a) at the same time as damages are assessed at the trial against the other defendants who appear;
( b) if the plaintiff fails against such other defendants or discontinues his action against them, separately under the interlocutory judgment.
(2) If the plaintiff fails against the defendants who appear for a reason that goes to the liability of all, the interlocutory judgment shall be discharged.
(3) If the plaintiff’s damages against the defendants who appear are reduced under subsection (1) of section 34 on account of the plaintiff’s contributory negligence, damages shall be assessed under the interlocutory judgment as if the defendant had appeared.
(4) This section shall not apply to any head of damage in respect of which the defendant who makes default and the defendants who appear are not concurrent wrongdoers.
Discharge and estoppel by satisfaction.
16.— (1) Where damage is suffered by any person as a result of concurrent wrongs, satisfaction by any wrongdoer shall discharge the others whether such others have been sued to judgment or not.
(2) Satisfaction means payment of damages, whether after judgment or by way of accord and satisfaction, or the rendering of any agreed substitution therefor.
(3) If the payment is of damages, it must be of the full damages agreed by the injured person or adjudged by the court as the damages due to him in respect of the wrong; otherwise it shall operate only as partial satisfaction.
(4) An injured person who has accepted satisfaction from one alleged to be a wrongdoer, whether under a judgment or otherwise, shall, in any subsequent proceeding against another wrongdoer in respect of the same damage, be estopped from denying that the person who made the satisfaction was liable to him; and the liability of such person shall be conclusively assumed for the purpose of the said proceeding: but the injured person may litigate in the said proceeding any question of law or fact relative to the liability of the defendant to such proceeding, other than the question whether or not the said satisfaction was made by one liable to the injured person.
Annotations:
Modifications (not altering text):
C12
Application of section extended (1.06.2004) by Personal Injuries Assessment Board Act 2003 (46/2003), s. 41, S.I. No. 252 of 2004.
Order to pay to operate as satisfaction of claimant’s claim.
41.—(1) If the amount or amounts specified in an order to pay are paid to the claimant such payment shall constitute a satisfaction of the claimant’s relevant claim for the purposes of section 16 of the Act of 1961 as if the claimant had agreed that that payment would be a payment of the full damages to him or her in respect of the claim.
(2) If only a portion of the amount or amounts specified in an order to pay are paid to the claimant such payment shall constitute a partial satisfaction of the claimant’s relevant claim for the purposes of section 16 of the Act of 1961.
Release of, or accord with, one wrongdoer.
17.— (1) The release of, or accord with, one concurrent wrongdoer shall discharge the others if such release or accord indicates an intention that the others are to be discharged.
(2) If no such intention is indicated by such release or accord, the other wrongdoers shall not be discharged but the injured person shall be identified with the person with whom the release or accord is made in any action against the other wrongdoers in accordance with paragraph (h) of subsection (1) of section 35; and in any such action the claim against the other wrongdoers shall be reduced in the amount of the consideration paid for the release or accord, or in any amount by which the release or accord provides that the total claim shall be reduced, or to the extent that the wrongdoer with whom the release or accord was made would have been liable to contribute if the plaintiff’s total claim had been paid by the other wrongdoers, whichever of those three amounts is the greatest.
(3) For the purpose of this Part, the taking of money out of court that has been paid in by a defendant shall be deemed to be an accord and satisfaction with him.
Judgment against one wrongdoer.
18.— (1) Where damage is suffered by any person as a result of concurrent wrongs—
( a) judgment recovered against any wrongdoer liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as concurrent wrongdoer in respect of the same damage;
( b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of his estate, or for the benefit of his dependants, against wrongdoers liable in respect of the damage, the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action: but this paragraph shall not apply where the judgment first given was an apportioned judgment given in pursuance of section 14, section 38 or section 46.
(2) The reference in this section to “ the judgment first given” shall, in a case where that judgment is reversed on appeal, be construed as a reference to the judgment first given which is not so reversed and, in a case where a judgment is varied on appeal, be construed as a reference to that judgment as so varied.
Annotations:
Modifications (not altering text):
C13
Application of Act extended with modifications (1.06.2004) by Personal Injuries Assessment Board Act 2003 (46/2003), s. 43, S.I. No. 252 of 2004.
Application of section 18 of Act of 1961.
43.—For the purposes of the application of section 18 of the Act of 1961 in circumstances where a claimant is not barred from bringing proceedings against a non-participating or non-accepting respondent or respondents, an assessment of the claimant’s relevant claim or, if an order to pay in respect of it has been issued, that order to pay, shall be deemed to be an award of damages, of the amount or amounts specified in the assessment or the order to pay, made by the judgment first given (within the meaning of that section).
Judgment in favour of one alleged wrongdoer.
19.— (1) Where the injured person sues one or more of alleged concurrent wrongdoers and judgment is given for one defendant, the injured person shall be bound by the findings of fact in favour of such defendant in the injured person’s present or subsequent action against another or others of the alleged concurrent wrongdoers.
(2) ( a) For the purpose of subsection (1) of this section, where judgment is given for the said defendant on the ground of the injured person’s discontinuance, the injured person shall be bound by the allegations and denials in the said defendant’s defence as if they had been found in favour of the said defendant, so far as they are relevant to the defence of that defendant.
( b) Paragraph (a) of this subsection shall not apply unless, on the facts, the injured person is barred by his discontinuance from bringing a second action against the said defendant.
(3) Where an action is brought against concurrent wrongdoers and judgment is given against one and for another for a reason that goes to the liability of all, the first-mentioned judgment shall be discharged.
(4) Where an action is brought against concurrent wrongdoers and judgment is given against one without reduction of damages and against another subject to a reduction of damages under subsection (1) of section 34 on account of the plaintiff’s contributory negligence, the damages under the first-mentioned judgment shall be assessed subject to the same proportionate reduction, and the provisions of section 38 shall apply.
Limitation of actions against one of concurrent wrongdoers.
20.— For the purpose of the Statute of Limitations or any other limitation enactment concealed fraud by one of concurrent wrongdoers shall not suspend time for another or others.
Chapter II
Contribution between concurrent wrongdoers
Annotations:
Modifications (not altering text):
C14
Chapter applied with modifications (6.11.1981) by Malicious Injuries Act 1981 (9/1981), s. 21, commenced as per s.1(2).
Recovery of contribution by local authority.
21.— (1) For the purpose, and only for the purpose, of the recovery of contribution by a local authority against which an award has been made on an application for compensation under this Act, the local authority and the person or persons who caused the damage or loss to which the application relates shall be deemed to be concurrent wrongdoers within the meaning of the Civil Liability Act, 1961, and the provisions of Chapter II of Part III of that Act shall, in so far as they are applicable for the purpose of this section, apply and have effect.
(2) For the purpose of subsection ( 1), any reference to damages in the provisions applied by that subsection shall be construed as a reference to compensation under this Act.
Cases
Marsella v. J & P Construction Ltd.
[2004] IEHC 369 (30 November 2004)
Judgment of Mr Justice Michael Peart delivered on the 30th day of November 2004:
On the 19th March 1993, the plaintiff fell off a scaffolding platform while he was plastering a ceiling in the corridor of a school.
He was unconscious for about 15 minutes and received an injury to his head, right shoulder, right wrist, lower back, chest and right cheek. I will deal with these injuries in more detail in due course.
The defendant was the main contractor for the renovations being carried out at the school. The third party is also a plasterer, who was working alongside the plaintiff on the platform at the time, and who was joined by the defendant as a Third Party, on the understanding that the plaintiff was employed by the Third Party at the time of this accident, and on an understanding that the Third Party had also assisted in the erection of the scaffolding platform in question.
For reasons which I shall set out, I am satisfied that neither of these understandings is borne out by the evidence, and in so far as there were averments made for the purposes of the application to join the Third party, or pleadings or particulars to like effect, same are incorrect. I am satisfied that the Third Party has no liability to indemnify the defendant in relation to any liability found against the defendant company.
The relationship between the plaintiff and the Third Party:
These two men have known each other since they were teenagers. In 1989 the plaintiff was working in England as a plasterer, and around that time, Mr O’Grady went over to England and began to work as a plasterer with the plaintiff. The plaintiff returned to Dublin around 1990, and Mr O’Grady came back the following year. It was around that time that they started working as a plastering team. That is the most convenient way of describing the working/business relationship between them. They were not partners in the strict legal meaning of that term. There was no partnership agreement, either verbal or written, as lawyers understand that term, but they certainly worked as a team on jobs, and they had an agreed basis upon which the price for any job done would be split between them after allowing for the overheads and deductions. While this relationship defies any strict legal categorization, it is a relationship which enjoys a form of acceptance or recognition by the Revenue Commissioners. The relationship for tax purposes is based on a Form C45 used by registered sub-contractors. It is a relationship which does not attract the liability for each other’s debts and obligations in the way normally understood in a partnership, and it also contains a certain informal fluidity. The arrangement between the two men appears to have allowed for a situation where, if a particular job was obtained through a contact of Mr O’Grady’s then a business name of his namely “OG Plastering” would be named on the C45 form as the subcontractor to whom the main contractor would make his payment for the job sub-contracted, and the profit after overheads and disbursements would be equally shared between what is known as “the group”, which would comprise the plaintiff and any other plasterers on that job. The plaintiff therefore would be named on the C45 as the recipient of a certain sum, and would himself thereafter make his own return to the Revenue in respect of his tax liability.
Conversely, if a particular job was obtained through a contact of the plaintiff’s, the payment would be made to him by the main contractor, and Mr O’Grady would be named on the C45 as part of the group, and would be shown on the C45 as having received a certain sum, and would make his own return to the Revenue Commissioners. It would appear that this type of working relationship is well known in the trade, and applies not only to plasterers but also perhaps to other trades working regularly as subcontractors.
Much effort was expended on the part of the defendants in this case to establish that Mr O’Grady was in fact the employer of the plaintiff in the normal sense of that word, or alternatively that the pair constituted a partnership in the more usual or understood meaning of that term, in order to establish that Mr O’Grady, in either capacity, owed a duty of care to the plaintiff in the manner of the erection of this scaffolding, from which the plaintiff fell and injured himself.
However, without setting out all the evidence that was given and submissions made, and which will no doubt appear fully set forth in the transcript, if required, I am satisfied that that the relationship between the two men is not one, as a result of which the Third Party owed any duty of care to the plaintiff which is relevant to the injuries received by the plaintiff in this accident.
As I have said it is virtually impossible to categorize the relationship by the use of any term normally used to describe the relationship between two men working together. But I am satisfied that although there is some loose form of profit-sharing within the relationship, both are in reality self-employed persons who come together from time to time and work as a team, but without either being subsumed into any relationship with the other as an employee or into a partnership as such. One could perhaps describe it as a sui generis relationship enjoyed between sub-contractors in the plastering trade. I am satisfied on the evidence that the plaintiff was never employed by Mr O’Grady in the normal sense of the term “employed”. I am also satisfied that when the contract for the job at this school was negotiated, it was through a contact of Mr O’Grady, who knew the main contractor’s Mr Fitzpatrick. I am also satisfied on the evidence that at the meeting organised to discuss the job and agree the price, the plaintiff was also present with Mr O’Grady.
That is all sufficient to dispose of the Third Party issue, and it has been convenient to do so at the commencement of this judgment rather than to leave it to the conclusion. That leaves the issue of liability to be decided solely as between the defendant and the plaintiff, including the question of any contributory negligence on the part of the plaintiff himself.
The issue of liability as between the plaintiff and the defendant:
The evidence of the plaintiff and of Mr O’Grady who also gave evidence, is that it was agreed with Mr Fitzpatrick that the main contractor would provide the plasterers with the scaffolding necessary to do the plastering in the school, which included plastering the ceiling of the corridor in question. In fact, in fairness to Mr Fitzpatrick, he accepted in cross-examination by James Nugent SC for the plaintiff, when it was put to him, that the responsibility for ensuring that the scaffolding was in place for the plasterers was with the main contractor. There is no room for doubt on the evidence about this. I am satisfied that the primary responsibility for ensuring that a safe scaffolding was in place for the plasterers to work on lay with the defendant company. That is not to say however that experienced plasterers such as the plaintiff do not have some responsibility towards themselves to make sure that their working area is one which it is safe to enter upon and work in or, as in this case, on. I will come to that.
The plaintiff’s evidence:
The plaintiff stated that on this job the main contractor was to supply the scaffolding for the plasterers, in addition to items such as water and power. In his experience the plasterers would never provide their own scaffolding. He stated that prior to the Friday on which this accident happened there had apparently been scaffolding there but that it belonged to painters or other crews. This scaffolding was not going to be available on the Friday of that week, and it was apparently agreed by Mr Paul Fitzpatrick of the defendant company that he would provide his own scaffolding. The plaintiff has stated also that when he arrived to start the work on this day, he commenced work on lower areas while the scaffolding was being erected. He said that neither he nor Paul O’Grady took any part in the erection of the scaffolding itself that morning. He stated that at about 2pm he mounted the platform which was by then in situ. The platform was sitting on a concrete floor which was possibly tiled, although he was unsure about that. The planking on the scaffolding would have been about eight feet off the ground. He says that he noticed nothing unusual about the scaffolding which had been erected before he got up on it. It was constructed of two eight foot sections which were joined together making a sixteen foot length of scaffolding altogether. It was mounted on wheels, so that it could be moved up the corridor as required.
He says that Paul O’Grady was up on the scaffolding with him and that they were each working on the scaffolding, but starting from opposite ends as they plastered the ceiling in question. In the centre of the scaffolding was a table from which they took their supply of plaster onto their hawks. They were working overhead – in other words their heads were facing upwards as they worked. He stated that he would have been able to see the end of the scaffolding while working, so that he knew how far he could walk along the length, but that he could not see that there was in fact a gap between the end of the planking and the frame of the scaffolded platform caused by the fact that the planks did not quite reach the end of the sixteen foot length. In any event he states that about two minutes after he started work on the ceiling his foot went into the gap in question causing him to overbalance and he toppled over and fell to the floor beneath him. He described himself as flipping over and hitting the ground.
He was unconscious, and was eventually removed to St. James’s Hospital where he was treated for his injuries. I will return to those injuries later.
He was cross-examined by Kieran Fleck SC on behalf of the defendant. In answer to questioning the plaintiff stated that before getting onto the platform he checked it by shaking it to make sure it was steady, and he said “it looked okay”. He agreed that he had not carried out a detailed inspection before mounting it, but that he simply inspected it. It was naturally put to him that if he had carried out any sort of reasonable inspection he would have seen quite clearly that the planks were short at one end and that there was a gap, but the plaintiff felt that this would not necessarily be the case, given that the length of the platform was in the order of seventeen feet, and unless he got up onto the platform at that end, which he did not. The evidence appears to be that he started his plastering at the other end and worked his way down to the end where there was a gap.
He was asked about the size of the gap itself, and he described it as being about four feet in depth and one foot wide. The Court was shown some photographs of this platform albeit one taken on the following day, and after it had been re-located in another room off the corridor so that work could be done in that room, and it certainly confirms these dimensions of the gap, on an assumption that it was reconstructed in the other room in the same way as it had been for the work in the corridor when the plaintiff fell.
It was put to the plaintiff that he could not have been keeping a proper look-out for his own safety if he did not see this gap in the platform. However he stated that while he could see the pole at the end of the scaffolding he could not see the gap in the floor.
It was also put to him that Mr Fitzgerald who came on the scene from a room just off this corridor immediately after the plaintiff fell will say that, when he saw the scaffolding at that point in time, a cross-bar which was supposed to be in place at the end in question of this platform at a level of about 1 foot above the level of the planks, and which would act so as to stop somebody falling off the end of the platform, had been removed, and was in fact lying lengthways along the planks at that end of the platform. The plaintiff knew nothing about that but said also that this particular cross-bar, at the level it was at, would not in fact prevent anybody falling off the end, because it was only to knee height.
Mr Fleck also put it to the plaintiff that in fact what had happened was that the plaintiff had simply come to the end of the platform without realising it and had simply fallen off the end in the absence of this cross-bar being in place. The plaintiff reiterated that what had happened was that his foot had gone down into the gap and that he had then fallen over and onto the ground below, and that it was not the case that he had simply gone too far down the platform and fallen out over the end. The plaintiff agreed that nobody had made any complaint about this scaffolding to Mr Fitzpatrick before getting up onto it in order to work.
The plaintiff was also cross-examined by Marcus Daly SC on behalf of the Third party, and it is not necessary to set this out in detail in view of the finding already made in relation to the Third Party.
Evidence of Paul O’Grady:
Mr O’Grady gave evidence in relation to some photographs which he took on the following day after the platform had been dismantled and re-assembled in the other room to which I have referred already. He also stated that on the day of this accident he had been working on the platform with the plaintiff and had been working from the opposite end to the plaintiff, but that when he had got up onto the platform from the ground he had not spotted the gap either. It was put to him that if he had walked around the scaffolding before getting up on it, he would have been able to see the gap on a reasonable inspection. He said that if he walked past the scaffolding on that morning before getting up on it he was net paying any heed to the scaffolding itself, and he said that as he was working on the platform his mind was on skimming the ceiling and he did not notice the gap. He went on to say that they were working under some pressure to get this job finished because they had other work to go to. He also was sure that the cross-member was present at the end of the scaffolding, and not, as was stated by Mr Fitzpatrick, lying on the planks lengthways.
Mr O’Grady accepted that he would have a duty to check out his place of work himself but said that he did not notice the gap, but he disagreed with the suggestion put to him that he had failed to carry out any reasonable inspection before using it himself.
There was other cross-examination about matters such as the nature of the business relationship between him and the plaintiff, as well as the negotiations with the defendant for the contract, but I have already dealt with these issues.
Evidence of Mr David Semple, Consulting Engineer:
Mr Semple was shown the photographs of the scaffolding showing the gap in question, and expressed the view that this scaffolding ought not to have been used as it was unsafe. He pointed out that there was no proper handrail, and was not properly decked out. In addition there was no proper access and no toe-boards. He explained that the purpose of toe-boards was that a scaffolding is supposed to be an area which is as safe to work on as a floor itself. He stated that from the photographs there was clearly a gap at one end. He stated that the plaintiff working on the skimming of the ceiling would have his concentration on the area over his head, and that in these circumstances this gap was a danger and should never have been provided for use in this way. He also pointed to the fact that the cross-bar/handrail was not the proper height since it was only eighteen inches over the level of the planks, and that it should have been three to four feet above them to be of use.
He stated that the Regulations provided that a scaffolding ought to be erected only by competent scaffolders, and that this scaffolding was erected by labourers, and that it had not bee checked out. He was of the view that it was not in compliance with the Regulations and was dangerous.
He was cross-examined by Mr Fleck, and he accepted that the plaintiff’s fall, would have been about two metres. He also agreed that if workmen had got up on this platform to inspect they would have been able to see the gap, but that it might not have been obvious if a man simply walked past the scaffolding. It was put to him that it would be reasonable to expect that an experienced plasterer would check out the work area before getting up on the scaffolding. But Mr Semple expressed the view that it was reasonable for such a person to assume that it was in order. He agreed that there should have been a cross-member in place at the end of the platform, because in the absence of one a person could walk off the end. He was then cross-examined about how the plaintiff might have fallen, and he was of the view that what happened was that the plaintiff’s foot went through the 12 inch gap which he described as a significant gap, and that he would have been moving at the same time while skimming the ceiling, and that this would have caused him to topple over the rail and fall to the ground.
It was put to him that the cross-rail had been removed in this vase, but Mr Semple stated that in his opinion that cross-rail even if it was in place would not have prevented the plaintiff from falling. He agreed that it served some purpose, but not much.
He also gave his opinion that there can be only one person on a site who is in charge of safety on the site, and that was the main contractor.
Evidence of Paul Fitzpatrick:
Mr Fitzpatrick is the Managing Director of the defendant company. He did not actually see this accident happen, but he was working on the wages that Friday in an office just off the corridor on which the scaffolding was erected. He heard a commotion outside and immediately went out to see what had happened.
He provided the scaffolding on wheels for the plasterers. It was erected by labourers of his that morning. He says that after it was erected there were two cross-members in place, one at each end, and that there was atop bar or handrail at the end where the plaintiff fell. This is the rail shown in one of the photographs identified as photograph A.
He described the planks as being 16 feet in length. The two 8foot pieces of scaffolding were joined together with couplings and the planks were laid across both portions. The planks were short at one end, although he stated that they should have been short by just one and a half inches at each end, rather than all the shortness being at one end, as happened.
He stated that when he came out of his room he saw the plaintiff lying on the floor with his feet facing towards the scaffolding and his head to one side. His trowel and hawk were on the ground in front of him. His concern was to get an ambulance and he called for one twice. He also saw PaulO’Grady down on the floor with the plaintiff, he could not remember whether he was at his side or in front of him.
He stated positively that the cross-member which has been referred to was not in place but was lying lengthways on the planks at the end from which the plaintiff fell.
Mr Fitzpatrick was cross-examined quite extensively in relation to the contents of a work diary which had only been found by him on the night before this hearing, and which had not been discovered when discovery was being made in this case. In fact as things have transpired nothing turns on the contents of that diary, and I will not detail all that evidence.
On cross-examination by James Nugent SC he accepted that it was a main contractor’s responsibility to ensure that scaffolding was in place for the plasterers, and that he did so on this occasion. There was also some cross-examination of Mr Fitzpatrick arising out of the fact that during the course of these proceedings there was correspondence from the defendant’s solicitors to the plaintiff’s solicitors in October 1998 suggesting that the defendant was maintaining at that time that the labourers employed by the defendant and who erected the scaffolding, in fact were working on that occasion under the control of the Third Party, Mr O’Grady. Mr Fitzpatrick appeared to be unaware of that case being made. At any rate it does not matter to the extent that I am completely satisfied that Mr O’Grady had no involvement whatsoever in the provision and erection of this scaffolding and that any liability to the plaintiff attaches to the defendant company.
Mr Fitzpatrick stated under cross-examination also that it was up to the plaintiff to inspect the scaffolding before using t, if he so wished. He said that the same would apply to workers of other trades, such as plumbers, tillers, glaziers, electricians, if these persons were required to work at a height. He also accepted that on this day he would have walked past this scaffolding on a number of occasions, and he did not notice the gap at the end thereof. He also stated that in his view the plasterers should have had their attention on both the ceiling and the floor of the platform as they were working.
Some legal submissions:
Kieran Fleck SC on behalf of the defendant made submissions to the effect that the Court should view the plaintiff and the Third Party as contractors, and not employees or servants of the defendant. He submitted that one scenario was that Mr O’Grady was a contractor who had employed the plaintiff. In that situation, it is submitted that a duty of acre was owed to the plaintiff by Mr O’Grady.
Another scenario was the both Mr O’Grady and the plaintiff together constituted a sub-contractor, each being self-employed in relation to each other. In such a situation the plaintiff would owe a duty of care to himself. In addition, however one viewed the situation, either or both was a contractor, and therefore came within the definition of “a contractor” for the purpose of the Regulations.
If the plaintiff was a subcontractor, Mr Fleck submitted that any liability was in contract only.
Yet another scenario was that neither Mr O’Grady nor the plaintiff were contractors but yet were in some form of partnership whereby each was jointly and severally liable for the torts of the other, and that thereby the plaintiff was liable himself for the torts of Mr O’Grady.
In response, Mr Nugent submitted that the interpretation of the Regulations relied upon by Mr Fleck was a strained one in the context of the plaintiff’s case, and that the Regulations were never intended to exempt the main contractor from liability for negligent acts.
Conclusions in relation to liability:
In my view, the question of liability for the plaintiff’s injuries can be decided by the ordinary principles regarding the duty of care owed in certain situations by one person to another. There is no need to decide whether the plaintiff was a contractor in any sense relevant to the Regulations to which Mr Fleck referred. I have already expressed my view on the nature of the relationship between the plaintiff and the Third Party.
In my view the defendant company which, through Mr Fitzpatrick, has accepted that it was obliged to and did erect the scaffolding in question, owed a duty of care in the manner in which that scaffolding was assembled or constructed, to any person who would, in the reasonable contemplation of the defendant, be likely to be upon it or to use it. In the circumstances of this case, there can be no doubt that it was foreseeable that someone such as the plaintiff, a plasterer, would be using it, and the element of proximity is clearly present since Mr Fitzpatrick had engaged what he believed to be a plastering subcontractor to do the work. It is of no relevance really whether he believed he was engaging just Mr O’Grady, rather than the “team”comprising Mr O’Grady and the plaintiff. What is beyond any doubt is that the duty of care was owed to whatever person was in fact plastering with the aid of this scaffolding.
Whatever the relationship between the plaintiff and Mr O’Grady, it was not one of employer/employee in the normal sense of that term such as would create obligations on Mr O’Grady as an employer. I am satisfied that Mr O’Grady did not owe a duty of care to the plaintiff in any respect relevant to how this accident happened. Obviously he would owe a duty of care to him not to do a negligent act during the course of working with him on that scaffolding, but that is another matter altogether and not relevant to the present case. It follows that the duty of care was owed by the defendant directly to the plaintiff.
As far as contributory negligence is concerned, I am also satisfied that the plaintiff had some responsibility as an experienced plasterer to take basic care and precautions in respect of his own safety, and this must be taken to include making sure as far as reasonable, by appropriate inspection, that the work place in which he was to work is safe and suitable. This duty does not in any way supplant the duty on the part of the main contractor in the manner in which the scaffolding is assembled.
I am satisfied that the plaintiff was at the time a very experienced plasterer. That experience will have told him that care is required to ensure that an item such as a scaffold is a potentially dangerous position to work from. That potential danger is reflected in the need for regulations in the manner in which scaffolding over a certain height is concerned. Even if the height of this platform was not over that limit, the plaintiff himself cannot work on an assumption that the platform is safe. However, clearly the main contractor bears a larger portion of the responsibility to ensure that the scaffolding is safely constructed.
I am prepared to accept that the plaintiff may not on a casual observance of this structure from the floor have noticed the fact that the planks were short at one end, thereby causing a gap to exist which was dangerous. I accept also that while working upon the platform in the act of putting plaster on the ceiling, he would be looking upwards and not to the planks in the direction in which he was working. But the latter fact in particular must imply or mandate that the plaintiff, before he commences his work, should check that where his feet will travel while he is looking upwards at the ceiling, is safe.
In the circumstances I believe that the plaintiff must bear 20% of the responsibility for this accident. If he was less experienced, that would be reflected in a lesser finding of contributory negligence perhaps, but it defies commonsense, if nothing else, to mount a structure such as this one and for the purpose in this case, not to adequately check its safety before commencing work upon it.
The plaintiff’s injuries:
In his first report dated 15th April 1993, Mr Maharaj, Consultant Orthopaedic Surgeon gives details of his findings following an examination which he carried out on the plaintiff some 5 days post-accident. He notes that the plaintiff was taken to St. James’s Hospital in Dublin where he had x-rays of his skull, shoulder, wrist and back, and that a plaster of paris was applied to his right wrist, and that he was detained there for twenty four hours and discharged home. He notes that he attended his GP a couple of days later complaining of headaches and pain on his left side. This report notes the injuries sustained as follows:
1. Head injury with a lump right side scalp and concussion.
2. Severe bruising of right shoulder.
3. Injury to right wrist with swelling.
4. Bruising lower back.
5. Bruising and pain left side chest.
An x-ray of the right wrist revealed a fracture. It was noted that the headaches would last up to half an hour, and that there was some numbness of the right cheek area. In addition his teeth were sore, as was his shoulder so that he could not lift up high. It was noted that he was sore across his lower back and on the left side of his chest.
Mr Maharaj advised him to sleep on a firm bed and to continue taking Voltarol tablets.
He was examined again on the 5th April 1993, and it is noted that the plaintiff complained of blood in his sputum, soreness to the left side of his chest. His chest was x-rayed and there was no sign of fracture and the lungs felt clear.
Mr Maharaj stated that the plaintiff had sustained a severe injury, and that his headaches were due to the concussion suffered, and that these could last for ” a good while”. He also noted that the fracture of a small bone in the right wrist could also take some time to heal. He stated that the blood in the sputum could be the result of contusion of his lung.
He was examined again on the 15th April 1993, and on that occasion, Mr Maharaj noted the injuries already set forth, but also stated that during his examination he noted the plaintiff “was tender right zygomatic arch region with prominence of right maxilla causing some deformity of face. Still has numbness over right maxilla”. An x-ray of the face disclosed an undisplaced fracture to the right zygomatic arch.
Mr Maharaj indicated that the plaintiff at that time would not be fit for work for three to four months depending on his progress.
By December 1993 some of the injuries were noted to have improved, but continuing headaches were noted as being expected to continue for a considerable time; there was continuing loss of sensation in the right maxilla region which would also last for some time, and it was noted that this could be permanent if there has been nerve damage. Mr Maharaj also stated that he would have “permanent deformity right maxilla giving rise to asymmetry of face.”
At that stage the plaintiff still had stiffness in the neck, and lower back areas, but had recently returned to work as a plasterer, although Mr Maharaj was of the view that the injury to his wrist and his back difficulties would cause him some long-term problems in that occupation.
In August 1995 the plaintiff was examined by Mr Michael O’Riordan, Consultant Orthopaedic Surgeon. This was almost two and a half years after the accident. He was of the view that the soft tissue injuries to the shoulder, lower back and left side would all clear up in time, but he noted that “on the right shoulder there are definitely signs of possible damage to the rotative cuff muscle”. He stated that as a general rule this would settle down with time, but that occasionally, from constant irritation, a tendonitis can occur. He felt that with avoidance of a lot of overhead activity this problem should settle in due course.
With regard to the face injury, he was of the view that the tingling complained of by the plaintiff would persist but would not be a major problem.
Six months later, Mr O’Riordan saw the plaintiff again and he complained that his main problem at that stage was his shoulder because it was giving him a lot of trouble when he was plastering ceilings, and he had deep pain in the shoulder itself on elevation of his arm. The wrist had settled down. Mr O’Riordan was still of the view that the shoulder difficulties would settle down with time, and that he would be able to continue with his normal working activities in the future. The onset of arthritis was not anticipated. Working overhead was still a problem for the plaintiff in November 1997 – over four years post accident. Sometimes he would get discomfort in his right wrist if he was doing a lot of plastering, and he had a small amount of low back pain at that point in time also.
By September 1999, Mr O’Riordan felt it advisable to have an MRI Scan of the right shoulder. He also did bone scans which revealed nothing abnormal. The MRI Scan revealed no significant pathology. Mr O’Riordan was thereafter able to state that the plaintiff’s prognosis was probably better that he had previously anticipated, although he would continue to have aches and pains for some time but that these should settle down eventually.
By June 2002, the plaintiff was still experiencing tingling in his right cheek intermittently, as well as some persistent stiffness and pain in his right wrist, as well as continuing difficulties in the shoulder area when working overhead.
The plaintiff was referred to Mr Frank Brady, Consultant Oral and Maxillofacial Surgeon in relation to the tingling and altered sensation in his face, which was stated to start over his right forehead and extends into the right cheek area. It was noted that there was increased sensitivity and occasional twitching of the right eyelid. He also noted that the plaintiff does not think that there has been any altered facial appearance.
Mr Brady opined that the plaintiff had permanent damage to the underlying sensory nerves and also that “there was no specific treatment for this irritating complaint”.
There are some further reports, but none which add to the sum of our knowledge about the continuing nature of the remaining symptoms described so far.
The plaintiff’s evidence concerning his injuries:
The plaintiff has stated that after he was brought to St. James’s Hospital in the immediate aftermath of this accident, he was nauseous, dizzy and drowsy, and in a state of shock. The injuries themselves were described as Mr Maharaj described them in his first report. He stated that he was released the following day with painkillers and anti-inflammatories. He said he was glad to be out and that pain and stiffness were his main complaints at that stage. This persisted for quite a while and he said it might have been about a year. The complaint about pain in his chest cleared up at between six and twelve months, but his wrist injury was more long-term. It would swell up after a day’s work, and the degree of soreness would depend on how much work he did using the wrist. It is a feature of plastering that the wrist is put to considerable use. The plaintiff stated that the pain in his cheek cleared up in about six months.
In relation to hi9s shoulder he had problems at work until about 1997, after which his business had developed to the point where he had men working for him, and he did not have to do much actual plastering. He was more managing the rest of the men and the business. Nevertheless the plain would come against him occasionally.
Nowadays he still gets some discomfort, particularly after a day’s fishing, although it would not stop him going fishing.
As far as the sensitivity and tingling in his face is concerned, this continues to be troublesome. He is aware of it, for example, when he combs his hair or touches it. He described it as being like a small electric shock. The area of the face affected is from just inside the hair line on the front right of his head, and it runs down to the bottom orbit of the right eye. As far as the future is concerned, he says that he will be happy enough about it if it stays the same as it is now. I take this to mean that it is not a major nuisance or inconvenience in his life and that he has learned to live with it.
His wrist is satisfactory now, except sometimes when he is out fishing. Sometimes in the evening after such a day, there is some swelling.
He was adversely affected in his work mainly between 1993 and 1997, with work on ceilings posing particular difficulty. He would be sore in the evenings around the shoulder area and also his wrist.
The plaintiff has been very honest in relation to his injuries. He has not sought to exaggerate his symptoms in any way either either historically or at present and into the future. He has got on with his life in a way for which he should be complemented. This accident could have left him in a far worse condition. To that extent he is lucky not to be further disabled. The advantage of a long delay between the time of the accident and the case coming to hearing is that the injuries and the recovery are more certain. In this case the prognosis is good in the sense that n further deterioration in any of the complaints is anticipated. The MRI Scan has cleared up what was a doubt in the specialist’ mind about the long-term, and the plaintiff was in a position to be reassured that no long-term sequelae were anticipated in relation to his shoulder.
Taking the totality of the injuries to the head, shoulders, back, chest and the wrist fracture, I assess general damages for past pain and suffering at €50,000. The future pain and suffering is not very significant, but nevertheless there will be residual sensitivity in the face area for the rest of his life most likely. On the other hand he does not seek to make too much of that. There is also occasional wrist pain of a small amount and a similar discomfort every now and then in the lower back, but again to a small degree. In the circumstances, I assess general damages into the future in the sum of €10,000, making a total sum for general damages in the sum of €60,000.
I am told that special damages are agreed at €18,736.86.
The total of these figures is €78,736.86, and accordingly, having made the deduction of 20% for the plaintiff’s contributory negligence, I give judgment to the plaintiff against the defendant in the sum of €62,989.49.
Savickis v Governor of Castlerea Prison
[2016] IECA 310JUDGMENT of Ms. Justice Irvine delivered on the 27th day of October2016
1. I have read in draft the judgment which my colleague, Hogan J., intends to deliver in relation to this appeal. Having done so, I fully endorse the conclusions which he has reached and the orders which he proposes. This brief judgment is intended solely to address Mr. Savickis’s appeal concerning the answer of the jury to question 3(C) on the issue paper.
2. It follows from my agreement with the conclusions of Hogan J. that I too would propose:-
(i) An award of damages in favour of Mr. Savickis in the sum of €10,000 with no reduction for contributory negligence for the reasons advised by Hogan J. in the course of his judgment regarding the jury’s answer to Question 2.
(ii) An award of €5,000 for exemplary damages for breach of constitutional rights in respect of the assault.
(iii) An award of damages of €4,500 in respect of negligence in respect of Question 3(B) subject to a discount of 50% in respect of contributory negligence for the reasons advised by Hogan J.
General observations
3. Mr. Savickis decided to invoke his rights pursuant to s. 94 of the Courts of Justice Act 1924 to set down his action for damages for assault and his other causes of action arising out of the same facts for hearing before a judge sitting with a jury. As a result, following a hearing that lasted six days, the jury gave their answers to the questions put to them for their determination.
4. It goes without saying that in such circumstances the jury had the opportunity to carefully assess the presentation of the evidence by both parties and the credibility of each witness. Further, for the purposes of arriving at their conclusions, the members of the jury had the opportunity of discussing the significance of that evidence with each other and also had the benefit of guidance from the trial judge as to how they should approach the issues for their determination.
5. The value to the decision maker of seeing witnesses give their evidence viva voce cannot be overstated, particularly when facts are disputed and where two differing accounts of a particular event are advanced by the parties, as in the present case in relation to whether or not Mr. Savickis was given a poncho to wear before he was moved to another cell on a different floor of the prison. The credibility of a witness may often be undermined by the manner in which they give their evidence or indeed their conduct observable in the courtroom while not giving evidence. When under examination or cross examination, they may leave long gaps before answering certain questions. They may blush, stammer or fidget. There are a thousand ways in which a witness, by the manner in which they give their evidence or by their demeanour, may assist a jury in deciding upon the truth or otherwise of particular evidence. Further, the jury in the present case had six days to discuss and mull over the evidence crucial to their decision as to which party had more likely given the accurate account of what had occurred in the padded cell into which Mr. Savickis had been put before his later transfer to a different cell.
6. By way of complete contrast to the manner in which a jury will determine an issue, an appellate court acts in a somewhat sterile environment. It has no opportunity of hearing or assessing witnesses. It often must make its decision based upon a transcript of the original hearing. Regrettably in this case the Court does not even have the benefit of a professional transcript. It has no more than a detailed note upon which to make its decision. Further, the conduct or mannerisms of witnesses are not captured by a transcript or a note of the evidence. While this court had the benefit of some CCTV footage which clearly captured the not insignificant assault perpetrated upon Mr. Savickis, the remainder of the CCTV footage is of no assistance to the issue that fell to be determined by the jury when faced with Question 3(C). There was no coverage of what had transpired before the prisoner was taken naked from the padded cell onto the corridor.
7. The last general observation which I would wish to make concerns the jurisdiction and role of the appellate court which is completely different to that of a judge or a jury hearing a case at first instance. Its role is not to consider all of the evidence presented on the appeal afresh and reach its own conclusion as to how it would have answered the questions which were put to the jury. As Denham J. stated in O’Connor v. Bus Atha Cliath [2003] 4 IR 459, “it is quintessentially a matter for a jury (or a trial judge acting in place of a jury) to hear and determine the credibility and reliability of that person and to determine the consequent facts of the case. It is only in exceptional circumstances that an appellate court would intervene in such a determination.” Accordingly, the role of this court when considering Mr Savickis’s appeal from the answer of the jury to question 3(C) is one which is confined to an assessment as to whether or not there was credible evidence to support its conclusion.
Question 3(C)
8. The following question was put to the jury:-
3(C)
“Did the defendants fail to discharge their duty to provide safe and secure custody to the plaintiff and to treat the plaintiff with the appropriate dignity to which he was entitled in allowing the plaintiff to be removed from one section of the prison to another in a state of undress?”
9. It is clear that this question was destined to address the circumstances in which Mr. Savickis was allowed or required to be moved from one section of the prison to another in a state of undress. The question does not seek to address whether or not there was any justification for Mr. Savickis having been placed in the padded cell in the first place. It is material in this respect to note that there was no challenge to the evidence to the effect that once a prisoner was put into the padded cell that the relevant regulations required the removal of their clothing.
10. Accordingly, the question for this court on the appeal in relation to the jury’s answer to Question 3(C) is whether there was credible evidence to support its conclusion that the defendants had not failed in their obligation to treat Mr. Savickis with appropriate dignity in allowing him to be transferred from one cell to another in a state of undress?
11. Key to the jury’s decision on this issue was the evidence of Mr. Savickis and that of prison officers Shally, Condon and Dunne. I will briefly summarise the relevant evidence as fairly as I can from the somewhat disjointed note of the hearing.
12. Mr. Savickis in the course of his evidence accepted that when his clothes were taken from him he was given a blanket. He denied, however, that anyone had offered him a poncho or what was described in evidence as a Jesus blanket. While under cross examination he accepted as fact that when he was on the floor of the padded cell that a prison officer had tried to cover him up with a blanket.
13. Prison Officer Shally gave evidence that when Mr. Savickis’s clothing was taken from him on arrival in the padded cell that he was given refractory garments. He does not appear to have been challenged in relation to this evidence. I should also say that I can find no reference in the agreed note to suggest that the evidence of the prison officers to the effect that Mr. Savickis had been given a blanket which he later displaced and a poncho which he refused to wear was ever challenged.
14. Officer Dunne, who was in charge of the prisoner’s transfer from the padded cell to the second cell, gave evidence that Mr. Savickis was given a blanket and a poncho when his clothes were taken from him but that he refused to put on the poncho and that he displaced the blanket which was put over him to cover him.
15. It is also important to note that it was never advanced on Mr. Savickis’s behalf that even if he had refused the poncho that there were other steps that ought to have been taken by the defendants to protect his dignity and that they had been culpable in this regard. It was never, for example, suggested that the prison officers who escorted him to the second cell should have tried to hold a blanket over him in such a manner as might better have protected his dignity as he walked along the corridor. Relevant to any such challenge would have been the evidence of Officer Dunne who gave uncontroverted evidence that Mr. Savickis was still not compliant at the point at which he had to be moved and that it would have been difficult and indeed unsafe to have tried to put a Jesus blanket on him in the face of his objections.
16. It is clear to me that Question 3(C) was to be resolved by the jury by reference to the conflicting evidence concerning whether or not Mr. Savickis was given a poncho which he was asked to put on before he left his cell, there having been no other challenge to the manner in which the prisoner’s dignity was breached when being moved between the two cells.
17. While it is extremely concerning that any prisoner should be moved naked through public areas of the prison, save in exceptional circumstances, it should for the record be noted that this is not a case in which the defendants made no effort to protect the prisoner’s dignity as he was moved between cells. Prisoner officer Dunne gave evidence that in circumstances where Mr. Savickis would not disport the poncho which was offered to him and where the cell was urgently required for a suicidal prisoner, he took steps to ensure that the prisoner would not meet any members of the female prison staff, or indeed any other prisoners while moving between the two cells. It would appear, at least from that section of CCTV footage as covered his movements between the two cells, that he was successful to this extent.
18. Having regard to the evidence and to the matters to which I have earlier referred, it simply cannot be said that the was not credible evidence upon which the jury was entitled to conclude that the defendants had not failed in their duty to treat Mr. Savickis with the dignity to which he was entitled when being moved between the two cells. It is clear from their answer that they must have been satisfied as a matter of fact that Mr. Savickis had indeed been provided with and encouraged to put on the poncho but had rejected the garment with the effect that he left the cell naked, an answer that in my view was clearly sustainable on the evidence.
Conclusion
19. While it is worrying and disturbing that any prisoner should be moved or have to be moved through any area in a prison in a state of undress – circumstances that might well in another case justify findings of a breach of the prisoner’s constitutional rights – on the particular facts of this case there was ample evidence upon which the jury was entitled to reach that finding which it did. Accordingly I would dismiss the appeal in relation to the finding of the jury concerning Question 3(C).
20. As I have already indicated, I would otherwise allow the appeal in part and vary the order of the jury in the High Court by increasing the award for damages from €225 to a total award of €17,225.
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 27th day of October 2016
1. This is an appeal by the plaintiff against the findings of the High Court (Dunne J. and a jury) delivered in May 2013. The plaintiff had sued the defendants for assault, negligence and breach of constitutional rights arising from an altercation in Castlerea Prison, the details of which I will later describe. As we shall later see, the jury rejected the majority of the plaintiff’s claims, but they did find – although, perhaps, not quite in terms – that he had been assaulted and awarded him €4,500 in damages. The jury also found, however, that the plaintiff was 95% contributorily negligent and his award was thus reduced to €225. Before considering the issues which arise in this appeal, it is first necessary to set out the background facts.
2. As a preliminary, however, I should observe that there was no professional transcript available in respect of the six day witness action in the High Court. Although there is a helpful solicitor’s note of the evidence which has been agreed, the absence of a professional transcript in such an important, fact specific witness action has proved to be a huge handicap to this Court. It has made the task of assessing the evidential and factual basis for the jury’s verdict an extremely difficult one. This is especially so in the present case where there were sharp divergences in the evidence given by the respective witnesses for each side with the credibility of many being put in issue.
3. In addition to the note, however, the jury had available to it closed camera television (“CCTV”) recordings of the incidents which were taken from a variety of different angles within the prison. At the hearing of the appeal the Court ruled that it should view these recordings and did so in the present of the parties. The CCTV evidence has proved to be of very considerable assistance.
The background facts
4. The present proceedings arise from an incident which took place in Castlerea Prison on 29th September 2009. The plaintiff had been convicted of rape in February 2009 and he was then serving a six year prison sentence. The plaintiff is Lithuanian and his command of English at the time was poor.
5. On the day in question the plaintiff had just finished making a telephone call from prison and was taken from his cell by a prison officer for that purpose. When the call was ended, he was brought back to his cell, but the cell door was now locked. A prison officer instructed the plaintiff that he was to go out into the exercise yard of the prison. The plaintiff gestured to his feet and to his top in order to point out that he was wearing neither socks nor a jumper and that he was not dressed to go outside. The prison officer nonetheless insisted that the plaintiff go to the yard, but he declined to do so.
6. At this point, the prison officer in question suddenly confronted the plaintiff and placed his head in a head lock while the plaintiff clung to the railings, presumably in an effort to resist being moved towards the exercise yard. At that point perhaps four to five more prison officers quickly arrived and prised the plaintiff from the railings and totally subdued him. While the plaintiff is clearly a tall, athletic and strong man, he did not respond to the actions of the prison officer in an aggressive manner. He did not attempt to strike out at the prison officer and did no more than cling to the railing. It is clear, however, that as he was being subdued by the prison officers using control and restraints (“C & R”) techniques, he was struck some three to four times by a particular prisoner officer with punches to the chest. The striking of the prisoner in this fashion was clearly evident in the CCTV footage which each member of the Court witnessed.
7. Quite independently of the CCTV evidence, the plaintiff’s account of the manner in which he said he had been assaulted is entirely consistent with the medical evidence given at the trial. The plaintiff was subsequently brought to Roscommon County Hospital later evening and the medical and nursing notes on admission showed bruising on his face and forehead, trauma injury to his chest and traces of blood in his urine. Mr. James Binchy, a consultant in emergency medicine attached to Galway University Hospital, gave evidence that he had reviewed these notes and he concluded that these injuries were consistent with “a blunt blow to the patient.” Mr. Binchy also thought it was possible that the plaintiff could have had a crack in his ribs which had not been picked up by the x-rays.
8. The then Deputy Governor of Castlerea Prison, Ms. Ethel Gavin, also gave evidence for the plaintiff. She had reviewed the relevant CCTV footage at the time and she was of opinion that the events captured thereon required investigation. She said that the punching of a prisoner who was subjected to C & R restraints was unacceptable. It should be noted, however, that each of the prison officers who gave evidence for the defendants denied that the plaintiff had been punched in the manner described. I shall return presently to this issue.
9. The plaintiff was then brought to high security cell where, for security reasons, his clothing was removed and he was offered a blanket. Some two hours later the prison officers returned to the cell and the plaintiff was offered a poncho or a blanket to cover him while he was transferred from one cell to another. It would seem that the plaintiff refused to wear this garment or to take the blanket as covering before he was removed from the cell. He was then taken through the prison while entirely naked from one cell to another by a troupe of about twelve to fifteen prison officers. This second incident lasted about three minutes.
10. The plaintiff was taken later that evening to Roscommon General Hospital. He was bruised, had been bleeding and was in pain. No fractures were seen on x-ray, but the plaintiff was prescribed a course of painkillers.
The hearing in the High Court
11. The plaintiff subsequently commenced these proceedings for damages for assault, negligence and breach of constitutional rights. The action was heard over six days by Dunne J. and a jury in April and May 2013. I will refer later in more detail to the evidence given at the trial, but in summary the jury seems to found that although the plaintiff had been assaulted, he was guilty of 95% contributory negligence. The jury also found that the State authorities had been negligent in the manner in which they had provided training for staff in control and restrain techniques. All other claims were rejected by the jury.
12. The jury ultimately awarded the plaintiff the sum of €225, i.e., representing a gross award of €4,500 reduced by 95%. The plaintiff originally appealed to the Supreme Court against all adverse jury findings, but this appeal was transferred to this Court by order of the Chief Justice (with the concurrence of the other members of the Supreme Court) on 28th October 2014 in accordance with Article 64 of the Constitution following the establishment of this Court. No cross-appeal has been taken by the State against so much of the jury award as found against the defendants.
13. At the close of the evidence, five questions were put to the jury on an issue paper. The questions and answers were in the following terms.
Question 1:
In all the circumstances was it necessary for the defendants to apply force to the plaintiff for the purpose of maintaining good order in Castlerea Prison? If the answer to this is ‘No’, proceed to assess damages. Answer – Yes.
Question 2:
If the answer to (1) is ‘Yes’, in all the circumstances was the force used only such as was reasonably necessary and proportionate for that purpose? If the answer to this is ‘No’, proceed to assess damages. Answer – No.
Question 3:
Did the defendants fail to discharge their duty to provide safe and secure custody to the plaintiff and to treat the plaintiff with the appropriate dignity to which he is entitled:
(a) in failing to train prison officers to the degree necessary to avoid the occurrence of the incident on 29th September 2009? Answer – Yes
(b) in allowing prison officers to apply C & R techniques otherwise than in a proper and reasonable fashion? Answer – No
(c) in allowing the plaintiff to be removed from one section of the prison to another in a state of undress? Answer – No.
Question 4:
Was the plaintiff guilty of contributory negligence in obstructing or resisting prison officers? If the answer to this is ‘No’, proceed to assess damages without regard to any apportionment for contributory negligence. If the answer to this is ‘Yes’, apportion blame in percentage terms to: (a) the defendants; and (b) the plaintiff; and proceed to assess damages on the basis of such apportionment.
Answer: (a) = State and Prison Officers, (b) Darius Savickis (a) = 5% (b) = 95%.
Question 5
Was the conduct of the defendants, up to and including at the trial of the action, inappropriate in all the circumstances such that aggravated damages should be awarded? If the answer to this is ‘Yes’, proceed to assess aggravated damages. Answer: No.
The appeal to this Court
14. Before this Court the plaintiff contended that these adverse jury findings were essentially perverse and unsupported by the evidence. The plaintiff further contends that the findings of contributory negligence have no basis in law and even the gross monetary award was far too low. For its part, the State defendants maintained that the jury findings and the jury award are justified on the evidence and should not be disturbed.
15. I now propose to consider in turn the various issues raised on appeal, following closely for this purpose the specific questions put to the jury and their answers to these questions, albeit not always necessarily in quite the same sequence as the jury answers themselves.
Was it necessary for the defendants to apply force to the plaintiff for the purpose of maintaining good order in Castlerea Prison?
16. While there is no doubt but that the incident escalated rapidly following the original altercation between the plaintiff and the prison officer, the jury were nonetheless entitled to conclude that the defendants were entitled to apply force to maintain order in the prison. It may be that the original altercation came about by reason of a simple linguistic misunderstanding between the plaintiff and the prison officer, yet the fact remains that the prisoner did not obey a lawful direction given by the officer in question. Maintenance of good order is vital in prisons, since without it serious incidents can arise and can quickly get out of hand.
17. The jury were accordingly entitled to reach the conclusion that the initial administration of force by the prison officers (i.e., first head locking the plaintiff and then subjecting him to C & R techniques) was in principle justified.
Was the plaintiff assaulted by a prison officer?
18. The jury found in answer to the second question that the force used by the prison officers was not such as was necessary and proportionate in all the circumstances. While the jury was not asked in terms to make a finding as to whether the plaintiff had been assaulted, it may be observed that in her address to the jury, Dunne J. expressly remarked that if the jury considered that the plaintiff had been punched, this would have constituted the use of excessive force.
19. In these circumstances, I would interpret the jury’s answer to the second question as a finding that the plaintiff had been assaulted. Quite apart from the fact that there was no appeal against this finding, in my view, the evidence clearly established that, regrettably, the plaintiff was struck some three to four times in quick succession by a particular prison officer while he was subjected a C & R restraint by other officers. This force was excessive, disproportionate and unjustified. The plaintiff must therefore succeed in respect of his claim for assault.
Damages for assault
20. The punches delivered to the plaintiff’s chest in all likelihood accounted for the majority of the symptoms he was experiencing when admitted to Roscommon County Hospital. There he reported extreme tenderness over the rib cage. He underwent x- ray examination for suspected fractured ribs. While no displaced fractures were found, non displaced fractures could not be ruled out. The plaintiff also had traces of blood in his urine, injuries consistent with blunt trauma and a number of bruises were noted. He was prescribed pain killing medication and in the course of his evidence described feeling uncomfortable as a result of his injuries for several months. While the assault was a serious matter, it did not leave the plaintiff with long-term consequences and he recovered from his injuries after a number of months. His injuries were such that I consider an award of €10,000 would be appropriate compensation. If perchance I am incorrect as to causation and any part of the plaintiff’s injuries which may have been inflicted by one or more kicks from a prison officer, it matters not, as any such action amounted to an unwarranted assault on the plaintiff for which he must be compensated.
Whether the award of damages for assault should be reduced by reason of contributory negligence
21. Although the jury found that the plaintiff was assaulted by a prisoner office, they nonetheless reduced the award by 95% on the ground of the contributory negligence on his part. This immediately raises the question of whether the law on contributory negligence is capable of applying to an intentional tort such as assault and, even if it is, whether the jury’s attribution of fault to the plaintiff in this manner was justified.
22. I recognise immediately that, judged from the standpoint of principle, there is much to be said for the proposition that the doctrine of contributory negligence should have no application to an intentional tort, precisely because the latter species of tort is not itself negligence based. No one would, I think, suggest that a car thief should be able to set up a defence of contributory negligence even if the owner had foolishly left her keys in the car. Nor would the courts countenance a state of affairs where an award of damages to a tourist who was set upon, assaulted and robbed should be reduced on this account because he had unwisely walked late at night in an area of a city which he did not know and had thereby exposed himself to an unnecessary risk, even if such imprudent conduct could itself be properly described as negligent. As Lord Rodger pointed out in Standard Chartered Bank v. Pakistan National Shipping Corporation [2002] UKHL 43, [2003] 1 AC 959, 975 jurists as learned in the field of civil wrongs and private law as Pollock have consistently protested at the idea that the defence of contributory negligence should be available in the case of intentional torts.
23. Regardless of any question of principle, however, the matter is put beyond doubt by the opening lines of s. 34(1) of the Civil Liability Act 1961 (“the 1961 Act”):
“Where, in any action brought by one person in respect of a wrong by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff….and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and defendant….”
24. Section 2 of the 1961 Act provides that “wrong” is defined as meaning:-
“…a tort, breach of contract or breach of trust, whether the act is committed by the person to whom the wrong is attributed or by one for whose acts he is responsible, and whether or not the act is also a crime, and whether or not the act is intentional….”
25. The definition of “wrong” in s. 2 thus expressly extends to an intentional tort, so that in principle at least the rules regarding contributory negligence in s. 34(1) are not confined to negligence based civil wrongs.
26. It is true, of course, that the definition of “wrong” in s. 2 is not for all possible statutory purposes. Rather, the statutory definition is subject to the qualification that it is expressed to apply “save where the context otherwise requires”. The context of the application of the contributory negligence rules contained in s. 34 of the 1961 Act is not, however, such that it would necessarily be inconsistent with the application of those rules if they were to apply in the case of intentional torts. In other words, as it is quite possible to apply the contributory negligence rules to intentional torts – even if in the past some venerable jurists thought it would be wrong in principle to do so – the context of s. 34 does not require the application of a different and more confined meaning to the word “wrong” such as would include intentional torts.
27. All of this means that for the purposes of the 1961 Act, the definition of “wrong” includes intentional torts and the contributory negligence rules apply to that species of wrong just as much as to the ordinary action in negligence. It follows, accordingly, that there may well be cases where the contributory negligence rules apply in the case of intentional torts.
28. What is clear, however, is that such cases are exceptional: as Elias J. said in Bici v. Ministry of Defence [2003] EWHC 786, it would be a “very rare case where damages should be reduced in circumstances where the defendant’s conduct is intentional and unjustified.” An example, perhaps, is the decision of Hutton J. in Wasson v. Chief Constable of the Northern Ireland [1987] N.I. 420. In that case Hutton J. found that the plaintiff had been assaulted by the wrongful firing of a plastic baton round, but he reduced the damages by half for contributory negligence by reason of the fact that the plaintiff had voluntarily participated in a riot.
29. In the present case, nothing of the kind arises. It is true that the plaintiff was a convicted person, serving a prison sentence in respect of a very serious crime. It is also true that this entire incident initially came about as a result of the plaintiff refusing to comply with a lawful direction of a prison officer. But, as I have already stated, the plaintiff did not participate at all in the fracas and beyond endeavouring to cling on to the railing when first confronted by a prison officer, did not thereafter offer resistance when subdued by the prison officers. The plaintiff, moreover, was already subject to a C & R restraint when he was punched.
30. In these circumstances, there is simply no basis at all for the jury’s finding that the plaintiff was guilty of contributory negligence in respect of the assault. It could not be suggested that the repeated punching of the plaintiff by a prison officer had any lawful justification. Quite the contrary: as Article 40.3.2 of the Constitution requires the State to protect the person, it followed that the State and its officials were under a particular duty to ensure the personal safety of detained persons such as the plaintiff. As Fennelly J. said in Creighton v. Ireland [2010] IESC 50:
“A sentence of imprisonment deprives a person of his right to personal liberty. Costello J. explained in Murray v Ireland [1985] I.R. 532,542 that “[w]hen the State lawfully exercises its power to deprive a citizen of his constitutional right to liberty many consequences result, including the deprivation of liberty to exercise many other constitutionally protected rights, which prisoners must accept.” Nonetheless, the prisoner may continue to exercise rights “which do not depend on the continuance of his personal liberty….” I would say that among these rights is the right to personal autonomy and bodily integrity. Thus, it is common case that the State owes a duty to take reasonable care of the safety of prisoners detained in its prisons for the service of sentences lawfully imposed on them by the courts. This does not amount, however, to a guarantee that a prisoner will not be injured…”
31. Measured, therefore, by reference to these standards, it could not be said that the plaintiff was guilty of contributory negligence in respect of this intentional assault. This Court can, of course, reverse a jury finding of contributory negligence where it is one that no reasonable jury could have arrived at or where, in the words of Irvine J. in Buckley v. Mulligan [2016] IECA 264 “such apportionment was grossly disproportionate having regard to the evidence”. In the present case, the jury’s verdict that the plaintiff was guilty of contributory negligence in respect of these assaults was unreasonable and grossly disproportionate in the light of the evidence.
32. In these circumstances, I would reverse the jury’s finding of contributory negligence in its totality so far as these assaults were concerned.
Is the plaintiff entitled to exemplary damages for breach of constitutional rights in respect of the assault?
33. The jury found that the plaintiff was not entitled to aggravated damages by reason of the conduct of the State and the prison officers. (I will treat aggravated and exemplary damages as effectively synonymous, at least for the purposes of this judgment). In view of the established legal authorities, it was not open, in my view, for any reasonable jury to arrive this conclusion.
34. The leading authority on the question of the award of exemplary damages remains that of the Supreme Court in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305. That was a case which arose out of industrial action taken by the defendant trade union in a particular area of west Cork which had the effect of depriving certain primary school students of schooling for the best part of six months. The Supreme Court concluded that it was appropriate to award the plaintiffs exemplary damages by reason of the breach of their constitutional right to free primary education.
35. Finlay C.J. enunciated the test to be applied in cases of this kind ([1991] 2 I.R. 315, 321):
“..this is an appropriate case in which the court should feel obliged to mark its disapproval of the conduct of the defendants to the extent of awarding exemplary damages against them for the following reasons:-
(a) the right which was breached on this occasion was one expressly vested in a child by the Constitution;
(b) the right which was breached was one which, having regard to the education and training of a child was of supreme and fundamental importance;
(c) it must be presumed that the defendants were aware of that importance;
(d) the breach of the constitutional right involved was an intended, as distinct from an inadvertent, consequence of the defendants’ conduct.”
36. Each of these considerations apply to the present case. First, while the assault upon the plaintiff was itself a tort, it also amounted to clear breach of the plaintiff’s constitutional right in Article 40.3.2 to the protection of his person and to associated or cognate constitutional rights such as his right to bodily integrity. Second, the right which was breached was one which, having regard to the State’s duties to persons in its custody, was of supreme and fundamental importance. Third, it may equally be presumed that the defendants were aware of the importance of that right in a prison setting. Fourth, the violation in question was intentional and not simply inadvertent.
37. There is also a further consideration. The trial in question lasted for six days in which the prison officers who were called to give evidence on the behalf of the State repeatedly denied that the plaintiff had been punched, even when the relevant CCTV evidence of the episode was shown to them. One prison officer went so far as to make the claim that that the prison officer who is clearly seen on the CCTV administering the punches was “putting his hand in two or three times to remove [the plaintiff’s] clothing.” It is, I regret to say, very difficult to avoid the conclusion that some of the witnesses tendered by the State told lies regarding this matter in the course of their evidence.
38. This is conduct which this Court should not tolerate for an instant. Accordingly, just as in Conway, this conduct calls for the award of exemplary damages to mark not only a grievous breach of the plaintiff’s constitutional rights, but also to mark the strong disapproval by the Court of an endeavour by agents of the State (namely, the relevant prison officers who denied in evidence that there had been an assault on the plaintiff) to hide their complicity in this wrongful conduct in the face of overwhelming evidence to the contrary.
39. When awarding exemplary damages for breaches of constitutional rights, the High Court has in recent years tended to award a plaintiff 50% of the sum awarded as compensatory damages: see, e.g., the judgment of Dunne J. in Herrity v. Associated Newspapers Ltd. [2008] IEHC 249, [2009] 1 I.R. 326 and my own judgment in Sullivan v. Boylan (No.2) [2013] IEHC 104, [2013] 1 I.R. 510. While this is not a firm practice – still less a settled rule of law – it provides a useful yardstick for measuring any award of exemplary damages, especially where (as here) the award of compensatory damages is itself (relatively) modest.
40. In these circumstances, I would propose to award the plaintiff the sum of €5,000 by way of exemplary damages in respect of the assault.
The application of the C & R techniques
41. The question of the training in and the use of C & R techniques was addressed in parts (a) and (b) of question 3. While the jury found that the prison officers had been given inadequate training in these techniques, they also found that the prison officers had used these techniques in an appropriate fashion. While these C & R techniques are frequently deployed by law enforcement agencies to subdue violent or dangerous persons, the evidence led by the plaintiff suggested that these techniques are potentially dangerous, especially where inappropriate pressure is placed on the neck such that breathing is obstructed.
42. There was certainly evidence by which the jury could conclude that the training given to the prison officers in respect of these techniques was inadequate. Thus, for example, the then Deputy Governor Gavin acknowledged that while every prison officer should do an annual refresher course on C & R techniques, shortages of resources in 2009 meant that this did not occur. Many of the other prison officers were unclear as to when they had received a refresher course.
43. The jury also found that the restraint techniques had been appropriately deployed by the defendants in the present case. This was a verdict which they were entitled to reach on the evidence in view of the necessity to preserve good order within the prison.
44. To some extent, however, the verdicts are at least superficially inconsistent with each other. Without a view to resolving any such possible inconsistency, I would, however, interpret these different answers as saying, in effect, that while the defendants were entitled to use C & R techniques in the circumstances, the plaintiff suffered injury by reason of their deployment by prison officers who lacked the appropriate degree of training in these techniques.
45. The evidence of the plaintiff’s expert on C & R techniques, Mr. Duggan, was to the effect that the use of these techniques without appropriate training is harmful and potentially dangerous. While Mr. Duggan was, of course, cross-examined, much of his evidence on this topic was not seriously challenged. No expert evidence on C & R techniques was given on behalf of the State.
46. Mr. Duggan pointed in his evidence to a number of examples where this had occurred in the present case. Thus, for example, he considered that the headlock applied by the first prison officer was “dangerous” and “involved force against the throat and neck”. He also stated that the use of a “guillotine” hold on the prisoner by the prison officers presented a risk of positional asphyxia and unconsciousness in the manner in which he was pushed down a stairs with his head below his heart and diaphragm.
47. In these circumstances, the conclusion must be that the jury decided that the C & R techniques were applied in a negligent fashion by prison officers who lacked the appropriate training. As Mr. Duggan observed in evidence, this must have been extremely painful and, indeed, frightening for the plaintiff.
Damages for negligence in respect of the C & R techniques
48. It is difficult to assess the damages in an unusual case of this kind. The vast majority of the plaintiff’s injuries must be ascribed to actions which are already covered by his claim for damages for assault. Nonetheless, it is perfectly clear from his oral evidence and from the CCTV footage viewed by this court that the plaintiff was entitled to separate compensation in respect of the defendant’s negligent use of C & R techniques. The plaintiff’s own evidence was that he was pushed to the ground. He found it difficult to breathe. His airway was compromised and he ensured what was undoubtedly a very frightening experience when his head and body were pushed off the landing and into the stairwell where his head was held beneath level of his body and his chest obviously crushed against the top step.
49. When asked to assess damages for the defendant’s negligence in this regard, the jury awarded a sum of €4,450. I cannot say that was an inappropriate figure to compensate the plaintiff for any injuries sustained by him over and above those which were inflicted upon him by way of assault.
50. Where I part company with the jury is its apportionment in respect of liability of liability of 95%.
51. An appellate court is free to interfere with a finding of contributory negligence if satisfied that it is grossly disproportionate to the plaintiff’s causative contribution to his injuries. While the plaintiff’s conduct in refusing to obey the lawful instruction of a prison officer was the proximate cause of the application of the C & R techniques, I would reduce this award by 50% to reflect the plaintiff’s contributory negligence. In these circumstances, I would propose that the gross award under this heading should be reduced to a net €2,225.
The removal of the plaintiff while naked from one cell to another
52. It is clear from the evidence that the jury were entitled to find that the State authorities were entitled to require that the plaintiff remove all his clothes as a suicide precaution prior to his removal to a padded cell following the first incident. They were further entitled to find that the prison officers were entitled to remove those clothes from the prisoner when he was left in the cell with a blanket.
53. Although the plaintiff denied that he was offered any clothing, the prison officers denied this: they said that he had refused to accept or wear the poncho style-garment which they offered him when he was in the cell. They also stated that he had refused to accept the blanket he was offered as a covering before he was taken from the cell. The jury were obviously entitled to believe the prison officers’ accounts in this regard and in that respect their verdict cannot be disturbed by this Court.
54. It is clear from the CCTV recording that the plaintiff was taken out of the cell at about 4.25pm, which is some two hours after the first incident. The CCTV evidence shows that the plaintiff was taken from the cell and effectively frog-marched by prison officers while under a form of C & R restraint through the prison to another cell. The plaintiff was entirely naked, although he was surrounded by a troupe of perhaps twelve to fifteen prison officers, one of whom is seen carrying what appears to be either a grey blanket or poncho style garment as he walked behind a procession of the other officers. This entire incident lasted some three minutes.
55. It goes without saying that the removal of a prisoner entirely naked from one part of a prison to another is a very serious procedure which requires a very high degree of justification. The jury were, however, clearly entitled to prefer the accounts of the State’s witnesses that the removal of the plaintiff to a cell in another part of the prison was necessary and that the plaintiff had refused to wear the clothing or covering which had been offered to him.
56. The Preamble of the Constitution commits the State to upholding the “dignity…of the individual”. As I have already pointed out, Article 40.3.2 requires the State to protect the “person” and the recognition of an unenumerated personal right to privacy has long been recognised since the major decisions in McGee v. Attorney General [1974] I.R. 287 and Kennedy v. Ireland [1987] I.R. 587. All of these rights are engaged by the circumstances of the present case and, in a sense, run into each other. To be taken forcibly while entirely naked for some three minutes through a prison is undignified and humiliating and the basic protection of personal privacy is obviously an element of the protection of the person in Article 40.3.2.
57. Not without hesitation, however, I believe that this Court is constrained by the findings of the jury to accept that the State authorities were entitled to remove the prisoner in a state of nakedness where his removal to another cell within the prison was deemed necessary and essential in the interests of good prison order and where he had already refused to accept the blanket and the clothing which had been offered to him. While it was, of course, nonetheless incumbent on the State authorities to take the greatest possible steps to minimise this otherwise gross intrusion into the prisoner’s dignity, person and privacy, the jury have found in effect that there were no further steps which the authorities could usefully or appropriately have taken in this regard given the steadfast refusal by the plaintiff to accept the clothing or covering which he had been offered while in the cell prior to his transfer.
58. In this regard it must be observed that – to their credit – as they pointed out in evidence, the prison officers ensured that no female staff or other prisoners were in the area as the prisoner was so transferred. On the note of the evidence available to this Court there was no evidence, for example, that the prison officers ought as a matter of good practice to have attempted to cover the plaintiff in some way once he emerged from the cell. As Irvine J. has pointed out in the judgment she has just delivered, there was evidence from the prison officers that the plaintiff at that point was still not compliant with authority and it might have been difficult or even unsafe to have attempted to cover him in the face of his objections.
59. While the courts must, in the last resort, uphold the and vindicate the constitutional right of prisoners to the protection of their person and their personal dignity, they also must do so in a context where the difficulties and dangers regularly faced by prison officers who daily undertake a challenging task on behalf of the State are also acknowledged.
Conclusions
60. In summary, therefore, I would conclude as follows:
61. First, I would uphold the jury’s conclusion that the State authorities were entitled to use appropriate force against the plaintiff once he had refused to obey a lawful direction from the prison officer to go outside.
62. Second, the jury’s conclusion that excessive force was used in the circumstances must be understood as amounting to a finding that the plaintiff was unlawfully struck three or four times by a prison officer while he was subject to a C & R restraint. This finding is clearly supported by both the CCTV evidence and the relevant medical evidence.
63. Third, I consider that the jury’s award of a gross figure of €4,450 damages in respect of this assault is manifestly inadequate. I would substitute an award of €10,000 in place of the jury’s award.
64. Fourth, while it is clear that the principles of contributory negligence provided for in s. 34(1) of the 1961 Act can apply to an intentional tort such as assault, there was no basis at all for the jury’s finding that there had been contributory negligence on the part of the plaintiff so far as the assault was concerned. I would accordingly set aside that finding of contributory negligence in its entirety.
65. Fifth, while the jury found that this was not a case which called for the award of exemplary damages so far as the assault was concerned, this conclusion cannot be sustained as a matter of law. This is rather a case which in the light of the principles articulated by the Supreme Court in Conway calls for the award of exemplary damages for breach of constitutional rights. I would therefore award the plaintiff some €5,000 as exemplary damages in respect of the assault.
66. Sixth, I would uphold the jury’s finding that the staff had received inadequate training in the application of the C & R techniques. I would interpret that finding as a finding that while the use of the C & R techniques was appropriate these techniques had been applied in a negligent fashion.
67. Seventh, I consider that the jury’s award of damages in respect of the negligent use of the C & R techniques under this heading cannot be disturbed. I would, however, reduce that gross award by some 50% in view of the contributory negligence of the plaintiff, since it was his refusal to obey a lawful direction from the prison officer which was the proximate cause of the application of the C & R techniques in the first place. The jury’s finding of 95% contributory negligence is, however, disproportionate and cannot be sustained. I would accordingly substitute therefore a figure of 50% contributory negligence in respect of the negligence award, so that the gross sum of €4,450 should be reduced to a sum of €2,225.
68. Eight, I would uphold the findings made by the jury having regard to the special circumstances of this case that the transfer of the prisoner from one cell to another while entirely naked was appropriate and justified. There was sufficient evidence upon which the jury could have made these findings and, in these circumstances, this Court cannot interfere.
69. It follows, therefore, that I would allow the appeal to the extent indicated in this judgment and I would accordingly award the plaintiff the total sum of €17,225 in damages.
Patrick Coyle v An Post
[1993] I.L.R.M. 508
(Finlay CJ, Hederman, Egan, O’Flaherty and Blayney JJ)
FINLAY CJ
delivered his judgment on 17 December 1992 saying: This is an appeal by the defendant against an order made in the High Court on 15 February 1991 in an action brought by the plaintiff claiming damages for personal injuries sustained by him in a road traffic accident which he alleged was caused by the negligence of the defendant, its servants or agents, whereby it was found:
1. that the defendant was guilty of negligence,
2. that the plaintiff was guilty of contributory negligence,
3. that the apportionment of degrees of fault should be 66⅔% against the defendant and 33⅓% against the plaintiff,
and whereby damages were assessed in total in £121,800, and judgment for £81,200 was given against the defendant.
The facts out of which the action and this appeal arise are set out with accuracy and in detail in the judgments about to be delivered by other members of the court, and it is sufficient if I very briefly summarise them for the purpose of this judgment.
The plaintiff is and was at all material times sub-postmaster of Raphoe, *510 County Donegal. He was originally appointed to that office in April 1973, and entered into a contract with the Minister for Posts and Telegraphs at that time, which inter alia provided that he should be under the control and direction of the Secretary of the Department of Posts and Telegraphs and that he should be under the immediate direction of the postmaster at Lifford, of which Raphoe was a sub-post office.
The rights and responsibilities arising under this contract and vested in the Minister and Department of Posts and Telegraphs were by subsequent statutory provision transferred to An Post.
One of the duties carried out by the plaintiff as a sub-postmaster, and by very many other sub-postmasters as well, was the payment of social welfare payments, including various forms of pensions and allowances. For the purpose of making such payments cash was delivered in a routine way on two days of the week, namely, Tuesday and Thursday, by the post office at Lifford to the sub-post office in Raphoe which was owned and run by the plaintiff.
Persons entitled to unemployment compensation and unemployment assistance signed on in the garda station in Raphoe, and having so signed on, drew their weekly allowance from the sub-post office. At Christmas these persons and a number of other recipients of social welfare allowances received extra payments.
On 9 December 1985, the plaintiff discovered that an unusual number of persons had signed on in the garda station and were attending at the post office for payment of their welfare and social insurance allowances. It would have been more usual for any significant number of people to have attended on the following day, a Tuesday.
The plaintiff did not have sufficient cash to cover the persons who were already applying and those whom it was clear would be likely to apply during the course of the day.
9 December 1985 was a morning of particularly hard weather, and the plaintiff, who travelled to Milford in order to leave a member of his family at a college for an examination that she was taking, became aware of particularly icy and dangerous conditions of the road.
On his return from that journey early in the morning, he rang the official in Lifford Post Office who was responsible for the transfer and supply of cash to the sub-post offices. He informed him that he would not have sufficient cash for the number of applicants who were coming on that day, and made a request that he should be permitted to go to one of the banks in the town of Raphoe in order to draw a sufficient sum of money to meet the social welfare and insurance payments. He explained that as a result of his journey earlier in the morning he was aware that the roads were very hazardous and he did not want to travel to Lifford to collect the cash. He apparently suggested that either the cash should be sent to him or that he be allowed to go to the bank.
*511
The evidence was that up to approximately two years before 1985 it had been usual for money to be drawn from the local bank by the sub-postmaster on an order from the Department of Post and Telegraphs. In relation to Raphoe, however, the evidence was that this had been discontinued for approximately two years and that it had been usual when money was required other than on the days on which it was delivered, namely, Tuesday and Thursday of each week, for the sub-postmaster at Raphoe to collect it by travelling to Lifford, where he would obtain the money and usually be provided, through the arrangements of the Lifford Post Office, with a garda escort for his return to Raphoe.
The evidence which the learned trial judge accepted was that the official in the post office in Lifford stated that the plaintiff could not go to the bank and obtain a sum of money on the authority of the post office, but that if he wanted to get money he would have to travel to Lifford to obtain it. The plaintiff, apparently, more or less accepted this alternative and the conversation then terminated.
The plaintiff set out on his journey to Lifford, found the conditions even worse than he had previously experienced and, on his own evidence, nearly turned back. He continued, however, and at a particular corner where there were especially icy conditions, got into a skid and struck a tree at the side of the road. No other vehicle was involved in the collision.
The plaintiff’s case, in short, was:
(a) That he had in the telephone conversation been effectively ordered by his superior, whose directions he was obliged to obey, to travel to Lifford.
(b) That it was not possible or reasonably possible for him to refuse the payment to the persons who applied for it in Raphoe on that day, that they would have been extremely annoyed and greatly inconvenienced if he had done so.
(c) That the defendant’s servant or agent was negligent in requiring him to travel to Lifford when such a journey constituted a foreseeable risk of injury to the plaintiff which could have been avoided by obtaining the money from the banks in Raphoe.
The learned trial judge in the High Court held that the defendant by its servants or agents owed a duty to the plaintiff ‘not to place him in unnecessary danger and/or difficulty’ and that they failed in that duty because they ordered him to drive to Lifford when he had informed them that the roads were extremely bad, and that they did not afford to him the requested option of obtaining the money from the bank in Raphoe.
There is no doubt that on the evidence adduced in this case the plaintiff made this journey on this occasion out of a sense of zeal and what he conceived to be part of his duties as a sub-postmaster, namely, to satisfy the people who had arrived looking for payment of their allowances and insurance monies. There is equally no doubt that he suffered as a result of this accident very damaging injuries indeed, which have very largely disrupted his life, and continue so to *512 do. It is impossible not to have great sympathy for him, but the court cannot, of course, deal with the issue of law which is raised to it on this appeal on that basis.
On the account of the conversation between the plaintiff and the official of An Post on the morning of 9 December 1985, which was accepted by the learned trial judge as being accurate, it is clear that on more than one occasion the response of the official of An Post to a request by the plaintiff for permission to go to the bank in Raphoe and on the account of An Post to obtain the necessary cash, was, in the words: ‘No, if you want the money you will have to come to Lifford to get it.’
I am satisfied that there were no grounds on which this conversation, even though clearly accepted by the trial judge to have occurred, can properly be construed as a direction or order by the representative of An Post, speaking from Lifford to the plaintiff, to drive to Lifford in order to obtain the cash.
The learned trial judge rejected a submission made on behalf of the defendant at the trial that the plaintiff, if satisfied that the road was impassable or so dangerous to be foolhardy to travel upon, had the option of simply informing the applicants for payment on that morning of that fact and requesting them to return on the following day. The learned trial judge rejected this as a realistic alternative, stating that if they were looking for their money on this particular day and it was not available to them there would have been a near-riot in Raphoe.
It does not appear to me that the evidence, which I have carefully considered, supports this finding. The evidence of the plaintiff and of his assistant would appear, when considered in detail, to go no further than suggesting that the people would, as one might expect, be very aggrieved or annoyed at the occurrence. I find it hard to believe, as a matter of common sense, that had it been explained to them that it would put the plaintiff at risk of serious injury that they would still have felt inclined to protest.
Quite apart from questions which were raised at the trial as to whether it was the plaintiff’s own fault that the money was not available on this particular morning and questions as to whether any negligence on the part of An Post contained in the telephone conversation upon which the plaintiff relied was too remote from the happening of the accident to be a causative negligence, on neither of which issue do I find it necessary to reach a decision, I am quite satisfied that the finding of negligence against An Post, based on the conversation which the learned trial judge accepted as having occurred, and which, in my view, did not in any way support an order or direction from An Post to the plaintiff to travel, was not a finding reasonably supported on the evidence. In those circumstances, it seems to me that the defendants are entitled to succeed on this appeal, and that the action should be dismissed.
HEDERMAN J
(Egan J concurring): This is an appeal against the order of the *513 High Court dated 15 February 1991 wherein it was ordered that the plaintiff do recover against the defendant the sum of £81,200 (for reduced damages) and for the costs of the action, including all reserved costs when taxed and ascertained. At the hearing before the learned High Court judge there was a finding of negligence against the defendant and contributory negligence as to one-third against the plaintiff. Damages were assessed at £121,800, entitling the plaintiff to the said sum of £81,200.
From this order the defendant/appellant has appealed to this Court on the main ground that the learned trial judge was wrong in law and fact in finding that the defendant/appellant was guilty of any negligence and also in finding that the defendant/appellant or its servant or agent had any legal control over the plaintiff/respondent as to the journey from Raphoe to Lifford on 9 December 1985.
On 9 December 1985 the plaintiff sustained an accident when travelling in his car on the Milford to Lifford Road. He skidded on ice and crashed into a tree. It was the plaintiff’s case that he was aware of the bad conditions of the road because he had driven his daughter that morning to Milford and had returned to Raphoe on road conditions which were very bad and he was aware that the road conditions between Raphoe and Lifford would be very dangerous.
The plaintiff is the sub-postmaster at Raphoe. He also carries on the business of supermarket proprietor and restaurateur. He claimed damages for the alleged negligence, breach of duty and breach of statutory duty of the defendants on the said 9 December 1985.
The relationship between the plaintiff and the defendant
The plaintiff was appointed to the position of sub-postmaster on 27 April 1973 pursuant to s. 42 of the Post Office Act 1908. S. 42 of the Postal and Telecommunications Services Act 1983 transfers all rights and liabilities of the minister, arising by virtue of the contract entered into by the plaintiff with the minister, to An Post. The method of appointment appears to be that the postmaster at Lifford is notified of the appointment of the plaintiff as sub-postmaster, he having been approved on the usual conditions. The postmaster then is to arrange for the installation of the new sub-postmaster in accordance with certain rules. The position is referred to as an office which may be resigned, the office also being descriptive of the building in which the service is provided by the sub-postmaster. Pursuant to the rules the appointment is an unestablished one without entitlement to ‘the privilege of free medical attendance, sick pay or annual leave at the expense of the department’; it does not confer any claim to an established appointment or entitlement to compensation for loss of office or award under the Superannuation Acts and that if it be deemed necessary at any time to alter the duties, ‘to withdraw any part of the work of the office, or to introduce a salary system of payment, the sub-postmaster has no claim to *514 compensation for any disappointment or loss of emoluments which may result from the change’. The sub-postmaster (such as the plaintiff) is under the control and direction of An Post and is also subject to the immediate direction of his postmaster to whom, in case of doubt arising on any point, reference should be made for instructions (rule 5 of the rules/control).
The plaintiff’s case
The essence of the plaintiff’s case is expressed in paragraph 4 of his statement of claim, where it states that the plaintiff ‘was ordered, despite his protests that the roads were impassable because of ice, to pass to Lifford’, to collect social welfare money which, according to paragraph 3 of the statement of claim, it ‘was the duty of the defendants’ to deliver to the Raphoe post office where he worked. It was on the journey from Raphoe to Lifford that the plaintiff was injured when the car he was driving went off the highway.
In his statement of claim the plaintiff alleged that the defendant was guilty of negligence, breach of duty and breach of statutory duty in —
(a) Overruling the plaintiff’s objection that he should not travel because of extreme and dangerous road conditions and ordering him to travel on an implied threat of dismissal if he refused.
(b) Failing to take reasonable precautions for the safety of the plaintiff.
(c) Exposing the plaintiff to a risk of damage or injury of which they knew or ought to have known.
(d) Failing to provide the plaintiff with any suitable or adequate transport to enable him to carry out his work in safety.
(e) Failing to provide proper protection for the plaintiff.
(f) Failing to have any or any proper regard to the risks and danger faced by the plaintiff and in particular the condition of the public highway and weather conditions which were excessively dangerous.
(g) Failing to ensure that gardaí or other personnel were assigned to escort the plaintiff.
(h) Failing to require the defendant, their servant or agent, to effect the delivery of the said social welfare payments.
(i) Instructing the plaintiff despite his protest to travel on the roads the conditions whereof were ‘highly dangerous and likely to cause injury to the plaintiff’.
The defendant in its letter seeking particulars asked the plaintiff’s solicitor to state why the plaintiff did not have sufficient funds to discharge the social welfare payments on the day in question. The plaintiff’s solicitors replied as follows:
Social Welfare recipients for a surrounding area of seven miles called to Raphoe post office for their Christmas entitlement (three weeks payment) on Monday *515 9 December. Tuesday, not Monday, was the one day the social welfare payments were normally paid out and it was standard practice for Lifford post office to deliver cash to Raphoe post office to enable the plaintiff to make these payments. As Lifford post office did not make a cash delivery, the plaintiff did not have sufficient funds to discharge the social welfare payments on Monday 9 December.
In his further reply to particulars the plaintiff alleged that the defendant should have taken the following reasonable precautions for the safety of the plaintiff:
(a) They should have provided proper transport for the plaintiff in the event of his being ordered to carry out his tasks on 9 December 1985.
(b) They should have employed an experienced driver or alternatively provided an escort for the plaintiff on his journey to Lifford.
(c) They should have advised the plaintiff of the particularly hazardous conditions prevailing at the time.
(d) They should not have ordered the plaintiff to travel to Lifford.
(e) They should have made a delivery from Lifford to the plaintiff’s premises in sufficient time before weather conditions worsened.
(f) They should have advised the plaintiff how best to drive in the particular weather conditions.
The picture thus painted by the pleadings was of an employee undertaking a hazardous journey in pursuance of an order from his employer, in circumstances where the need to make the journey had been occasioned by the employer’s prior negligence. What emerged in evidence was quite a different tale. The plaintiff’s case depended on two principal factors, (1) that the shortage of cash was attributable to the default of the defendant rather than his fault and (2) that in the light of the cash shortage he had been ordered to remedy the position by driving to Lifford.
On the first of these questions it transpired that the plaintiff had the primary responsibility for determining the amount of money that should be transmitted by the Lifford office to his post office. The following extract from his direct examination sets out his position.
Question 21: Now who computed or in what manner is the requirement of your post office computed?
Answer: There was a standard number of people who are recipients of social welfare and over a period of trial and error, possibly before my time and my father’s time, through trial and error they got a fixed amount of what would be required to pay the funds at Raphoe and as other people joined the dole queue or became old-age pensioners the funds were hyped up a bit to compensate that.
Question 22: Is that calculation broadly done in Lifford or done by you?
Answer: It is done in conjunction with the two.
*516
Question: Well now?
Answer: But it’s estimated that Lifford will have the final say on it.
It is clear that the plaintiff’s function was to monitor the outflow of cash and to estimate future needs. The Lifford office had no doubt a power to decline to transmit the amount requested but there was no evidence in the case that the shortage which the plaintiff experienced on Monday 9 December 1985 was attributable in any way to any act or omission of anybody in the Lifford office.
This brings one to the question as to why there was a shortage on the fateful day. On this matter there was a serious inconsistency in the plaintiff’s evidence. On the one hand he sought to state that the reason was because an unexpected number of people turned up on the Monday looking for payments that would not fall due until the day afterwards. On the other hand he sought to suggest that the arrival of these people on the Monday was quite foreseeable. In his direct evidence he indicated the payments for certain pensions and family income supplements would normally be due and made on Thursdays or Fridays (answer to question 11) that children’s allowances were paid mainly on Tuesdays (answer to question 13) and in his answer to question 20 — ‘Taking an ordinary week what happens?’ he replied:
On an ordinary week on Tuesday morning we would have the postman coming with a bag of mail. He would be accompanied by a garda and possibly an armed detective and we would open the money from the mail bag and we would put it in the safe and timelock the safe for the duration. We need to timelock it and that would happen on Tuesday morning and Thursday morning and on Friday morning and the three days accumulated it would amount to £66,000 or £67,000.
From this evidence it is clear that Tuesdays, Thursdays and Fridays and not Mondays were the normal days for payment. Further in his direct evidence the plaintiff stated that in early December there was an actual and quite foreseeable exception to this practice which had occurred for a number of years. On this issue the plaintiff was unambiguous.
Question 29: Now again if I want you to tell the amount, what was the usual or traditional, whatever phrase you wish, arrangement for payment of the various benefits approaching the Christmas festivities?
Answer: Well, it is obviously a busy time of the year for the post office and the Department of Social Welfare would issue you three instead of one dole paper per person per week. They would issue the three weeks prior to Christmas all on the one day so that people who were on social welfare would come to the local garda station and not alone sign for that week they would sign for the three weeks paperwork lying in the garda barracks on that particular day.
*517
Question 30: I want you to say in the period before your accident what effect had that on the day, date or day of payment. First of all, what effect on the date of signing on?
Answer: Well it meant that as I said there were three weeks paperwork in there between the Department of Social Welfare and the guards. They would have to clear it. They told the people to come in a day earlier to give them an opportunity to get the signed papers into Letterkenny at the earliest so they would get down through the mountain of work and they would get them out to the people for that reason.
Question 31: What effect had that upon the volume attending at your post office to cash these forms?
Answer: Well they would come to Raphoe post office on a Tuesday normally throughout the year but on that particular time of the year leading to Christmas they would come on the Monday for just one day and that was the Monday that they would come in prior to Christmas and sign for their three weeks.
Later in his direct evidence the plaintiff was asked at:
Question 42: Now coming up to this particular Monday morning, this morning was the 9th, would it be one of the pre-Christmas days in which a major payout was likely to take place?
Answer: It is likely to take place prior to Christmas. I didn’t know it was happening until I arrived back in Raphoe post office. I assumed there was going to be a normal quiet Monday when I came back from Milford, I recognised the people who would be coming early and they were already in the shop at the post office before I got settled in about 10 o’clock or thereabouts.
Question 43: What did you find in relation to your supply of cash?
Answer: I found that the girl came and told me that the money was very low and/I was in the process of/had been in the process the previous night, of making a lodgment. I gave her £1,000 which at the time I got.
In my view what this answer reveals is that the plaintiff, in spite of the foreseeability of the arrival of extra people in his sub-post office, had simply forgotten about this likelihood. Not only that, he had actually lodged money the previous night, depleting whatever funds that had been available. Accepting, as I must, the finding of the learned trial judge in the veracity of the plaintiff’s evidence, I am satisfied that there was an inconsistency in his account. When it came to cross-examination, the plaintiff’s replies sought to offer a still further explanation, aspects of which are far from easy to reconcile with either of his two earlier versions and quite impossible naturally to reconcile with both of them.
Question 229: Now you talked about social welfare payments being made, Mr Coyle. Wasn’t it always thought that they were paid on Tuesdays within your period of office there?
*518
Answer: No, they would be paid every day actually.
Question 230: I am putting it to you and the evidence will be given that Tuesday was the traditional day for payment of social welfare payments?
Answer: No.
Question 231: It may have been a traditional day?
Answer: Pardon me. It may have been a traditional day for a section of country people but a lot of other people came on the Monday to avoid maybe the crush on the Tuesday or the crush on the Saturday. There would be more coming to have their payments on a Monday or a Wednesday.
Question 232: Well evidence will be given that Tuesday is the day that the money arrived from Lifford with the garda escort. It arrived very early in the morning at 7.30 to your office?
Answer: Yes.
Question 233: Isn’t that right?
Answer: Yes.
Question 234: Did you yourself in the course of your direct evidence say that it was a Tuesday that the payments were made?
Answer: No. The money would be paid to some people on a Tuesday because they made the one excursion to town. That was to sign on the dole and to collect their money, that would be it.
Question 235: Social welfare recipients in number 3 of your replies to particulars and I quote — ‘Social welfare recipients for a surrounding area of seven miles call to Raphoe post office for their Christmas entitlement (three weeks payment) on Monday 9 December. Tuesday, not Monday, was the day that social welfare payments were paid out’ to these particular people. Isn’t a Tuesday I am asking the day when the social welfare payments were paid out traditionally?
Answer: No. Saturday is another day.
Question 236: Why did you get/did you instruct your solicitor to put down this notice for particulars?
Answer: Well, Your Honour, to that particular one sought, of the population that is Lifford and Manorcunningham area, they were the people who came to Raphoe from a distance but people from Raphoe town would come in on Saturday and Monday and after their dole managed as well.
Judge: How did the gardaí designate it to be the day because the three weeks payment/and on this particular occasion?
Answer: I said it was a Tuesday because it was of the normal Tuesday but this happened on a particular day when they had to come into town on a Monday.
Judge: Tuesday would be designated as the normal day?
Answer: Yes.
The next crucial issue on the plaintiff’s case concerned the inter-change on the telephone between the plaintiff and Mr Kevin Doherty of the Lifford office. A lynchpin of the plaintiff’s case was that he had been ordered by Mr Doherty to make the journey. Indeed this allegation was made by the plaintiff in his *519 evidence. However when one examines the totality of his evidence on this question it becomes clear that the order was no more than an indication by Mr Doherty to the plaintiff that if the plaintiff wanted money — a matter on which Mr Doherty gave no instruction whatsoever — the plaintiff could obtain it only by going to Lifford.
Thus in his direct examination the plaintiff in his answer to question 55 alleged that Mr Doherty had ‘said to me you will have to come to Lifford for the money’. But in his answer to the question immediately following the plaintiff made it clear that no order was involved. He stated that Mr Doherty had ‘said if you wanted your money you will have to come into Lifford and he downed the phone’. On this particular issue he was cross-examined at:
Question 296: I must put it to you Mr Coyle, that he did not in any sense take the initiative in either ordering or directing you to come into Lifford? There was no order or direction from Mr Doherty to you.
Answer: There was your Honour, he said ‘If you want your money come into Lifford for it’ and then he knocked down the phone.
On re-examination the plaintiff was asked by the learned trial judge what had been Mr Doherty’s reply to the plaintiff’s request to go to one of the banks in Raphoe and the plaintiff answered ‘He said no way, if you want the money you come to Lifford for it and banged down the phone’.
The law
What the evidence of the plaintiff disclosed was a situation where the plaintiff, the person clearly in the position to estimate the cash needed for the sub-post office, had failed to do so with any accuracy and had apparently overlooked the entirely foreseeable event that occurred of extra clients coming into the sub-post office on Monday the 9th. The responsibility for the shortage of funds could not be in any respect attributed to the defendant or any of its servants or agents. Because of this shortage of cash the plaintiff was aware that the next scheduled delivery of funds was to be the following day. He sought to remedy a problem entirely of his own making, by seeking permission to deviate from the well-established instruction of two years standing not to deal with the local bank. Mr Doherty did no more than to refuse to give such permission. He did not order the plaintiff to travel to Lifford. On the contrary, as the plaintiff himself stated on three occasions, he left the choice entirely to the plaintiff.
Thus the case becomes a far more difficult one from the plaintiff’s standpoint. It is one thing for an employer to order an employee to engage in dangerous work when a safe alternative is readily available. It is quite another thing for an employer not to prevent an employee from engaging in a dangerous activity at the employee’s option in circumstances where, by deviating from the established procedures, the likelihood of the employee so acting could be reduced or *520 removed. In the first instance it would usually be relatively easy for an employee to succeed in an action for negligence. In the second instance the court cannot rush to the conclusion that the defendant had breached a duty of care, but the court must instead examine closely the evidence and seek to determine whether, in all the circumstances, liability should be imposed.
If the plaintiff had been permitted to go to a local bank to obtain the funds that he lacked as a result of his underestimation, he would not have been injured but it is a radical proposition to argue that Mr Doherty, who was not the postmaster, fell under a positive duty of care to dispense with established practice by authorising him so to do.
If the plaintiff believed that either he, as the sub-postmaster, or An Post, were obliged to pay the people looking for social welfare or other payments on that date, it was, in my view, the duty of the plaintiff to seek permission through Mr Doherty from the postmaster at Letterkenny to vary the rule applicable by allowing him in the instant case to go to a local bank.
The postmaster was the only person who could give this permission at that time (see the application of rule 5 already referred to). One has to keep a sense of realism and justice in formulating and applying the principles of negligence. The law of negligence is not a system whose primary purpose is to ensure that injured persons will receive monetary compensation. It is a system premised on the establishment of fault on the part of the defendant. The present case has no precedent, certainly none was cited to us in argument. If the court were to impose liability in relation to the circumstances that arose in this case, it is hard to see why it would not follow that every employer, whose employees journey in frosty weather, which journey could be avoided by the employer taking other steps, is under a duty of care under pain of being found liable in negligence, to arrange to have the journey called off. This is a bold proposition which goes well beyond what the law of negligence should demand. In my view the court cannot slip into a strict liability regime.
The essence of the concept of negligence is that the defendant should have acted as a reasonable person would have acted. While negligence is not determined by reference simply to how people in fact act, nevertheless the courts are entitled to have regard to common experience when determining the scope of negligent conduct. What the plaintiff avers to be negligent conduct has never been stigmatised as such by any court. Indeed the plaintiff’s case is a particularly weak instance of the principle that he advocates since it is far from clear that the plaintiff was under any obligation, legal or moral, to make the journey on that particular morning. Certainly he was not ordered to make the journey by Mr Doherty. On his own admission Mr Doherty merely told him that if he wanted the money he would have to come and get it. That was no more an order than in any other situation, for example, where a person explains to another that if that other wishes to accomplish a particular goal it can be done in only one *521 particular way.
To restrict a person’s choice with respect to how they may act if they chose to do so is not to order them so to act. Could it be said that Mr Doherty’s communication amounted to some tacit command? In my view the evidence established the contrary. Mr Doherty had no function in giving the plaintiff any instructions of the type alleged. He had no power of sanction with respect to any such interchange. In simple terms, he was the person who supplied the cash for the plaintiff’s sub-post office. The conversation between the plaintiff and Mr Doherty related exclusively to the question of the supply of that cash. To characterise it as involving direction or control over the plaintiff, savouring of the relationship between employer and employee, reveals a complete misunderstanding of the evidence.
The evidence also failed to establish any duty resting on the plaintiff by virtue of his contractual relationship with the defendant to produce cash on demand for persons who sought payment on Monday 9 December 1985. There might perhaps be an implied term in his contract that the plaintiff would exercise due care in estimating the amount of cash necessary for him to discharge his functions as sub-postmaster. If that were so, then on the evidence of the plaintiff, the plaintiff was in breach of that term. But the suggestion that the plaintiff would have breached the term of his contract in telling persons in his premises that he could not pay them because there were insufficient funds available is not supported by any evidence.
Putting the point simply, if the plaintiff omitted to go to Lifford, not only could he not have been sacked, he could not have been disciplined in any way. In deciding to set out for Lifford the plaintiff was in no sense acting as necessitated by the terms of his contract.
The learned trial judge held that the plaintiff had been obliged by the circumstances facing him to set out on his journey. In the course of his judgment he said ‘the concept in a rural sub-post office of recipients of social welfare clamouring at the door with their signed documents and to tell them to return to their homesteads in the hills and come back the following day when the money might be available would produce nothing less than a riot’. This conclusion appears to be unsupported by any evidence.
With regard to the alleged entitlement of those who sought payment on the Monday to receive cash on that day the evidence fell short of establishing such an entitlement. There was a lacuna between the evidence as to the practice of the gardaí and the evidence as to the entitlement of those who had been to the gardaí to claim cash immediately thereafter.
In my view the plaintiff failed to establish his case in the High Court and I would allow the appeal by the defendant/appellant. The question of contributory negligence was not raised before us nor does it arise having regard to what I have already said.
*522
O’FLAHERTY J:
This is an appeal by An Post from a finding made by the High Court (Johnson J) after a two day trial on 7 and 8 February 1991 when, in a reserved judgment delivered on 15 February 1991 the judge found the defendants negligent and the plaintiff guilty of contributory negligence and apportioned blame: two thirds against An Post and one third against the plaintiff. Accordingly, he awarded a sum of £81,200 damages to the plaintiff, having regard to this apportionment.
The facts
The plaintiff since 1973 has been sub-postmaster in Raphoe, County Donegal. In addition, he has a supermarket business and a cafeteria which he carries on in conjunction with the post office. One of his functions, as sub-postmaster, has been to pay out social welfare benefits to the recipients thereof in the locality. Ordinarily this was done on Tuesdays and Fridays, the money for it being sent from the post office in Lifford. Delivery was made by a post office van; occasionally additional money was required and the plaintiff would telephone and be requested to go to Lifford to collect it. Each December, because of the approaching Christmas season, the qualified persons were permitted to sign on at the local garda station and thereby get two extra weeks payment before Christmas.
In the year in question, 1985, the plaintiff was unaware of the heavy demand that occurred on Monday morning 9 December. On that day, despite very difficult icy road conditions, he had driven his daughter to Milford and returned, a round trip of some 24 miles. On his return there were people looking for their appropriate benefit and, clearly, creating an embarrassing situation for the plaintiff. The plaintiff telephoned the cash overseer at Lifford, Mr Kevin Doherty, with whom he ordinarily dealt on matters of money supply. There was a sharp conflict of evidence as to what was said between the plaintiff and Mr Doherty in relation to the plaintiff’s requirement to get cash to satisfy the various people who wanted their social welfare payments. According to the plaintiff he explained that the people who normally come on a Tuesday for their money had come on that morning; that he wasn’t prepared for them. The plaintiff was clear that Mr Doherty said to him that he would have to come to Lifford for the money and despite pleading with him and asking him could he not go to one of the local banks that would facilitate him until the following morning that Mr Doherty would not agree to this. The plaintiff said that he repeated his request to be allowed go to the bank to get the necessary money; that he spoke quite a bit about the complications of going to Lifford and explained how bad he had found the road earlier. He gave evidence as follows:
I said to Kevin could we not go down the street to the local bank …. I pleaded with him again. He said no way. He was quite rude and abrupt, he said if you *523 want your money you will come into Lifford and he downed the ‘phone. I had to explain to all and sundry that I would have to go to get the money’. [This was a reference to the people who were waiting for their money].
Mr Doherty’s version was different. He said that the plaintiff asked for cash; he asked would he be able to facilitate him and Mr Doherty said that, having ascertained how much money he wanted, he would be able to facilitate him. The question of going to a bank was not discussed at all.
The judge preferred the plaintiff’s account. That finding in turn binds me. In addition, I believe that Mr Doherty was inclined to play down his role in the post office hierarchy; true it is that he was not the postmaster but it is clear that on occasion he (who was responsible for cash) or the man who had responsibility for mail could exercise the postmaster’s duties in his absence. Whether the postmaster was absent or not, it is clear that various duties would be delegated to a man such as Mr Doherty who carried high responsibility. No serious attempt was made to submit that Mr Doherty was not entitled to give permission for money to be got from a local bank.
The plaintiff set out in his own motor car in the direction of Lifford and at a very bad part of the road the car hit a tree alongside the road; as a result the plaintiff sustained serious injuries.
Trial in the High Court
The trial judge having preferred, as I have said, the plaintiff’s account of the conversation that he had with Mr Doherty went on to find that on the morning in question the road conditions were appalling; that they were extraordinarily dangerous and in a bad condition; that the plaintiff had been told by Mr Doherty in his capacity as an agent of An Post that he was to get the money direct from Lifford: that he was not under any circumstances to go to a local bank. The judge went on to say that he was satisfied that there was established a relationship which, while it might not be the (normal) master and servant relationship, for the purposes of obtaining money it was clear the plaintiff was under the direction and/or supervision of the defendants. He was certainly under that impression on the morning when he made the phone call.
Relationship between the plaintiff and An Post
S. 42 of the Post Office Act 1908, as adapted, provided that the Minister for Posts and Telegraphs:
… may appoint such officers, deputies, agents, and servants as seem to him necessary, and any act authorised or required to be done by, to, or before the Minister for Posts and Telegraphs may, subject to any special directions of the Minister for Posts and Telegraphs, be done by, to, or before any officer, deputy, servant, and agent so appointed.
*524
By virtue of s. 42 of the Postal and Telecommunications Services Act 1983, all rights and liabilities of the minister arising by virtue of any contract or commitment (expressed or implied) entered into by him are transferred to An Post. The form of contractual relationship which appears to have existed between the plaintiff and An Post, as carried over from the pre-1983 situation, is somewhat quaint as might be expected of an organisation with the enigmatic and paternalistic history of the post office. For example, there is a rule which exemplifies both of these elements which provides that a sub-postmistress who is about to be married should make known to the postmaster the fact of her approaching marriage. I am not certain of the status of such a rule in modern life but it seems to have been attached to the relevant contract at the time of this accident.
However, the key rule for our purposes is rule 5 which provides that sub-postmasters are under the control and direction of the secretary (that was presumably a reference to the Secretary of the Department of Posts and Telegraphs in the pre-1983 situation) and are also subject to the immediate direction of their respective postmasters to whom, in case of doubt arising on any point, reference should be made for instructions.
In my judgment the learned trial judge was correct in his conclusion that there had been established a relationship which might not be the ordinary master and servant one but that for the purposes of obtaining money quite clearly the plaintiff was under the direction and supervision of the defendants. It is clear that the plaintiff is an officer of An Post with the privileges that connotation carries. He has, I am sure, a wide discretion in carrying out his duties. It is an advantage, no doubt, to be able to carry on other businesses in tandem with the post office, as he does. But there comes a point when he must be regarded as a man subject to authority.
In this case, the plaintiff complied with the ultimatum which was put to him in a situation where he should have been allowed to take the easier and safer option of going to the local bank.
In this regard, I construe the effect of the conversation that took place between the plaintiff and Kevin Doherty as an instruction to the plaintiff to come to Lifford to get the money or do without.
The other option
It was submitted to the trial judge on behalf of An Post (and repeated before us) that the plaintiff should not have made the journey at all but should have told the people who were expecting their social welfare payments that he did not want to go and collect the money and that they should go away and come back the following day. The trial judge dealt with this suggestion as follows:
I reject that suggestion out of hand. The concept in a rural sub-post office of *525 recipients of social welfare clamouring at the door with their signed dockets and to tell them to return to their homesteads in the hills and come back the following day when the money might be available would produce nothing less than a riot. I am quite satisfied of that, it would have been an utterly improper thing to do.
Duty owed
While the suggestion that there might have been a riot is a somewhat colourful depiction no doubt, the judge was nonetheless entitled to rely on his knowledge of human nature as well as on the facts proved in the case to hold that it was not a realistic option to send those expecting payments away. In any event, I believe the central point is not so much the embarrassment that the plaintiff might endure but that he had a legal obligation as sub-postmaster to do all in his power to make sure he had the money to pay those who were expecting their social welfare payments. I have regard to how vital those payments are to those expecting them. It was the legal obligation of An Post to supply the payments to the claimants; in that regard, the plaintiff was but an officer or servant of An Post to help carry out its legal obligations. The plaintiff asked to be allowed use the facilities of a local bank and he was refused. It was clearly within the power of the man who was his superior in this respect to allow him this concession. This concession had been allowed to other sub-postoffices from time to time.
In my judgment, the scope of many decisions of this Court: I instance Purtill v Athlone District Council [1968] IR 205; Moynihan v Moynihan [1975] IR 192; Ward v McMaster [1988] IR 337 and Sunderland v Louth County Council [1990] ILRM 658, establishes that the answer to the question whether negligence has been made out is best achieved not so much by seeking out a prior authority which may resemble the case in debate on the facts but rather to enquire whether such a finding is justified in principle. That, in turn, involves the answers to these questions:
1. In the instant case were the parties in such proximity that the defendants owed a duty of care to the plaintiff?
2. What did that duty of care involve?
3. Was there a breach of that duty of care having regard to the standard of care required in the instant case?
It will be clear from what I have said so far that I believe that An Post did owe a duty of care to the plaintiff and were in breach of that duty by requiring him to traverse unnecessarily this dangerous road.
The matter may be put in more stark relief by the following illustration. Suppose that there was a sub-postmaster on the island of Arranmore, off County Donegal, and that a shortage of cash for social welfare payments had developed. There was someone on the island who was in a position to facilitate the sub-postmaster with a loan of cash for some days. The alternative was to send *526 the potential recipients away or for the sub-postmaster to make a hazardous journey on a dangerous sea four miles or so to the mainland. He made a phone call to the appropriate head office looking for guidance. Is there any doubt what the supervisor should have said to that sub-postmaster? Is there any difference, except one is more vivid and immediate, between a dangerous sea and a dangerously icy road? The standard of care required in this case, as in other cases of negligence where a duty is owed, is denominated by having regard to two factors, viz the magnitude of the risk to which the plaintiff is exposed (involving the gravity and likelihood of injury which he might sustain) and the importance of the object to be attained:
To expose others to a risk of harm for a disproportionate object is unreasonable, whereas an equal risk for a better cause may be lawfully run without negligence. [Salmond & Heuston on the Law of Torts ; 20th ed., (1992), p. 234]
Supervening negligence?
Mr Lee SC for An Post put at the forefront of his submissions not the ‘duty’ point but instead he concentrated on a different aspect of the case. This is in addition to the point that the people could have been turned away which the trial judge rejected, as I do. Mr Lee SC submitted, in the next instance, that the defendant should not be liable because the plaintiff got his injuries through venturing out on the road at all and that, having gone on the road, he was very negligent in crashing the car. It was pointed out that other persons must have traversed that road on that day without crashing. It was submitted that the present case is governed by the principles in Conole v Redbank Oyster Co. Ltd [1976] IR 191. That involves that even if An Post were negligent, nonetheless, the plaintiff’s negligence had superceded the negligence of An Post and his negligence should be regarded as the exclusive cause of the injuries and damage. It was submitted it was the causa causans ; alternatively, it was put that the plaintiff’s negligence represented a novus actus interveniens. I believe that is only another way of saying that by going on the road the accident took place — which is but to beg the question. It represents a serious confusion between the concept of novus actus interveniens and what should more properly be dealt with as possible contributory negligence. It is of the essence of a novus actus interveniens that the damage complained of should have resulted from the act of another person who is independent of both the plaintiff and the defendant. As it was put in one of the old cases:
In general … even though A is in fault, he is not responsible for injury to C, which B, a stranger to him, deliberately chooses to do. Though A may have given the occasion for B’s mischievous activity, B then becomes a new and independent cause (perLord Sumner in Weld-Blundell v Stephens [1920] AC 956, 986).
*527
Conclusions
It appears to me that the justice of the case was met by the trial judge treating this as a matter to be dealt with by finding, in the first instance, both parties negligent and then apportioning liability. The plaintiff’s contributory negligence was founded on his failure to exercise sufficient care having regard to the known dangerous road conditions. Neither party to this appeal has challenged the trial judge’s apportionment, on the assumption that he was entitled to reach the conclusion that both parties were negligent and, therefore, I would uphold his findings both as to liability and on the apportionment that he made. There was no appeal as regards the damages awarded. I would, therefore, affirm the learned trial judge’s order and judgment in all respects.
BLAYNEY J:
The essential facts in this appeal may be briefly stated.
The respondent is the sub-postmaster at Raphoe in the county of Donegal. One of the functions carried out at his post office is to make payments due to persons entitled to unemployment insurance, unemployment assistance, and other social welfare benefits. To enable such payments to be made, monies are delivered weekly to the respondent’s post office from the head post office in Lifford, such deliveries being made early in the morning on Tuesdays, Thursdays and Fridays.
On Monday 9 December 1985, the respondent realised at about 10.00 am that he did not have sufficient money to meet all the demands for payment likely to be made that day. Because it was coming up to Christmas, persons in receipt of the dole were signing on for three weeks in the garda barracks on that Monday, and they were coming to the post office to receive one week’s entitlement plus a bonus of 75%. This was something that the respondent had not anticipated.
For the previous two years the practice in such a situation was for the respondent to go to the post office in Lifford to get the extra money he required, having first telephoned to make sure it was available. On this particular day, however, he wanted to avoid having to go to Lifford, a journey of about five miles, as the road was dangerous, being covered with ice. With this in mind, he rang Mr Kevin Doherty, the cash supervisor in the Lifford post office with a view to getting the additional money needed. As to what was said in the course of this conversation on the telephone there was a complete conflict between the respondent and Mr Doherty. The learned trial judge accepted the respondent’s version and found that the respondent had been told by Mr Doherty in his capacity as an agent of An Post that he was to get the money direct from Lifford and that he was not under any circumstances to go to the banks locally.
At the conclusion of his conversation with Mr Doherty, the respondent set out in his car for Lifford. On the way his car skidded on ice and ran into a tree thereby causing the respondent the personal injuries for which he seeks to be compensated in this action. The learned trial judge held that the appellants were *528 negligent and that the respondent was guilty of contributory negligence and he apportioned liability as to two thirds to the appellants and as to one third to the respondent and awarded £81,200 damages.
The negligence of which the learned trial judge found the appellants guilty was that they had ordered the respondent to come to Lifford to collect the money that he needed. Early on in his judgment he said:
The plaintiff has sued An Post, Ireland, for negligence and the related negligence is that he was required by the servants or agents of the defendants to make the trip after protestations as to the condition of the road and after a request to have either the money which was being sent to him delivered by a post office van or else to be given permission to go to the local bank and draw it out on foot of an order.
On p. 2 of his judgment he found that the respondent had been told by Mr Doherty in his capacity as an agent of An Post that he was to get the money direct from Lifford and that he was not under any circumstances to go to the banks locally. And finally on p. 4 of his judgment he said:
I have come to the conclusion that the defendants were negligent in ordering the plaintiff to make this trip ….
In my opinion such a finding is not supported by the evidence. Since the learned trial judge accepted the respondent’s version of his conversation with Mr Doherty, if his findings are to be supported it must be on the basis of the respondent’s evidence so I will refer to his evidence only. In the course of his answer to question 56 in the transcript of the first day of the trial, he said, referring to Mr Doherty:
He was quite rude and abrupt, he said if you want your money you will come into Lifford and he downed the phone.
He repeated the same evidence in answer to three other questions:
Q. 296. He [Mr Doherty] said ‘if you want your money come into Lifford for it’ and then he knocked down the phone.
Q. 317. His exact words were not exactly that, he said if you want money be over for it.
Q. 325. It was implied that I had to go over to Lifford if I wanted the money.
In my opinion it cannot be inferred from this evidence that the respondent was ordered to go to Lifford. He was left perfectly free to decide whether he would go or not. What Mr Doherty told him was that he could not send a van out with the money, and that the respondent could not get the money from one *529 of the banks in Raphoe. It was then for the respondent to decide whether it was worth risking the icy roads in order to get the money. There was no compulsion on him to do so. He could just as easily have decided against going. In fact, having set out for Lifford, he nearly gave up and came back. In answer to question 268 in the transcript of the first day of the hearing, he said: ‘I actually debated turning back when I was there’.
One of the grounds on which the learned trial judge relied as having given the respondent no choice as to whether he went or not was that if he did not go to get the money there would have been nothing less than a riot in his post office. In my opinion there was no evidence to support this conclusion either. When it was put to the respondent that he could have told the people waiting for payment of their social welfare benefits to come back the following day (Q. 280 in the transcript of the first day) his answer was: ‘Not very readily’. And when Mrs Deirdre McGlinchy, who was the assistant behind the counter in the post office, was asked if there was anything to stop her saying ‘would you mind coming in tomorrow’ (Q. 239 in the transcript of the second day’s hearing) her answer was: ‘You could say it, he wouldn’t be very pleased’. These answers do not support the conclusion reached by the learned trial judge.
For these reasons I consider that the learned trial judge’s finding that the defendants were negligent was unsupported by the evidence and that accordingly this appeal should be allowed.
Counsel for the respondent, in addition to making the case that the respondent had been instructed by Mr Doherty to come to Lifford to get the money, a case which I have just rejected, also submitted that the appellants had been negligent in not authorising the plaintiff to get the money from a bank in Raphoe. He submitted that the appellants owed the respondent a duty of care and that in acting as they did they were in breach of that duty. But even if this were correct, which in my view is unlikely, it still would not entitle the respondent to succeed unless such breach of duty was the cause of the respondent’s accident and in my opinion it was not.
The difficulty involved in determining the cause of an accident was outlined by Lord Reid at p. 681 of his opinion in the case of Stapley v Gypsum Mines Ltd [1953] AC 663:
To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it. ‘A jury would not have profited by a direction couched in the language of logicians, and expounding theories of causation, with or without the aid of Latin maxims’: Grant v Sun Shipping Co. Ltd [1948] AC 549, 564 per Lord du Parcq. The question must be determined by applying common sense to the facts of *530 each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as a sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.
When the facts of the respondent’s accident are analysed, I think it is clear that nothing that the appellants did could be said to have caused it. The immediate cause of the accident was that the respondent’s car skidded on an ice-bound road at a part of the road which was notoriously dangerous. A further cause was the respondent’s decision to drive to Lifford notwithstanding his knowledge of the state of the road. And the manner in which the respondent drove may also have been a contributing cause and the learned trial judge held in fact that he had been guilty of contributory negligence. But any possible cause preceding the respondent’s decision to go to Lifford must be discarded as being too remote because his decision was one he need not have taken. He could have explained to the people who were waiting that the roads were too bad for him to go to Lifford to get the money he needed, and there must have been a very good chance that this explanation would have been accepted. The learned trial judge took a different view as to this being a real option, but for the reasons given earlier I consider that his view was not supported by the evidence.
I am satisfied that nothing that the appellants did could be said to have caused the accident, and for this reason also I consider that this appeal should be allowed.
Callaghan v. Bus Atha Cliath/Dublin Bus
JUDGMENT of Mr Justice Roderick Murphy delivered the 1st day of December 2000.
1. The Plaintiff’s car crashed into the back of a bus travelling South on Wyatville Road, Ballybock, County Dublin. The bus driver was attempting a right U-turn on a dual carriageway with a left junction. There were traffic lights at that junction. The road markings, on both the inner and the outer lane indicated straight ahead. Some 250 feet before the junction the arrows on the inner lane indicated, in addition to an arrow straight ahead, an arrow to the filter lane on the left of the inner lane towards the left junction. All of the arrows appear to have measured between 30 and 40 feet. It was a fine summer’s evening, the 3rd May 1995.
2. The first named Defendant was the owner of the bus and the second named Defendant the driver of the bus.
3. The Plaintiff claims that the bus swung across the carriageway and into the path of the Plaintiff’s vehicle which was then travelling in the outer lane.
4. The Defendants deny that claim and say that the damage and injuries were cause solely by the negligence of the Plaintiff or, alternatively, that the Plaintiff was guilty of contributory negligence in the circumstances by driving too fast, by failing to have regard for the position of the bus, failing to pay attention to the indicator lights, failing to comply with the speed limit, attempting to overtake without first ascertaining that it was safe to do so and other grounds of negligence.
5. The Plaintiff was familiar with the road. He said he was familiar with the practice of buses turning right at the previous junction to Church View Road.
6. He said he became aware of the bus while he was at the previous traffic light which was about 1,000 feet from the T-junction. He said that the bus was on the inside lane and two thirds of the way down weaved into the middle occupying both lanes and then reverted to the left hand lane. It then went to the outside lane. Half way down the Plaintiff assumed that the bus was going to continue and assumed that it would not stop.
7. The Plaintiff said that he was travelling at between 55 and 60 mph and that there was no indication of the speed limit. He said he panicked when he saw the bus going broadside, slammed on his brakes and geared down. He turned to veer through on the inside lane but traffic would not yield and there was not enough time. He said he did not remember an indicator while he tried to manoeuvre to the inside of the bus his left wheel caused a skid and he ended up under the rear of the bus.
8. On cross examination he agreed that if he had been going slower no accident would have occurred. He also admitted that his panic may have clouded his memory of whether there was an indicator light flashing on the bus. It would not have made any difference and would not have effected his judgement as, at that point, it would have been too late.
9. Under cross-examination the Plaintiff further agreed that, at the District Court hearing, he had stated that his view had been impaired by harsh sunlight. He said he had not appreciated the danger at that point. The bus was behaving erratically. He expected that the bus would continue straight and he continued on at speed, before breaking sharply leaving a skid mark some 60 feet from the junction.
10. The Plaintiff accepted that he now knew that the speed limit was 40 mph. Mr Peter Varian was travelling at 35 mph on the inner lane. He saw the indicator on the bus. It was blinking to the right and going slower than his 35 mph. Mr Varian said that he could hear, through the open roof of his car, a hard accelerating noise of the Plaintiff’s car two to three lengths behind him. He said the Plaintiff’s car shot past him and accelerated to pass the bus on its outside. He believed that the Plaintiff was travelling twice as fast as he was. At the last minute the Plaintiff’s car tried to go on the inside and swung very slightly left with smoke coming from its tyres before hitting the back of the bus on its left hand side.
11. There was a dispute between the expert evidence regarding the speed and manner of impact. What is certain is that the car driven by the Plaintiff was a write-off and that the Plaintiff suffered severe injuries.
12. The issue before the Court is best summed up in the concise submissions of Mr Sean Ryan S.C. for the Defendants. While the Defendants’ vehicle was the causa sine qua non the causa causans, i.e. the causing factor, was the Plaintiff’s. Mr Alan Mahon S.C., for the Plaintiff, conceded that speed was a factor. There was some degree of negligence. It would be a travesty to condone the conduct of the bus driver, to free the Defendants of blame. There were no hand signals, no hazard lights. There was a dispute as to where the Plaintiff was on the road which could have been clarified had the bus driver looked in his mirror. Mr Varian’s evidence as to speed was only an estimate. The Plaintiff had given evidence of gearing down.
DECISION
13. The Plaintiff gave evidence very fairly. He admitted driving well in excess of the speed limit. While the road is straight, and a dual carriageway with good visibility it does pass through a residential area. The Plaintiff admits that he panicked and tried to pass the slow moving bus on its inside lane but there was not enough time to do that. It is clear from the detailed evidence of the impact and from the photographs exhibited that the bus was not presenting broadside to the Plaintiff in any degree. The Plaintiff admitted that his panic may have clouded his judgement regarding the indicator. He admits, quite fairly, that it would not have made a difference, would not have effected his judgement; at that point it would have been too late. He expected the bus would continue straight and he continued on at speed.
14. No evidence was given by the Plaintiff as to the traffic lights. The second named Defendant gave evidence that while he had intended to execute a U-turn, he realised that there would not be enough room to do so and decided to continue straight. While one cannot condone any road user seeking to execute a right turn where the road markings clearly indicated straight on nor approve indecisiveness, yet this was not the cause of the accident. If the bus had to stop because of the traffic lights, or because somebody or animal was attempting to cross the road then the same objective circumstances would have presented themselves to the Plaintiff.
In Martin Sinnott -v- Quinnsworth Limited, Coras Iompar Eireann and Edward Durning [1984] ILRM 523, the Plaintiff suffered severe personal injuries in a road traffic accident when a passenger in a car owned by the first named Defendant and driven by the third named Defendant which was in collision with a bus owned by the second named Defendant. The High Court jury found the driver of the car negligent in that he was on the right hand side of the road at the time of the collision. It also found that, although the bus driver was on the correct side, he was negligent in failing to drive as close as possible to the left hand side. The car driver was found 78% at fault, the bus driver 20% at fault and, for failing to wear his seat-belt, the Plaintiff was found 2% at fault.
15. The Supreme Court unanimously held that although the jury was answering an agreed question in apportioning blame to the bus driver, there was no evidence to support such a conclusion and in the circumstances the Court would set aside that finding and apportion total blame on the car driver.
16. In this case the bus driver was attempting to execute a right hand turn which was counter indicated by the traffic arrows. There is, accordingly, evidence to support some minor degree of blame on the part of the Defendants.
17. Having considered all the facts in the light of the provisions of the Civil Liability Act I would find the Plaintiff 90% at fault and the Defendants 10% at fault.
18. The Plaintiff has made a remarkable recovery from very serious injuries. He does not claim any loss of earnings. He sustained a compound fracture of his right upper tibia and multiple facial lacerations. He required a skin grafting to his upper tibia. He is left with residual scarring on the face and upper pretibial area.
19. He will suffer with osteoarthritis of the left knee and may require a knee replacement.
20. Following a short adjournment the parties agreed the quantum of damage on the basis of the above.
Shelley-Morris v. Bus Atha Cliath/Dublin Bus
[2002] IESC 74 (11 December 2002)
[Judgments delivered by Denham & Hardiman JJ.; McGuinness J. agreed with both judgments]
Judgment delivered on the 11th day of December, 2002 by Denham J.
1. Appeal
This is an appeal by Bus Atha Cliath – Dublin Bus, the defendant/appellant, hereinafter referred to as the defendant, from a judgment and perfected order of the High Court (O’Higgins J.) of the 26th October, 2001 and the 10th December, 2001, respectively. The proceedings were commenced by Siwsan Shelley Morris, the plaintiff/respondent, hereinafter referred to as the plaintiff.
2. High Court Judgment
The facts were found by the learned trial judge. As to the facts and the issues of negligence and contributory negligence he held:
“On Saturday, 22nd September 1995 the plaintiff, who at the time of the incident was 45-year-old, was a passenger in a bus, the property of the defendants. The bus was privately hired to bring people to a wedding in Monkstown and after that to a reception in Killiney.
The bus initially brought the plaintiff and other passengers from Malahide to the church in Monkstown, and the plaintiff’s evidence is that during that time the journey was just normal. However, on the journey from the church in Monkstown to the reception in Killiney, the plaintiff maintains that the diving (sic) was different, that it appeared faster and more jerky.
The plaintiff stayed in the lower deck somewhere beyond halfway up the bus towards the back, her two-year-old daughter was sitting beside her and another witness was beside the child. The child got bored. The bus having stopped at a red light, the plaintiff took the opportunity to bring the child upstairs. She picked up her, (sic) held her on her right hip and started to go up the stairs holding the left-hand rail. She was approximately one step from the top when the bus jerked forward and then carried on accelerating.
The plaintiff was thrown backwards., Her left hand had been on the railing but she let go because of the jerking of the bus. She fell backwards but managed to hold the railings again and ram her right leg and right heel into the third step up and used it as a foot ramp. She swung out and landed on her back on the floor with her daughter on top of her. She felt her knee creak.
Her dress was torn and up around her waist. She felt stupid and embarrassed and her knee was very painful and swollen. She could not stand up and the heel of her shoe came out in the incident. That is the plaintiff’s account of the accident.
This account was disputed hotly by the driver of the bus, Mr. Collins. He says that on the day in question his driving from Malahide to Monkstown was uneventful. He also maintains that the driving from Monkstown to Killiney was similar and no different than his previous driving.
He was unfamiliar with the route from Monkstown to Killiney and a person going to the wedding offered to show him the way and told the bus driver to follow his car. There was no mention of him putting the boot down and no mention of hurry or delay, and the driver said that he had no difficulty in keeping up the car (sic) because of the heavy traffic. His driving was normal and there was nothing unusual.
When the bus had nearly reached the hotel he heard a commotion on looked (sic) in the mirror and saw the plaintiff on the floor at the bottom of the stairs. He flashed his lights, sounded the horn to stop the car which was guiding him and that car pulled in as did the bus. The driver does not think that there were any traffic lights just at or near the scene of the accident, the bus was moving normally and had not been stationary for some time before the incident.
He asked the plaintiff if she was all right and she said she was. He asked her if she wanted an ambulance and she declined. He said that she told him, although she denies this, that she went upstairs and on the way down the heel of her shoe broke and she fell.
The driver denies that there was any jerking movement of the bus. He denied that he was going faster than normal. He denied that he was pulling away abruptly upon being stopped. There were no complaints about his driving. He said that the red light would stay on long enough to allow a person to go up the stairs.
The version given by the plaintiff varies substantially with that given by the bus driver, and were it a matter of balancing the evidence of one against the other, the job of the Court would be very, very difficult indeed.”
However, the trial judge accepted the evidence of Ms. Conlon as to the way the bus was being driven and the circumstances of the event in issue. He held:
“. . . I am unable to disregard the evidence of Trudy Conlon, who in my view was an extremely impressive witness. Careful, accurate and in my view to be believed and I accept her account of the accident. She substantially corroborates the account of the plaintiff, both as to the bus having being (sic) stopped and moving off abruptly causing her indeed to jerk forward as well as the plaintiff who was upstairs on the bus. I believe her and she carries the plaintiff’s case on the factual issue.
Moreover, the account of the accident given by the plaintiff herself when she was admitted to St. Mary’s Hospital in Paddington was consistent with the account that she has given to the Court. Were she to be involved in some sympathetic reconstruction to suit her own purposes, I doubt that she would have done that at that stage.
As for the evidence of the bus driver, that she told him that she fell because the heel came off her shoe, I have no doubt that that is the bus driver’s recollection of what happened and I have no doubt that he is not in any way trying to mislead the Court. However, it seems to me very likely that there was some mention of a heel of a shoe and I would not attach any significance to the fact that he took that message out of the conversation, which on my view was not factually a correct account of how the accident happened.
So it seems to me that in the circumstances that the bus jerked off abruptly and that that was the primary cause of the accident in question.”
Having determined the negligence in issue the learned trial judge then addressed the issue of contributory negligence. He held:
“The question of contributory negligence arises then. While I feel that the plaintiff herself must take a share of the responsibility for the accident, it is true that there is no embargo on people going up to the top of the bus and they are entitled to go up. The evidence indeed of the driver is that people would in ordinary journies (sic) be going up the bus while the bus was moving and there are handrails provided, but to do so with a small child on one’s hip when it is not necessary to do so seems to me to be not what a prudent person would do.
To do so with a small child on the hip in circumstances where one had already noticed the jerky nature of the bus when moving off seems to me to amount to a considerable degree of contributory negligence. I penalise the plaintiff in contributory negligence to 25%.”
Having found that the defendant was negligent and that there was contributory negligence on the part of the plaintiff, the trial judge apportioned the degrees of fault as to 75% to the defendant and 25% to the plaintiff. The court assessed damages as follows:
Special Damages:
Loss of pension and gratuity: £37,500.00
Loss of earnings for the future: £25,000.00
General Damages:
Pain and suffering to date: £70,000.00
Pain and suffering in the future: £40,000.00
Total award: £172,500.00
Thus, in accordance with the apportionment determined, the High Court ordered that the plaintiff should recover £129,375.00 being 75 per cent of the total award of £172,500.00 and the costs of the action.
3. Appeal
The defendant appealed against the judgment and order on the grounds that:
(a) That the learned High Court judge erred in his findings that the defendant was the prime cause of the accident the subject matter of these proceedings;
(b) That the learned High Court judge erred in his finding that there was 25% contributory negligence only by the plaintiff in light of her actions;
(c) That the learned High Court judge erred in his assessment of the appropriate damages that should be paid to the plaintiff as a result of the personal injuries suffered by the plaintiff in the accident the subject matter of these proceedings and by virtue of the deliberate exaggeration by the plaintiff of those injuries;
(d) That the learned High Court judge erred in his assessment of the appropriate damages for which the plaintiff should be entitled by reason of the future loss of pension/earnings when there was insufficient evidence to support such an assessment.
4. Evidence
In this case there was oral, documentary and video evidence before the High Court. On the issue of liability the plaintiff’s evidence was supported by two other passengers on the bus being Mr. Trudy Conlon and Mr. Paul McEvoy. The only witness for the defendant on this issue was the bus driver. The learned trial judge, on the issue of liability, accepted the evidence of the plaintiff, it being corroborated by Ms. Conlon.
As to the issue of damages, it was agreed between the parties that the reports of the treating specialists and doctors from the United Kingdom would be received into evidence in substitution for viva voce evidence. Thus reports were admitted into evidence from Mr. Richard Hampton, F.R.C.S., dated the 27th June, 1996; Mr. R. Sinnerton, F.R.C.S., dated August, 1998; Mr. M. Roberts, Consultant Orthopaedic Surgeon, dated the 20th November, 1997 and Mr. M.Y. Zakaria, Locum Consultant Orthopaedic Surgeon, dated the 3rd March, 1999. Viva voce evidence was given on behalf of the plaintiff on the issue of quantum by Mr. Eric Kersey who was Payroll and Pensions Manager with the plaintiff’s employers, by Mr. Alan Dodds, a rehabilitation consultant and Mr. Peter Delaney, an actuary. No medical evidence was called by the respondent. The defendant called only one witness on the issue of quantum, and that was Mrs. May Feeley, a rehabilitation consultant. However, by agreement, the defendant introduced into evidence a video film of the plaintiff showing her engaged in activities. Thus in this case this appellate court is in the same position as the trial judge in relation to the evidence from the medical reports and the video evidence.
5. Exaggeration
The learned trial judge found that the plaintiff had deliberately exaggerated some of her symptoms. He held:
“However, I have to say that in her evidence overall I am bound to say that I found that the plaintiff was exaggerating her symptoms from time to time. In particular I have to say that what was evident to the Court on the video tape was at variance at least with the general picture of her disability that the plaintiff offered to the Court.
As for her explanation that this was a combination of a good day and emergency, the Court is unable to accept that as being a full explanation of the discrepancy, particularly in view of the fact that while the question of the fallen, or the would be fallen, electric wires could indeed be thought to constitute an emergency, the plaintiff’s evidence about the emergency because of the removing of the items from her father-in-law’s house was singularly unconvincing to the Court.
So the plaintiff’s case is more difficult to evaluate because of the factor that the Court has found that she deliberately exaggerated some of her symptoms to the Court.”
This finding of deliberate exaggeration by the learned trial judge is at the core of the defendant’s case.
The issue of exaggeration by a plaintiff in court proceedings is not new. It may arise in different ways in different cases. There are many possible circumstances. Three of these are as follows:
First, there is the case where the whole claim is concocted. The accident did not happen or did not happen as claimed. This is a fraudulent claim and will be dismissed by the trial judge.
Secondly, there is the situation where there is a genuine claim but the effect of the injuries is exaggerated by the claimant because of a subjective belief that the injuries have had a worse effect than they have. This type of approach involves no conscious lying by a claimant. The trial judge would determine the value of the damage suffered in accordance with the evidence, but would not condemn the evidence of the plaintiff.
A third scenario exists where there is a genuine case made establishing negligence but the plaintiff deliberately exaggerates the injuries, knowing that he or she is exaggerating the injuries and their effects. This may take on the appearance of a fraudulent claim. The lies of the plaintiff are apparent to the judge. It is at this stage that the trial judge (who has heard all the evidence and seen the witnesses) must exercise his or her judicial discretion. At issue is the credibility of the witness. If the credibility is so undermined that the burden of proving the claim has not been met then the trial judge will dismiss the claim. However, to achieve a fair result in all the circumstances, the trial judge may assess the credibility of the witness in light of the evidence of other witnesses. It may be that the negligence of the defendant is established but that the evidence of the plaintiff as to the injuries or some of the injuries may not be credible. This may arise in circumstances where injuries are not easily assessed objectively but great reliance has to be made on the evidence of the plaintiff, for example in soft tissue injuries. The evidence of a plaintiff is critical. In a situation where the plaintiff has told a mixture of the truth and lies his or her credibility is completely undermined. It is for the plaintiff to prove his or her case on the balance of probabilities. It may be that the deliberate exaggeration is such that the credibility of the witness is called into doubt and the burden of proof is not carried. Consequently, the plaintiff will not succeed in proving the claim to which such deliberate exaggeration applies.
This principle has been stated recently in Vesey v. Bus Éireann [2001] I.R. 192 where it was held that it was not the responsibility of a trial judge to disentangle the plaintiff’s case where it had become entangled as a result of lies and misrepresentations systematically made by the plaintiff. For the trial judge to make on behalf of the plaintiff the best case he could in such circumstances would risk a perception of bias.
In this case the medical evidence was in admitted medical reports. The learned trial judge held, as regard the injuries, as follows:
“Following the accident the plaintiff was taken to Loughlinstown Hospital where she received an injection, x-rays and tubigrip bandage was applied. A tentative diagnosis of ligamentous injury was made and she returned to the wedding reception. She returned to London the following day and she was in considerable pain.
Approximately a week later she received a letter saying that there was a possibility that the injury was more than the ligamentous damage which had been previously thought and advising her to see a specialist. The plaintiff was seen in a fracture clinic on 4th October 1995 and it was recorded that she had sustained a depressed fracture of the right tibial platter. She was admitted to hospital that day under the care of Mr. Hunt with a view to operative reduction and fixation of the fracture.
On 10th October 1995 the plaintiff underwent the operation on right knee, arthroscopy and elevation of the lateral tibial platter with bone grafting and external fixation. At the operation the depressed lateral tibial platter was elevated and the defect in the cancerous (sic) bone was grafted using a bone graft taken from the right iliac crest of the plaintiff. Fixation was provided by a laterally placed T-shaped buttress plate with screws attached. There was a long protrudial peripheral scar on the lateral meniscus which did not require surgical intervention.
Post-operatively she received continuous passive movement in order to prevent knee stiffness. It is recorded in the report of 27nd (sic) June that she made an uneventful recovery. She was mobilised with crutches and she described of having to use the crutches for a period of nearly a year. She described a heavy casing that was imposed on her for sometime as well. Also I have to say that she is left, as a result of the operation and the subsequent operation to remove the metal from the knee, with what has to be considered an ugly and unpleasant scar.
On 13th November 1995 it was recorded that she was making good progress. On 28th February it was recorded that she was fully weight bearing with occasional need of help from crutches. The range of movement in her knee from full flexion to 90 degrees. At that stage when reviewed in the clinic 6 months after the operation it was considered that she had made a good result following her knee injury, but further examination was required. I have had the benefit of that report which is 27th June 1996.
The next report was in November 1997, that of Mr. Roberts, the consultant orthopaedic surgeon, dated 20th November 1997. That stated that the plaintiff’s complaint was of a constant intermittent general ache around the right knee which became painful at times, the joint swelling periodically. She complained of pain for standing in excess of 15 minutes and walking in excess of 100 yards was impossible without a rest. She carried a walking stick continuously outdoors.
At that stage it was considered that she had made a very good recovery, but the general changes are present. The report say (sic) that at the moment these are not gross, but progression over the years is likely. After the metalwear has been removed some of the pain will resolve. Indeed the plaintiff gave evidence to the Court that some hotness which was associated with the metal plate was absent after that. It is recorded there that the osteoarthritis is not gross, but she is significantly limited in her ability to function normally.
The next report is undated but received by Bruce St. John Blake Limited the then solicitors for the plaintiff in August 1998. That is the report compiled from the notes which I accept as being accurate by Mr. Sinnerton, consultant surgeon.
He says she was seen for a final time in June 1996 at which point it was recorded that the result was excellent. She was walking without a stick with no significant pain and had a full range of movement of the knee. The wound had completely settled and the patient was reported as being extremely happily (sic) with the result. X-rays showed a united fracture. It was not thought that there was any indication for removing the metalwork unless it was for a specific reason or strong desire from the plaintiff.
At that stage the opinion was that she had suffered a very significant injury to right knee, a fracture of the lateral tibial platter damaging the articular surface on the side, but it was reconstructed well. The operation notes record central defect and the articular surface of the operation. At that stage there was a prognosis as to the likelihood of arthritis, that is (sic) prognosis is irrelevant now as it is common case that the lady has arthritic condition in the knee.”
This then was the medical evidence from the reports. It described a significant injury with an excellent result but for arthritis. However, the plaintiff claims differently. It is at this stage of the case that the evidence of the plaintiff and the video evidence are in conflict and are relevant, together with the medical reports. The learned trial judge held:
“However, the plaintiff disputes the finding that the result was excellent at the time. She disputes that she was walking without a stick. In relation to no significant pain she says it depends what you mean by significant. I am ready to accept that subjective and objective assessments of pain are different.
However, I have to say that in her evidence overall I am bound to say that I found that the plaintiff was exaggerating her symptoms from time to time. In particular I have to say that what was evident to the Court on the video tape was at variance at lease with the general picture of her disability that the plaintiff offered to the Court.
As for her explanation that this was a combination of a good day and emergency, the Court is unable to accept that as being a full explanation of the discrepancy, particularly in view of the fact that while the question of the fallen, or the would be fallen, electric wires could indeed be thought to constitute an emergency, the plaintiff’s evidence about the emergency because of the removing of the items from her father-in-law’s house was singularly unconvincing to the Court.
So the plaintiff’s case is more difficult to evaluate because of the factor that the Court has found that she deliberately exaggerated some of her symptoms to the Court.
However, there is no doubt that she had a significant injury. There is no doubt as well that while she complained of ache, afterwards she said that it was a pain, pain on a daily basis, the Court simply does not accept the evidence of the plaintiff that she is unable to go about her business without a walking stick. Nor does the Court accept that the plaintiff is unable to drive a car for any distance of time. The Court also does not accept that the plaintiff has made all reasonable efforts to obtain further employment and to get back into the workforce.
However, apart from the nasty injury she sustained, the Court accepts without reservation that the plaintiff was depressed and upset and demoralised following and as a result of the accident. She suffered a real depression and diminution in the quality and enjoyment of her life.
However, I do not accept that she is not in a position to go back to gainful employment. I do not accept that she will have any huge difficulties getting that employment.
However, I have to say that it is actually common case, but that her job prospect and her career prospects are diminished by the following factors; (1) Undoubtedly by her age, which I think will come against her. (2) By the fact that she has been out of the workforce for a number of years. (3) Notwithstanding the fact that I do not accept her evidence, as I have made clear in relation to the level of her disability, there is no doubt that she unfortunately has to look forward to the prospect of pain in the future and a strong possibility, if not a likelihood of surgical intervention to replace the kneecap. Those circumstances are bound to have some repercussions on her job prospects.”
Having considered the transcript of the oral evidence, the medical reports and the video I would affirm the finding of the High Court that the plaintiff deliberately exaggerated symptoms. Consequently, she lost credibility on these issues. As the burden of proof is on the plaintiff the loss of credibility undermines her case as to her injuries suffered. The burden is on the plaintiff to prove her case, on the balance of probabilities, on credible evidence. Consequently, the plaintiff was in danger of losing her entire claim.
In light of the fact that the trial judge in this case had the benefit of seeing her and hearing her evidence and was satisfied that she did suffer some injuries her evidence stands and is credible insofar as it is corroborated by the medical reports. While that evidence is that she has made a good recovery, the injury has resulted in arthritis, which is progressive, and which causes pain and some limitation of movement. The condition of the plaintiff was described by Mr. M.Y. Zakaria on the1st March, 1999 as:
“She is currently complaining of dull aching pains in and around her right knee with recurrent swelling on exertion. Her range of movement is almost full and the knee is mildly tender along the joint line and the scar area laterally.”
In view of the video evidence, the medical reports and the finding of the learned trial judge that the plaintiff deliberately exaggerated some of her symptoms her evidence on this topic lacks credibility. She has failed to prove this aspect of her case on the balance of probability. Unlike the issue of liability where the learned trial judge found that the evidence of the plaintiff was corroborated by that of Ms. Condon there is no such corroboration on the issue of quantum. I have had the opportunity of viewing the video and considering the medical reports. In light of the deliberate exaggeration by the plaintiff as to some of her symptoms, that is giving untrue evidence, the credible evidence upon which the court may rely is that of the video evidence and the medical reports. Consequently, determining the matter on the video evidence and the medical reports it is clear that the plaintiff suffered a significant injury which had sequelae which the learned trial judge accepted. I would uphold the award of £70,000.00 for pain and suffering to date. However, in light of the credible evidence, I would vary the order of the High Court as to pain and suffering in the future and would award for future pain and suffering £20,000.00.
The information which grounded the evidence of Mr. Alan Dodds, as regards the plaintiff and her ability to work, came from the plaintiff. In view of her lack of credibility on this issue her evidence on this aspect of the claim may not be relied upon. As a consequence neither may the evidence of Mr. Dodds be relied upon. Thus, because of a lack of credible evidence the plaintiff has failed to prove on the balance of probabilities a basis for special damages as to loss of pension and gratuity and loss of earnings into the future. Consequently, I would determine the quantum as £90,000.00.
6. Abuse of Process
Deliberate exaggeration by a plaintiff may be such as to be an abuse of the process of the court. In such a case it may be appropriate to put this to a witness and for counsel to address the legal issues. However, that did not occur in these proceedings. Consequently, apart from raising the matter as an appropriate issue which may be considered in the future in such a case, I make no finding.
7. Contributory Negligence
The learned trial judge accepted evidence that on the journey from the church in Monkstown to the reception in Killiney the bus was driven in a way that was faster and more jerky. He had the benefit of hearing the evidence. An appellate court should be slow to interfere with such a finding of fact by a trial judge: Hay v. O’Grady [1992] 1 I.R. 210. However, having accepted that evidence of the plaintiff over the evidence of the bus driver, who maintained that his driving did not change during the trip from Malahide to the church in Monkstown and from Monkstown to Killiney, it was an important fact in the case. The learned trial judge having held that the driving did change, that it was faster and jerky on the latter run, consequences flow. Having accepted that evidence, it then becomes part of the circumstance in which the plaintiff decided to carry a two year old child upstairs. Accepting the evidence that the bus was being driven in a fast and jerky fashion it is in those circumstances that, at a red light, the plaintiff decides to pick up a two year old child, and, wearing high heels, climb the stairs to the upstairs of the bus. Before she reaches the top the bus jerked forward and she fell.
Given that the bus was being driven in a fast and jerky fashion the negligence of the plaintiff is clear. Given the factors, the proven way in which the bus was proceeding, the age and consequent weight of the child, the decision to move while the bus was making a journey, the footwear of the plaintiff, I am satisfied that the learned trial judge erred in apportioning the negligence to the plaintiff at 25%. Both the plaintiff and the defendant were equally negligent. I would apportion the negligence as against the plaintiff at 50%.
8. Conclusion
In conclusion, I would set aside the order of the High Court and I would assess the damages to the plaintiff at £90,000.00. Having determined the contributory negligence of the plaintiff at 50%, the sum to which the plaintiff is entitled is £45,000.00.
THE SUPREME COURT
Denham J. 357/01
McGuinness J.
Hardiman J.
Between:
SIWSAN SHELLY-MORRIS
Plaintiff
and
BUS ÁTHA CLIATH
Defendants
JUDGMENT of Hardiman J. delivered on the 11th day of December, 2002.
The Plaintiff, who is a Welsh lady now aged 52, was involved in an accident in Dublin on the 22nd September, 1995. She was a guest at a wedding and was conveyed in the Defendant’s double decker “Wedding Bus” to the Church and from the Church to the reception. On the latter journey she suffered a fall on the stairs of the bus. The circumstances of this incident will be discussed later. The initial focus at the hearing of this appeal was on the question of Special Damage, specifically loss of earnings. It was argued that the Plaintiff’s case on this aspect was consciously false and that this fact had consequences for the case as a whole.
The Plaintiff’s proceedings
The Plaintiff instituted proceedings in respect of this incident on the 7th January, 1997. In her Statement of Claim delivered the following month she claimed, by way of special damages, loss of earnings which were described as “unascertained and continuing”. At the time of the accident she was employed as a community worker by a public authority in London.
On the 8th November, 1999 the Plaintiff’s solicitors provided further particulars of the claim stating that she had post traumatic degenerative arthritis which is progressive in nature and would require a knee replacement at some time in the future. The letter ended:-
“She has had to retire from her work on health grounds and has suffered a loss of income to date and will do so into the future in respect of which actuarial evidence will be led”.
On the 26th June, 2001 the Plaintiff’s present solicitors gave particulars of special damage claiming £114,281.37 in respect of loss of earnings to date and £298,037.00 loss of earnings into the future. These sums, totalling £412,318.37 clearly represent a substantial claim, for loss of earnings alone.
The basis of the claim for loss of earnings was that, according to a further letter from the Plaintiff’s solicitor of the 4th July, 2001 she was “incapable by reason of ill health of discharging her duties with the Hammersmith and Fulham Social Services”. She had been employed by that body as co-ordinator of Independent Living Schemes and retired from it on the 22nd September, 1996. Subsequent to this, according to the letter, she moved to Wales “where she has been unable to find similar employment”.
She also advanced a substantial claim in respect of loss of pension.
The opening and the Plaintiff’s evidence at trial.
The trial took place in the High Court (O’Higgins J.) on the 24th to the 26th October, 2001. In opening the case, her counsel stated:-
“………She was declared unfit for work by her local borough in June, 1997 but, in fact it seems to have been backdated to September of 1996 so the actual declaration made in June of 1997 was dated back to some examination that was carried out in September, 1996. That was permanent employment and she could have remained there until retirement age and she was on a pension scheme or contributing to it and she would have retired with a nice pension. Since then she has moved to various places in Wales. At the moment she is living in an isolated rural area in Wales and there is no employment there for her. She does not drive a car, she did have a provisional licence at one stage but with her injury she cannot really drive a car and has not got a full licence. The bus service is fairly limited. ……. She is from Wales herself so she is happier living there than in a big urban environment like London but, unfortunately, for her earning capacity it is very difficult and practically non-existent. There are some jobs in Wales for which she would be qualified but she physically would not be in a position to carry out those jobs because they involve and commuting and being able bodied”.
Notwithstanding this, and notwithstanding the particulars of special damage in the nature of loss of earnings quoted above, counsel had the following to say about the claim for loss of earnings:-
“It may well be a case that for some of the time in the past or for some of the time in the future it may be more appropriate to deal, certainly in the future, deal with the loss of earnings figure as an item included in the general damages rather than a distinct heading of future special damages”.
In her oral evidence the Plaintiff gave the following evidence relevant to the loss of earnings claim. She said she was born in Pembrokeshire in January, 1950. After school she studied dress designing and embroidering. She moved to London in the late 1960’s and worked in the art department of a magazine. In 1969 she moved to Formentor in the Balearic Islands where she was self employed:-
“I did dressmaking and I found houses for people, I did embroidery and crotchet work, made jewellery”. She gave birth to a son in the year 1970 returned to the UK and “I started up a school with my son, an alternative education school and I was involved in education at home. Again I was still making clothes for people as commissions and making jewellery as self employed.” She moved back to Spain in the early 1970’s and then back to Wales. She became involved in the music business as a percussionist/drummer, playing drums, timpani, drum bongos and “generally all percussion”. From about 1980 onwards she had been involved with her (then ten year old) son “working with young people and I decided I would use my skills with young people, teenagers in a youth club”.
The Plaintiff appears to have spent the succeeding years “educating my son at home and also working with teenagers. Young people would come to our house and I started to work as a youth worker at that time”. This, however, was on a voluntary basis. She then “began to train as a part time youth worker”. She did a two year certificate in Reading University in 1986/1987 which allowed her to get a job working in youth clubs. This qualification is also referred to, in the transcript, as a diploma and as a degree. In 1988/89 she got a job with Hammersmith and Fulham Social Services, at which time she would have been about thirty-nine years old. She says she worked with black people, Bangladeshi, unemployed people, single mothers and travellers. Subsequently “they decided to redeploy the community workers into positions and into groups for service. I was redeployed into the position of co-ordinator of Independent Living Services”.
This involved working with disabled people. She described it as follows:-
“I would visit a service user who was disabled in their own home and assess them with a Social Worker for their availability for community care. That would mean that they would be able to receive direct payments in order to enable them to employ their own personal care assistants. …….. I had to supervise all the carers at work for disabled people.”
She said she would go out to see and assess people on referrals from social workers. She travelled by bicycle because the area is a small one and there is very little parking available. Travelling to these peoples’ homes was the only physical activity involved in the job.
In subsequent evidence, the Plaintiff said that her effective complaint related to her right knee. No medical witness was called but a number of reports were, by agreement, given to the Court. She could not kneel on her knee, she could not do weight training or body building as she had done before the accident. She had put on a lot of weight. She could not cycle, she had much less strength in her knee. She had originally been on crutches. At page 72 of the transcript of Day 1 of the trial she was asked “Do you need anything for walking now that the two crutches……….?” and replied “a stick”. She used this “pretty much everyday” but did not use it in her home “because we have got banisters…..”, also because the house “is very small”. She complained that she had “slowed down in every way. I am completely slow now compared to how I used to be”. Asked whether she needed a stick in order to walk or more as a psychological crutch she said “No no, I need to use the stick for the walking, it helps me”. She could not stand or sit for long.
On the topic of her employment, she confirmed that she had never gone back to work after the accident. For the first year she “wasn’t able to walk”. Asked what was to prevent her from going back to work after that period she said “Because I was told by my doctor that it would never get better unless I had the plate removed from my knee”. Asked specifically if she would have been able to work after the removal of the plate (April 1998) she said “By that time I was living in Wales. I had gone back home to live in that year, 1996/1997”. Furthermore, she claimed “I couldn’t walk”. The pain was “terrible, unbearable”. Equally, she was “very very depressed”. She was seeing her doctor once a month and also had physiotherapy. At this time she was unemployed and was on “incapacity benefit”. She said that she was not able to work. She did not think of looking for work of any sort “because I couldn’t
physical (sic) work at all with my knee because I knew I had to wait for the operation to have the plates removed”. She was also minding her daughter who was born in 1994.
Asked whether her knee had improved after the plate was removed she said “When the plate was removed the heat that I was experiencing and the swelling was diminished but I would still get it occasionally depending on whether I moved in a jerky way or what I did”.
She went on to describe how she had not done any work since the accident, except a very small amount of teaching young people and one musical “gig” for which she received £50.
In cross-examination she confirmed that she was making the claim for loss of earnings described above on the basis that she was completely incapacitated from working in the job she was doing, or any other work of the same kind.
One of her own medical reports, from Mr. Simerton FRCS, dating from August, 1998 was put to her. This stated:-
“She was seen for a final time on the 26h June, 1996 at which point it is recorded that the result was excellent. She was walking without a stick, with no significant pain and had a full range of movement in the knee. The wound had completely settled and the patient was reported as being extremely happy with the result”.
The surgeon summarised her position as being that she had “suffered a very significant injury to her right knee, a fracture of the lateral tibial plateau damaging the articular surface on that side. Although this was reconstructed well, the operation notes record there was a central defect in the articular surface after the operation. However she has made an excellent recovery from this operation and has, according to the note, regained the full range of movement and is fully mobile with only minimum pain”.
The Plaintiff said this report was inaccurate. She did not agree that the results were excellent. The surgeon was wrong when he said she had no significant pain. He was wrong when he said she had full range of movement in the knee. She claimed “he never actually saw me for that” apparently meaning the report. She said that Mr. Simerton’s conclusions could not have been based on her medical notes. She said she always had a stick and he was quite wrong in his observation to the contrary. She said that the portion of the report headed “Opinion and Prognosis” was not an accurate record of the progress she had made in Mr. Simerton’s hospital. She stressed several times that she always had a stick, which she regarded as essential for her to enable her to get around “and also it gives a sign to people to take a wide berth around me”.
The Plaintiff agreed that she had told Mr. Roberts, the surgeon who removed the plate for her in 1998 that she could not walk for more than a 100 yards and that she carried a stick continuously outdoors. After that operation, she said, her range of activity improved only slightly. She said that she generally needed a stick outdoors but some times, sitting down in the sun or getting washing in off the line she might not need a stick. There was not much else she could do outdoors without a stick. She needed a stick in all her outdoor movements with those exceptions. She confirmed what she had earlier said, that she could go only go up steps one step at a time but said that “some days I might feel strong and I might be able to walk up in an ordinary way”. She had not made this qualification in direct evidence. She would only be able to mount steps in the ordinary way once or twice a year. Asked how she would descend the steps she said “It depends if I was carrying anything, it depends if I have my daughter in my arm, it can depend on a lot of things”. She immediately amended this to “…..If I had my daughter in my hand……”. She denied that she carried her daughter on occasion; she said there was “no way” she could lift or carry her, or indeed any child. She would not like to carry anything requiring two hands, especially on a downward slope.
The Rehabilitation Consultant.
The Plaintiff also relied on the evidence of a Dr. Alan Dodds, a rehabilitation and employment consultant based in Nottingham. His instructions in relation to the details of the Plaintiff’s working history and her potential for the future derived from information given to him by the Plaintiff herself. This was very clear. He said:-
“The Plaintiff reported to me that she had been designated as unfit for work, medically, and it is my understanding that she is still considered medically unfit for work”.
In relation to her ability to drive, he said:-
“The Plaintiff led me to believe that although she possessed a provisional licence, she did not in fact drive a motor vehicle….. She told me she could sustain travel as a passenger in a motor vehicle for a distance of some twenty miles before experiencing discomfort.”
In relation to her ability to walk Dr. Dodd said:-
“…….The Plaintiff told me that she could walk up to a distance of 200 yards with the aid of a stick”.
In cross-examination, Dr. Dodds confirmed that the Plaintiff had led him to believe that without a stick her walking tolerance would extend to perhaps 50 or 100 yards only. Thereafter, he was led to believe, she was unable to continue walking because of her physical disability.
Dr. Dodds accepted that, if she were physically able to perform it, employment as a social worker in South Wales was available. He confirmed that if she had got the additional qualification she had been studying for at the time of her accident she would be still more employable; that there were many social work jobs available which did not involve any field work at all. He also stated that “One would expect an employer or health authority…… to be particularly compliant or careful or sensitive to the needs of one of their employees”. He added that:-
“……Many Social Service Departments actively encourage applications for people with disabilities”.
It should also be noted that the Plaintiff called the evidence of an actuary and of a person from her former employers to give evidence of her pension entitlements at various ages.
The letter of the 26th June 2001.
This was the letter, referred to above, in which the Plaintiff claimed a total of £412,318.37 in respect of loss of earnings. These were plainly calculated on the basis that she would be at a total loss of earnings from now until her expected retirement date. Only social welfare payments were contemplated in a reduction of this figure, insofar as these payments were legally reckonable.
Cross-examination and video evidence.
It transpired in the course of cross-examination that on the 24th September, 2001, exactly a month before the trial in the High Court, the Plaintiff had been observed by an investigator retained by the Defendant over a considerable period of time and a video tape of her movements over much of that day was made. This video tape was played in the High Court and again in this Court. It shows the Plaintiff, generally in the company of other persons especially her father-in-law and sister-in-law, walking on the public street, crossing the road to a restaurant, getting in and out of a car, walking up and down a sloping drive while carrying items in one hand and in two hands, holding a child in one arm at hip level and playing with two boxer dogs.
The video commenced when the Plaintiff was returning from the premises of a consultant employed by the Defendants. She was driven to this meeting by her father-in-law and brought her stick along. For the bulk of the time which the Plaintiff is in shot she is not using the stick at all. When she has a stick in her hand, as in crossing the road to a restaurant, she appears to be trailing it rather than leaning on it. Her movements, in walking on the street, in reeling in some form of wire or line and in crossing the road with her father-in-law after doing so, appear natural and unhindered despite the fact that she is not using a stick. She does not show undue difficulty getting into or out of a car. Her counsel conceded that the video tape did not give the impression of a woman who is disabled or impaired.
High Court findings on the above.
The learned trial judge, having set out the substance of the 1998 medical report quoted above, remarked that subjective and objective assessments of pain might be different. He continued:-
“However, I have to say that in her evidence overall I am bound to say that I found that the Plaintiff was exaggerating her symptoms from time to time. In particular I have to say that what was evident to the Court on the video tape was at variance at least to the general picture of her disability than the Plaintiff offered to the Court.
As for her explanation that this was a combination of a good day and emergency, the Court was unable to accept that as being a full explanation of the discrepancy, particularly in view of the fact that while the question of the fallen, or the would be fallen electric wires could indeed be thought to constitute an emergency, the Plaintiff’s evidence about the emergency because of the removal of the items from her father-in-law’s house was singularly unconvincing to the Court.
So the Plaintiff’s case is more difficult to evaluate because of the fact that the Court has found that she deliberately exaggerated some of her symptoms to the Court”.
This Court has no doubt whatever that the learned trial judge was correct in this assessment and indeed that his findings are conservatively phrased. The Plaintiff told a number of deliberate falsehoods in relation to her symptoms and capacities. In particular, she appears to have realised that her reference to having her daughter in her arm was inconsistent with the general picture painted, retracted it, and said that she could not lift her or any child. The picture painted in her evidence of gravely limiting and continuous impairment is false. Her statements, not summarised above, about her grave difficulty in driving a car and doing so only occasionally for distances such as 2½ miles are inconsistent with the fact that, in relatively straitened financial circumstances, the family, consisting of two adults and one child, maintains two cars. She admitted this with difficulty and reluctance.
The Plaintiff’s manifest falsehoods, and the overall impression of her performance on the video tape give rise to a considerable difficulty. As the learned trial judge said, the assessment of her case is more difficult because of her deliberate exaggerations. This Court has previously held in Patrick Vesey v. Bus Eireann/Irish Bus (Supreme Court unreported 13th November, 2001) that it is not the responsibility of a trial judge to disentangle the Plaintiff’s case when it has become entangled as a result of lies and misrepresentations systematically by the Plaintiff himself. The reason for this is that:-
“The procedure in our courts is an adversarial one and the Defendant is entitled to have the Plaintiff’s case presented by him and accepted on its merits or otherwise as these appear from the Plaintiff’s presentation and cross-examination. For the trial judge to make on behalf of the Plaintiff the best case he can in such circumstances would risk the loss of the appearance of impartiality”.
It must also be noted that the Plaintiff’s falsehoods did not simply relate to her medical condition and capacity but extended to a false explanation to do with the level of excitement or emergency caused by the necessity to move her father-in-law’s goods. This is quite inconsistent with the leisurely activity shown on the video during which the Plaintiff holds the child for an appreciable period, stands chatting to her father-in-law and other bystanders and plays with two large boxer dogs. This explanation was quite rightly rejected by the learned trial judge.
The loss of earnings claim.
Notwithstanding the findings summarised above the learned trial Judge made an award of damages in respect of loss of earnings to age 60. He did so on the basis of taking the capitalised loss of earnings as a sum of £99,600.00. He then reduced it, saying:-
“First of all, as I have said, she is able to work. Secondly there is no way of knowing what pensionable employment she will take on. Thirdly these are by their nature actuarial exercises and can be quite divorced from reality. I would have thought however that she would be entitled to 30% of that figure being £30,000 sterling……. Likewise in relation to a loss of £372 [which] I am told is the correct figure for the loss of £1 a week.
I do not know what loss of earnings this woman is going to have but I have no doubt that (a) as I have already indicated that she will be in a position to work and (b) I have no doubt that her earning capacity is diminished because of the factors agreed to on both sides and the extra factor of her age which is given in evidence by one side but not accepted by the other”.
Further on this topic, the learned trial judge held:-
“…….. I do not accept that she is not in a position to go back to gainful employment. I do not accept that she will have any huge difficulties in getting that employment”.
The learned trial judge also held that, on the balance of probabilities, he believed the Plaintiff would have retired at the age of sixty rather than sixty-five.
Observations on the foregoing.
It is clear from the foregoing that the Plaintiff presented her case in court, through the information she supplied to her own consultant Dr. Dodds, and in the particulars of special damage which she delivered on the 26th June, 2001, on the basis that she would be at a total loss of the earnings she would otherwise have had until the date of her retirement, and that this was a result of the accident. In the letter referred to, she specifically mentioned only the social security in diminution of this loss. Any other earnings to which, on her own evidence, she might aspire would be extremely small.
It is equally clear that this picture is a false one. She is capable of working. Work of a sort she can do is available in Wales and even more so elsewhere. In pretending to be unable for any significant work, the Plaintiff is guilty of serious falsehood.
Obviously, the position of the Plaintiff and her legal advisers after the video tape was played was one of some embarrassment. It appeared quite inconsistent with the picture the Plaintiff had painted of herself, and with the claim she had made. Certain particular arguments were advanced to this Court in that context. These focussed on the claim for loss of earnings for the entire of her working life, advanced in the letter already referred to several times. Specifically it was argued:-
(a) That this letter should not be interpreted as a statement of the Plaintiff’s quantified future loss which she intended to claim as an entitlement from the Defendant. On the contrary, it should be regarded simply as reflecting the fact that the Plaintiff believed she would never be able to work again and, rightly or wrongly, attributed this to the accident. She had incurred the specified loss “in her own mind”.
(b) It was submitted that the contents of the letter, even literally construed, should not be attributed to the Plaintiff as a claim advanced by her. The basis for this submission was that the letter was the work of other persons. These other persons were her solicitors who presumably arrived at the actual sum specified with the input of her former employers and other advisers. It was said that the Plaintiff is not responsible for the particulars delivered.
(c) It was suggested that, even if the letter quoted was to be regarded as advancing a claim for the amounts specified that claim had been resiled from at trial. It was said that claims are often made in pleadings which are not supported in evidence.
I can see no merit whatever in any of these contentions.
It is quite untenable to regard the mention of the sum of £412,318.37, described as special damages and divided into loss of earnings to date and “future loss of earnings to date of retirement” (and transmitted in a solicitor’s letter beginning “Please note that the Plaintiff claims the items of special damage as set out hereunder……”) as anything but a claim to that sum. It is impossible to accept that it is merely an impressionistic statement of the Plaintiff’s sincere but ill-founded expectation. Firstly it is quantified to the last penny; secondly the Plaintiff impresses from the transcript as an intelligent woman quite able to understand what she was and was not entitled to and thirdly, even if she had any misapprehensions on that score, they would hardly have survived consultation with her solicitor. The term “Special Damages” has a very precise meaning, which it has borne for well upwards of a hundred years. In Ratcliffe v. Evans [1892] 2 QB 424, special damages were described as “that particular damage (beyond the general damage) which results from the particular circumstances of the case and of the Plaintiff’s claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial.”
It is impossible to read the letter of the 26th June, 2001 as anything other than a statement that the Plaintiff had lost the very large sum mentioned in respect of loss of earnings alone.
I would entirely reject the submission that the letter mentioned is not the Plaintiff’s letter, and is not to be attributed to her. I was surprised to hear the submission made. In another recent case of serious dishonesty in the making of a personal injuries claim, Vesey v. Bus Eireann/Irish Bus (Supreme Court unreported 13th November, 2001), the same submissions was strongly deprecated as follows:-
“I would specifically deprecate the submission made that particulars in another action should be disregarded, or regarded with less seriousness, on the basis that ‘everybody knows’ that they are not drafted by the Plaintiff personally. It is quite true that, in providing the particulars which a defendant is entitled to require a plaintiff may rely on the advice of his lawyers doctors engineers and other professionals. But none of these professional advisers are responsible for the factual content of the replies. These replies are the Plaintiff’s document for which he is personally responsible…… it is essential and as far as I know is the general practice, that a plaintiff’s solicitor should carefully go through with him replies to particulars in the form in which it is proposed to send them to the Defendant and obtain his assent”.
I would repeat what was said in Vesey with even more emphasis in this case. It is inappropriate to contend that the particulars of the Plaintiff’s claim are not to be attributed to the Plaintiff himself or herself. It is very much to be hoped that no such submission will be made in the future. The claiming of a very large sum of money from a Defendant is a serious matter, and most Plaintiffs will know this quite well. It is in any event the responsibility of a solicitor to ensure that the Plaintiff is fully aware of the significance and, indeed, solemnity of advancing a claim for hundreds of thousands of pounds, or a lesser sum, before the claim is presented to the Defendant, not to speak of the Court.
I have already quoted what was said in court during the opening of this Plaintiff’s case in relation to loss of earnings into the future. It was emphatically not the case that the Plaintiff resiled from any such claim. Counsel stated that it might be accommodated in general damages rather than special damages. An actuary was called by the Plaintiff, who learnedly discussed the appropriate rate of return to be used by actuaries in order to determine an appropriate multiplier. This related to a claim that she would enjoy a reduced pension by reason of ceasing work as a result of the accident. The most that can possibly be said is that the itemised claim was not persisted in but the Plaintiff stoutly maintained a claim to future loss to retirement age. In relation to the amount of it, she was prepared to take as much as she could get. The Plaintiff on several occasions attempted to describe, or have described, at the trial the basis of her former employers acceptance of the proposition that she was unfit for work. The doctor who assessed her for this purpose was not called nor was any report from him or her tendered. The fact that the former employers may have accepted the proposition that the Plaintiff was permanently unfit for work could not, of course, be determinative of the Defendant’s liability in this regard. If this practitioner were called, he or she would undoubtedly have been asked to comment on the Plaintiff’s state of mobility as seen from the video tape.
It was also a feature of the Plaintiff’s claim that, as a result of her injuries, she was unable to complete a one night per week course which would have enhanced her earnings. But neither on the basis of her own 1998 report nor of her capacity as seen from the video tape could this claim be accepted.
Difficulty in assessment.
The Plaintiff undoubtedly suffered a major loss of credibility in the course of the trial. This was not disputed on the hearing of the appeal when it was specifically conceded that the learned trial judge “was satisfied that video evidence furnished to the Court was at variance with the Plaintiff’s account of her disability, and he rejected the Respondent’s explanation for discrepancies arising out of such evidence”. It was, however, submitted that the Plaintiff’s “deliberate” exaggeration related solely to her description of the effect of her injuries. It was submitted that, if a lie is told in the course of the prosecution of a claim for damages for personal injuries, that fact affects only the narrow aspect of the case to which the lie specifically relates. It was further submitted that a case such as this, of deliberate exaggeration of the effects of the injuries, is different in degree from a wholly invented injury. Thus, while it was conceded that the video tape would make one regard some of the Plaintiff’s earlier descriptions as suspect, or exaggerated, it should not be regarded as wholly undermining her credibility, or undermining it in relation to unconnected aspects of the case.
It was further submitted that the learned trial judge had given all proper weight to the very serious difficulties in credibility which the Plaintiff encountered as a result of her own deliberate falsehoods. He had very significantly discounted her claim in relation to special damages. This was an adequate reflection of what had happened at the trial. It was submitted that, “even if at the 11th or 12th hour” the full extent of the claim intimated in the letter giving particulars and the report of Dr. Dodds had been resiled from.
I cannot accept the latter submission. It is noteworthy that, at pages 124/125 of the transcript of the first day of the hearing the Plaintiff expressly confirmed that her claim in respect of loss of earnings was in the sum specified in the letter giving particulars. When the proposed evidence of Dr. Dodds “that you are incapable of earning a living or getting an income which is anyway equivalent to the income that you had been earning at the time of the accident” was put to her, she replied “yes, absolutely, yes”.
Approach to an exaggerated claim.
I wish to reiterate what was said by this Court in Vesey: that the onus of proof in these cases lies on the Plaintiff who is, of course, obliged to discharge it in a truthful and straightforward manner. Where this has not been done “a court is not obliged, or entitled, to speculate in the absence of credible evidence”. To do so would be unfair to the Defendant. Moreover, a Plaintiff who engages in falsehoods may expose himself or herself to adverse orders on costs. Furthermore, as was observed in Vesey “……there is plainly a point where dishonesty in the prosecution of a claim can amount to an abuse of the judicial process as well as an attempt to impose on the other party”.
This last proposition is well established but has been little considered in the context of personal injuries claims. It is, perhaps, appropriate to comment on the Courts power to prevent, or remedy, abuse of process at greater length than was done in Vesey.
In Goldsmith v. Sperrings [1977] 2 AER 566 Lord Denning had this to say:-
“In a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men’s rights or the enforcement of just claims. It is abused when it is diverted from its true course as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. When it is so abused, it is a Tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer”.
In Arrow Nominees v. Blackledge [2000] 2 BCLC 167, the English Court of Appeal said:-
“It is no part of the Court’s function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the Court is to do justice between the parties; not to allow its process to be used as the means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke”.
I have no doubt that these principles are equally applicable in this jurisdiction. It must not be thought that a falsehood in respect of one aspect of a claim will, at worst, lead to that particular part of the claim being reduced or disallowed. The Courts have a power and duty to protect their own processes from being made the vehicle of unjustified recovery. In a proper case this will be done by staying or striking out the Plaintiffs proceedings.
Quite properly in the circumstance of the present case, the Defendant has not sought this drastic relief. That is not to say that this relief would be inappropriate in a similar case in the future. But it appears to me that a Plaintiff who is found to have engaged in deliberate falsehood must face the fact that a number of corollaries arise from such finding:-
(a) The Plaintiff’s credibility in general, and not simply on a particular issue, is undermined to a greater or lesser degree.
(b) In a case, or an aspect of a case, heavily dependant on the Plaintiff’s own account the combined effects of the falsehoods and the consequent diminution in credibility mean that the Plaintiff may have failed to discharge the onus on him or her either generally or in relation to a particular aspect of the case.
(c) If this occurs, it is not appropriate for a court to engage in speculation or benevolent guess work in an attempt to rescue the claim, or a particular aspect of it, from the unsatisfactory state in which the Plaintiff’s falsehoods have left it.
Liability.
In this case the deliberate exaggeration of the Plaintiff related to the extent and duration of the effect of her injuries. It was undisputed that the Plaintiff sustained a significant injury on the 22nd September, 1995. At the trial, there was a lively dispute as to liability for that injury. One of the Appellant’s principle contentions in this Court was that the findings on liability (that the Defendant was 75% responsible and the Plaintiff 25%) be reassessed is specifically in light of the Plaintiff’s diminished credibility. Alternatively, it was argued, the proportion should be reassessed even on the Plaintiff’s version of the facts.
The facts.
On the 22nd September, 1995 the Plaintiff, her husband and two year old daughter were part of a group of people who had attended a marriage ceremony in a church in Monkstown, Dublin. They were travelling in the wedding bus from the church to a wedding reception at a hotel in Killiney. Previously they had been brought to the church from the Grand Hotel in Malahide on the same bus. It was undisputed that the Plaintiff had suffered a fall on the stairs of the bus. The dispute related to the circumstances of the fall.
The Plaintiff said that she had no complaint about the driving of the bus from Malahide to the church: “It just seemed to be okay, just normal”. She said there were about fifteen people on the bus. She was seated on the lower deck, with her daughter. She said the driver did not know where the hotel was: when this transpired at the Church it was arranged that someone would drive ahead of the bus in order to show the driver the way. On this leg of the journey, the Plaintiff said, the mode of driving of the bus was very different: “It just seemed more faster and more jerky”. It pulled off from traffic lights very quickly; this was what she meant by jerky. She said her young daughter was getting “a bit agitated because we were going stop start stop start and she was getting bored with sitting downstairs”. She said that one of the other people on the bus had gone upstairs and come back down and the child said she wanted to go upstairs because of the view. The bus stopped at a light and she decided to take the opportunity to go upstairs with the child. She picked the child up and put her on her right hip and started to go up the stairs. She was holding on to the rail with her left hand. The bus was still stopped at lights at this stage. When she was about one step from the top of the bus it jerked forward and “with that I went flying backwards”. She had no warning from the driver or any indication that the bus was to start moving.
This account, broadly, was corroborated by Ms. Trudy Conlon, the Plaintiff’s sister-in-law.
The defence case as put to Mrs. Shelly-Morris was that she went up the stairs carrying the child and she stumbled and slipped. It was also put to the Plaintiff that her husband, who was present, believed that “the accident was caused by the heel coming of your shoe as you were either ascending or descending the stairs”. This, apparently, was on the basis of what the husband had said to the bus driver after the accident. However, the Plaintiff denied this and the husband and was not called to give evidence, despite having seen her fall. It was agreed that the heel had come off her shoe, and that she had kept the shoes but it was denied that the heel coming off was the cause of the fall.
The bus driver denied strongly that there was any variation in his standard or manner of driving between one leg of the journey and the other or that the bus jerked forward at any stage. He said that the bus was in motion in the normal fashion immediately prior to his noticing the commotion caused by the Plaintiff’s fall, and it had not been recently stopped.
The learned trial judge resolved this issue substantially on the evidence of Trudy Conlon. Of this he said that she “….. in my view was an extremely impressive witness, careful accurate and in my view to be believed and I accept her account of the accident. She substantially corroborates the account of the Plaintiff, both as to the bus having been stopped and moving off abruptly causing her indeed to jerk forward as well as the Plaintiff who was upstairs on the bus. I believe her and she carries the Plaintiff’s case on the factual issue”.
Submissions on this issue.
On behalf of the Plaintiff it was strongly urged that Mrs. Conlon’s evidence should be discounted. This was on the basis that it coincided with that of the Plaintiff, who was discredited. Furthermore, it was submitted, the learned trial judge should have viewed her evidence with scepticism because she was a sister-in-law of the Plaintiff and is the woman shown talking to the Plaintiff on the video. Because she saw the Plaintiff’s actual capabilities on the occasion the video tape was made, it was submitted, she knew the Plaintiff’s evidence as to disability to be false. It was also suggested that the learned trial judge should have drawn an inference adverse to the Plaintiff from the failure to call the husband.
Decision on liability.
In light of the Plaintiff’s gravely damaged credibility there is a definite attraction to these submissions. However, in my view it would not be proper to accede to them. Firstly, the learned trial judge came to the conclusion that he did in the full knowledge of the Plaintiff’s gravely compromised credibility. Secondly, this Court must always bear in mind what was said by McCarthy J. in the well known case of Hay v. O’Grady [1992] 1 IR 210 at 217:-
“(1) An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
(2) If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and apparently weighty the testimony against them”.
I do not believe it would be fair to regard Mrs. Conlon’s evidence as falling outside the category of credible evidence merely because of her relationship to the Plaintiff and her presence with the Plaintiff on the occasion of the video tape. While she undoubtedly had an opportunity to observe the Plaintiff, walking, carrying loads, holding a child and playing with dogs on that occasion, and quite possibly to observe her on other occasions as well, there is no evidence to show that she was aware of the very far reaching nature of the claim the Plaintiff was making. In these circumstances one must regard her as a credible witness on whom the learned trial judge was entitled to rely.
The consequence of this finding is that one must accept that the immediate context of the accident was that described by the Plaintiff: a decision to go upstairs when the bus was stationary at traffic lights and a fall when the bus took it off from the traffic lights in a manner less smooth than would have been possible.
However, the Court is not bound by the learned trial judge’s assessment of the degrees of fault arising in those circumstances. I am of the view that the Plaintiff’s action in needlessly ascending the stairs of the bus carrying a two year child in her right arm was a significant contributory factor to the accident. The only reason given for ascending the stairs was that the child wanted to do so: it was plainly the responsibility of a parent to refrain from gratifying an impulse of the child that exposed both of them to danger. This danger was still more obvious if, as alleged, the manner of driving had deteriorated on the second leg of the journey. Having regard to the fact that there was ample accommodation downstairs for all passengers, that the driver had seen the Plaintiff and her child seated downstairs and that all passengers were going to the same destination, the driver had no positive reason to consider the possibility that a woman with a two year child in her arms would ascend the stairs. I would divide the responsibility for this accident in equal measure between the Plaintiff and the Defendant.
Damages.
The learned trial judge awarded damages as follows:-
“(i) Loss of pension and gratuity £37,500,
(ii) Loss of earnings for the future £25,000,
(iii) Pain and suffering to date £70,000,
(iv) Pain and suffering in the future £40,000.
The sums for general damages are expressed to take into account the omission to make any separate award for loss of earnings to date.
There is no doubt, as the learned trial judge has found, that the evaluation of damages is rendered more difficult by the fact that she deliberately exaggerated aspects of her symptoms. The learned trial judge specifically rejected the contentions that she was unable to go about her business without a walking stick, that she was unable to drive a car for any distance or time and that she had made all reasonable efforts to obtain further employment and get back into the work force. He held “There is no way of knowing what pensionable employment she will take on, and no way of knowing what loss of earnings she would have”. He accepted that she will be in a position to work and that earning capacity is diminished.
In my view, having regard to those findings, the awards for loss of pension and gratuity and loss of earnings into the future are purely speculative. From the point of view of the Plaintiff this was an extremely benevolent speculation because, having regard to her falsehoods, she had simply failed to discharge the onus of proof in these regards. Having regard to the principles set out earlier in this judgment, and in Vesey, it is not proper to engage in this benevolent speculation, nor is it fair to the Defendant to do so. Accordingly, I would set aside the awards made in respect of loss of pension and gratuity and loss of earnings for the future.
I would uphold the award of £70,000 made in respect of pain and suffering to date and including loss of earnings to date. There is no doubt, even on the medical report most favourable to the Defendants, that this was a significant injury, giving rise to a considerable measure of pain and discomfort and inconvenience. The learned trial judge also accepted that the Plaintiff suffered depression upset and demoralisation. Having regard to the evidence at trial, including the video tape, one may doubt how long these afflictions lasted but the sum assessed is not wrong in principle.
In relation to pain and suffering in the future, there is no doubt that there will be a measure of this but it is clearly much less than the Plaintiff suggested. One cannot fail to reflect, under this heading too, the manifest variation between her self-described condition at present and her actions and demeanour on the video tape. Bearing in mind the descriptions and prognoses of her own doctors substantial damages under this heading are appropriate. Bearing in mind the fact that she is now plainly much better than she described herself as being an award of £20,000 under this heading is sufficient.
I would accordingly set aside the award of the learned trial judge and assess damages, under the headings set out above, at a total of £90,000. Since the Plaintiff is at fault to the extent of 50% in relation to the accident I would grant a decree in the sum of £45,000.
Boyne v. Bus Atha Cliath and Anor
[2002] IEHC 135 (11 April 2002)
Judgment of Mr. Justice Finnegan delivered the 11th day of April 2002.
The Plaintiff resides at 9 Ebenezer Terrace, South Circular Road, Dublin and is a single man aged 3 8 years. He is a diesel mechanic by occupation and at the date of the accident giving rise to this claim was in the employment of a haulage company specialising in the delivery of ready mixed concrete. On the 20th January 1999 at 11 p.m. approximately he sustained serious injuries as a result of his being run over by the first named Defendant’s bus driven by the second named Defendant.
On the clay in question the first named Defendant’s 51B bus left Dublin city centre at :10.30 p.m. to travel to Bawnogue. The Plaintiff boarded the bus at Thomas Street. On that day he had finished with his employer at approximately 8 p.m. Thereafter in an adjoining premises he had carried out work on a car in a private capacity and delivered the repaired car to Baker’s public house in Thomas Street at approximately 9 p.m. He had something to drink there and later that evening had some more to drink in O’Neill’s public house in Thomas Street. In total he admits to having had six pints. He boarded the Defendant’s bus but thereafter has no recollection of the events of the evening.
Derek McKeown was a passenger on the bus at the back of the lower deck. He saw the Plaintiff board. It was immediately apparent to him that the Plaintiff had drink taken. The Plaintiff sat in the side seat on the left hand side of the bus. During his journey he was swaying in the seat. The Plaintiff and Mr. McKeown alighted at the same bus stop. Mr. McKeown pressed the bell and moved towards the front of the bus but before he got there the Plaintiff stood in the aisle without making any progress towards the door at the front of the bus. Mr. McKeown passed him and stood at the door. When the door opened Mr. McKeown sprang from the bus to the kerb a distance which he estimated at some 4 – 5 ft. Shortly thereafter he heard a moan and on looking around saw the Plaintiff in contact with the centre doors of the bus and being spun by the motion of the bus, then falling to the ground and being run over by the rear wheel of the bus which continued on its journey.
The accident was investigated by Garda Connolly. He found blood on the roadway some eleven feet distant from the bus stop in the direction in which the bus was travelling and some one foot from the kerb. I am satisfied that this represents the locus of the accident which accordingly was somewhat closer to the kerb from that indicated by the evidence of Mr. McKeown.
Mr. Barry Tenneyson gave evidence on behalf of the Plaintiff. From his evidence I am satisfied that the distance from the front of the bus to the centre of the centre doors is fourteen feet. ‘Taking this measurement together with the distance from the bus stop to the point: at which blood was found I find that the bus had travelled some 25 feet before it came into contact with the Plaintiff. A necessary corollary of this is that on alighting from the bus the Plaintiff’ proceeded past the front of the bus and in the direction of travel of the bus and that the accident occurred in the course of the bus overtaking the Plaintiff.
The second named Defendant the driver of the bus recalled the Plaintiff boarding the same at Thomas Street. The Plaintiff appeared to be very drunk. He had difficulty getting on and had sat on the step and indeed the witness had some concerns as to whether he should carry the Plaintiff and kept an eye on the Plaintiff throughout the journey. I can summarise his evidence as to the Plaintiff s demeanour by recording that he was pleasantly drunk. The Plaintiff’ got up as the bus approached the stop at which he was to alight. Before getting off he put: 50p in the bus driver’s tray presumably by way of a gratuity. He was slow getting off and once he had alighted the driver had no further recollection of him. He was completely unaware; of the accident.
Liability
The foregoing is the totality of information available to me as to how the accident occurred. In particular I do not know if the Plaintiff reached the footpath and there lost balance and stumbled against the bus or if he was walking along the roadway. Of the two possibilities I take it as the most likely having regard to the evidence of Mr. McKeown that the bus stopped some distance from the pavement and that the Plaintiff never attained the footpath. Having regard to the point of impact he proceeded past the front of the bus and in the direction of travel of the bus and that the accident occurred in the course of the bus overtaking him while he was on the roadway. The second named Defendant was well aware of the Plaintiff s condition and ought to have taken particular care by keeping him under observation to ensure that the bus would pass him in safety: see McKevitt v Ireland 1987 I.L.R.M. 541. This he did not do as his evidence was clear that he lost sight of the Plaintiff once he had alighted from the bus.
Contributory Negligence
The Defendants plead contributory negligence and give the following particulars:
(a) Failing to have any or adequate regard for his own safety.
(b) hailing to look where he was going.
(c) Exposing himself to a risk of danger or injury of which he knew or ought to have known.
(d) Needlessly endangered himself.
(e) Failing to pay attention or sufficient attention to what he was about.
(f) Failing to have any regard for his own safety in exposing himself to a risk of injury by reason of the excessive consumption of alcohol.
(g) If the Plaintiff did fall, by himself causing the Plaintiff to fall.
(h) The Plaintiff was the author of his own misfortune.
The onus of establishing contributory negligence is on the Defendants. Where there is no direct evidence reliance must be placed on inference as a matter of probability as to what occurred: Clancy v Commissioners of Public Works in Ireland 1992 2 I.R. 449 at 467. Upon this basis I find that the Plaintiff due to his intoxicated state while on the roadway and before attaining the footpath stumbled and fell against the bus and then under the wheels of the bus. Counsel were unable to assist me with authorities as to how the court should approach the issue of contributory negligence having regard to the Plaintiffs state of intoxication.
The matter is dealt with in Charlesworth on Negligence Eighth Edition at paragraph 3 – 48 as follows –
“The excuse of drunkenness has to be regarded when considering contributory negligence. It is no excuse for failing to take reasonable care to prove that the person in question was unable to take proper care, owing to the influence of drink or drugs, which he had taken voluntarily. A drunken man cannot demand from his neighbour a higher standard of care than a sober man or plead drunkenness as an excuse for not taking the same care of himself when drunk as he would have taken when sober. (M’Cormick v Caledonian Railway (1903) SF362) “.
In Kilminister v Rule (1983) 32 S.A.S. R 39 where a person under the influence of drink stepped into the roadway in front of a car at night and was killed he was held to have contributed to the accident to the extent of 35%. I cannot see that this differs in any way from the outcome which would be expected if the Plaintiff had been sober.
In a number of cases this issue arose in circumstances where the Plaintiff was so intoxicated that he did not realise that the driver of the car in which he had taken a lift was himself unfit to drive through drink. The first of these Dann v Hamilton (1939) 1 All ER 59 was argued and determined on the basis of volenti, the Plaintiff’s Counsel having declined the trial Judge’s invitation to amend his pleadings and include a plea of contributory negligence: see 69 L.Q.R. (1953) 317. 1 find the discussion in other such cases e.g. Nettleship v Weston (1971) 3 All ER 581 unhelpful. However in an Australian case Insurance Commissioner v Joyce (1948) 77 C.L.R. 39 at 47 Latham L. J. said –
“If… the Plaintiff was sober enough to know and understand the danger of driving with (the Defendant) in a drunken condition he was guilty of contributory negligence …. but if he was not sober enough to know and understand such a danger … if he drank himself into a condition of stupidity or worse, he thereby disabled himself from avoiding the consequences of negligent driving by (the Defendant), and his action fails on the ground of contributory negligence “.
As I understand this whether the Defendant was under the influence of drink only to the extent that he knew or ought to have known and understood the risk he was running or whether he was so under the influence that he was incapable of so knowing he is nonetheless guilty of contributory negligence.
In McKevitt v Ireland 1987 I.L.R.M. 541 at 546 Finlay C.J. said –
“The finding by the Jury that the Plaintiff was guilty of contributory negligence implies a finding that he had by the time of the commencement of the fire sufficiently recovered from his drunken condition to owe a duty to take reasonable care for his own safety which he failed to discharge “.
At first sight this might be seen as authority for the proposition that a Plaintiff so under the influence of drink that he did not know or ought not to have known of the risk to his own safety would not be guilty of contributory negligence. The statement must be read in conjunction with the facts of the case. The Plaintiff was in police custody while drunk and injured himself by setting fire to his cell with matches which a search had not uncovered. The Supreme Court held that a finding of 15% proportion of fault against the Plaintiff was unreasonable to the extent that it should be set aside. I think it likely that the Learned Chief Justice was having regard to the duty which rested upon the Defendant in the circumstances of that case: In short the greater the degree of intoxication of the Plaintiff to the knowledge of the Defendant the more onerous the duty of care on the Plaintiff. The statement merely acknowledges the effect of Donohoe v Stevenson on the principle enunciated in M’Cormick v Caledonian Railwav.
In McEleney v McCarron and Another (1993) 2 I.R. 132 an accident occurred when the Plaintiff’ who was drunk was being assisted to his home by two girls and he fell onto the road. The girls had succeeded in moving his body such that his legs were on the footpath and his torso on the road when the second Defendant’s car approached. The girls moved onto the footpath and attempted to attract the attention of the Defendant. The Defendant believed the girls wished to thumb a lift and did not stop his car and ran over the Plaintiff s head causing him severe personal injuries. In the High Court the Plaintiff was found guilty of contributory negligence and fault was apportioned 30% to him. The Defendant appealed to the Supreme Court where it was held that the Defendant in the circumstances of that case was not negligent. The court expressed no opinion on the questions of contributory negligence and the apportionment of fault.
In Judge v Reape (1968) I.R. 226 the facts were that the Plaintiff had consumed a considerable amount of alcohol before accepting a lift in the Defendant’s motor car when he knew or ought to have known that the Defendant was drunk. The Defendant did not deny negligence but pleaded that the Plaintiff well knew that the Defendant was drunk and so was guilty of contributory negligence. The jury found that the Plaintiff had not been negligent. The Supreme Court on appeal found that there was plain evidence of contributory negligence and ordered a retrial. Counsel for the Respondent on the appeal relied on passages from Insurance Commissioner v Joyce but not the passage which I have quoted above. The passage quoted in the Judgment and it appears to me accepted as correct by the Supreme Court is as follows –
“If a passenger in a motor car is himself drunk so that he does not realise that the driver of the car is also drunk and allows himself to be driven, he is guilty of contributory negligence in the event of a collision”.
From the foregoing it seems to me that the following principles can be gathered –
(1) If the Plaintiff is under the influence of drink to an extent that affects his ability to take care of himself and whether he knows or ought to know of the risk he is running this is a factor relevant to the existence and the extent of the Defendant’s duty of care.
(2) In assessing the Plaintiff s conduct for the purposes of contributory negligence his intoxicated state is to be disregarded and this is so whether notwithstanding his intoxicated state he knew or ought to have known of the risk which he was running or was incapable of so knowing.
In the circumstances of this case in apportioning liability I take into account the circumstance that the second named Defendant was aware of the intoxicated condition of the Plaintiff and the extent of his intoxication and evaluate his conduct accordingly. Insofar as the Plaintiff is concerned I evaluate his conduct as if he were sober. I am satisfied that the Defendants on that basis did not take reasonable care for his own safety. If sober he would have moved himself promptly to a position of safety some little way from the bus and would not have stumbled against and under the bus as he did. I apportion liability 75% to the Defendant and 25% to the Plaintiff.
General Damages
The Plaintiff sustained horrific injuries which can be summarised as follows:
(1) A degloving injury of his right lower limb extending from his upper thigh to his distal tibia.
(2) An ischaemic right foot secondary to transection of his right popliteal vessels.
(3) A compound comminuted fracture of the mid shaft of the right femur.
(4) A compound comminuted grade 3 (c) fracture of the right tibia.
(5) A bruised and swollen left ankle with an area of skin necrosis.
He was treated at Tallaght Hospital with the application of an external fixator to his right femur and his right tibia and debridement of his wounds and a repair of his right popliteal vessels. He was an in-patient in Tallaght Hospital for almost six months. He had some 21 procedures, 20 of which were under general anaesthetic and one under local anaesthetic. From an orthopaedic point of view the movement of his right knee is virtually non existent and in the right ankle he has a passive range of movement of just 10° so that he is just able to get his heel to come to the floor. In the opinion of Mr. Borton his limb is viable but constantly very painful. His left leg is functioning normally. The right leg is virtually useless. In the future the question of amputation may arise in which event there will be some difficulties in fitting a satisfactory prosthesis in view of his extensive scaring. His ability to work is seriously compromised although he could do sedentary or office work which did not require physical exertion. In addition he sustained a severe degloving injury and now has severe scaring on both legs and also on the donor site for numerous skin grafts. Skin grafts became infected and took several months to heal. Not surprisingly the Plaintiff developed a reactive depression in February/March 2000. Fortunately this improved over time. However he still suffers from mild to moderate mood changes and anxiety – he is a nervous passenger. It is expected that his psychiatric condition will resolve. It is worth recording that Mr. Pegum in evidence expressed the view that it would have been better for the Plaintiff had his leg been amputated at the beginning as this would have resulted in less pain, more function and an overall better result.
On the basis of the admitted medical reports and the evidence of the Plaintiff and of Mr. Pegum [ assess the Plaintiff’s claim for general damages as follows:
Pain and suffering to date £75,000
Pain and suffering into the future £75,000
Total: £150,000
Special Damages
The Plaintiff’s special damages have been agreed save and except the claim in respect of future loss of earnings. The agreed special damages are as follows:
Medical and related expenses £60,111.77
Loss of earnings to date £43,019.77
It is agreed between the parties that the Plaintiff’s future loss of earnings should be calculated on the basis of a net weekly loss of £175. The task of the court in assessing damages wider this heading is to arrive at a lump sum which represents as nearly as possible full compensation to the Plaintiff. In this case the multiplicand has been agreed but the parties differ as to the multiplier – there is no agreement as to the assumed real rate of return on capital that is the return net of tax and management expenses and the assumed rate of inflation. The higher the assumed real rate of return on capital the lower will be the lump sum award. The courts have taken the approach that inflation can be taken into account by the assumption that a Plaintiff can invest the lump sum award and more particularly that the same can be invested partly in equities and partly in gilts resulting in both a hedge against inflation and a reasonable degree of security. In the United Kingdom this approach was reviewed in detail in Wells v Wells 1998 3 All ER 481 that review being prompted by the availability in the United Kingdom of index-linked Government stock which in addition to providing an income also guaranteed that the capital sum preserved its real value by being index-linked to the retail price index. It is against the background of the availability of such an investment that the dicta in Wells v Wells must be considered. There is no equivalent investment available in this jurisdiction and accordingly to avail of that investment available in the United Kingdom would carry with it an exchange risk as a result of which the security which such an investment offers would be undermined. Within the Euro zone similar investments are available in France but again the security offered is undermined by the possibility of divergent rates of inflation between France and Ireland. For the foregoing reasons I do not consider the availability of index-linked Government stock whether in the United Kingdom or in France as relevant to the approach this court should adopt in arriving at an appropriate lump sum award. Having regard to the range of investments available in this jurisdiction, in the euro zone generally, in the United Kingdom and other economies and having regard to the general requirement of a Plaintiff that he act reasonably to mitigate his damages it seems to me that the approach of the Court of Appeal in Wells v Wells is the appropriate one to adopt –
“It is for the court to hold the balance evenly between both sides, and just as the Plaintiff is entitled to an award which achieves a nearly as possible full compensation for the injuries sustained, so also we think the Defendant is entitled to take advantage c f the presumption that the former will adopt a prudent investment strategy once he receives his award. Furthermore the court, which as already noted, is dealing with probabilities when fixing the multiplier, can and should pay regard to the high probability that the Plaintiff will invest prudently; any other approach would be artificial. ”
I am satisfied that a prudent investor having a lump sum to invest would apportion the same between gilts and equities the apportionment in any particular case however depending on his particular circumstances.
As to the proportion of a fund which should reasonably and prudently be invested in equities and gilts the evidence before me is that the average for 18 Irish managed funds is that 70% is invested in equities and 30% in gilts (to include 5.6% in property and 4.7% cash deposits). I consider this approach as a reasonable and prudent one. I accept the evidence given on behalf of both the Plaintiff and the Defendants that there is no such thing as a risk free investment and that the risk associated with investment in gilts is less than that in investment in equities. As against this a prudent investor whether managing his own funds or partaking in a managed fund will spread the risk associated with equities. As of the 31st December 2001 the typical Irish find had approximately 18% of its equities in Irish equities and the remainder spread between the United Kingdom, the euro zone, North America, Japan and the Pacific excluding Japan as a means of minimising risk. The beneficial effect of such a policy was made apparent by the events of February this year when the share price of Elan (22% of the Irish index) and AIB (14% of the Irish index) lost 65% and 13% of their value. The ten largest Irish managed funds had an average exposure to these two shares of 2.3% of their total funds. It seems to me that this puts in perspective the risk associated with prudent investment in equities. In calculating the real rate of return on equities allowance is made for management charges.
The suggested split between equities and gilts at 70% and 30% is not constant or appropriate in every case and the appropriate split will be determined by the anticipated duration of the fund the shorter that period the greater percentage of the fund which should be maintained in gilts. For the last five years of such period it would be appropriate to have the bulk if not all of the fund in gilts or on deposit to minimise the risk of having to realise equities in a depressed market. In Wells v Wells Lord Lloyd said –
“So it does not follow that a prudent investment for the ordinary investor is a prudent investment for the Plaintiffs. Equities may well prove the best long term investment. But their volatility over the short term creates a serious risk … If there is a serious fall in equities in the first five or ten years during which the Plaintiff will have had to call on part of his capital to meet his needs and will have had to realise that part of his capital in a depressed market the depleted fund may never recover “.
Notwithstanding this it does not seem to me that investment managers having custody of pension funds can be said to be imprudent. Again the investment policy of the Wards of Court Office on advice follows a general policy in relation to longer term funds, that is over ten years, of maintaining a 70% 30% equities gilt split. I therefore consider that course to be one which a prudent investor would follow and I regard the Plaintiff as having a duty to act reasonably to mitigate his damages and that it should be assumed that he will follow the course of a prudent investor.
The next matter to be determined on the basis of the evidence is the return to be expected if such an investment policy is pursued. Firstly in this regard I adopt the view of the House of Lords in Wells v Wells that in the case of a Plaintiff it should not be assumed that the income on investments will be reinvested. However it seems to me that some account must be taken of the possibility of investing income. If one assumes that income is received at the end of year one and applied rateably throughout year two then throughout year two a decreasing proportion of the income will be available for investment for example by placing on interest bearing deposit: a reasonable approach would be to assume for the purposes of calculations that the entire interest earned in year one would be available to be placed on deposit for one half of year two and so on in succeeding years. In the evidence given before me the Plaintiff s calculations as to real rate of return were on the assumption that income would not be reinvested while the Defendant’s calculations were on the basis that it would and to some extent thus accounts for the difference of opinion expressed by their respective witnesses.
The evidence for the Plaintiff is that the real rate of return on a portfolio containing 70% equities and 30% gilts would be 2.9%. For the Defendant the evidence was that the real rate of return on a split portfolio would be 4% and perhaps somewhat higher. The Plaintiff’s calculations are on the basis that income would not be reinvested while the Defendants’ are on the basis that it would.
Having regard to the evidence and the view which I take of the course which a prudent investor would pursue and the obligation of a Plaintiff to act reasonably to mitigate his damages by acting as a prudent investor I accept the Plaintiff s evidence as to the real rate of return. The same however requires some adjustment to take into account the possibility of reinvesting income to some extent. Making this adjustment I find that the appropriate multiplier having regard to the Plaintiff s particular circumstances should be calculated upon the basis of a real rate of return of 3%.
The Plaintiff s work history is as follows. He commenced employment in 1978 as an apprentice mechanic and continued with that employer until 1983 following which he remained out of work for a year. He then obtained employment as a static guard with a security company for one year. In 1985 he resumed employment as a mechanic and continued in that employment until 1990 after which he was unemployed for some two years other than for some casual work. In 1992 he again obtained employment as a security guard for one year after which he returned to his trade and continued to work at his trade until the date of the accident. I had the opportunity of assessing the Plaintiff while he gave evidence and I accept that it is likely were it not for his accident that he would have continued to work until the age of 65. Having regard to the serious nature of his injuries and the difficulties which lie experiences in carrying out his work he is unlikely now to continue to that age and it is likely that he will cease work altogether in fifteen years time at age 55 approximately. The appropriate multiplier based on a real rate of return of 3% in respect of his loss of earnings at £175 per week to age 65 is £975. This gives a figure of £170,625. In addition he will lose £67 per week from age 55 to age 65: I have been given an agreed multiplier for this calculation on the basis of a real rate of return of 2’/z% at £354 per £1: it is necessary to reduce this to reflect a real rate of return of 3% and I propose to adopt a figure of £325 per £1 in respect of additional loss of earnings from age 55 to 65. This gives a figure of £21,775. Having regard to the Plaintiffs employment history pre accident it is appropriate to make some reduction under Reddy v Bates. Further I take the view that notwithstanding that he will be unfit for full time employment between the ages of 55 – 65 the Plaintiff has special skills as a diesel mechanic and is likely to engage in some intermittent or casual employment. I propose abating the total award for future loss of earnings of £192,400 by 10%. This results in a net award under this heading of £173,160.
The total award to the Plaintiff accordingly is as follows –
Pain and suffering to date 75,000.00
Pain and suffering into the future 75,000.00
Agreed. special damages other than loss of earnings 60,111.77
Loss of earnings to date 43,019.77
Future loss of earnings 173,160.00
Total: 426,291.54
This sum converts to euro at 1 euro = IR£0.787564 in the amount of E541,278.60.
The Plaintiff having contributed to the accident by his own negligence to the extent of 25% this sum must be reduced in that proportion. I award the Plaintiff the sum of €405,958.95.
Byrne v Beatty
High Court
20 October 1931
[1932] 66 I.L.T.R 29
Johnston, J., I think Judge Devitt has tried this case very carefully and with a full appreciation of the law on this particular subject. I gather this from the interlocutory remarks he made at the trial and from his very careful judgment. In negligence cases of this kind it is very hard to say that a jury would arrive at any particular finding of fact. Different juries might easily arrive at different decisions, and I can quite understand the desire of the defendant to have a retrial of this case. But I don’t think we can give it. The learned judge came to this decision: that the defendant was negligent; that he knew that another vehicle was approaching the cross-roads, and, knowing that, accepted the risk. The judge came to the conclusion that Byrne did not know that a motor car was approaching the cross-roads.
There is one very pregnant passage in Judge Devitt’s judgment which I marked while it was being read during the course of the argument “This motor-cyclist might have been coming very fast, or may have been going to turn up the Rathnew road, and if this motor-cyclist—of course, Mr. Beatty did not know which direction he was going—if he was going up the Rathnew road, of course, Mr. Beatty should have left him as much of the Rathnew road as he could, and similarly with the other roads. What he did was he held straight across the cross, and, as I say, the difficulty in this case is that, if in the ordinary way Mr. Beatty did not know the motor-cyclist was coming, and had kept straight on and sounded his horn, it would have been difficult to say which way to decide.”
In other words, if neither party knew that the other was approaching, it would have been very difficult to decide the case. But, as the learned judge goes on to say, Mr. Beatty did know the motor-cyclist was coming and he did not take the precautions he should have taken. And on that ground he decided in the plaintiff’s favour
We know from our experience that it is almost impossible to decide what conclusion one would oneself arrive at on the facts of any particular case. The case was tried very carefully, and the judgment shows that Judge Devitt appreciated the law affecting the questions of negligence raised in this action, even though it is not referred to completely in his judgment. I would never be a party to deciding that, in every case where a judge does not set out all the reasons for his decision in his judgment, there should be a new trial ordered.
Accordingly I think this appeal should be dismissed.
Hanna, J., I agree. The main ground put forward as a reason for granting a new trial in this action is that Judge Devitt, in arriving at his conclusions, has done so merely by answering the first of the three questions which the Supreme Court in *30 Logan v. O’Donnell has indicated as the proper questions to be used in the trial of running-down actions; and has not applied his mind to questions (2) and (3).
I would like to say a few words about these questions. The Supreme Court has laid down that when one has a jury of lay men brought in to try a case of this kind, the best way of arriving at a decision is by putting to the jury the three questions: “(1) Was the defendant negligent? (2) Was the plaintiff negligent? (3) If the answer to the second question be ‘yes,’ could the defendant, by exercise of reasonable care, have avoided the collision, notwithstanding the plaintiff’s negligence?”
But these are only questions that a jury must answer and do not apply when a judge alone is trying the case. A judge has the principles of law affecting the case before his mind while he is trying it, and there is no necessity for him to answer each of the three questions specified. I agree with my colleague that we cannot lay down the principle that where a judge does not specifically answer the three usual questions we must, in every case, order a new trial.
In this case the learned judge has made a very careful analysis of the evidence. He finds that the defendant knew that there was a motor-cyclist coming along to the cross, and that it was his duty not to allow himself to be committed to the cross until he had an opportunity of seeing where the motor-cycle was. And he finds that, in the circumstances he did not take the precautions he should have taken. These findings, I think, are sufficient to justify the decision of the learned judge.
For these reasons. I agree with my colleague that the defendant’s appeal should be dismissed.
O’Connell v. Shield Insurance Company Limited
[1954] IR 286
Maguire C.J. 287
Supreme Court.
This was an action for negligence tried by Mr. Justice McLoughlin with a jury. The jury found the defendants guilty of negligence, acquitted the plaintiff of contributory negligence and awarded damages in the sum of £1,750. Judgment was entered accordingly.
The defendants move this Court to set aside this verdict and judgment on the ground that the evidence so clearly established that the plaintiff was guilty of contributory negligence that the case should have been withdrawn from the jury.
The material facts are that late at night on the 10th May, 1953, the plaintiff was crossing O’Connell Street, Limerick, and had covered a distance of about 37 feet 6 inches of a carriage-way 47 feet 6 inches in width when she was struck by the defendants’ motor car and injured. The street was well lighted. There was a clear view both to the right and left for a considerable distance. On both sides of the street there were cars parked close to the kerb. The plaintiff’s evidence was that before leaving the footpath she looked to the right and to the left. No car was approaching on her left. Observing a motor car coming from her right-hand side she paused until it had turned to the right at traffic lights, which were some distance from where the plaintiff started to cross the road and turned out of O’Connell Street. Having got off the footpath she looked once again both left and right. Seeing no traffic approaching, she moved across at a normal walking pace. She did not, however, go straight across. Her course was at an angle to the right, away from the direction from which the defendant was coming. The defendants’ car which came along the street from the left was driven at a speed estimated at from twenty-five to thirty miles per hour and maintained a straight course two or three feet out from the cars parked on its left. Neither of the parties saw the other until the moment of the collision. In these circumstances the jury were undoubtedly justified in finding the defendants negligent. No question arises as to this. It is submitted, however, that the plaintiff was guilty of contributory negligence in failing to keep a proper look out. It is suggested that the facts are similar to those in Green v. Pickering (1) and passages from the judgments of the three Judges who formed the majority are cited as laying down principles which it is submitted are applicable here. This case, however, differs from Green v. Pickering (1) in as much as the jury had there found the plaintiff guilty of negligence and the question was whether there was evidence to support this finding and whether what is known as the third question should have been left to the jury. The question whether a pedestrian who has been struck by a vehicle moving along a street which he is crossing has acted with due care for his own safety is, of course, pre-eminently a question for the jury, and a jury may acquit a pedestrian of negligence if they are satisfied that before crossing he took reasonable steps to assure himself that it was safe to do so. A pedestrian who looks in the direction from which traffic is to be expected and sees none may proceed without again looking if, at the time he last looked before crossing, there was no reasonable possibility that a vehicle driven at a normal pace would reach him on his way across. If he comes in collision with a vehicle which descends upon him at a speed so great that he could not reasonably anticipate, he may be acquitted of negligence. In this case the defendants’ car was clearly not being driven at such a speed. The plaintiff, if she had looked just before she crossed the middle line of the road could have seen it and by stopping would have avoided the collision. In my judgment it was clearly negligence on her part not to have looked at some stage of her journey across when clearly the car would have been seen by her. She was not entitled to walk blindly into the path of a car driven at the speed at which the defendants’ car was driven without looking. Mr. McMahon submits that the plaintiff was entitled to assume that a motorist coming from the direction from which the defendants’ car came would see her upon the roadway and would avoid colliding with her, either by stopping or by swerving to his right to pass behind her. If the evidence was that the defendants’ driver saw the plaintiff he would have been bound to take steps to avoid the collision notwithstanding the plaintiff’s careless conduct. It would be for the jury to say whether he could have done so. The evidence is that he did not see her. Both parties were, in my opinion, guilty of negligence. The finding that there was no contributory negligence should be set aside and judgment entered for the defendants.
LAVERY J. :
The defendants appeal to this Court to set aside the verdict and judgment for £1,750 in favour of the plaintiff.
The action was one for personal injuries sustained by the plaintiff by being struck by a motor car driven by the defendants’ agent or servant while she was crossing O’Connell Street in the City of Limerick.
The trial Judge put two questions to the jury (apart from damages):
“1, Was the driver of defendants’ car negligent?
If yes,
2, Was the plaintiff negligent?”
The jury answered the first question, “Yes,” and the second, “No,” and assessed damages. On these findings the plaintiff was entitled to judgment and the learned trial Judge entered such judgment.
The finding of the jury on the first question is accepted as fully justified by the evidence, but the defendants say that the evidence so clearly and finally established negligence on the part of the plaintiff causing or contributing to the accident that the finding on the second question should be set aside or, which comes to the same thing, that the Judge should have ruled as a matter of law that the plaintiff was guilty of such negligence that there was no issue of fact in dispute necessary for the jury to decide in order to determine this. The facts have been stated by the Chief Justice and I need not repeat them.
The principle which it is said is to be applied is that laid down in Coyle v. Great Northern Railway Company (1) by Palles C.B. and there is no doubt that in an appropriate case it would be the duty of the judge to act as the defendants say he should have done in this case, that is, to enter judgment for the defendants.
In my opinion, however, the number of cases arising out of highway accidents where it can be said there is no issue of fact to be determined is very few.
The duties of users of the highway both to themselves and others are clear enough. In Green v. Pickering (1), I quoted a statement on this subject from the judgment of Viscount Simon in Nance v. British Columbia Electric Railway Co., Ltd. (2).
The circumstances to be considered where two moving parties come into collision are infinitely various. The time, the weather, the place, the possibility of view, the light daylight or artificialthe vehicle or vehicles involved and many other matters will all affect the question of whether there has been a breach of duty.
It seems to me that these must, not always, but generally, be matters to be considered by a jury.
I am certainly not prepared to hold as a matter of law that a person who crosses an empty street in a large city having assured herself that there is no traffic approaching within a distance reasonable enough to make it prudent to cross but is struck by a car after she has travelled at least two-thirds of her journey must be convicted of negligence contributing to the accident because she did not see the approaching car in the course of her journey.
It seems to me to have been open to the jury to hold that the driver of the car travelling at a speed of say thirty miles per hour, with a well-lighted street, forty-seven feet wide, open and straight before him and empty, but for the lone figure of a girl walking across, and who could not and did not take a course to avoid her was the person solely responsible for the accident.
I do not say a jury should accept this argumentit is for them to decide and if they had in the present case found the plaintiff negligent I certainly would not interfere with their verdict.
Mr. McMahon for the plaintiff (and I do not consider his argument suffered by its brevity) submitted that the question of the plaintiff’s negligence must depend on what she should have foreseen.
She was not, he says, to foresee that a car which could see her plainly would come along and knock her down.
The jury was entitled to hold that when she looked up the street, the car was 400 feet away.
If she saw the street clear for 100 yards, was she entitled to assume that if a car did come along that at some stage of his approach the driver would see her and would give her a warning or slow down or pass either before her or behind her?
He elaborated this argument by certain other measurements appearing from the evidence.
What this Court is asked to decide is that the jury had no question of fact to decide at all and that any juryor any tribunal called on to determine the question of factmustcome to the conclusion that the plaintiff so conducted herself that the accident was caused either wholly or in part by her failure to use due care.
The learned trial Judge who saw and heard the witnesses considered there was evidence fit for the consideration of the jury and sufficient to justify them according to their view in finding the plaintiff negligent or acquitting her of negligence.
The jury, or at least nine members thereof, who also saw and heard the witnesses, thought she was not in fact negligent.
This Court, who has neither seen nor heard the witnesses, is asked to say that both Judge and jury were wrong.
I do not concern myself with the niceties of plotting the course of the plaintiff’s progress across the street and that of the defendants’ car approaching from Patrick Street so as to consider whether the fact that they met in collision was due to the negligence of one or the other or of both. That was for the jury. It was left to them for their decisionin my opinion, correctly.
Mr. FitzGerald relied on Green v. Pickering (1). Apart from the fact that the circumstances of the accident were very different from those in the present case and the negligence of the plaintiff more obvious than in my opinion can be suggested in this case, the decisive matter is that the jury there found the plaintiff negligent.
The case is, in my opinion, clearly distinguishable from this case.
I would dismiss the appeal.
KINGSMILL MOORE J. :
On the evidence, taken in conjunction with the course of the trial and the matters submitted by counsel for the defendant, the facts of this case are hardly in dispute. The Plaintiff, a young woman of twenty-three, was returning from a dance at 1 a.m. on the 10th May of last year, and was walking in a north-easterly direction along the pavement which bounds on its north-west side O’Connell Street, one
of the main streets of Limerick. The night was fine, clear, and dry. The street lighting in the neighbourhood is good. On the opposite side of the street to that on which the plaintiff was walking is Cruise’s Hotel where her father and mother were attending an entertainment, and just as she had passed the frontage of Cruise’s it occurred to the plaintiff to cross the road and join them. She stopped and glanced up and down the street. To her right, further back in the direction from whence she had come, she saw a motor car stationary at some traffic lights, and she waited till the lights had changed and the motor car had made its way down a side street. Then, just as she stepped off the pavement or perhaps immediately after she had stepped off it, she looked again to right and left. To her left she had an unobstructed view for 230 yards up Patrick Street, a continuation of O’Connell Street, and to her right she had a view up O’Connell Street for an even greater distance, though it may have been slightly obstructed by some motor cars parked along the pavement on the side she was leaving. She did not seeor at least was not conscious of seeingany moving traffic within her range of vision. She then proceeded to cross the street without looking further and, when she was 101/2 feet out from the far kerb her left hip came violently into contact with the right front wing and headlamp of a moving motor car which had come down Patrick Street from her left. She neither heard nor saw the motor car before the moment of collision. Having, as she thought, seen the road clear before she stepped off the pavement, she apparently considered it unnecessary to keep any further look out. The driver of the motor car was equally unaware of the proximity of the plaintiff until the actual moment of collision, his explanation being that his eyes were directed towards the left-hand side of the road in anticipation that some of the guests from the hotel might come out into the road from between the motor cars parked along the kerb by the hotel.
The negligence of the driver of the defendants’ motor car is not disputed, and this appeal is concerned only with the question of contributory negligence on the part of the plaintiff, which was negatived by the jury.
The evidence of the plaintiff, and of a witness who saw her is that she walked across the road at an ordinary pace which would mean about three miles per hour. The street where the plaintiff crossed is 47 feet 6 inches, and she was hit about 10 feet 6 inches from the far kerb. This means that if she had crossed the street at right angles she would have walked 37 feet from where she left the kerb to the point of impact. As she was crossing on a slight diagonal the distance must have been somewhat greater, probably somewhat over 40 feet. At three miles per hour the plaintiff would cover 45 feet in ten seconds. Thus from 9 to 10 seconds would have elapsed from the time the plaintiff left the kerb to the moment of impact. It was suggested that the defendants’ car might not have been within the range of unobstructed vision when the plaintiff left the kerb. The unobstructed vision up Patrick Street was 230 yards and if the defendants’ car was out of sight when the plaintiff left the kerb and yet struck her some 9 or 10 seconds later, it must have been travelling at 45 miles per hour or more. The witnesses, Murphy, Slattery and O’Loughlin, who were in the immediate vicinity of the accident do not suggest that they heard or saw anything to suggest a high speed. Mrs. Crimes thinks the car was travelling “a bit fast”which she explains as being twenty-five or thirty miles an hour. Admittedly she is not a person who would be able to make any reliable estimate of speed in terms of miles per hour. The defendants’ driver put his speed at 20 miles per hour. The car travelled some twenty yards after the impact, but the impact was unexpected and so there must have been a small time lag before the brakes were applied and they seem to have been applied moderately, for there were no marks on the road and no screeching of the brakes. On the whole I do not think it was reasonable to suppose that the car could have been so far from the plaintiff when she started to cross that its lights would have been beyond the range of unobstructed vision.
It is right to say that counsel for the plaintiff did not press this point or rest their case on any excessive speed by the car. Mr. McMahon’s argument was attractively simple.”A pedestrian,” he said, “is not bound to foresee that the driver of a motor car will act negligently, or to govern his actions by such an assumption. The plaintiff, when she left the footpath after ascertaining that the road was clear of traffic for about 100 yards (a fact which the jury were entitled to assume) was not required to foresee that any person would drive his car so negligently as to run her down when she would be visible to him for 100 yards.”To accept this proposition would be to abolish the law of contributory negligence, if not of negligence itself. Equally could the driver of this car say: “I was entitled to concentrate all my attention on the left-hand kerb from which I anticipated people might step off because I was not bound to foresee that the plaintiff would walk across a wide unobstructed street and into my wing without one glance after she left the footpath to see if traffic was approaching.”The true proposition would appear to be that even if a road user is prima facie entitled to assume that other users will not act negligently so long as he is not able to ascertain that they are in fact so acting, he is bound to keep a reasonable look-out to see if they are so acting. When coming to a blind corner I may be entitled initially to assume that a person driving in the opposite direction will not be driving on his wrong side of the road, but I must keep a good look-out so that if he appears on the wrong side of the road I can do my part in avoiding an accident. In this case I cannot think that any jury, acting reasonably, could come to the conclusion that the plaintiff was keeping an adequate look-out. There was no other traffic to distract her attention or prevent her from taking the elementary precaution of looking to her left before she crossed the centre line of the road into the natural path of vehicles coming from her left. It may well be that, in spite of the clearness of the night, the good street lighting, and the presence of lights on the car, the plaintiff when she looked to the left failed to observe the motor car or, while seeing it, over-estimated the distance that it was away from her. Her vision may lack acuity. Such possibilities, however, only emphasise the necessity of looking once again to the left before she entered that part of the street which would normally be used by traffic coming from her left.
I am, therefore, of the opinion that it is impossible to exonerate the plaintiff of contributory negligence and that a verdict should be entered for the defendant.
It was suggested that the usual third question should have been left to the jury. It appears that at the trial counsel for the plaintiff finally acquiesced in the case being tried on two questions. Accordingly it is not necessary to examine whether the third question should have been put. It is sufficient to say that, in my opinion, it did not arise.
O’DALY J. :
I agree with the judgment delivered by Mr. Justice Lavery and I have nothing to add.
MAGUIRE J. :
I entirely agree with the judgment of Mr. Justice Lavery and I have nothing to add.
Candy v. Minch Norton and Co., Ltd.
MAGUIRE C.J. :
21 Dec. 1951
This is an action for damages for negligence tried before Mr. Justice Dixon and a jury. At the close of the plaintiff’s case the learned Judge withdrew the case from the jury on the ground that although on the evidence the jury might properly find the defendants negligent, the plaintiff was so clearly guilty of contributory negligence that a contrary finding would be perverse and that on the evidence as it stood there was no evidence upon which the jury could properly find that notwithstanding such contributory negligence the defendants could have avoided the accident.
The plaintiff moves this Court to set aside the judgment and to order a new trial on the ground that the question whether the plaintiff was guilty of contributory negligence should have been left to the jury and that it should also have been left to them to say whether the defendants, not-withstanding such negligence, could have avoided the accident.
The plaintiff, an old man, was cycling across Emily Square, in the town of Athy. He was going in the direction of Meeting Lane, a street by which he intended to leave the Square. On his left stood the Town Hall. The defendants’ car came along a section of the roadway between the Town Hall and the side of the Square onto which Meeting Lane opened. It approached the line along which the plaintiff was moving roughly at a right angle. The plaintiff as he moved forward commanded a view of the section of the roadway on which the defendants’ car was moving which steadily increased until, at a point about 12 or 13 feet from the point at which the collision took place, he had a clear view to his left. The evidence on behalf of the plaintiff was that he was going slowly, that he looked to his left and did not see the defendants’ car because “it was not there.” He continued straight ahead without again looking to his left. He had reached a point a few feet from Meeting Lane when he was struck by the defendants’ car. A cyclist crossing a section of roadway along which traffic may reasonably be expected is bound to keep a look-out and to adjust his movements so as to avoid risk from such traffic as is there. He cannot, however, reasonably be expected to keep his eyes continuously in the same direction. He must keep a look-out on both sides and on the road immediately in front of him. The plaintiff here should undoubtedly not have moved forward without taking reasonable precautions to see that no danger impended from his left. It is not easy on the evidence to ascertain precisely at what point he looked to his left and on this turns the question of what length of the roadway on which the defendants’ car was moving was within range of his vision when the plaintiff decided that it was safe to go ahead. The distance which one estimate gives of the length he travelled after he looked was about six yards. In my view it was a matter for the jury to fix the point at which the plaintiff looked to his left. Having fixed this point it was again for the jury to say how far the roadway was clear of traffic at the time and to decide whether it was reasonable for the plaintiff to proceed. It is said that if the plaintiff looked to his left again, even a moment before the collision, he would have seen the defendants’ car and could have stopped. It was, however, to my mind a question for the jury whether, having looked when he did and seen that no danger impended from the left, he was negligent in not looking again before going on.
Accordingly, the case should go back for a rehearing. On a rehearing it will be for the trial Judge to rule whether in the event of the plaintiff being found to be negligent there is evidence from which the jury could find that not-withstanding such negligence the defendants could have avoided the collision. In my opinion, however, if the evidence stands as it is on the transcript before us this question should be left to the jury. I am of opinion that the jury would be entitled in the absence of evidence from the defendants to find that the defendants’ driver did see the plaintiff as he, the plaintiff, approached, and certainly when he emerged past the line of the Town Hall and it would be for them to say whether he saw him at a sufficient distance to allow of his taking steps to avoid the collision.
The judgment should be set aside and a new trial ordered.
MURNAGHAN J. :
I agree that there should be a new trial in this action but I arrive at this conclusion on different grounds.
Mrs. Mary Whelan, a witness called for the plaintiff, stated that she saw the motor car passing down by the Town Hall at Meehan’s shop window, and at the same time almost she saw the plaintiff coming on by the window of the Town Hall, between the window and the scales outside the Town Hall. At question 403 she was asked: “There is nothing at all to obstruct him once he comes up near to the edge of the Town Hall,” and she replied: “I know that; you can see right up the street.” The plaintiff never saw the car until he was struck. He was cross-examined as to where he was when he looked to the left, and in re-examination he was asked: “When you looked to your left could you see down the road in the direction in which the car was coming?” He answered: “No, I could not, sir.” “Could you see any distance?” “I could see on my left and right everything was quite clear.” “When you looked to your left had you a vision down the road to your left?” “I had not.”
It results from these answers that the plaintiff crossed over to Meeting Lane without looking to his left when he had the opportunity of seeing whether there was traffic approaching. To look at an earlier stage when he had no vision up the road does not dispense him from looking when he should have looked. In my opinion the trial Judge was correct in directing the jury that they were obliged as matter of law on the plaintiff’s own admissions to find him guilty of contributory negligence.
The evidence is clear that there was no traffic near the place where the collision occurred and from the evidence as to the position of the motor car the jury could, in the absence of evidence from the defendants, find that the defendants’ driver did see the plaintiff at a considerable distance. In Toronto Railway v. King(1) in a somewhat similar case the Judge at the trial put this question: “Could the motorman, after the danger of collision being imminent became apparent to him, have avoided the accident by the exercise of reasonable care on his part?” The decision in Gaffney v. Dublin United Tramways Co., Ltd. (2) would justify a similar question being put in the case before the Court. I am expressing no opinion as to how the jury should answer this question. In King’s Case (1) the trial Judge went further. He also asked: “5, Ought the motorman, if he had exercised reasonable care, to have apprehended sooner than he did that a collision was imminent?” And he put a further question: “If you answer ‘yes’ to question 5, could the motorman, when, in your opinion, he should have apprehended that a collision was imminent, have avoided the accident by the exercise of reasonable care on his part?” In my opinion similar questions might, if evidence given for the defence made them applicable, also be put in the case before the Court. I do not think that anything to the contrary has been ruled by this Court in Green v. Pickering (2).
O’BYRNE J. :
Prior to the accident, with which this appeal is concerned, the plaintiff, an old man, was cycling home through the town of Athy. He crossed Emily Square with the intention of proceeding along Meeting Lane in the direction of his home. In the course of his journey, he passed close to the back of the Town Hall. In order to enter Meeting Lane it was necessary for him to cross a thoroughfare which is described in the evidence as the main road to Carlow. This road passes between the side of the Town Hall and a terrace of houses and, at the material point, is only about 13 feet wide. As he emerged onto this road the plaintiff’s view to the left was, to a considerable extent, obscured by the Town Hall.
The defendants’ motor car came from the plaintiff’s left, passed along the narrow road to which I have referred and came into collision with the plaintiff somewhere in the vicinity of the opening into Meeting Lane. The plaintiff sustained injuries by reason of this collision and he alleges that they were due to the negligence of the defendants’ servant in the driving and management of the said motor car and he claims damages.
In his evidence the plaintiff says that, before emerging from the shelter of the Town Hall, he looked to his left and saw no traffic approaching from that direction. He did not, again, look to his left as he proceeded across the road and never saw the car until the actual collision. There is evidence that no horn was sounded and the plaintiff says that he did not expect traffic from the left as he thought that any motorist driving through the narrow passage, to which I have referred, would blow his horn.
The exact position of the plaintiff, when he looked to the left, could not be fixed with precision. It was obviously shortly before he emerged on to the narrow road, where the accident occurred. At that point the plaintiff’s vision was restricted. He was cycling slowly and says in his evidence that he could have jumped off his bicycle at any moment. In his account of the accident he says that he came into contact with the right-hand side of the car near the front.
On these facts the defendants contended that the collision was due to the negligence of the plaintiff in failing to keep a proper look-out and that, even assuming that the defendants’ servant was negligent in the driving of the motor car, the plaintiff’s negligence was a contributing cause of the accident and that, accordingly, the plaintiff was not entitled to succeed, and they applied to the learned trial Judge for a direction at the end of the plaintiff’s case. The trial Judge acceded to this application and directed the jury to find in favour of the defendants. Against the judgment so directed, the plaintiff has brought this appeal.
If the plaintiff’s evidence stood alone, I would see great, if not insuperable, difficulty in interfering with the judgment directed in favour of the defendants.
There is, however, another account of the accident, which seems to me much more favourable to the plaintiff’s case.
At the time of the occurrence Mrs. Mary Whelan was approaching the scene of the accident from a direction directly opposite to that followed by the motor car and she was in a position to see, and did see, both the motor car and the bicycle as they approached the scene of the collision. In answer to a question as to what part of the plaintiff was struck, she says, at question 471: “As far as I could see, I thought the bumper of the car hit the bicycle between the back wheel and the pedals.” It is true that she turned her head away at the very moment of the impact; but, never-theless, it seems to me that it would be open to the jury to find that the accident occurred in the way described by Mrs. Whelan, particularly in view of the fact that her account is not entirely without corroboration.
The plaintiff describes the injuries which he received as being altogether on the left side of his body and this is borne out by the evidence of Dr. O’Neill, who was called in to attend him immediately after the accident. In addition to the foregoing, there is the evidence of Mr. James O’Higgins, the Town Clerk of Athy, who, at the time of the occurrence, was in his office in the Courthouse. He did not witness the accident; but his attention was attracted by the screeching of brakes and he went immediately to the window from which he had a clear view of the scene. He saw the man who had been involved in the accident being helped up off the ground and he says that this man was somewhere near the front portion of the car.
A jury might have considerable difficulty in accepting the account given by Mrs. Whelan as against what seems to be the clear evidence of the plaintiff; but there are certain factors which they would be fairly certain and would certainly be entitled to take into account. The plaintiff, as I have stated, is an old man and he received serious personal injuries. The doctor found that there were four ribs broken on the left side and there was also extensive bruising along the left lumber region and the left leg. The plaintiff was so upset and shocked that the doctor at first suspected concussion; but it subsequently appeared that, in fact, there was no concussion.
It seems to me that a jury might well consider that the plaintiffs’ recollection of the events immediately surrounding the accident was obscured by the injuries which he received and the shock to which he was subjected and, taking these matters into consideration, they might prefer to accept the account given by Mrs. Whelan. That is entirely a matter for the jury. Our duty is merely to consider whether it would be competent for a jury to accept that account and, in my view, it clearly would.
Accepting this account of the accident it would be open to the jury to find, as a fact, that the plaintiff had crossed the greater portion of the narrow road and was just about to enter Meeting Lane when the defendants’ car was driven against him and that the collison took place between the front of the car and the left side of the plaintiff.
On this view of the facts I am of opinion that it would be competent for the jury to hold that the effective cause of the misfortune was the negligence of the driver of the defendants’ car.
This is not a case in which the facts are clear and beyond controversy. It would be for the jury to determine the precise position of the plaintiff when he looked to the left and, having determined this matter, to say whether he was negligent in proceeding across the narrow road without again looking to the left, particularly in view of the fact, if they so found, that no horn was sounded. Even if the plaintiff was negligent in coming out on to the road and placing himself in a position of danger, it would, in my opinion still be open to the jury, on the facts as found by them, to consider whether the driver of defendants’ car could, by the exercise of reasonable skill and care, have avoided the collision, notwithstanding the negligence of the plaintiff.
For these reasons I am of opinion that this appeal should be allowed, the judgment set aside and a new trial directed.
LAVERY J. :
I agree that a new trial should be directed.
In my opinion, the question of whether the plaintiff was guilty of contributory negligence properly arose on the evidence for the consideration of the jury.
I do not consider it necessary to decide whether the third question arose or not, as whether it is to be put on the re-trial will depend on the course of that trial.
KINGSMILLMOORE J. :
At the end of the hearing, and on subsequent examination of the evidence, I found myself convinced that the plaintiff had displayed contributory negligence of a distinguished order and that there was no justification for submitting the “third question” to a jury. I was equally convinced that the evidence establishing contributory negligence was so complete, coercive and unequivocal that any finding of a jury which negatived contributory negligence would be perverse and should be set aside. Since, however, three senior members of the Court, whose experience of collision actions is much greater than mine, and who are much more likely to be right on such matters than I, take a different view as to the interpretation of certain vital portions of the evidence, it follows logically that a jury might reasonably differ from a view which seemed to me unescapable: and, if this is so, the question of contributory negligence was one for them to decide. Accordingly I agree that there should be a new trial.
As the evidence on the second trial will be different from that now before the Court it would be useless, and might be harmful, to enter into the reasoning which led me to conclude that, on the evidence as it at present stands, the”third question” did not arise.
Byrne v. Sheedy
[1955] IR 1
Supreme Court
MAGUIRE C.J. :
21 Dec.
This action which was for damages for negligence was tried by Mr. Justice McLoughlin with a jury. The jury found that the defendant was negligent and acquitted the plaintiff of contributory negligence. Damages were assessed at £6,000 for which sum judgment was entered for the plaintiff.
The defendant moves this Court to set aside the verdict and judgment so entered and enter a verdict for him.
The sole question for consideration is whether the jury were entitled having regard to the evidence to acquit the plaintiff of contributory negligence. Counsel for the defence at the close of the plaintiff’s case asked that the case be withdrawn from the jury on the ground amongst others that even if there was evidence of negligence on the part of the defendant that there must be a finding of negligence against the plaintiff on his own evidence and that there was no room for what is known as the third question. The learned trial Judge, however, declined to accede to this application. The defendant went into evidence. The application for a direction was not renewed at the end of the defendant’s case. This Court is, however, asked to say that the case should have been withdrawn from the jury as falling within the principle laid down in Coyle v. Great Northern Railway Co. (4).
The material facts are not seriously in dispute. The plaintiff who was driving a van of the Ford 8 h.p. type was on his way to the Cattle Market at 5 o’clock in the morning of the 4th February, 1953. Living at the south side of the City, he had driven his van down Parliament Street at a speed which he estimates at 20 to 25 miles per hour, and was approaching Essex Quay with the intention of crossing Grattan Bridge which was straight ahead. He had blown his horn, slowed down to a speed which would allow him to pull up in 16 to 18 feet. As he entered upon the intersection formed by the Quays and the roadway leading across the bridge he looked to his right but did not observe any traffic from that direction. The only traffic which he saw was two cyclists on the bridge. At the point where he was about to cross Essex Quay was 32 feet, 4 inches wide. This measurement is from the line of the houses on the south side to the line of the wall of the bridge. The plaintiff had reached a point where he was astride the middle line of this roadway when he came into collision with a station wagon driven by the defendant which, unknown to and unobserved by the plaintiff, had approached from his left. As a result of the collision the plaintiff’s van, damaged on its side, moved on to the bridge and swinging across to its right ended up on the footpath some 40 feet away from the point of impact. Meanwhile the defendant’s station wagon had come to rest. Mr. Liston described the accident as a classical example of the blind corner collision to which both parties clearly contribute by their negligence. On behalf of the plaintiff it is submitted that he was driving at a moderate speed, had blown his horn, and that when entering upon the intersecting roadway he was entitled to assume that traffic coming from his left would yield him the right of way. It is furthermore submitted even if this was not so that the jury were entitled on the evidence to hold that at the time he reached the intersection the defendant was so far away that the plaintiff was reasonably entitled to judge that the way was clear and that it was safe for him to go ahead. The contention that the plaintiff was entitled to assume that traffic from the left would yield him the right of way is based upon Article no. 9, paras. (5) and (7), of the General Bye-Laws for the Control of Traffic, 1937 (Stat. R. and Or., 1937, No. 222). This Article is intended to control the behaviour of drivers of vehicles who observe each other at a road junction and cannot be relied upon as absolving a driver from looking to his left when about to cross at a road junction where he can observe traffic approaching and avoid risk of accident by slowing down or pulling up.
This Article should be read with Article 22 (1) where it is expressly provided that the bye-laws do not relieve the driver of any vehicle from the obligation to exercise due care and take all such precautions as shall be reasonably necessary for securing the safety of all other traffic. According to the evidence here the jury could not fail to find that the plaintiff had not kept a proper look-out and that had he done so he could have avoided the collision.
The contention that the jury might hold that when the plaintiff entered upon Essex Quay the defendant was so far away that it was safe for him to cross to my mind fails, firstly, because the plaintiff does not state that he took any steps to assure himself that no traffic was approaching from his left. Secondly, a computation based upon the distance which the plaintiff travelled from the point at which he entered upon Essex Quay up to the point of the collision, viz., 16 feet, 6 inches, and the speed at which he was travelling, viz., 20 to 25 miles per hour, seem to make it clear that no matter how fast the defendant’s station wagon was travelling it cannot have been, at most, more than 25 to 30 yards away at the critical time, namely, when the plaintiff started to go across the intersection. In arriving at this figure I have made allowance on the basis that the plaintiff may have somewhat over-estimated the speed at which he was travelling. It seems to me that in view of this the plaintiff cannot in law be acquitted of negligence contributing to the accident and consequently that he cannot recover in this action.
In my opinion this appeal should be allowed.
KINGSMILL MOORE J. :
The scene of this accident was the junction where Parliament Street, running almost due north from the City Hall, is intersected on the west by Essex Quay and on the east by Wellington Quay. Beyond the intersection, in line with and forming a continuation of Parliament Street, is Grattan Bridge, and beyond Grattan Bridge is Capel Street.
Essex Quay lies at a right angle to Parliament Street and at the corner stands the tall Sunlight Chambers, obstructing the view which motorists, driving along Parliament Street and Essex Quay, respectively, can have of the approach of each other. The extreme corner of Sunlight Chambers is built on a slant facing north-east, but so little of the corner is bevelled off in this way that the view is not appreciably improved. A driver coming down Parliament Street on the left of the centre cannot assure himself that Essex Quay is free of traffic approaching the junction and close enough to involve risk of collision, until he has come to within two or three feet of the frontage line of the houses on the south side of Essex Quay. The view which a driver, coming east along Essex Quay can have of traffic coming north along Parliament Street is equally limited. Both Essex Quay and Parliament Street are main thoroughfares carrying considerable traffic in the day and the early part of the night, and, though the number of vehicles is not great in the small hours, there is no time when a motor car may not be expected to come along any of the four streets. It is an extremely dangerous crossing, demanding the utmost care, and it is not controlled by traffic lights.
The collision took place about 5 a.m. in February. The night was dry, the street lighting is good, and both of the motor cars involved had lights. There was no traffic in the immediate vicinity other than the two vehicles which came into collision. Thus there was nothing beyond the natural features of the situation to prevent the approaching vehicles from seeing each other.
The plaintiff, according to his own account, came down Parliament Street driving a Ford 8 h.p. van, at a speed of about 20 miles per hour, and, when he was about 15 to 20 feet short of the corner, he sounded his horn and eased his foot on the accelerator. He was looking straight ahead and was able to see two cyclists in Capel Street on the far side of Grattan Bridge, but he did not turn his head to look up Essex Quay to his left or down Wellington Quay to his right, and he never saw any car approaching. He did not apply any brakes, for he was unconscious of any danger. According to his recollection he had nearly cleared the cross, and his front wheels were about to enter on the bridge, when the rere of his van was hit a violent blow. He was thrown off his seat, and the van careered across the bridge out of control, coming to a standstill about a third of the way across the bridge with its back wheels on its right hand footpath and the bonnet facing partially across the bridge pointing to the west. The evidence of the injuries to the van showed that it was hit about midway on its left-hand side with sufficient force to twist the chassis. Minor injuries towards the rear of the left-hand side showed that the van had scraped across the front of the car that hit it, and the evidence of the marks found on the road and the position of the defendant’s car after the accident establish that the van, when hit, must have crossed the central line of Essex Quay, but had not yet reached the opening of the bridge.
The defendant’s evidence was that he was driving a Commer station wagon with three passengers along Essex Quay. His speed was about 25 to 35 miles per hour, but he eased somewhat as he approached the junction with Parliament Street. When he was close to the junction he saw something which he described as “a blur or a flash” coming from his right. He immediately applied his brakes and had nearly stopped his car when he collided with the Ford van which was crossing his front. The Commer stopped at the point of collision, but if there had been no collision it would only have gone on about two feet more.
The position of the collision was fixed by a Guard who came on the scene before the Commer was removed. The Commer was on the left centre of Essex Quay, with no portion of it to the right of the centre line of the Quay. The back of the car was level with the building line on the west of Parliament Street. As there is a footpath 7 feet, 10 inches wide on this side of Parliament Street about half, or a little less than a half, of the car would be projecting into the cross. Two marks of brakes 14 to 16 feet long extended backwards from the front wheels of the car.
The trial Judge refused to direct a verdict in favour of the defendant and the jury found that the defendant was guilty of negligence, and that the plaintiff was not guilty of contributory negligence. The defendant has appealed against the findings of the jury on both issues, but his counsel before this Court confined himself to arguing that, on the facts either admitted or uncontested, the contributory negligence of the plaintiff was so clear that the trial Judge should have directed for the defendant and that the finding of no contributory negligence must be set aside as one at which no reasonable and honest jury could arrive.
I find it impossible to conceive how the plaintiff can be absolved of negligence when, on his own admission, he crossed a principal thoroughfare without looking to left or right at a speed of nearly 20 miles per hour and did not make himself aware of the presence of another vehicle till the collision occurred. At one time I thought it possible that, although such conduct was clearly negligent in the abstract, yet it might not be negligence effectively contributing to the collision. From the point where the plaintiff would have got a clear view for about 30 yards down Essex Quay to the centre line of Essex Quay is only about 20 or 22 feet, which is not a liberal distance in which to pull up a van travelling at 20 miles per hour, when allowance has been made for the inevitable short interval between seeing and acting. But I have come to the conclusion that if the plaintiff would not have been able to pull up his van in this distance, then he must have approached the junction at a speed excessive in the circumstances. It seems to me that it is impossible to avoid the conclusion that the negligence of the plaintiff was an effective contributory cause of the accident, and that this conclusion is so plain that any verdict to the contrary must be set aside as one which could not reasonably be arrived at.
Counsel for the plaintiff addressed an argument to the Court based on Bye-Law 9 (5) and 9 (7) of the General Bye-laws for the Control of Traffic, 1937. Those bye-laws read as follows:
“(5) The driver of a vehicle approaching an uncontrolled road junction by a road which is a principal or major road shall yield the right of way to any vehicle approaching such road junction from a direction on the right of such driver by a road which is also a principal or major road.”
“(7) The driver of a vehicle approaching a road junction shall yield the right of way to any vehicle actually turning or crossing at such road junction.”
It was urged that those bye-laws were categorical and laid down absolute prohibitions, so that not only was the defendant guilty of an offence, and negligent, in not yielding the way to the plaintiff, who was approaching from his right and who also came out on the cross before him, but that the plaintiff was entitled to drive across the junction on the supposition that anyone coming down Essex Quay would obey the law and that he might proceed without taking precautions against a breach of the law.
To this contention there are several answers. To make those bye-laws operate reasonably they must be read with some qualifications. If a person is bound always to give way to all traffic coming from the right, irrespective of its distance or its visibility, he could never get across a junction. It is not necessary to define the exact scope of the bye-law, but it seems to me that it is intended to regulate the actions of two drivers who have come into view of each other at such speeds and at such a distance that if one did not yield to the other there would be danger of a collision.
Every driver must approach a junction with such reasonable caution as the circumstances require and should have his car in such control that he is able to yield the right of way to a car which approaches the junction from his right and is being driven in such a manner as may reasonably be expected. But if the car coming from his right emerges suddenly at an excessive speed, or is otherwise driven in a negligent manner, he cannot be required to do more than to take all reasonable and proper steps to avoid a contingency which he is not bound to anticipate.
Similarly the bye-law which requires a driver to yield the right of way to a vehicle actually crossing cannot become mandatory till that vehicle is in sight, though again it imposes a duty of caution on all drivers so to approach a junction as to be able to give way to a vehicle emerging in a manner or speed reasonably to be expected.
Assuming that these regulations are effective, in the circumstances of this case, to fix the defendant with negligence (of which there could be some doubt), yet they cannot, in my opinion, operate to absolve the plaintiff. Even if the plaintiff were entitled to drive on the assumption that other drivers would obey the letter of the law and would not be guilty of negligence (a proposition which requires some qualification: London Passenger Transport Board v. Upson (1))yet he is under an obligation to keep a good look-out to see if other drivers are so acting and, if they are not so doing, to take all proper steps to avoid the consequences of their breach or negligence. This appears to me to be a general proposition. It seems, however, to be expressly recognised in the bye-law 22 (1), which states:”Nothing in these bye-laws shall operate to relieve the driver of any vehicle . . . from the obligation to exercise due care in the management of such vehicle . . . and to take all such precautions as shall be reasonably necessary or proper for securing the safety of all other traffic . . .”
Accordingly, it seems to me impossible to acquit the plaintiff of negligence effectively contributing to the accident. The verdict of the jury must be set aside and judgment entered for the defendant.
O’DALY J. :
This appeal is by a defendant in an action for damages for negligence arising out of a collision between motor vehicles at a street crossing. It is taken on the ground that the jury’s finding that the plaintiff was not guilty of contributory negligence was made without evidence and was perverse. The trial Judge rejected an application to withdraw the case from the jury.
The scene of the collision was the mouth of Grattan Bridge at the junction of Parliament Street and Essex Quay in the city of Dublin and the time early morning on the 4th February, 1953. The plaintiff came from Parliament Street in his Ford 8 h.p. van and entered on the crossing intending to pass over Grattan Bridge and turn left up the north quays. The defendant’s vehicle, a Commer station wagon, was being driven along Essex Quay citywards. The collision took place when the front wheels of the plaintiff’s van were on the bridge or opening to the bridge (q. 127) and when the defendant’s station wagon had emerged only 5 or 6 feet on to the cross. This latter distance is measured from a projection of the line of kerb on the west side of Parliament Street. The van finished up on the eastern parapet of the bridge about 35 feet in from the mouth of the bridge and faced westwards, that is to say, at a right angle to its course. The station wagon came to rest on its correct side, still facing citywards. It did not move beyond the point of impact. Twin brake marks extended back from the front wheels for a distance of 14 to 16 feet. The damage to the van was on the near side from the door to the back. A spare wheel fixed to the door was buckled and the impact burst the tube. There was damage to the petrol tank and rere mudguard; and the chassis was driven in from the near side and was so badly damaged as to be beyond repair. The damage to the station wagon was to the front; the radiator was pushed in on the fan belt by the impact so that the car could not be driven.
The plaintiff did not see the station wagon before the collision, and the defendant’s argument is that this necessarily convicts him of contributory negligence.
Parliament Street and Essex Quay run at a right angle to each other. The angle at the junction is not, however, a right angle because it has been sliced down to accommodate a window which faces north-east. The view which motor drivers approaching the junction from Parliament Street and Essex Quay respectively have of each other is nevertheless very restricted.
The defendant’s station wagon was being driven with lights dimmed at a speed which the driver said was between 25 and 35 miles per hour. He says he eased up coming towards the junction. He saw a blur or flash, braked the station wagon as hard as possible, and next, the collision had occurred.
The plaintiff on the other hand approached the cross very slowly (q. 123) which he later translated as in or around 20 miles per hour (q. 126). His position on the road was 5 feet from the left kerb. When 15 or 20 feet back from the cross he sounded his horn, but heard no horn sounded in reply. He continued on to the cross. The plaintiff’s account of the extent to which he then kept a look-out is best recounted by quotation. He frequently breaks into a vivid historic present.
In his direct evidence he said (q. 127):”When I approached the opening of the cross roads on the quay, as I approached there, there is no car. As I can see right across the roadthere is no car in my vision as I get to the opening. There is no car in my moment’s vision whatsoever, so far as I can see with the side of your [sic]eye or anything else and I proceeded across the road.”
Later, at q. 168 he was asked if when he blew his horn he was still driving at 20 miles per hour. He answered:”Oh no; I would be looking out naturally. I am easing up because as a matter of fact I have got to practically stop when I get to the far side of the bridge.” The Judge asked (q. 169):”You say you were then easing up?” The plaintiff answered:”And looking out for traffic.” Cross-examined, he said (q. 397) that he was keeping a look-out. At q. 444 it was put to him that if he had given a look to his left at any stage he would have seen the station wagon approaching and that he could have stopped or swerved away. He answered:”There was no car in my direct vision that I could see.” Counsel pressed the question that he never looked to his left as he crossed the crossing (q. 445); he answered:”I saw a certain amount; any man will see a certain amount to his right or left.” The next question was:”With the possible exception of what you might see sidewayslaterally you saw nothing? Would it be correct to say your eyes were looking ahead?” The plaintiff answered:”When I am there there is no car whatsoever coming from that side whatsoever.” Plaintiff’s counsel intervened (q. 447):”Which side?” The witness answered:”The left hand sidethere is no car.” The defendant’s counsel returned to the point (q. 448):”You saw no car?” Answer:”I saw no car. In my vision I saw a certain amount to my left but there is no car there.”At q. 455 he is asked:”And you kept looking in front?”Answer:”I am looking in front. I am driving my car but surely if there is a car anywhere near that bridge coming out I will see it.” At q. 457 counsel said:”Tell the jury what you were doing?” The plaintiff answered:”I believe I am approaching a corner, looking, as anyone will look I do not know how you would explain it.” The Judge (q. 458):”Looking ahead in the direction you were going?”Answer:”Yes.” Q. 459:”And seeing to your right and left what can be seen with the angle of the eyes looking ahead?” Answer:”Yes.” At q. 461 the plaintiff was asked would it be possible to swivel his eyes left and right and see things to his immediate left and right? His answer was that it was the natural thing for anyone to do; and, later, that he could not tell if he did so because it was a long way to think back (qq. 463 and 464).
This evidence, I think, establishes that the plaintiff did keep some look-out as he approached and entered on the cross. The defendant’s submission, however, is that the plaintiff’s failure to observe the approach of the station wagon of itself necessarily establishes contributory negligence on his part. I am unable to agree. The adequacy of the look-out which the plaintiff kept is, in my opinion, to be referred to the distance the station wagon was from the mouth of the cross when the van began to emerge. The plaintiff’s van we know travelled 161/2 feet on to the cross while the defendant’s station wagon emerged on 5 or 6 feet. It was, moreover, open on the evidence to the jury on the one hand to infer from the severity of the impact (the force of it, the plaintiff said (at q. 534) drove his van over to the parapet of the bridge) that the station wagon was being driven at a greater speed than the defendant’s driver’s estimate of his maximum speed and on the other hand to give the plaintiff the benefit of what he first said of his speed, viz., that he was travelling very slowly.
So viewing the evidence, the failure of the plaintiff to observe the approach of the station wagon is explained by the station wagon not being yet in sight at a time when it was safe to emerge on the cross and proceed.
That was a view of the evidence which it was open to the jury to take; and on that view of the evidence a jury would be within their province in acquitting the plaintiff of contributory negligence.
I have left out of account the provisions of the General Bye-Laws for the Control of Traffic, 1937. Plaintiff’s counsel relied on Article 9, paras. (5) and (7).
Paragraph (5) requires a driver approaching an uncontrolled road junction to yield the right of way to traffic coming from the right, and para. (7) places a like obligation on an approaching driver in respect of traffic actually crossing a road junction. Article 9 has, however, to be read together with Article 22 (1) which provides:
“Nothing in these bye-laws shall operate to relieve the driver of any vehicle . . . from the obligations to exercise due care in the management of such vehicle . . . and to take all such precautions as shall be reasonably necessary or proper for securing the safety of all other traffic . . .”
This latter Article was not opened to the Court in argument and on that account it is perhaps better that I should express no concluded opinion upon its effect as well as because I think the jury’s finding of no contributory negligence can be sustained without reference to the General Bye-Laws for the Control of Traffic.
I may, however, say I find it difficult not to thinkand to hopethat it can be shown that the man who to some degree regulates his conduct on the basis of the likelihood of his neighbour having some regard for the traffic bye-laws does not thereby cease to be a reasonable man.
I would uphold the verdict and judgment.
MAGUIRE J. :
I agree with the judgments delivered by the Chief Justice and Mr. Justice Kingsmill Moore and I have nothing to add.
Stokes v South Dublin County Council
[2017] IEHC 229
JUDGMENT of Mr. Justice Barr delivered on the 7th day of April, 2017
Introduction
1. This action arises out of an accident which occurred on 18th September, 2011, at a caravan park or halting site, owned by the defendant at Oldcastlepark, Bownogue, Dublin 22. The plaintiff, who lived with his parents in a caravan at the park, was jogging up a footpath leading from the entrance to the halting site, going towards the caravans, when he alleges that he tripped over a depression or hole in the surface of the footpath, causing him to fall to the ground and suffer a fracture to the knuckle on the third digit of his right hand.
2. The defendant accepts that on or about 18th September, 2011, the plaintiff suffered a comminuted fracture of the knuckle on the third digit of his right hand. Other than that, all matters are in issue. In particular, the defendant argued that having regard to the nature of the injuries, they were unlikely to have occurred in the manner suggested by the plaintiff. They argued that in all probability, the plaintiff had met with his injuries while pursuing his sport of boxing. They submitted that it was more likely that the plaintiff had injured his hand boxing and was fraudulently trying to place the blame on the defendant, by alleging that his injuries happened due to a trip and fall on an unsafe section of the footpath. They submitted that this was the more likely explanation of how his injuries occurred, having regard to the medical evidence in relation to the injuries which are usually suffered as a result of a trip and fall and having regard to the fact that the plaintiff delayed in informing his solicitor or the defendant, of this accident until in or about March 2013.
3. The defendant also argued that the road and footpath in the caravan park constituted a public highway and in these circumstances they were entitled to rely on the defence of non-feasance.
4. In the alternative, it was submitted that as the plaintiff was engaged in jogging, when he allegedly met with his accident, he was a “recreational user”, within the meaning of the Occupiers Liability Act 1995 and therefore the defendant only owed him a duty not to act with “reckless disregard” for his safety. They submitted that there was no evidence that they had so acted in this case.
5. Finally, the defendant submitted that having regard to the state of the locus as shown in the photographs taken by the plaintiff’s engineer, the hole or depression in the footpath was clearly visible. They submitted that if the plaintiff had kept a proper lookout while jogging up the path, he would not have met with his accident. They submitted that he was either entirely the author of his own misfortune, or was guilty of a substantial element of contributory negligence.
The Evidence on Liability
6. The plaintiff was born on 18th March, 1993. He was approximately 18.5 years of age at the time of the accident. He had lived with his parents in their caravan at the Bownogue halting site since it opened in 1998. He stated that on 18th September, 2011, at approximately 18:30hrs, he had gone jogging around the roads in the area and was returning up the footpath which led from the entrance to the halting site, to the caravans. The general layout of the footpath was shown in photograph 1 taken by Mr. Conlon, the plaintiff’s engineer. The depression or hole shown in photograph 2, was taken approximately 2m from the depression. A closer view of the depression was shown in photograph 3.
7. The plaintiff stated that as he ran up the footpath, his right leg went into the hole or depression and he fell forward. He stated that he fell onto his right hand, which had been turned inwards with the palm facing his body. This meant that his knuckles had come into direct contact with the ground. He felt severe pain in his right hand. On the following day, he went to his G.P. in relation to his hand injury. He was seen by Dr. Lindy Barnes, who was one of the doctors in the practice. She referred him for an x-ray of his right hand. This was carried out on the same day and revealed he had suffered a fracture of the knuckle on the third digit of his right hand. On the following day, 20th September, 2011, the plaintiff was brought to theatre where open reduction and internal fixation was carried out of the fracture site. The nature of the injury, its treatment and sequelea will be dealt with later in this judgment.
8. The plaintiff was asked about access to the halting site generally. Referring to photograph 12 of Mr. Conlon’s photographs, the plaintiff stated that this showed the entrance to the caravan park. On the extreme right, there was a pedestrian entrance which led to the footpath on which the plaintiff was jogging at the time of the accident. In the centre of the photograph, there were closed gates. The plaintiff stated that these were kept closed and were only opened by arrangement with the caretaker employed by the defendant, or by arrangement with the Traveller Accommodation Unit, which was based in Tallaght. The gates would be opened to enable caravans to be brought onto the site and taken from the site. To the left of the gates was another open entrance on which there was a fairly steep ramp. This entrance was always open. It was to allow vehicular entrance to the compound. The ramp was designed to prevent the entrance being used for the purpose of bringing caravans onto or out of the site. The plaintiff stated that in relation to the pedestrian entrance to the right and the vehicular entrance with the ramp to the left, these were open all the time and permitted 24hr access to the site.
9. The plaintiff stated that on 17th September, 2011, he had been involved in a road traffic accident, when he was a passenger in a car which was hit from the rear. He had suffered soft tissue injuries to his neck and back as a result of that accident. He confirmed that he had consulted a solicitor in relation to that accident and a claim had been submitted on his behalf to P.I.A.B. The plaintiff stated that he did not inform his solicitor about his trip and fall on 18th September, 2011, nor of the injury to his hand, as he did not realise that he would not get better quickly from this injury and would not be able to go back to his sport of boxing.
10. In cross examination, it was put to the plaintiff that it was somewhat incredible that he would decide to go jogging on the day after he was involved in a road traffic accident. The plaintiff stated that he had had neck and back pain on the day of the road traffic accident. On the following day, he had gone out jogging in the hope that this would alleviate his symptoms.
11. The plaintiff was asked about his initial visits to the G.P. practice. He stated that he went to that practice on 19th September, 2011 in relation to his hand injury. He saw Dr. Lindy Barnes on that occasion. He returned to see his G.P. on 23rd September, 2011, in relation to his neck and back injuries arising out of the road traffic accident. He saw Dr. Murphy on that occasion. By that time, he had had the operation on his hand, which had been carried out on 20th September, 2011.
12. The plaintiff was asked as to when he first consulted his solicitor. He stated that he went to his solicitor on 19th October, 2011, in relation to the R.T.A. He said his hand was in a cast at that time. However, he did not tell the solicitor about the hand injury, or why his hand was in a cast. He stated that he could not offer any explanation as to why he did not tell his solicitor about the accident and the hand injury at that time.
13. It was put to the witness that there was a caretaker employed by the defendant on the site. It was put to the witness that the caretaker was on site for a number of hours each day, Monday to Friday. The plaintiff accepted there was a caretaker employed on the site and that he had seen him after the accident. He was asked as to why he did not report his accident and his hand injury to the caretaker. The plaintiff stated that he thought that the hand would heal quickly and that he would be able to return to the sport of boxing. It was only later, when he realised that he would have ongoing symptoms in his hand and that he would not be able to return to boxing, that he went to his solicitor and reported the matter to him.
14. It was put to the plaintiff that he had had a number of consultations with his solicitor in relation to the R.T.A. and if his hand was the more the serious injury, why had he not told his solicitor about this injury. The plaintiff accepted that his hand injury was causing him more difficulty than the other injuries. He accepted that he knew how to make a claim to P.I.A.B. and that he had accepted their assessment of compensation in relation to the injuries arising out of the R.T.A. He accepted that in the weeks and months following the accident, he knew that his hand was not healing, but he did not tell any representative of the defendant about the accident.
15. It was put to the plaintiff that he had returned to his G.P. in relation to the injuries sustained in the R.T.A., at a time when, according to him, the hand injury was not healing, yet he did not mention it to his doctor. The plaintiff accepted that he had not mentioned the ongoing complaints in relation to his hand, when he consulted the G.P. on various occasions in relation to the neck and back injuries.
16. It was put to the plaintiff that on 4th March, 2013, he had received the compensation from the defendant in the R.T.A. as assessed by P.I.A.B. and that on the following day, his solicitor wrote to the defendants concerning this accident, which was the first that the defendant was made aware of any such accident. The plaintiff accepted that he had only informed his solicitor of the accident and the hand injury, in early 2013. There had been some delay due to the plaintiff being unsure of the date of the trip and fall accident and for this reason, the initiating letter from the solicitor did not issue until 5th March, 2013.
17. It was put to the plaintiff that it was not credible that if he was badly injured in the R.T.A., that he would go jogging on the following day. The plaintiff stated that he had gone for a little jog even though his back was sore. It was put to the plaintiff that it was not credible that if the accident had happened in the manner alleged by him, he had never reported it to the defendant’s caretaker on site. The plaintiff stated that he was very clear that he had fallen in the pothole. He did not know why he had not reported it to the caretaker, or made complaint to him. He was asked as to whether there was any logical reason why he did not report the matter to the caretaker. The plaintiff stated that he could not think of a logical reason for not reporting it to him, or to the Traveller Accommodation Unit in Tallaght. He accepted that his mother had a telephone in her caravan, yet they did not report the matter to the defendant.
18. It was put to the plaintiff that, where he had had surgery and his hand was in plaster and where pins and screws had been inserted in his hand, and four weeks later he had gone to his solicitor in relation to another claim, that he did not take the opportunity to tell his solicitor about the trip and fall accident, which had caused the hand injury. The plaintiff stated that he had gone to his solicitor in relation to the road traffic accident, for the purpose of making a claim. He stated that he did not mention the injury to his solicitor, because he thought that the hand would make a full recovery and he would be able to return to boxing. He accepted that his hand was the most painful of the injured areas, but he did not tell his solicitor about it at that time. He waited to see if he would get back to boxing.
19. The plaintiff was asked how long he had lived at the halting site. He stated that he had lived there with his parents since the site opened in 1998. He confirmed that the footpath shown in Mr. Conlon’s photographs was the only footpath in the site. He accepted that he had used it on an almost daily basis. However, he stated that he had never noticed the defect in the footpath as shown in the engineer’s photographs. It was put to him that, if he had been taking proper care and attention while jogging on the footpath, he would have seen the hole and could easily have gone around it, or jumped over it. The plaintiff stated that when he was jogging, he had kept a lookout of the general area in front of him. However, he was not looking directly down at the ground and for that reason did not see the hole as he approached it. He stated that if he had seen the hole, he would not have stepped into it, he would have run around it. He denied that he was not keeping a proper lookout at the time. He stated that he was looking generally ahead of him and not down at the ground immediately in front of his feet.
20. The plaintiff stated that his right leg went into the hole and he went down and landed with his right hand turned inwards. It was put to him that the defendant’s medical expert, Mr. McManus, would say that normally where people trip and fall forward, they land on their outstretched hands with their palms facing outwards towards the surface of the road. The plaintiff stated that he had fallen with his hands turned in and slightly in a fist and for that reason, he had broken his knuckle. It was put to him that Mr. McManus would say that this was a classical boxing injury. The plaintiff did not agree with this. He stated that in boxing, the hands are taped and gloves are worn, so it is not usual to get a fracture of the knuckle.
21. Evidence was given on behalf of the plaintiff by Mr. Alan Conlon, Consulting Engineer. He confirmed that he had inspected the locus and taken the photographs on 8th April, 2013. He had not needed to obtain any permission from anyone to inspect the locus. He merely drove in through the entrance, parked his car, met with the plaintiff and took the relevant measurements and photographs.
22. Mr. Conlon stated that the footpath was approximately 1.2m wide. The hole was approximately 400mm (16 inches) wide and at its centre it was 63mm (2.5 inches) deep.
23. Mr. Conlon stated that the damage to the footpath appeared to be made up of a hole and scoring which ran across the entire width of the footpath. He stated that the most likely cause of this damage, was either by vehicles bringing caravans onto this area of the halting site or alternatively, it was caused by the bucket of a JCB when bringing boulders onto the site as shown in the photographs, or the damage could have been caused by the boulders themselves when being placed in situ.
24. Mr. Conlon stated that a hole of the dimensions and depth of this hole, constituted a hazard on the footpath. While the damage to the footpath was clearly visible from some distance away, the exact depth of the hole and therefore the danger it posed, was obscured by the grass in the centre of the hole itself. This was clearly evident from photographs 2 and 3. Given the extent of grass growth at the locus, he thought that the hole had been there for quite a while.
25. In cross examination, Mr. Conlon accepted that a person standing in the position of the cameraman in photograph 1 which was approximately 12m from the hole, would be able to see the damaged area of the footpath. However, such a person would not be aware of the danger posed by the damage, due to the fact that the grass obscured the depth of the depression. He stated that he had had to use a ruler and a spirit level in order to demonstrate the exact depth of the hole. He accepted that if a person using the footpath saw the damaged area, they could elect to run around it, or step over it. He accepted that the damage was clearly visible in photograph 2, but the depth of the depression was obscured by the grass. Thus, the depth of the hole would not have been apparent to a jogger.
26. Mr. Conlon accepted that as the plaintiff had lived at the locus for a considerable number of years, he would have been familiar with the area. However, because this was an isolated area of damage to the footpath, a person using the footpath may not have been aware of the damage until the accident happened. He accepted that when jogging, a person must keep a proper lookout of the path in front of them.
The Evidence on Causation and Quantum
27. The plaintiff was asked about his involvement in boxing. He stated that he had been boxing since the age of 8 as a member in Drimnagh Boxing Club. He had taken part in the Dublin leagues. He had a boxing card. He stated that he had not been able to get back to boxing, as a result of the injury to his right hand.
28. The plaintiff stated that he had never tried to get back to boxing after the accident. He was afraid to try it. He stated that he had not done any jogging since the accident. He had not really done any other sporting activity since then.
29. The plaintiff was asked as to whether he had fallen into any other potholes. Initially he stated that he had not, but then corrected himself to say that in September 2013, he had fallen into another pothole, where he suffered bruising to his leg. It was put to him that the hospital notes from that admission stated “walked into a pothole”. The plaintiff accepted that that was correct. He accepted that he had had two falls in two potholes. This accident and the second one which caused bruising to his leg.
30. The plaintiff was asked whether he had had any physiotherapy treatment. He stated that he had had a few sessions of physiotherapy initially after the operation after his hand had been taken out of the cast. He stated that he had had difficulty closing his fingers for approximately a year after the accident. He was shown a number of exercises to improve hand and finger mobility.
31. The plaintiff stated that after the operation, his hand had been immobilised in a cast, which he had worn for a couple of months. His hand was very sore and painful. He had not been able to go to the gym, or to do any boxing. He never returned to the boxing. He stated that he missed the boxing and had become somewhat unfit. He did not have any actual hobbies. He stated that he had been doing a FAS course in woodwork and allied trades, in Bownogue Community Centre. He was not able to do that after the accident and he did not finish the course.
32. In relation to his present condition, the plaintiff stated that his hand was coming on “OK”. He would get pain in the hand now and then. It tended to be painful in cold weather.
33. Evidence was given on behalf of the plaintiff by Dr. Lindy Barnes, who was one of the doctors in his G.P. practice. She confirmed that she had seen the plaintiff on 19th September, 2011, when he had told her that he had fallen while out jogging the day before and injured his right hand. Examination revealed swelling and tenderness of the third metacarpal bone in the right hand. She sent the plaintiff to hospital for x-rays, which were done on the same day. He was admitted to hospital for operative treatment on the following day.
34. In cross examination, she stated that she may have seen the plaintiff at the practice before 19th September, 2011, but she had not seen him after that as far as she was aware. She stated that she accepted what she had been told by the plaintiff about the accident. He did not tell her about the R.T.A. on 17th September, 2011.
35. Evidence was also given on behalf of the plaintiff by Dr. John Murphy. He stated that he was the plaintiff’s G.P.. The plaintiff and his family had been patients of his, since he joined the practice in 2000. Dr. Murphy confirmed that the plaintiff had initially seen Dr. Barnes at the practice on 19th September, 2011. According to his records, he first saw the plaintiff on 15th June, 2012, approximately nine months post injury. At that time, the plaintiff complained of stiffness at the site of the fractured metacarpal on the right hand. He had a pin inserted in that area. There was decreased grip power in the right hand due to stiffness. The wound was healing well. He referred the plaintiff for physiotherapy treatment, as he had only had a short course of physiotherapy treatment in hospital after the operation. He also prescribed pain relieving medication.
36. The plaintiff was reviewed on 21st February, 2013, when he complained of ongoing episodes of pain and parasthesiae overlying the fracture site, particularly noticeable when the hand was cold. As a result of these symptoms, the plaintiff had been unable to return to his hobbies of boxing, or lifting weights at the gym. Examination revealed a scar consistent with a well healed wound overlying the right third metacarpopalangeal joint. There was prominence of this joint, due to the internal fixation which remained in situ. There was a satisfactory range of movement of the right third finger. Grip power of the right hand was satisfactory. There was no evidence of neurological deficit. The doctor noted that he remained moderately impaired in relation to reaching, manual dexterity and lifting/carrying. He expected that a full resolution of symptoms without any sequelea should occur within a period of six months. An x-ray was being arranged to confirm the situation. Treatment with anti-inflammatory analgesics or simple analgesics may be required intermittently for pain, whilst resolution of symptoms was occurring. He expected a full recovery to be made within approximately six months, depending on a satisfactory x-ray result.
37. The plaintiff re-attended at the surgery on 1st August, 2013, complaining of persistent pain in the right hand at the site of the fracture. An anti-inflammatory analgesic medication, Ibuprofen, was prescribed. The plaintiff re-attended on 16th October, 2015, complaining of ongoing right hand pain at the fracture site. He had decided to avoid taking analgesic medication if at all possible and only did so, when he was experiencing severely troubling symptoms. He was given a further prescription for Ibuprofen, to be taken as required.
38. The plaintiff was most recently reviewed by Dr. Murphy on 25th August, 2016. He reported that he had experienced severe pain at the fracture site at a level 8/10 in severity for the first three years following the injury. Subsequently, he had been experiencing almost constant pain at the site, which was at a level of 7/10 in severity for most of the time. The pain was noted to be more severe in cold weather. As a result of the symptoms, the plaintiff stated that he had been unable to return to boxing and was unable to lift or carry heavy weights and as a result, he had been unable to attend the gym since the accident, which was a pursuit which he had previously enjoyed. Dr. Murphy noted that he was right hand dominant. In view of the chronic nature of the pain, the plaintiff had not been keen to take analgesic medication, apart from when the symptoms were particularly distressing for him.
39. On examination on 25th August, 2016, there was a well healed scar over the third metacarpophalangeal (hereinafter, MCP) joint. There was tenderness to palpation at the scar, which was at the site of the fracture to the joint. Neurological examination was normal. There was no evidence of swelling of the third MCP joint. Flexion of the joint was slightly reduced to 90% of normal range, with extension of the joint also being reduced to 90% of normal range.
40. Dr. Murphy was of opinion that the plaintiff continued to experience moderately severe pain at a severity level of 7/10 on most days since the fracture had occurred almost five and a half years previously. This had interfered with his general lifestyle and had restricted his ability to lift and carry heavy objects. He noted the conclusion reached by Mr. O’Shea in September 2014, that it was unlikely that any further resolution of these symptoms would occur. That remained the situation as of August 2016.
41. Dr. Murphy stated that in the R.T.A., the plaintiff suffered a moderate soft tissue injury to his neck and back. In relation to the issue of the plaintiff going jogging on the day after the accident, he stated that after a car accident, some people would rest for a number of days to see if their injuries would settle, however, other people and in particular those who were involved in sports, may elect to try to “run it off”. They might go for a gentle jog in an effort to see whether the pain and stiffness in their neck and back would go away. He did not think that it was that unusual that the plaintiff should go jogging on the day after he was involved in the car accident.
42. He stated that given that the plaintiff had a plate and screw in situ, he would not recommend that the plaintiff return to boxing. However, he said that that was really a question for an expert.
43. A medical report from Mr. Kieran O’Shea, Consultant Orthopaedic Surgeon, dated 8th September, 2014, was admitted in evidence. Although the dates in this report appear to be incorrect, it appears that the operation carried out to the plaintiff’s finger consisted of plate and screw fixation of the metacarpal head fracture. Pre-operative x-rays had revealed a very comminuted fracture of the metacarpal head. A CT scan confirmed the extent of comminution and disruption of the joint surface at the metacarpal side of the MCP joint. A subsequent x-ray carried out on 23rd December, 2011, confirmed plate and screw osteosynthesis of the metacarpal head fracture, with satisfactory alignment of the fracture.
44. X-rays taken on 22nd September, 2014, demonstrated complete healing of the fracture. There was some alteration in the contour (flattening) of the metacarpal head, but no evidence of degenerative changes or secondary arthritis within the joint.
45. When examined on 8th September, 2014, the plaintiff complained of ongoing pain and swelling in the right middle finger. He was sensitive to cold weather and occasionally developed pins and needles in the hand. He attended his G.P. for analgesic prescriptions. He had previously enjoyed boxing, but he felt that he could not train any more. In particular, he could not hit a bag and he was afraid to use the right hand for weight training exercises. Clinical examination revealed a well healed scar measuring approximately 5cm over the knuckle of the middle finger. There was normal alignment of the digits. There was no neurological deficit. In terms of range of motion, there was flexion from 10 – 80 degrees at the middle finger MCP joint, compared with 0-90% in the normal contralateral side. There was near full composite digital flexion, there was no particular pain or tenderness to palpation. Mr. O’Shea did not anticipate that any further treatment would be required.
46. Mr. O’Shea noted that the plaintiff suffered a comminuted fracture of the right middle finger metacarpal head. Treatment consisted of plate and screw fixation of the fracture. Following from this injury, he had rehabilitated well. There was a modest loss of mobility at the joint where the fracture occurred. X-ray evaluation confirmed satisfactory healing and alignment with no evidence of secondary degenerative changes. In spite of this, the plaintiff reported significant symptoms and functional issues with his right hand as a result of the fracture. Due to the fact that the fracture involved the joint, there was a risk that he may go on to develop post traumatic arthritis, but he put this risk as low, given the fact that no changes were evident on the most recent x-rays and that three years had elapsed since the injury and surgical treatment. In terms of a prognosis, he was of the view that as the symptoms reported by the plaintiff, had not improved during the three years since the accident, it was unlikely that any further resolution of these symptoms would occur.
47. Evidence was given on behalf of the defendant by Mr. Frank McManus, Consultant Orthopaedic Surgeon. He first saw the plaintiff on 28th January, 2014. The plaintiff gave him a history of the accident and told him that he had not returned to boxing, as his hand was not one hundred percent recovered. Examination revealed that the plaintiff had a scar at the fracture site, otherwise his hand was relatively normal. The knuckle on the third finger was a little smaller than the adjoining knuckle. Mr. McManus said that the plaintiff had no disability when he saw him. He went on to state that when people suffer falls, usually the hand is outstretched in front of them, so they get a dorsi-flexion injury. Most commonly, this results in a Colles fracture to the wrist. If the hand is turned inwards, it causes what is known as a reverse Colles fracture. The plaintiff’s injury was unusual for a fall, but was a classic injury in boxing. The plaintiff injured the knuckle which is most prominent and to the fore in a boxing action.
48. Mr. McManus stated that it was difficult to explain how the plaintiff met his injuries from a fall. A split condyle, was caused by impact to the middle of the joint. This would be similar to having a chisel held directly over the joint and a hammer knocking down on the chisel, so that the knuckle itself would split. He could not recall ever seeing such an injury after a fall. If one had this injury to the third metacarpal, the cause would be either by hitting something in front of the person, or falling directly onto it.
49. In cross examination, Mr. McManus conceded that it was possible that the plaintiff could have got this injury in a fall. It was put to the witness that when the plaintiff had described his fall in his evidence, he had shown the hand turned inwards and the fingers somewhat closed over, but not in a fully closed fist. Mr. McManus stated that if the accident happened in that manner, the fracture to the knuckle could have happened, but the blow to the knuckle would have to be hit spot on, like a hammer and chisel to the knuckle. Counsel put it to the witness that if the plaintiff was boxing, with the hand bandaged and wearing boxing gloves, it would be unlikely that he would break his knuckle. Mr. McManus conceded that in those circumstances the plaintiff would be unlikely to suffer the injury that he did. Such an injury would be possible if there was a bare fist, as in bare knuckle boxing, but would be unlikely in ordinary boxing, where bandages and gloves were worn.
Legal Submissions
50. The defendant submitted that there were a number of features in the case which were quite simply incredible. Firstly, it was incredible that the plaintiff would go for a jog on the day after he had been involved in a car accident. Secondly, if the plaintiff had met with this accident in the manner alleged by him, it was incredible that he did not mention the accident or the injuries suffered by him, in the weeks and months following the accident, when he had been consulting with his solicitor in relation to his compensation claim arising out of the car accident. Thirdly, it was submitted that if the plaintiff had, in fact, tripped on the footpath, due to a hole in the surface of the path, it was hard to believe that he would not have made some complaint either to the caretaker, who was on site for a number of hours each day between Monday and Friday, or to the Traveller Accommodation Unit in Tallaght. Fourthly, there was no credible explanation furnished by the plaintiff as to why it was, that he delayed in bringing the accident to the attention of his solicitor until the early part of 2013. It was submitted that the plaintiff’s explanation in relation to his delay in this regard, was not credible.
51. The defendant’s second submission was that the locus of the accident, was a public highway. The uncontested evidence was that there was free access to the halting site for both pedestrians and vehicular traffic at any time during the day or night, throughout the week. Any member of the public, and not just those residing at the halting site, had a right of access to the locus whenever they wished. In these circumstances, it was submitted that the defendant was entitled to rely on the defence of non-feasance in relation to the condition of the footpath.
52. It was submitted in the alternative, that the plaintiff was a recreational user within the meaning of the Occupiers Liability Act 1995, due to the fact that he was jogging at the time that he met with his accident. In these circumstances, it was submitted that the duty owed to the plaintiff in respect of a danger on the premises, was a duty on the defendant not to act with “reckless disregard for the safety of the plaintiff”. It was submitted that there was no evidence before the court that the defendant had acted with reckless disregard for the plaintiff’s safety.
53. In support of this submission, counsel for the defendant referred to the decision of Barton J. in Fitzgerald v. South Dublin County Council [2015] 1 I.R. 150. In that case, the plaintiff lived on a council housing estate. On the day of the accident, he and some friends had gone to a green area within the housing estate, which was adjacent to his home. The boys set up a temporary football pitch by placing jackets and other items of clothing on the ground to act as goals. While the plaintiff was crossing the common area to retrieve a football, he slipped and fell to the ground, causing injury to his upper back, when it came into contact with a broken bottle which was lying in the grass. Barton J. held that in the circumstances of that case, the plaintiff was a recreational user within the meaning of the 1995 Act. He stated as follows at para. 54 of his judgment:-
“The plaintiff was involved in a ‘kick-about’ with some of friends. They had erected a temporary goal by using some clothes. What else was this if it wasn’t a recreational activity within the meaning of the Act? The plaintiff was a recreational user of the open green space and as such the defendant’s duty towards him was that as set out in s.4 of the Act.”
54. Mr. O’Scannaill, S.C., on behalf of the defendant submitted that the factors to which the court can have regard when determining whether a defendant acted with reckless disregard towards a plaintiff, were set out in s. 4(2) of the Act. He further submitted that the correct interpretation of what might constitute “reckless disregard”, meant conduct which was greater than “gross negligence”. He referred to the dicta of Barton J. at para. 29 of his judgment:-
“In choosing the terminology ‘reckless disregard’, the Oireachtas determined that the point at which the occupier was to have a liability should be quantitatively greater than that which may be said to constitute ‘gross negligence’.”
55. Finally, counsel submitted that the hole or depression in the footpath was clearly visible in Mr. Conlon’s photographs. Photograph 1 showed the view of the locus from a distance of 12m. The subsequent photographs showed the view as one moved closer to the locus. Counsel submitted that the plaintiff had lived in the halting site for a large portion of his life. In these circumstances, he must have known of the presence of the hole or depression and he should definitely have seen it, if he was keeping a proper lookout. Had he done so, he could easily have gone around it, or jumped over it. Accordingly, it was submitted that the plaintiff must be found guilty of a considerable element of contributory negligence.
56. In response, Mr. Brennan, S.C., on behalf of the plaintiff stated that in regard to the assertion that it was incredible that the plaintiff would elect to go jogging on the day after being involved in an R.T.A., the evidence of the plaintiff’s G.P., was that some people will try to “run it off”, and in such circumstances, the plaintiff’s actions could not be seen as being unusual or incredible. In relation to the other areas where the defendant had suggested that the plaintiff’s behaviour was incredible having regard to the case made by the defendant, counsel submitted that although the defendant had not done so explicitly, it was clear from the tenor and content of the questions put to the plaintiff, that they wished the court to draw the inference that the plaintiff’s injuries had been sustained when he was boxing and that he was telling lies about this accident in an effort to blame the defendant for those injuries to wrongfully obtain compensation for them. Counsel stated that if the plaintiff had suffered his injury while boxing and he wished to obtain compensation in respect of that injury, he was in the almost unique position, in that he had an ideal opportunity to obtain compensation, due to the fact that he had been involved in a road traffic accident on 17th September, 2011, where liability was not in issue. Counsel suggested that it would have been far easier for the plaintiff to make the case that he got his hand injury in that accident, rather than dreaming up the trip and fall accident.
57. The plaintiff’s counsel accepted that there had been delay on the part of the plaintiff in pursuing the matter. Counsel suggested that that may have been because the defendant was effectively the landlord of the site and was landlord to the plaintiff’s parents. In these circumstances, it was understandable that he would have been reluctant to bring a claim against them. It was suggested that this was a logical explanation for the delay on the part of the plaintiff in pursuing the matter.
58. It was submitted that the locus was not a public highway. It was a footpath within an enclosed site, which was in the ownership of the defendant. The road leading from the entrance to the halting site, only serviced the caravans on the site. While members of the public did have an unrestricted access to the halting site, that did not convert the road into a public highway. Section 10(5)(a) of the Roads Act 1993, provides that a road authority shall keep a schedule and map of all public roads in respect of which it has responsibility. Counsel submitted that if the defendants wished to put forward the case that this was a public road in respect of which it had responsibility, they should have produced a copy of the statutory map or schedule showing the particular road and footpath marked thereon. They had not produced this evidence. Counsel pointed out that in a letter dated 10th November, 2014, the defendant confirmed that in relation to Oldcastlepark estate, residential caravan park, the roads, footpaths, sewers, water mains and public lighting abutting the above premises were in charge of the County Council Housing Department. When the defendant’s solicitor was asked to clarify the meaning of that letter, they replied by letter dated 4th June, 2015, stating that the basis for the letter of 10th November, 2014, was that responsibility for the maintenance of the entire of the Oldcastle Park residential caravan park lay with the housing department of South Dublin County Council. Counsel submitted that in light of these admissions, the defendant itself had accepted that the locus was under the charge of the Housing Department rather than the Road’s Department.
59. Counsel further submitted that even if it was held to be a public road, the defence of non-feasance was not available to the defendant, as the damage was not caused by ordinary wear and tear, but was a “scoring” across the path, which was probably caused by a caravan being pulled onto the path, or more likely by the bucket of a JCB, or by one of the boulders.
60. Counsel also made reference to the decision in Smeltzer v. Fingal County Council [1998] 1 IR 279, where Costello P. stated that the law relating to highways and the creation of public rights of way was a very ancient one. The relevant principles were well established. A distinction is made between a permission granted by an owner of land to members of the public to walk on pathways on his land, and the dedication to the public of those pathways. To establish a public right of way, what has to be proved is an intent on the part of the owner to dedicate his land to the public, an actual dedication and acceptance by the public of the dedication. It was submitted that none of these things had happened in relation to the locus of the accident.
61. In relation to the issue as to whether the plaintiff was a “recreational user” of the property within the meaning of the Occupiers Liability Act 1995, it was submitted that as the plaintiff lived at the caravan park, he was a “visitor” within the meaning of the 1995 Act. The fact that he was jogging up the footpath, instead of walking on it, did not convert him from a visitor into a recreational user. The defendant as the owner and occupier of the premises, owed him the common duty of care as defined in s. 3 of the 1995 Act. It was submitted that the defendant had breached that duty of care by failing to repair the damage to the footpath, which was reasonably longstanding, due to the growth of grass within the hole itself.
62. Finally, in relation to the allegation of contributory negligence, the plaintiff relied on the evidence of Mr. Conlon, that while the dimensions of the depression were visible, the depth of the depression of 2.5 inches, was not readily apparent due to the growth of grass in the depression. Thus, as the plaintiff was jogging up the path, he may have been aware of some scoring across the width of the path, but he would not have been aware of the depth of the depression. In these circumstances, it was submitted that he was not guilty of contributory negligence when his foot went into the hole.
Conclusions
63. The first question is whether the accident happened in the way described by the plaintiff. The defendant argued that this type of injury was typical of a boxing injury. Mr. McManus described it as a classical boxing injury, where there is the application of considerable force to the knuckle of the third digit, which causes the knuckle to split in two. He said that it was similar to someone holding a chisel against the knuckle and hammering on it. He stated that this injury was atypical for a trip and fall accident. Usually in such circumstances, a person will fall forward on their outstretched arms and hands, which will normally lead to a Colles fracture of the wrist. However, in cross examination, Mr. McManus conceded that one could get this injury in a fall to the ground. He also accepted that if a person was wearing bandages and boxing gloves when participating in boxing, they would be unlikely to suffer a comminuted fracture of the knuckle, as suffered by the plaintiff.
64. The defendant also pointed to the extraordinary delay in the plaintiff informing his solicitor or the defendant, of this accident. They maintained that it was significant that the initial letter from the plaintiff’s solicitor dated 5th March, 2013, had been written the day after the plaintiff had received a cheque from the defendant’s insurers in respect of the traffic accident, pursuant to acceptance of the P.I.A.B. offer. The defendant submitted that it was incredible that the plaintiff had attended with his solicitor on a number of occasions in relation to pursuing his claim for compensation arising out of the car accident, but did not mention his hand injury until 2013.
65. In considering this issue, the starting point must be that we know de facto that the plaintiff had a comminuted fracture of the knuckle on the third digit on his right hand on 19th September, 2011. This required operative treatment, which was carried out on 20th September, 2011. The defendant makes the case that it was incredible that the plaintiff would go jogging on the day after he had been in a road traffic accident in which he suffered soft tissue injuries to his neck and back. I accept the evidence of Dr. Murphy that some people, in particular those who are engaged in sport, would tend to try to “run off” a soft tissue injury, which may not have been that acute on the day after the accident. While some people would rest after an accident, others may try to “run it off”. I accept this as a credible explanation for the plaintiff going jogging on the day following the car accident.
66. While the defendant did not directly put it to the plaintiff that this was a fraudulent claim, it was obvious from the content and tenor of the questions put to the plaintiff, that the court was being invited to draw that conclusion. The defendant submitted that the plaintiff probably suffered the fracture in the course of boxing, but decided to fraudulently claim that his injury had occurred due to a trip and fall on the path in the caravan park on 18th September, 2011.
67. I do not think that this allegation is established on the evidence before the court. I think the submission made by Mr. Brennan S.C. on behalf of the plaintiff, which was to the effect that, if this plaintiff had in fact injured his hand while boxing and wanted to wrongly claim compensation for such injury, this plaintiff had an ideal opportunity to do so, by stating that he had suffered the injury in the course of the car accident on 17th September, 2011. Liability was not in issue in respect of that accident, so it would have been relatively easy for the plaintiff to ascribe the hand injury to that accident, particularly as there was no dispute but that the plaintiff did have a fracture of his knuckle when he attended hospital on 19th September, 2011.
68. The defendant also stated that the delay in the plaintiff mentioning this accident to his solicitor and failing to make any complaint to the caretaker, or to the Traveller Accommodation Unit in Tallaght, was highly suspicious. While the delay is certainly unusual, I am of opinion that it actually supports the proposition that this accident did in fact happen in the way alleged by the plaintiff. Usually, if a party wants to put forward a fraudulent claim, they do two things; firstly, they obtain the assistance of one or more “witnesses”, who will support their version of the accident. Secondly, they usually make sure to make complaint soon after the accident to the proposed defendant and to their solicitor. In other words, they take care to tee up their claim properly. They do not wait over a year to mention their fraudulent case to any one. I am satisfied that the plaintiff’s conduct after the accident, is not indicative of this being a fraudulent claim.
69. In the course of his submissions, Mr. Brennan put forward an argument that the delay in notifying the defendant and bringing the claim, could be explained by the fact that the plaintiff was a young man of eighteen and a half years, who lived with his parents at the caravan park, which was owned and run by the defendant. The defendant was effectively the landlord to his parents. He also wished to obtain a caravan in the same park in the future. It was submitted that in such circumstances, he was not likely to want to rush and bring a claim against the defendant.
70. That may well be an attractive and logical explanation for the delay on the part of the plaintiff, but unfortunately no evidence was given that this was in fact the reason for his delay. The plaintiff stated clearly that he did nothing about his injury, as he thought that it would go on to heal fully and that he would not have any lasting problems with his hand and in particular, that he would be able to return to boxing. It was only when it became clear that he would have ongoing symptoms and he would not be able to return to boxing, that he decided to bring a claim for compensation in respect of this injury. I am satisfied that, while it was certainly unusual for a plaintiff to wait approximately eighteen months to bring the accident to the attention of his solicitor and the defendant, the plaintiff has given a credible explanation for this delay. The court also notes that the plaintiff’s account is supported by the evidence of Dr. Barnes, who testified that the plaintiff had told her on 19th September, 2011 that he had fallen and hurt his hand when out jogging the previous evening. Thus, while he delayed in bringing the matter to the attention of the defendant, or his solicitor, he has been consistent in his account of the accident, since the day after the accident. Taking all of these matters into account, I am satisfied that this is not a fraudulent claim and that the accident happened in the manner described by the plaintiff. Having accepted the plaintiff’s explanation for the delay in notifying the defendant, I am satisfied that there has been sufficient explanation for non-compliance with s. 8 of the Civil Liability and Courts Act 2004.
71. The second issue is whether the locus was a public highway. From Mr. Conlon’s photographs, in particular photographs 1, 2, 4, 5, 8 and 12, it is clear that the caravan park is an enclosed space, which appears to be bounded by walls. The road and footpath lead from the front entrance to the caravans. They do not lead anywhere else, either to shops, or to another housing estate, or anything like that.
72. I accept the submission made by counsel for the plaintiff, that this road is similar to an internal road leading to a block of corporation flats. I also accept the fact that if the road was a public road, which had been taken in charge by the defendant, then it should have been noted in a schedule or map maintained by the Road’s Authority pursuant to s. 10(5)(a) of the Roads Act 1993. The defendant did not lead any evidence that this road was entered in any such schedule or map.
73. I have also had regard to the correspondence from the defendant and its solicitors, which confirmed that the area was under the control of the defendant’s housing department. Taking all of these matters into account, I am satisfied that the road and footpath at the locus, were not a public highway. Counsel for the defendant referred to the decision in McGeown v. Northern Ireland Housing Executive [1995] 1 A.C. 233. In that case, the plaintiff had suffered injury while walking on a footpath in a public housing estate, over which the public had acquired a right of way. In the House of Lords, it was held that a person using a public right of way did so by right and could not be the visitor of the owner of the land over which the way passed for the purposes of the Occupier’s Liability Act (Northern Ireland) 1957, or the Occupier’s Liability Act 1957 of England and Wales; accordingly the landowner was not liable to the user of a public right of way for negligent non-feasance.
74. The House of Lords further held that although the plaintiff would have been a licensee of the housing authority in respect of the path on which she had fallen, before it had become a public right of way, that license had merged in the right of way subsequently established; and accordingly it made no difference that the path had formed part of a means of access for the plaintiff to and from the house of which her husband was tenant. I do not think that this case is of relevance to the circumstances of the present case as we are not dealing here with the creation of a public right of way. Furthermore, I am not sure that the courts in Ireland would reach the same decision, having regard to the provisions of the Occupier’s Liability Act 1995.
75. Even if I am wrong in holding that the road and footpath did not constitute a public highway, I am satisfied that the defence of non-feasance would not apply in this case. The damage to the footpath was not caused by normal wear and tear. I accept the evidence of Mr. Conlon that the scoring across the footpath was most likely caused by the servants or agents of the defendant when placing the boulders in situ. In particular, that the damage was caused by the bucket of a JCB or a boulder being dragged across the path. I note that the same conclusion as to the probable cause of the damage to the footpath, was reached by Mr. Rowan, the engineer retained on behalf of the defendant, whose report was admitted in evidence. I am satisfied that the creation of the hole and the scoring across the path constituted misfeasance by the defendants, its servants or agents, rather than being due to normal wear and tear.
76. The next issue is whether the plaintiff was a “recreational user” within the meaning of the Occupiers Liability Act 1995, at the time of the accident. Again, one must look at the uncontroverted facts. The caravan park was owned and controlled by the defendant. Accordingly, they were the occupiers of the site pursuant to the 1995 Act. The plaintiff’s parents had lived there since the park was opened in 1998. The plaintiff had lived with them at that location since that time. In these circumstances, I am satisfied that he was a “visitor” on the premises, within the meaning of the 1995 Act. This meant that the defendant owed him the common duty of care as defined in s. 3 of that Act.
77. The defendant has relied on the decision of Barton J. in Fitzgerald v. South Dublin County Council, as authority for the proposition that, as the plaintiff was jogging at the time of the accident, he was on the premises as a “recreational user”. It was submitted that in such circumstances, the defendant only owed him a duty in respect of any danger on the premises, not to act with reckless disregard for his safety. They further rely on the dictum of Barton J. in that judgment, to the effect that in choosing the terminology “reckless disregard”, the Oireachtas determined that the point at which an occupier was to have a liability should be greater than that which may be said to constitute gross negligence. The defendant submitted that on the evidence, it was not established that the defendant had acted with reckless disregard for the safety of the plaintiff.
78. Prior to the 1995 Act, the common law set out the duties which an occupier owed to various entrants onto his property. The extent of the duty varied according to the category of the entrant. The most onerous duty was owed to the invitee, who was seen as conferring some social or commercial benefit on the occupier. The next level was the duty owed to a licensee, who had permission to enter the land, but did not confer any particular benefit on the landowner. The lowest duty was owed to the trespasser, who entered the land without any permission at all, or did so contrary to the express wishes of the landowner.
79. This area of the law was changed by the provisions of the Occupier’s Liability Act 1995. The statutory code provides for different duties of care being owed by the occupier to different classes of entrant onto the property. A “visitor” is defined as (a) an entrant other than a recreational user, who is present on premises at the invitation or with the permission, of the occupier or any other entrant specified in para. (a), (b) or (c) of the definition of “recreational user”; (b) an entrant, other than a recreational user, who is present on premises by virtue of an express or implied term in a contract, and (c) an entrant as of right, while he or she is so present as the case may be for the purpose for which he or she is invited or permitted to be there, for the purpose of the performance of the contract or for the purpose of the exercise of the right, and includes any such entrant whose presence on the premises has become unlawful after entry thereon and who is taking reasonable steps to leave.
80. The occupier owes a duty of care known as “the common duty of care” to a visitor. The common duty of care means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety, and if the visitor is on the premises in the company of another person, the extent of the supervision and control of the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage from any danger existing thereon.
81. The next category is the duty owed to “recreational users” and “trespassers”. A “recreational user” is defined in the Act as an entrant who, with or without the occupier’s permission, or at the occupier’s implied invitation is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity, including an entrant admitted without charge to a national monument pursuant to s. 16(1) of the National Monuments Act 1930, but not including an entrant who is so present and is – (a) an member of the occupier’s family who is ordinarily resident on the premises, (b) an entrant who is present at the express invitation of the occupier or such a member, or (c) an entrant who is present with the permission of the occupier or such a member for social reasons connected with the occupier or such a member.
82. A “recreational activity” is defined in the Act as meaning any recreational activity conducted, whether alone or with others, in the open air (including any sporting activity), scientific research and nature study so conducted, exploring caves and visiting sites and buildings of historical, architectural, artistic, archaeological or scientific importance.
83. The duty owed by an occupier to a recreational user is set out in s. 4 of the Act. It provides that in respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon “the person” a duty – (a) not to injure the person or damage the property of the person intentionally and (b) not to act with reckless disregard for the person or the property of the person except insofar as the occupier extends the duty in accordance with section 5. The section goes on to set out a number of factors which can be looked at in determining whether or not an occupier has acted with reckless disregard towards the recreational user.
84. It follows from the defendant’s submission, that a person could have a changing status depending on the exact activity being carried out by them at any given time. If one applies this argument to this case, it would mean that the plaintiff would be classed as a “visitor”, when he walked along the footpath when going to and from school, or when getting a message from the shops, but would be classed as a “recreational user”, when he went for a jog around the roads and jogged down the path on his way out and up the path on his way back. If, having returned to his caravan, he got cleaned up and walked down the path to meet his friends, or to go to the shops, he would revert to being a visitor.
85. I do not think that the legislation intended that there should be changing duties of care owed to an entrant, depending on what activity he or she was doing at any one time. It would be absurd that if I invited a man to come to my house he would be a visitor while he walked up to the front door and entered the property, but would be a recreational user if he went into the back garden to kick a ball with my son, only to revert to being a visitor when he finished the game and came back into the house to have a drink or a meal.
86. I am satisfied that the logical interpretation of the statute, is that the classification of the entrant as either a “visitor”, or a “recreational user”, is determined by the circumstances in which they enter the property in the first place. If they are present as a visitor as defined in the Act, they do not loose such status, merely because they engage in some form of recreational activity while on the premises. Accordingly, I am satisfied that the plaintiff did not loose his status as a visitor, merely because he was jogging up the footpath on the evening that he met with his accident.
87. I do not think that this interpretation of the law, is at variance with the decision of Barton J. in Fitzgerald. In that case, the plaintiff and his friends had entered onto the green space near his home for the express purpose of playing football. The green space was separate and distinct from the land constituting his house and garden. So when he entered onto the green area, he was entering a different locus separate from his house and he did so for the sole purpose of playing football. In these circumstances, it was reasonable to hold that he entered onto the green space as a recreational user.
88. Turning to the nub of the case on liability, the essential question is, whether the defendant as occupier, breached the common duty of care which it owed to the plaintiff on the day in question. I am satisfied that the depression and scoring on the surface of the footpath, constituted a danger to people using it. I am satisfied that on the balance of probabilities, this state of affairs had been caused by the servants or agents of the defendant, when placing the boulders in situ. Even if the damage was caused by some third party, it is clear from the growth of the grass in the depression, that it had been done a significant time prior to the plaintiff’s accident. The defendant, as occupier, should have taken steps to repair the damaged footpath. In the circumstances, the defendant must bear responsibility for the dangerous state of the locus on the day of the accident. In failing to repair the footpath, the defendant breached the common duty of care which it owed to the plaintiff.
89. In relation to the allegation of contributory negligence, I accept the evidence of Mr. Conlon that, while the existence of the depression and scoring was visible from a distance of approximately 12m, given the growth of grass in the depression, the depth of the depression was not readily apparent to someone using the footpath.
90. I also accept the plaintiff’s evidence that he was not looking directly at the ground while jogging. That is reasonable. A jogger will have a general view of the ground in front of him, when he is some distance away, but because his eyes are around 2m above ground level, he is not likely to see dangers on the surface of the path where he is actually running, unless he makes a conscious effort to look down at the ground immediately in front of him. As this hole and scoring were not readily apparent from far back, it was reasonable that he was not looking at his feet when traversing this area of the path. In the circumstances, I decline to make any finding of contributory negligence against the plaintiff.
91. In relation to the issue of general damages, the plaintiff suffered a nasty fracture to the knuckle on the third finger of his right hand. This required surgical treatment in the form of open reduction and internal fixation, which was carried out two days after the accident. The plaintiff’s wrist and hand was initially immobilised in a cast. He had some physiotherapy treatment in hospital and there is a suggestion that he had further physiotherapy after that. He stated that his hand was in a rigid position for approximately a year after the accident and that it took some time for him to gradually regain movement in all his fingers.
92. When examined by Mr. Kieran O’Shea, Consultant Orthopaedic Surgeon, in September 2014, the plaintiff complained of ongoing pain and swelling in the right middle finger. He experienced this pain from time to time and particularly in cold weather. He also complained of occasional pins and needles in the hand. Mr. O’Shea noted that there was a modest loss of mobility at the joint where the fracture occurred. However, he noted that the plaintiff had significant symptoms and functional issues with his right hand as a result of the fracture. As the symptoms had not improved during the three years since the accident, Mr. O’Shea was of opinion that it was unlikely that there would be any further resolution of these symptoms. Thus, it would appear that, while the symptoms were not terribly severe or grossly disabling, they would nevertheless be with the plaintiff into the longer term. This is significant having regard to the fact that he is only 23 years of age at present.
93. Part of the plaintiff’s case is that he has not been able to return to his sporting activity of boxing. This was a sport which he had been playing since the age of eight years. However, the plaintiff conceded that he had never in fact tried to get back to boxing after the accident. It seems to me that while loss of a sporting pursuit can be a serious loss of amenity for some plaintiffs, it is not appropriate in this case to award substantial damages in this regard. This is due to the fact that I am not satisfied that the plaintiff has made any reasonable attempt to get back to his sporting pursuit. One would have expected that he might have gone back to the club and tried boxing against a punch bag for a short period of time and perhaps built this up over a period of weeks. Thereafter, he may have tried to do some gentle sparing for a short period and again built this up over time. If things had progressed reasonably well, he may then have tried to get back to full boxing. However, as the plaintiff did none of these things, I do not propose to take this into account as a substantial element in the assessment of damages.
94. The plaintiff also stated in evidence that he had been doing a FAS woodwork course at the time of the accident. He stated that given his injury and in particular the limitation of movement of the fingers in the right hand, he was unable to proceed with the course. He did not give any evidence of having tried to reapply to take the course again at a later date. In fairness, he did not make much of this issue and I do not propose to make any substantial award on account of the interruption in his training with FAS.
95. I have had regard to the fact that, while the plaintiff has complained of ongoing symptoms, he does not appear to have found it necessary to attend with his GP on a frequent basis since the accident. Finally, I have had regard to the scar, which I viewed during the course of the hearing and which would appear to be permanent. It is a relatively small scar covering the knuckle on the third digit of the right hand. While it is visible, it is not particularly disfiguring. Taking all of these matters into account, I award the plaintiff the sum of €35,000 as general damages for pain and suffering to date. In measuring an amount for future general damages, I have had regard to the opinion given by Mr. O’Shea that the complaints which he had in September 2014, were likely to continue indefinitely. Given the plaintiff’s young age, and in the absence of any specific evidence that his lifespan is necessarily shortened by virtue of his membership of his particular ethnic minority, it would appear that he will have these symptoms for the next 55/60 years. In these circumstances, I award the plaintiff the sum of €20,000 in respect of future pain and suffering. There are no items of special damage.
96. There is one further matter for consideration. Having regard to the decisions in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305, Phillip v. Ryan [2004] 4 IR 241 and Lackey v. Kavanagh [2013] IEHC 341, it is clear that this Court can have regard to the nature of the defence run by a defendant when considering whether it is appropriate to make an award of aggravated damages. In this case, the defendant put forward the defence that the plaintiff had probably suffered his injuries while boxing, but had fraudulently tried to blame the defendant for these injuries. In essence, they accused him of putting forward a fraudulent claim. The court has found that the plaintiff did injure himself in the manner alleged by him. The court has found that he has not made a fraudulent claim in this case. He is entitled to be compensated for the upset caused to him by virtue of the nature of the unsuccessful defence put forward by the defendant. I award the plaintiff €5,000 as aggravated damages. This gives an overall award in favour of the plaintiff of €60,000.
O’Shaughnessy v Dublin City Council [2017] IEHC 774, Barr J.
JUDGMENT of Mr. Justice Barr delivered on the 20th day of December, 2017
Introduction
1. This action arises out of an accident which occurred at approximately 01:00 hours on 4th November, 2007, at Cullenswood Road, Ranelagh, Dublin. The plaintiff had left his flat at No. 6A Oakley Road, Ranelagh, for the purpose of purchasing some cigarettes. Although it was late in the night, he thought that the Spar shop at the triangle in Ranelagh, might have been open. On the night in question, he had his neighbour’s dog, which was a small terrier, on a lead walking in front of him.
2. The plaintiff came out of his flat and turned left onto Oakley Road. He proceeded to the end of the road and then turned right onto Cullenswood Road, where he walked along the right hand footpath going towards the triangle in Ranelagh village.
3. It is the plaintiff’s case that while walking under the Luas bridge, he was caused to trip and fall to the ground, when his right foot came into contact with portion of a stone block, which was projecting from the right hand side of the Luas bridge at ground level. The offending piece of stone is shown in photographs Nos. 3, 4 and 5 which were taken by Mr. Alan Conlan, Engineer, on 5th December, 2007.
4. The defendants were jointly represented at the trial of the action. Each of the defendants denied liability for the accident and also put quantum in issue. The defence also contained a plea of contributory negligence to the effect that the plaintiff was the author of his own misfortune, he had failed to maintain any or any proper lookout, had failed to look at the footpath upon which he was walking, had failed to observe the presence of the stone on the footpath in front of him and had exposed himself to a risk of injury or damage of which he knew, or ought to have known. Thus, all matters were in issue between the parties.
Summary of the Evidence
5. The plaintiff is sixty-one years of age. He had spent most of his working life in Britain, working as a plumber. He returned to Ireland in or about 1994, when his mother became ill. He had worked for various construction firms on and off during the years that followed. He was ultimately made redundant by a company called Tenec in 2001. He had not worked in the interval between that time and the time of the accident.
6. The plaintiff stated that on the night in question, which was a Saturday night, going into the early hours of Sunday morning, he had spent the day in his flat watching television with his friend, Mr. Noel Nugent, who also resided there. The plaintiff stated that he had gone out during the day to purchase cigarettes and some cans of beer. He explained that on that particular evening, he and Mr. Nugent had a neighbour’s dog staying with them, as the neighbour would often leave his dog with them, as he was elderly and did not like walking the dog at night.
7. At approximately 01:00 hours the plaintiff put the dog on a lead and proceeded out to go to the Spar shop in Ranelagh village to purchase some more cigarettes. He left his flat on Oakley Road and turned left and walked down the road to the junction with Cullenswood Road, where he turned right and proceeded towards the triangle in Ranelagh village. The plaintiff indicated that by reference to photograph No. 13, of the photographs taken by Mr. Conlan, he had come down Oakley Road which was to the left of the junction, where the blue house could be seen. He then turned right and started to walk towards the camera. He proceeded down the road and went under the Luas bridge, as shown in photograph No. 8. He stated that the dog was walking some 4/6ft in front of him, tight against the wall. He was following directly behind the dog and was also very close to the wall. As he was going under the Luas bridge going in the direction of the triangle, as shown in photograph No. 2, the wall itself jutted out at the far-end of the bridge. As he came to the very end of that section, his right foot caught on a piece of stone, which was protruding from the wall, causing him to trip and fall forwards onto the ground. He turned to his right as he was falling and landed on his right shoulder.
8. The plaintiff stated that he tripped on the piece of stone which was jutting out from the bottom section of the wall as shown in photograph No. 3, and in closer view in photographs 4 and 5.
9. The plaintiff stated that he was lying on the ground for a few moments. He was in shock and also in severe pain. However, after a few moments, he was able to get himself sitting up. He had managed to keep hold of the lead, so the dog had not escaped. While he was sitting on the ground, a female garda, who had been walking on the far side of the street, saw him and came across. She enquired if he was alright. He assured her that he was all right and told her that he would just rest there for a few moments before proceeding on. The female garda then proceeded on her way. The plaintiff stated that he was unable to get himself into a standing position, so he shuffled on his backside along the pavement to a doorway, or entrance, which was shown beneath the “For Sale” sign in photograph No. 8. He was hoping that by using the aid of the wall, he might be able to stand up. However, he was not able to do so.
10. After some time, the female garda returned. The plaintiff asked her to help him up and she did so. She then escorted him back to his flat on Oakley Road. She used his key to open the front door and left him sitting in the sitting room. The plaintiff was unable to sleep that night due to pain in his right shoulder. His arm became very swollen and sore. Later that day, he went to the Accident and Emergency Department of the Mater Hospital. That was on Sunday 4th November, 2007. They told him to return on the following day to the fracture clinic. When he returned on 5th November, 2007, his arm was placed in a collar and cuff. He was instructed to return a week later. When he did so, he was seen by a Dr. Sinnott, who referred him to the care of Mr. Darragh Hynes, Consultant Orthopaedic Surgeon.
11. X-rays revealed that the plaintiff had a comminuted fracture of the right shoulder. Having examined the plaintiff and reviewed the x-rays, Mr. Hynes admitted the plaintiff to hospital on 13th November, 2007. Two days later, the plaintiff was brought to theatre, where open reduction and internal fixation was carried out to the shoulder. However, due to the grossly comminuted nature of the fracture, it was not possible to insert any screws into the shoulder itself. Post-operatively, the plaintiff’s wound healed. The fracture went on to make a satisfactory, though incomplete, union.
12. The plaintiff had physiotherapy treatment, where he was shown movements of the shoulder joint and was given a home exercise program and was also told to squeeze a rubber ball, so as to increase strength in his arm and shoulder. He stated that he followed this program, until he realised that he was not getting any better, at which stage, he stopped doing the exercises. In terms of pain, he stated that while the pain had been severe during the initial stages, it had pretty much settled after 2008.
13. The plaintiff returned to the U.K. in February 2008. He currently lives there in sheltered accommodation, which has been provided to him by the local authority, on the basis that he has a permanent disability. Having assessed his needs, they installed a wet-room in the house. He is currently on Disability Allowance and Employment Support Allowance from the U.K. government.
14. The plaintiff stated that although he does not have much pain on an ongoing basis, he does require injections from his G.P. from time to time when his shoulder is stiff and sore. He remains quite disabled in the ordinary aspects of his life. He states that he is unable to use his right arm and hand. He had been right hand dominant. Now he is obliged to do everything using his left hand. He finds this difficult and is a lot slower doing ordinary tasks. It affects him when washing and toileting. The toilet seat has been raised and he has rails in the bathroom and shower. He is unable to tie his shoelaces and requires the assistance of a neighbour to do this for him. He has to shave with his left hand. When eating, he uses a fork in this left hand. He does not do much cooking, as he tends to put ready meals into the microwave. He is able to dress himself, but it takes longer than normal. Prior to the accident his hobbies had been snooker and table tennis. He is not able to do these things since the accident. The other aspect of his injury which causes him considerable embarrassment is the fact that as a result of the fracture and the operative treatment thereto, his right arm is 6cm shorter than his left arm. As he is not able to use the right arm, the muscles on the arm have become wasted away. Movement of the right shoulder is limited. He indicated that he was only able to raise his arm approximately at an angle of 45 degrees from the side of his body.
15. In cross-examination, the plaintiff was asked about a number of seizures that he had prior to the time of the accident. While he was unsure of dates, he thought that he may have had a seizure in 2004 or 2006. It was put to him that he had been admitted to the Mater Hospital in February 2007 after suffering a seizure, while in a public house. In the hospital admission records in relation to that event, it was recorded that he may have had a seizure some eight months previously, which would put it circa June 2006. The plaintiff accepted that as accurate. It was put to the plaintiff that in February 2007, he had in fact had two seizures while in the pub. He had had one earlier in the evening, but had recovered and remained on in the pub and then had had a second seizure, which required his removal by ambulance to the Mater Hospital. The plaintiff stated that that was correct. The plaintiff was asked as to the medical diagnosis for the seizures. He stated that the doctors had told him that it might have been epilepsy, which might have been alcohol related. He accepted that he had a brother who also had alcohol related epilepsy.
16. It was put to the plaintiff that during his admission to the Mater Hospital, he had been prescribed a large amount of medication. The plaintiff agreed. He was not able to recall what exact medication had been prescribed. He had also had a drip inserted into his arm on that occasion. It was put to him that from the notes, it would appear that he was prescribed a drug called Cabonax, which was for vitamin deficiencies caused by alcoholism. The plaintiff agreed that he had been given that drug. It was also put to him that he had been prescribed Librium for anxiety and acute alcohol withdrawal. It was put to him that the side effects of Librium, included dizziness and difficulty walking. The plaintiff stated that he was not made aware of any such side effects. He had only been given Librium while in hospital. It was put to him that he had also been prescribed Atoplan and Diazepam for the seizures. The plaintiff did not remember those medications, but accepted that he may have been given them. The doctor had told him that he could have alcohol related epilepsy, due to the fact that he was drinking too much. The plaintiff accepted that he had discharged himself from hospital against medical advice on that occasion in February 2007.
17. The plaintiff was asked as to whether he had been treated by his G.P. after his discharge from hospital in February 2007. The plaintiff stated that he had gone to his G.P., Dr. Joyce. He had seen him after the seizures and before the time of his fall. He had placed the plaintiff on medication to calm him down, which could have been Diazepam. The plaintiff did not think that he was on Librium at that time. He recalled that he may have been told of the side effects of Diazepam, being dizziness, blurred vision and possible ataxia. He was not told anything about possible vertigo. He thought that he took the medication which had been prescribed, possibly up to the time of the accident, but he was not sure.
18. The plaintiff was asked what he had done during the day prior to the fall. He stated that he had just been sitting around his house with his friend Noel Nugent. He may have gone out to the shops during the afternoon to get cigarettes and cans of beer. He could not actually recall going out. He was not sure at what time the dog was left in by his neighbour during that evening. They would have kept the dog overnight. In relation to going out to get the cigarettes, the plaintiff stated that he just decided to go out to get the cigarettes for himself and, his housemate, Noel. He thought that the Spar shop in Ranelagh village had late opening hours. However, he was not certain of that, because he did not get to the shop that night. His intention was to take the dog for a walk and to get cigarettes in the Spar shop, but he was not sure if the shop would actually be open.
19. The plaintiff described that the dog was on a leather lead, which was some 4/6ft long. The dog was walking close to the wall and was cocking his leg against it from time to time. The plaintiff stated that he was walking directly behind the dog and almost touching the wall. He was asked whether he would have taken such a path, given that that would have involved him walking through the urine that had been left by the dog. The plaintiff stated that he did walk along that route, as the dog was very small. He stated that he tended to walk close to the wall, as he did not like to walk near the edge of the footpath close to the road. He was asked why he had not seen the portion of stone sticking out onto the footpath. The plaintiff stated that it was very dark under the bridge and there was no lighting in the area. On this account, he had not seen the piece of stone sticking out from the wall.
20. The plaintiff was asked why in both the solicitor’s initial letter, in his form submitted to the Injuries Board and in his engineer’s report, following an inspection of the locus on 5th December, 2007, the incorrect date of the accident had been given as 9th November, 2007. The plaintiff accepted that that was the wrong date. He could not explain how that mistake had occurred. It was put to him that in his form submitted to the Injuries Board, he had merely stated that he had tripped and fallen at the Luas bridge near the triangle in Ranelagh. He accepted that that account did not mention anything about any stone sticking out from the wall. However, the form had not been filled in by him, although he accepted that it was his signature at the foot of the form. It was put to him that a similar mistake in relation to the date of the accident had been set out in a letter which had been sent to the first named defendant on 30th November, 2007. The plaintiff accepted that the date was mistakenly stated therein, but he could not explain how that had happened.
21. The plaintiff was asked about the female garda, who had come to his assistance. He stated that she had attended on him twice that evening. On the second occasion, she had escorted him home. However, he had not asked her, her name.
22. The plaintiff was asked why his engineer had stated in his report that the plaintiff was “not a 100% sure of the exact accident location. However, he considers it highly probably that he tripped at the protruding stone (photograph 5).” The plaintiff stated that when he went to the locus with the engineer on 5th December, 2007, he told him that he had met with the accident “around about there”, pointing to the accident locus. He stated that he did point out the exact locus to the engineer. He stated that the engineer was wrong to say that he was not sure of the locus. The plaintiff was asked to explain why the engineer had stated that the plaintiff considered it “highly probable” that he tripped on the stone. The plaintiff stated that he was sure of where he had fallen, and that it was most likely because of the stone sticking out from the wall.
23. The plaintiff was asked about his conduct on the evening after the operation had been carried out to his shoulder on 15th November, 2007, while he was still in the Mater Hospital. In particular, it was put to him that the hospital records showed that he was recorded as being missing at 22:00 hours on the evening of 15th November, 2007. The plaintiff initially stated that he had gone out to the gazebo to smoke a cigarette and had fallen asleep out there. When it was pointed out that the hospital records noted that he had returned at 1.15 hours on the 16th, with his girlfriend, Sharon, and had stated that he had been to O’Connell Street to get a lift for his girlfriend, but when she had missed the lift, they had gone to a pub instead; the plaintiff accepted that that had happened. He stated that he had gone out for a smoke and he and his girlfriend had ended up going for a pint.
24. It was put to the plaintiff that his account lacked credibility; that he would be walking so close to the wall to trip on the piece of stone, which was only jutting out 4.75 inches onto the footpath and if he had been that close to the wall and had tripped, he would have struck the wall, when in reality the accident had happened due to the consumption of alcohol. Counsel for the plaintiff objected at this point, pointing out that there was no allegation made in the pleadings, that the accident had occurred due to any consumption of alcohol, or due to taking prescription medication, or was due to alcohol related epilepsy.
25. In relation to his pre-accident work record, the plaintiff accepted that he had returned to Ireland in 1994, and worked for various employers subsequent to that time. Although he had been present in Ireland during the so-called Celtic Tiger years, he had not in fact been working since being made redundant in or about 2001. He confirmed that he had not worked since the accident. In relation to taking prescription medication, the plaintiff stated that while certain medication had been prescribed for him in the Mater Hospital at the time of the seizure in February 2007, he had discharged himself from the hospital and had not taken any prescription for medication with him. Accordingly, he had not taken any of the medication that had been prescribed for him in the hospital, after he had left the hospital on that occasion.
26. Evidence was given by the plaintiff’s sister, Ms. Carmel O’Shaughnessy-Martin. She had been with the plaintiff when he had been brought from the pub to the hospital suffering from seizures in February 2007. This had occurred on the night that their brother, who had died just prior to that time, had been taken to the church in preparation for the funeral. She had kept the plaintiff in her house, so that he would not drink. He had not been drinking during the day and had only had two pints that evening. As far as she knew, the doctors put him on a detox program in the hospital. He subsequently signed himself out of the hospital. He had not had problems since that time. This witness was not cross-examined.
27. Evidence was given on behalf of the plaintiff by Mr. Alan Conlan, consulting engineer. He confirmed that he had taken photographs Nos. 1-7 at the time of his inspection of the locus on 5th December, 2007. The remaining photographs had been taken on 23rd November, 2017. He stated that prior to the opening of the green Luas line for operation on 20th June, 2004, a thorough survey and assessment would have been carried out of the tracks and bridges along the route. It was clear that fairly substantial works had been carried out to reinforce the bridge. These were particularly evident on the far side of the road as shown in photograph No. 14, where an entirely new wall and a concrete plinth had been put in situ to support the overhead bridge. On the side on which the accident had occurred, it appeared that the reinforced concrete plinth had been placed on top of the existing stone wall.
28. Mr. Conlan stated that any visual inspection of the structure of the bridge, would have revealed the protruding piece of stone as shown in photographs 2 – 5. He could think of no reason why the defendants had left the stone protruding out onto the footpath. It could easily have been removed. It served no function at all. In his opinion it ought to have been removed, as it constituted a danger on the public footpath.
29. The protruding stone was approximately 370mm long. Its front facing edge was 50mm high. At the back edge the stone was 100mm high. The stone extended out from the wall of the Luas bridge onto the footpath by 120mm (4.75in).
30. In cross-examination, Mr. Conlan accepted that a person would have to be up against the wall in order to trip on the piece of stone. They would have to be walking along the line of the wall itself and would have to have been almost touching the wall in order to make contact with the stone. He accepted that it was not the usual way in which pedestrians would walk along the footpath. However, in this case the plaintiff stated that he had been following the dog, which had been walking tight to the wall.
31. Mr. Conlan outlined how he had attended at the locus on 5th December, 2007 with the plaintiff and his solicitor. The plaintiff had described the accident as set out in his report. The plaintiff stated that he could not be 100% sure, but as a matter of “high probability” he thought that he had tripped on the piece of stone. Mr. Conlan thought that in phrasing it that way, he was just being honest. He identified the stone as being highly probable as the cause of his fall. Mr. Conlan confirmed that the plaintiff has given him the date of the accident as being 9th November, 2007. He accepted that the plaintiff was wrong in that regard.
32. Mr. Conlan stated that he did not consider the lighting of the locus, as that had not come up at the inspection. That was why it was not mentioned in his report. He accepted that given the particular location, it would be highly unlikely that the plaintiff would not have been able to see his dog at the end of the lead. It was put to the witness that if the plaintiff had told the court that it was so dark, that he could not see the dog at the end of the lead, this implied that he was totally confused. Mr. Conlan accepted that the plaintiff should have been able to see the dog at the end of the lead.
33. No evidence was called on behalf of the defendants.
Submissions of Counsel
34. At the conclusion of the case, counsel for the plaintiff, Ms. Patricia Dillon, S.C., submitted that having regard to the provisions of the Transport (Railway Infrastructure) Act 2001, the third and/or fourth named defendants were the owners and occupiers of the bridge in question and as such, were liable for the nuisance created on the public highway, which caused the injuries sustained by the plaintiff. She submitted that the entire of the railway line known as the Harcourt Street Line had originally been owned by CIE. By virtue of s. 33 of the Transport (Railway Infrastructure) Act 2001, all of the property which had been owned by CIE, was transferred on the establishment day to the third named defendant. The third named defendant had subsequently entered into a contract, which provided that the operation and maintenance of the Luas line, including the Green Line running to Ranelagh, was to be operated and maintained by the fourth named defendant. It was the third named defendant, or the fourth named defendant, which was responsible for surveying the Harcourt Street line to ensure that it was capable of carrying the Luas and it was they who had carried out the works to the bridge in question, as set out by Mr. Conlan in his report and in his evidence.
35. Counsel submitted that in the circumstances, the third and/or fourth named defendant had created or maintained a nuisance on the public highway in letting the piece of stone, as shown in photographs 3 – 5, extend out from the foot of the wall by some 120mm (4.75 inches). The portion of stone that jutted out onto the pavement, served no functional purpose at all. It could easily have been cut away. Based on the evidence of Mr. Conlan, that is what the defendants should have done, in order to render the locus safe.
36. Counsel further submitted that the defendants, and each or either of them, were the owners and occupiers of the bridge and the footpath and as such they owed the common duty of care as defined in the Occupier’s Liability Act 1995 to the plaintiff, who was a visitor on their premises. It was submitted that in permitting the locus to be in a dangerous condition, with the piece of stone jutting out from the wall onto the footpath in the manner that it did, constituted a breach of the common duty of care owed to the plaintiff. In these circumstances, it was submitted that the defendants were liable for the injuries sustained by the plaintiff.
Conclusions
37. There are three issues on liability in this case, as follows: (a) did the defendants, or any of them, create or maintain a nuisance on the public highway; (b) did the plaintiff fall to the ground on the night in question, as a result of tripping against this piece of stone; and (c) if the answers to the two previous questions are yes, was the plaintiff guilty of contributory negligence in failing to see the stone?
38. It is settled law that even a small impediment on the public highway can constitute an actionable nuisance. In Hassett v. O’Loughlin [1943] 78 ILTR 47, O Briain J. stated:-
“A nuisance is not confined to an obstruction on the highway; it may consist of anything which makes the use of the highway unsafe or dangerous to the public.”
39. In the Hassett case, liability was imposed on the defendant for placing a tiny heap of stones on the highway. In Stewart v. Governors of St. Patrick’s Hospital 73 I.L.T.R. 115, it was held that the occupier, of unfenced vacant land adjoining a highway, was liable in nuisance to a person lawfully using the highway, for injuries caused to that person by a pipe projecting from the land in close proximity to the highway.
40. I am satisfied from the evidence given by Mr. Conlan, that the piece of stone, which jutted out from the foot of the wall, as shown in photographs Nos. 3 – 5, constituted a nuisance on the public highway. It may well be that as the stone only jutted out some 120mm onto the highway and as people do not normally walk tight against a wall, for this reason accidents may not have occurred in the past. Just because the vast majority of people will walk some distance from a wall, when walking along the footpath, this does not mean that some people will not walk tight against the wall for whatever reason. I accept Mr. Conlan’s evidence that when this bridge was being assessed in preparation for the commencement of the Luas operation, those carrying out the assessment should have seen that the stone projected out onto the footpath and that the projecting portion served no function whatsoever. I accept Mr. Conlan’s evidence that even on a casual visual inspection, the danger should have been noted and the offending piece of stone should have been cut away. Accordingly, I am satisfied that the third and fourth named defendants created or maintained a nuisance on the public highway, by allowing this piece of stone to jut out onto the footpath.
41. I am also satisfied having regard to the provisions of the Transport (Railway Infrastructure) Act 2001, that the third and/or fourth named defendants were the owners and occupiers of the lands consisting of the Luas line and in particular of this bridge. As such, they were the owners of the highway out to the midpoint in the road. I am further satisfied that in allowing the stone to project out onto the footpath in the manner that it does, they have failed to extend the common duty of care as defined in the Occupier’s Liability Act 1995, to persons using the footpath, who are visitors on their property.
42. The central issue in this case is whether the plaintiff has established that he met with his accident as a result of tripping against the piece of stone in the manner described by him. Having observed the plaintiff carefully giving his evidence and in particular when giving his evidence on cross examination, a number of things are clear to the court. Firstly, he has difficulty with dates. He was unsure in relation to the dates on which he returned to Ireland and was somewhat unclear in relation to the specific dates on which he had actually worked while in Ireland. It would also appear that he had been, at least unsure, in relation to the date of the accident, as it appears that the incorrect date was set out in the initial warning letters from his solicitor and in his form submitted to the Injuries Board. It would also appear that the incorrect date was given to his engineer at the time of the inspection on 5th December, 2007.
43. Secondly, it would appear that the plaintiff has had problems with alcohol in the past. From the records which were referred to in cross examination, it would appear that the seizures suffered by the plaintiff in 2006 and in February 2007, may well have been alcohol induced epileptic attacks. The plaintiff accepted that his brother had also been diagnosed with a similar problem. The plaintiff’s sister gave unchallenged evidence to the effect that she had to take him into her house, so as to ensure that he did not drink to excess at the time of his brother’s funeral. Thirdly, it appears that on the day on which the plaintiff had undergone fairly substantial operative treatment to his right shoulder, he actually left the hospital grounds and spent a number of hours drinking in a pub with his girlfriend. All of this is indicative of the plaintiff having a problem with alcohol. Although not asked specifically how much alcohol he had had to drink on the day and night in question, the plaintiff had candidly stated that during the day he may have gone to the shop to buy some cans of beer for himself and his flatmate.
44. There was also a suggestion in cross examination, that the plaintiff may have been taking certain medication at the time of the fall, the side effects of which may have caused him to suffer from dizziness, loss of balance and/or ataxia. However, two things need to be noted about these assertions; firstly, no medical evidence was called by the defendant to establish what are, in fact, the side effects of the medications that were mentioned in the medical records, nor as to what dosage of medication would normally be required in order to produce these side effects. Nor was it established that the plaintiff had been furnished with a sufficient quantity of medication to induce these side effects. Secondly, it would appear that while certain medication is mentioned in the hospital records from the time he was admitted with the seizure in February 2007, it appears that the plaintiff discharged himself from the hospital against medical advice and as such, he left without any prescription for medication. Thus, the only medication that he may have been on at the time of the accident, and this was not proven, was whatever medication may have been prescribed by his G.P. at that time.
45. Counsel for the defendants, also laid great stress on the fact that in the plaintiff’s engineer’s report, it was stated that he was not a hundred percent sure of the exact accident location. However, the plaintiff was adamant that he fell at that location and considered it highly probable that he tripped on the protruding stone as shown in the photographs. When questioned on this apparent lack of clarity, Mr. Conlan was of the view that the plaintiff was probably just being honest. Having watched the plaintiff give his evidence and in particular in the manner in which he answered questions put to him by counsel on behalf of the defendants, some of which would have been somewhat uncomfortable for him to answer, he was not generally evasive, or lacking in candour.
46. While the court cannot ignore the fact that the plaintiff gave the wrong date for the accident in his initial instructions to his solicitor and to his engineer, thereby causing the incorrect date to be stated in the initial warning letters from his solicitor and in his Injuries Board form, this does not necessarily mean that he is lying about his account of the incident. Not all plaintiffs will present with a well-rehearsed and neatly packaged story. The court must take account of human frailties, whether caused by age, poor memory, or the effects of excessive alcohol consumption over a number of years.
47. It is greatly to the credit of Ms. Gallagher, the plaintiff’s solicitor, and Mr. Conlan, the plaintiffs’ engineer, that they did not try to “nudge” the plaintiff to give a more definite account of his accident, when he attended the locus with them in December, 2007. I am satisfied that Mr. Conlan had faithfully reported what was said to him by the plaintiff on that occasion.
48. Save with the exception of his initial answer in relation to his conduct on the night of his operation, I am satisfied that the plaintiff has done his best to tell the truth in relation to the circumstances of the accident. I think that Mr. Conlan was correct, when he said that the plaintiff was probably just being honest, when he gave his description of the accident to the engineer at the inspection in December 2007. It seems to me that if the plaintiff was going to do a “ready up” in relation to the cause of his fall, the very least he would have done was, that he would have been emphatic as to what he had tripped over and how he had tripped, when giving instructions to his solicitor and engineer. If it was a “ready up” or fraudulent claim, he would also probably have acquired the assistance of a “witness”, who would corroborate his version of events. The plaintiff did neither of these things.
49. A further matter pointing to the truthfulness of the plaintiff, is the fact that he did not try to exaggerate, or embellish his account of his injuries or disability to date. In fact, he very candidly stated that he had not had much pain after 2008. His account that he was not able to use his right arm and on that account has had to learn to use his left hand, is supported by the fact that on a visual examination, the muscles on his right arm are almost totally wasted. This suggests that he is telling the truth, when he states that he does not use the arm at all.
50. Taking all of these matters into consideration, I am satisfied that the plaintiff has told the truth in relation to how he met with his accident. While it is certainly unusual, I accept his account that on the night in question he was walking very close to the wall, directly behind the dog. In these circumstances it is entirely reasonable that his right foot would have come into contact with the protruding piece of stone. While it may be unusual for a pedestrian to walk so close to the wall, it is not indicative of contributory negligence for them to do so. A pedestrian may use the full width of a footpath to walk on. Accordingly, I find that the accident occurred in the manner alleged by the plaintiff. That being the case, having regard to the findings already made in relation to the creation of the nuisance on the footpath and the breach of the common duty of care owed by the defendants as owners and occupiers of the locus, I find that the third and fourth named defendants are liable to the plaintiff for the injuries sustained.
51. The final issue on liability, is whether the plaintiff was guilty of contributory negligence. It has been pleaded that the plaintiff failed to take reasonable care for his own safety; in particular, that he failed to watch where he was going and ought to have seen the portion of the stone which was projecting out onto the footpath. Pedestrians, when walking along the footpath, must take reasonable care. They must keep a proper lookout of the path in front of them and take care to avoid obstacles, or dangers which are readily apparent on the footpath. However, given that the average person is approximately 5ft 8 inches tall, their eyes are at some distance above ground level. Pedestrians are not expected to walk along looking down at their feet, in case there might be obstacles or other dangers on the surface of the footpath.
52. In this case, where the danger existed at ground level and where it would appear that the locus was somewhat badly lit and having regard to the fact that the projecting stone was of the same colour and material as the walls above it and surrounding it, I do not think there was any negligence on the part of the plaintiff in failing to see this particular obstacle on the footpath. Given that the wall and the projecting stone were both grey in colour and the surface of the footpath was of a similar colour, I do not think that it can fairly be said that the plaintiff failed to take reasonable care for his own safety, when he failed to see the stone jutting out onto the surface of the footpath. In these circumstances, I decline to make any finding of contributory negligence against the plaintiff.
53. Turning to the injuries, it is not necessary to repeat the account of the injuries and the account of the disability flowing therefrom as given by the plaintiff in his evidence. The only medical evidence in the case were the two reports and the letter furnished by Mr. Darragh Hynes, Consultant Orthopaedic Surgeon. It is not necessary to set out the content of those reports in detail.
54. In summary, the plaintiff has suffered a grossly comminuted fracture to the right shoulder. This required operative treatment. However, due to the extent of the comminution of the fracture, it was not possible to internally fixate the fracture itself. The fracture has gone on to make a satisfactory, although incomplete union. The plaintiff suffered pain in the shoulder at the time of the injury and for approximately one year thereafter. Since then, any pain or stiffness that the plaintiff has had, has been satisfactory treated by the administration of injections to his shoulder by his G.P. in the U.K. When seen on 18th August, 2015, Mr. Hynes noted that the plaintiff had had an injection approximately three years prior to that i.e. in 2012 and had had a further injection circa September 2014. The plaintiff in evidence, stated that he had had further injections at the rate of approximately two per year.
55. Mr. Hynes is of opinion that the plaintiff’s current position, as set out in his report dated 26th August, 2015, is permanent. The plaintiff will continue to have a significant functional deficit as a result of decreased use of the right arm. He will continue to have difficulties with elevated use of his right hand. Mr. Hynes is of the view that there is unlikely to be any improvement in the future. The good news from the plaintiff’s point of view is that he is of the view that, having regard to the progress made by the plaintiff up to that time, it is probable that the plaintiff will not develop a progressively more painful condition in the shoulder. However, he may require injection treatment from time to time from his G.P. Mr. Hynes enters the caveat that it is possible that the plaintiff may develop sufficient pain, such that surgical intervention would have to be undertaken. This would involve a shoulder replacement procedure. However, he did not feel that the plaintiff’s condition in 2015 was bad enough to warrant that course of action.
56. Thus, the plaintiff has suffered a comminuted fracture to the right shoulder which required operative treatment. While pain in the shoulder had largely subsided with the administration of intermittent injection treatment by his G.P., the plaintiff has been left with a significantly disabled right arm. I accept his evidence that he does not use the right arm and hand. This has required him to use his left hand and as a result, he is considerably slower in doing normal activities of daily living.
57. However, the court must also have regard to two things. Firstly, while Mr. Hynes has stated in his report from August 2015, that the plaintiff “will continue to have a significant functional deficit,” he does not say that as a result of the fracture to the shoulder, the arm is incapable of any use. I accept that as a result of his injury, the plaintiff is functionally limited in his right arm, but I do not accept that the arm is incapable of any use at all. The medical evidence does not go that far.
58. The second point is that the plaintiff was shown a set of exercises by his physiotherapist to strengthen the muscles in his shoulder and arm. On his own evidence, he discontinued doing these exercises, when he came to the conclusion that they were not doing him any good. In these circumstances, the court has to come to the conclusion that on the balance of probabilities, a significant degree of his continuing disability and muscle wasting, has arisen as a result of his failure to follow the rehabilitation programme advised by his physiotherapist, rather than being due to any wrongdoing on the part of the defendant.
59. I accept that he is unable for his pre-accident hobbies of snooker and table tennis. I also accept the plaintiff’s evidence that he is very embarrassed by the fact that his right arm is significantly shorter than his left arm. Some loss of function in the right arm and its being shorter in length, will be permanent. In these circumstances, I award the plaintiff €40,000 for pain and suffering and disability to date, together with €27,500 for disability and loss of function into the future. There are no items of special damage. In view of the fact that the defendants did not separately contest liability, but have reached some arrangement whereby they were jointly represented, the plaintiff is entitled to a joint and several judgment against all of the defendants in the sum of €67,500.
O’Sullivan v. Dwyer
[1971] IR 275
Supreme Court
S
O’DALAIGH C.J. :
12 March
I have read the judgment of Mr. Justice Walsh and I agree with it.
WALSH J. :
This is an appeal taken against the judgment and order of the President of the High Court in this action which was tried before the learned President and a jury at Cork from the 17th-22nd July, 1969. It was an action for negligence and breach of statutory duty which the plaintiff alleged had resulted in him sustaining very serious personal injuries. The jury awarded a total Sum of £64,024 as damages but judgment was entered for the plaintiff in the sum of £38,414. 8. 0d. because the jury apportioned the degrees of fault between the parties by attributing 60% to the defendant and 40% to the plaintiff. Part of the gross sum of £64,024 consisted of an award of £35,000 for general damages. While this appeal is taken on questions of liability as well as on damages, the appeal as to damages is limited to this particular sum of £35,000 which was awarded for general damages. Therefore, it will be unnecessary to consider the other heads under which damages were awarded. The jury in fact found damages under four headings of which the fourth was general damages.
The accident in this case arose out of building operations8 which are sufficiently described in the judgment of this Court given on the 27th March, 1969, in an earlier appeal in this action and it is unnecessary to repeat them here. At the retrial the case was conducted on behalf of the plaintiff on the basis that he was the servant of the defendant or, alternatively, that he was an independent contractor employed by the defendant. The learned trial judge at the conclusion of the evidence ruled that the plaintiff was not a servant and, as the defendant was not contesting the fact that the plaintiff was an independent contractor, the case went to the jury on that basis though no finding to that effect was either necessary or made.
In the light of the decision of this Court in Roche v. P. Kelly & Co. Ltd. 9 and the previous decision of this Court in this case, the matter went to the jury on the basis of an alleged breach of the Building (Safety, Health and Welfare) Regulations, 1959, and substantially on the basis that contrary to the Regulations the defendant had failed to provide a hand-rail or a toe-board or other effective means to prevent the plaintiff falling from the flat roof upon which he was working.
The learned trial judge, following the earlier judgment of this Court in this case, allowed the case to go to the jury on the basis that the provisions10 of Regulation 6, para. 1, of the Regulations of 1959 were applicable and the jury were asked whether the flat roof in question was a working platform and they answered that question in the affirmative. At the hearing of this appeal the defendant has submitted that the learned trial judge should have ruled as a matter of law that the flat roof was not a working platform within the meaning of para. 1 of Regulation 6. In my view, this submission is quite unsustainable as this Court in this case has already decided that it was a working platform.
It has been suggested in this Court in the present appeal that, if any regulation applies, the appropriate regulation is para. 4 of Regulation 8. That paragraph10 refers to flat roofs and to persons working on flat roofs, and the submission was made to the learned trial judge on behalf of the defendant that that paragraph did not apply because, as the roof had not been completely constructed but was simply a roof in the course of construction, it could not be regarded as a roof terminating in an unprotected edge for the purpose of that paragraph. The plaintiff had fallen off the edge of a flat roof which had been completed to the extent that only a piece of board of three or four feet long remained to be placed upon it to complete it. The evidence clearly discloses that the surface in question was the surface upon which the plaintiff worked and was obliged to work. It terminated in an unprotected edge. The clear object of the Regulations of 1959 in this respect is to compel employers to take precautions against workmen (or independent contractors in the cases in which they are protected Roche v. P. Kelly & Ca. Ltd. 9) falling off such unprotected surfaces where they are working upon them. In my opinion, no jury could find that this was not a flat roof within the meaning of para. 4 of Clause 8 of the Regulations of 1959. At what point a flat roof in the course of construction may be regarded as a roof rather than as a platform from which the roof is being constructed may be a question of degree but in this particular case, where only a small piece of wood remained to be inserted, it would be quite absurd to regard this as anything but a flat roof. If the roof had been completed and then it had been found to be necessary to remove the same small piece of wood to make some further adjustment, could it be seriously suggested that the roof had ceased to be a roof because the piece of wood was taken out of it? In my view the learned trial judge could have left the question to the jury under the provisions of para. 4 of Regulation 8 also, but he was persuaded from so doing by the submissions made on behalf of the defendant.
However, the trial judge was correct in holding that para. 1 of Regulation 6 was applicable. As I mentioned, that particular point has already been decided by this Court. If a flat roof is used as a platform upon which work is to be carried out, it is a working platform. If work is being done upon a flat roof or if it is used as a platform for the purpose of carrying out work upon some other structure or part of the building for which it can be used as a platform, in my view it would be wholly unrealistic to suggest that the flat roof is not a working platform because it is a platform which is permanent in the sense that it is a roof rather than a temporary platform erected for a particular job. If a temporary structure were laid upon a fiat roof so as to be supported by it, it is not contested that the structure would qualify as a working platform within the meaning of the Regulations. If that is so, then it would be a complete negation of the purposes of the Regulations to withdraw the statutory protection because the workman stands upon the flat roof itself instead of standing upon a few boards placed upon it. Not every flat roof would qualify as a working platform within the meaning of the Regulations; it would depend on the width of the roof. For example, a flat roof over a passage might not have the minimum width required by the Regulations, which prescribe platforms of not less than 42 to 51 inches in width for certain types of work: see para. 3 (c) and (d) of Regulation 6. In such a case, if the roof was to be used, it would have to be temporarily extended in width and provided with the necessary guards to qualify as a working platform. However, when it is the necessary width and is being used as a working platform then it is a working platform. In view of the previous decision of this Court in the matter, it is not now open to the defendant to contend otherwise. In my view, this ground of appeal fails.
It had already been ruled in the previous decision of this Court that para. 1 of Regulation 29 of the Regulations of 1959 did govern
this case, and the ground of appeal which claims that the learned trial judge was wrong in ruling in accordance with the decision of this Court is not sustainable.
The jury also found that the absence of a hand-rail or a toe-board, or other effective means to prevent the fall of the plaintiff, was a cause of the accident and against this finding there is no appeal. The finding is amply justified by the evidence.
The plaintiff cross-appealed in respect of the judge’s failure to leave the matter to the jury under para. 4 of Regulation 8. I think the plaintiff is correct in this but it does not now arise in view of the fact that I am of opinion that the judge’s ruling with reference to the applicability of Regulation 6 was correct.
It was also submitted on behalf of the defendant that the apportionment of fault in this case was such that no reasonable jury could have attributed 60% of the fault to the defendant and only 40% to the plaintiff and that, therefore, the apportionment ought to be set aside. In support of this it was submitted, as set out in the notice of appeal, that the learned trial judge should have directed the jury that the apportionment of degrees of fault should be on the basis of culpability and that he did not fully or correctly direct the jury on this topic in accordance with the provisions of the Civil Liability Act, 1961.
In the course of his directions to the jury the learned trial judge said at p. 332 of the transcript:”Now, if you answer these two questions ‘Yes’ the result is that the defendant must pay damages to the plaintiff because the defendant would have been guilty of a breach of duty under statute and that would have contributed to the accident, but you would then have to consider the extent to which the plaintiff himself may have been responsible for his injuries.” Later at p. 333 he said:”on the other hand, if you think he [the plaintiff] was guilty of something, neglecting to take the care a reasonable man would for his own safety, you answer the question ‘Yes’ and if you do, you now have to come along and attribute, not the blame for blame in the sense of criticism does not really arise in this case at all, but the responsibility or the legal fault in terms of percentages as between the plaintiff and the defendant . . .” At p. 334 he said:”But, anyway, I cannotif you come to the conclusion that both were to blame, in the sense of responsibility for this accidentI cannot do any more than say to you that you must view this on the basis of a legal fault on the part of the defendant and a lack of care on the part of the plaintiff for his own safety and try and say among yourselves what way in terms of percentages do we attribute the responsibility for this accident, the actual causation, was it due to the absence of the rail . . .” The learned trial judge then went on to deal at some length with the question of damages but at the end of that part of his directions he said at p. 342 of the transcript:”I have this to say to you and it is just as well to renew it now for I would have to bring you back to tell youif you find the plaintiff guilty of contributory negligence, of course, you take off a proportion of the damages because of that but you don’t take it off, you give him exactly the same as if you found him guilty of no negligence and I will then deal with negligence, so that, if you thought he was 50% to blame, you would not take 50% off the damages, you would give him the whole damages and I will take the 50% off, so don’t take anything off if you think that the plaintiff was guilty of contributory negligence.”
When the jury had retired, Mr. Liston, on behalf of the defendant, submitted to the learned trial judge that he had used the word”responsibility” and that he had intended to convey to the jury that they should apportion according to causation. He submitted that the proper basis for apportionment, particularly having regard to the words used in the Act, is not degrees of negligence but degrees of fault. He said:”In this case it could be of great importance for the jury might well take the view that my client was at fault because he did not treat this as a working platform and say, at the same time, every other man building a flat roof did the same thing and the amount of fault was small and they might say that nobody cuts timber over the edge of a roof and on the basis of culpability, a man who did that was very much at fault, but on the question of causation you might say that each might equally well cause it, so I would ask you to suggest that it should be on the basis of culpability. That is the true meaning of the word ‘fault’ where it is not degrees of negligence. There is little guidance in the Act beyond the fact it uses the word ‘fault.'” To that the learned trial judge remarked that he assumed that in the Act it meant legal fault with which Mr. Liston agreed but he added that it must be fault in the sense that there was a breach of legal obligation but on the other hand it would be simple to put it as simply apportioning degrees of negligence.
Mr. McCarthy, for the plaintiff, did not agree with Mr. Liston’s interpretation of the law and submitted that there was no difference between fault and responsibility. The learned trial judge pointed out that the provisions11 of s. 11, sub-s. 3, of the Act of 1961 appeared to indicate that fault and causal responsibility were not the same thing. The learned trial judge interpreted Mr. Liston’s submissions in the following words at p. 345 of the transcript:”No, he wants us to approach this on the basis of both being at fault legally, both being in some way responsible for causation of injuries, one is the more blameworthy.” To that Mr. McCarthy said:”Which, I presume, is some sort of subjective test. Is Mr. Dwyer less to blame because he did not know he was responsible under the building regulations?” Judge:”The jury is going to say which.” Mr. McCarthy:”I trust not. I trust they are not going to be permitted to say that a man is less at fault because he did not know of the existence of the building regulations.” Judge:”I don’t think it is necessary to recall the jury on this.”
It is quite clear that no question of the apportionment of fault arises at all unless both the plaintiff and the defendant have contributed causatively. If the defendant has not contributed causatively there can be no verdict against him, and if the defendant has contributed causatively but the plaintiff has not then there is no question of apportionment of fault. In the English Law Reform (Contributory Negligence) Act, 1945, “fault” is defined in terms which are virtually identical with the definition of “wrong” in our Civil Liability Act, 1961.
Under the provisions12 of s. 34 of the Act of 1961 the question of apportionment of fault only arises when the plaintiff has been found guilty of contributory negligence and not in the case of any other wrong on the part of the plaintiff, although the defendant’s wrong may not necessarily be negligence at all. The provisions of the Act of 1961 indicate clearly that fault is not equated to causation but that it does flow from causation in the sense that if there is no causation there can be no fault.
Section 1 of the English Act of 1945 says:”Where any person suffers damages as the result partly of his own fault and partly the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.” That Act appears to distinguish between fault and responsibility as our Act distinguishes between wrong and fault.
Under our statutory provision one party may be guilty of several wrongs and the other be guilty of one only, or vice versa, but it appears to me that fault, in the sense in which it is used in the Act of 1961, is not apportioned by comparing the sum of the wrongs on one side with the sum of the wrongs on the other side. A single wrong on one side may have done far more to bring about the damage than the sum of the wrongs on the other side. This seems to me to indicate that blameworthiness is involved in the sense of a party being more to blame or less to blame, as the case may be, in the normal senseas if one were to say, in respect of somebody’s action, that he ought to have known better or that he could hardly have been expected to know that. That this is so appears to be recognised by the provisions13 of s. 43 of the Act of 1961 which provide that where the defendant’s wrong is the breach of strict statutory or common-law duty without fault there shall be no apportionment of fault as against him.
However, it appears to me that in the apportionment of fault this indicates that, where a defendant’s causative contribution to damage has been his breach of such strict duty, there must also be negligence on his part before any apportionment of the fault can be attributed to him. In my view, this indicates that under our law an action for breach of strict duty is not an action for negligence although some breaches of statutory duty may give rise to an action for negligence: see the definition13 of “negligence” in s. 2 of the Act of 1961. Breach of strict duty is in itself actionable and appears to me to be a cause of action in which foreseeability is not a necessary ingredient. On the other hand the torts of negligence and of public nuisance, as distinct from the tort of breach of strict duty, are based upon personal culpability arising from the failure to avoid the foreseeable. It appears to me that this conclusion necessarily follows from the statutory distinction which the Act of 1961 makes between the wrong of breach of strict duty and the wrongs importing fault. Of course, it is possible to show that in many (if not most) cases of breach of strict duty there has also been culpable wrong or fault on the part of the defendant, but that is a different situation.
The result, however, appears to be somewhat anomalous. Under the terms of the Act of 1961 a person who has caused damage by the commission of a wrong which amounts to a breach of strict duty is liable in damages to the person injured thereby, even though the wrongdoer was not guilty of any fault, provided that the person injured was not guilty of contributory negligence. The position appears to be that, once he has been found guilty of contributory negligence, the person injured will fail to recover anything if the defendant wrongdoer cannot be shown to have been at fault. For example, the occupier of a factory may be under a strict duty not to use a certain piece of equipment unless it is of adequate strength, which is a continuing obligation; if the equipment proves not to be of adequate strength because of a defect which was not patent and which could not have been discovered by reasonable care or inspection (as in Doherty v. Bowaters Irish Wallboard Mills Ltd. 14) and this causes injury, the defendant would be liable in full to the injured party if the latter is not shown to have been guilty of any contributory negligence. On the other hand, if the injured party is shown in such case to have been guilty of any degree of contributory negligence amounting to causation, no part of the fault would be attributed to the defendant unless it could be shown that he was at fault in addition to being guilty of breach of strict duty. In such a case, therefore, it would be necessary to prove that the defendant was guilty not merely of breach of strict duty but also of some other causative factor from which fault could be deduced. It is right, however, to add that in a case of breach of strict duty only, a plaintiff could scarcely be found guilty of contributory negligence unless he had knowledge of the breach of strict duty found against the defendant.
It appears to me then that Mr. Liston is correct in his general submission that a judge, in directing a jury, must direct their minds to the distinction between causation and fault and that they should be instructed that degrees of fault between the parties are not to be apportioned on the basis of the relative causative potency of their respective causative contributions to the damage, but rather on the basis of the moral blameworthiness of their respective causative contributions. However, there are limits to this since fault is not to be measured by purely subjective standards but by objective standards. The degree of incapacity or ignorance peculiar to a particular person is not to be the basis of measuring the blameworthiness of that person. Blameworthiness is to be measured against the degree of capacity or knowledge which such a person ought to have had if he were an ordinary reasonable person: see the judgment of this Court in Kingston v. Kingston .15 To that extent the act can be divorced from the actor. In many cases greater knowledge may attract a greater share of the blame or fault, but so also may greater ignorance. Fault or blame is to be measured against the standard of conduct required of the ordinary reasonable man in the class or category to which the party whose fault is to be measured belongs; but both common sense and public policy require that ignorance of the law is not a factor to be taken into account in the diminution of fault.
In the present case the jury could not have been told that they might take into account in favour of the defendant the fact, if it were the fact, that he was unaware of the provisions of the building regulations or that he was no worse in ignoring them than was every other person engaged in the building of a flat roof. Persons engaged in the building trade are expected to know the safety regulations which govern their activities in the employment of others; ignorance of the regulations, or a failure to follow them because nobody else follows them, is not a factor which may be taken into consideration in diminution of the fault attributable to a person who is bound to observe the regulations. In the present case there was not merely a breach of the statutory duty to provide the necessary safeguards but there was ample evidence from which the jury could find that the defendant was at fault.
It is true that the learned judge, in addressing the jury, used the term “legal fault” on a number of occasions without explaining the difference between it and causation, but on the other hand there is no point at which he did equate it to causation, at least to the jury, and in his closing remarks to the jury he used the term “blame.”Having regard to the fact that the defendant’s requisition to the judge was based solely upon the defendant’s apparent ignorance of the building regulations and the fact that he was only doing what others did, I am of opinion that the learned trial judge’s failure to explain more fully than he did the question of fault did not result in any injustice because these were factors which could not have been taken into account in the diminution of the defendant’s fault.
So far as the amount of fault attributed to the plaintiff is concerned, the jury might very well in this case have divided the fault equally but, in my view, the evidence is not coercive to the point where a reasonable jury could not attribute more of the fault to the defendant than to the plaintiff. There was ample evidence upon which the jury could have held that the plaintiff was, or ought to have been, as fully alive to the necessity for safeguards as the defendant but, in apportioning blame between the parties, the jury would be quite entitled to take into account that the plaintiff, by reason of his preoccupation with the particular work he was doing, might well overlook the immediate danger when it arose and that the defendant ought to have foreseen such an event. Therefore, in apportioning blame between the parties, a jury might reasonably comes to the conclusion that the defendant was really more to blame than the plaintiff; on such a view the apportionment of 60%, of the fault to the defendant and 40% to the plaintiff would be quite sustainable. In my view, therefore, the apportionment is not one which no reasonable jury could arrive at and there are no grounds for disturbing it.
I have already dealt with one ground of the plaintiff’s cross-appeal. The other more substantial ground of cross-appeal by the plaintiff was the ruling of the trial judge that on the evidence the jury could not find that the plaintiff was a servant rather than an independent contractor which was the reason why the judge refused to leave that question to the jury. I find it unnecessary to deal with this point because, in my view, it would not affect the outcome of this appeal. Upon the grounds I have already given, the plaintiff is entitled to hold the verdict on the liability and the apportionment of liability. Even if the jury had held that the plaintiff was a servant, he would have been a servant of such a skilled character as to put him, so far as the question of fault was concerned, in no different position from that of an independent contractor. I do not think that there was anything to suggest that the jury’s attribution of 40% of the fault to the plaintiff would in any way have been diminished by their finding that he was a servant rather than an independent contractor.
I turn now to deal with the question of damages. So far as damages are concerned, the appeal is taken only in respect of the general damages as I mentioned earlier in this judgment. Mr. Condon, on behalf of the defendant, has asked that if there should be a retrial on the question of damages it should be confined to this item. The result of the accident is that the plaintiff is now a paraplegic, being paralysed from a point a little above the waist downwards. He was aged 30 years at the date of the accident, which was the 18th August, 1965. He is married with one child. After the accident he was in a very critical condition for a long time and he spent some years in hospital before he was discharged, and since then he has been confined to a wheelchair. He will never again be able to walk or to have the ability to move his legs, save by manipulating them. His bladder and bowel movements are no longer controllable. He has had severe bed sores which required plastic surgery on his back in two operations, and similar sores on his heels. His sexual function has ceased. His expectation of life was reduced to 16 years from the date of the trial, that is to say, it should cease in approximately 1986; this means that he is not expected to live beyond the age of 50 or 51 years which is a very considerable shortening of the normal expectation of life. There can, of course, be no certainty about this and he may in fact live longer, but this period was agreed at the trial and the damages which are not subject to appeal (being those items relating to his pecuniary loss of future earnings, cost of medical treatment and similar pecuniary matters) were all calculated on that basis. It is really unnecessary to endeavour to paint any fuller picture of the type of life which this man might be expected to lead, and which he will now lead not merely with the knowledge of his present incapacity but also with the knowledge of his very diminished life expectancy. In effect then the sum of £35,000 has been awarded as compensation for the condition which he has had to endure and will have to endure for the period of 21 years from the date of injury to the probable date of death, and as compensation for a loss of expectation of life of approximately 20 years.
The considerations to be taken into account so far as the plaintiff’s life is concerned are fully set out in my judgment in Dohertyv. Bowaters Irish Wallboard Mills Ltd. 16 which was followed in Boles v. O’Connor (Supreme Court: 11th February, 1966). In Doherty’s Case 16 the injured person was in a condition of permanent quadraplegia and the amount of damages attributable to general damages was £34,500. In that case the plaintiff was 33 years old at the date of the accident and he had a life expectancy of 38 years, which was estimated to have been reduced by a quarter by the accident. It was held in that case that the sum of £34,500 was unreasonably high and the case was sent back for retrial on the issue of damages. The case was subsequently settled for an amount which would have attributed approximately £25,000 or £26,000 for general damages. In the case of Murray v. John Sisk and Son (Dublin) Ltd. 17 the plaintiff, who had become a paraplegic as a result of the accident, was 37 years old and the evidence was that his expectation of life had been reduced by about five years. A sum of approximately £17,000 was attributed to general damages and was upheld. In Boles v. O’Connor (Supreme Court: 11th February, 1966) the jury’s verdict of £64,000 was upheld in the case of a boy who was about 20 years old and had been spasticised by an accident and whose expectation of life was not appreciably diminished; of that total a sum of approximately £24,000 or £25,000 was attributed to general damages.
By those standards then the award for general damages in the present case would appear to be high. The present case is one of paraplegia and the period for which that condition has to be endured is approximately 21 years. On the other hand, unlike the other cases, this particular plaintiff has to live with the knowledge that his life has been very considerably shortened which itself must be a cause of considerable mental distressand a continuing and, perhaps, all increasing one as the years pass. In addition there has to be considered the question of what damages should be awarded in respect of the loss of expectation of life itself. When one has already made allowance for the mental distress which may be attributable to the knowledge of the loss of expectation of life, it is difficult to assess in terms of money what might reasonably be given as compensation for the actual loss of expectation of life. I am not aware of any case in this country where this matter has been considered or where damages have been attributable or attributed to this aspect of a case.
If one were to examine this case on the basis that there has been no reduction in the expectation of life but that the plaintiff would continue to be a paraplegic for the normal (or virtually the normal) expectation of life which he enjoyed prior to his accident, one should consider what sum for damages would be supportable in such a case. Murray’s Case 18 was decided in 1965 and Doherty’s Case 19 and Boles’s Case were decided in 1966. Allowing for the change in the value of money since then, I do not think the figure would exceed £25,000. I think it follows that a similar condition for 16 years instead of the normal expectation of life must attract smaller damages, though to some extent that diminution may have been compensated by what should be given for the knowledge of the loss of expectation of life and the consequent distress. On that basis, and assuming that no diminution of the £25,000 would actually come about, it would appear to leave about £10,000 in the present case for loss of expectation of life itself. In my view that sum is not sustainable. That may appear to be a somewhat unsympathetic approach but, however it may appear, the fact is that the loss of approximately 16 to 20 years of life is considerably less in value than having to endure 21 years as a paraplegic. Taken as a whole, I am of opinion that the figure of £35,000 in the present case is unreasonably high and, in my opinion, there ought to be a retrial on this issue of general damages.
FITZGERALD J. :
I agree, but I want to add that I was a member of the Court which decided that the roof was a working platform. I now have considerable doubt as to whether this was a good decision. In my opinion the sum of £35,000 is too high a figure for general damages.
Gahan v. Engineering Products Ltd.
O’DalaighC.J.
[1971] IR 32
Supreme Court
O’Dalaigh C.J. :
8 March
This appeal is brought by the defendants against the verdict of a jury in the plaintiff’s favour and the presiding judge’s judgment on foot thereof for £4,286 14s. 0d. against the defendants.
The jury apportioned 90% of the fault to the defendants and 10% to the plaintiff.
The plaintiff received an injury in the left eye on the 28th August, 1967, when he was working as a labourer in the defendants’ factory. The defendants manufacture steel tanks, and the plaintiff’s task, on the occasion of the accident, was to sweep up pieces of waste scrap on the factory floor. He was provided with a brush and a wheelbarrow, but he was not furnished with goggles or other protection for his eyes.
He described his accident in these words:
Answer 66: “I was after being sweeping scrap and putting it into the wheelbarrow, and I was just ready to wheel it out to the dump when something struck me in the eye. I don’t know what it was. I can’t remember after that.”
Answer 69: “I was just standing over the wheelbarrow, a little hit bent.”
Answer 71: “To lift it up.”
Question 109: “You told us then you were bending down when something struck you on the eye. What did you feel when your eye was struck?”
Answer: “I just felt the belt and that was all. Nothing else. It just went off then.”
Question 110: “My friend has raised the point. We might as well deal with it. Can you tell us was it some object that hit you?”
Answer: “I couldn’t tell you.”
In cross-examination the plaintiff repeated that he did not know what hit him and that the object could have come from anywhere. The operations being carried out in the factory were welding, drilling, and the making of pallets of wire mesh, and these were identified as possible sources of injuries.
Mr. Doyle, for the defendants, submitted that the plaintiff”has got to have a story,” and that the plaintiff had failed to show that any one of these three causes was more likely than another. The relevant question which was left by the trial judge to the jury, and which was answered by them in the affirmative, was “Was the plaintiff’s injury caused by a flying fragment?” Mr. Doyle, in my opinion, is not right in his insistence that a plaintiff “must have a story.” All that is required for a plaintiff to succeed is to establish facts from which an inference of negligence on the part of the defendant may be reasonably inferred. The observation of Lord Buckmaster in Jones v. Great Western Railway Co. 7 is in point:”It is a mistake to think that because an event is unseen its cause cannot be reasonably inferred.”
The plaintiff’s case consists not merely of his own story but also of the other matters proved in the case; and I am satisfied that in this instance the jury were entitled to draw the inference that the plaintiff was struck by a flying fragment arising out of the welding process rather than by anything arising from the drilling or (as was directly suggested in cross-examination) by the plaintiff being struck by mesh wire when bending down over the wheelbarrow or when crouching down over the floor to pick up pieces of this mesh wire.
Mr. Doyle’s own cross-examination of the plaintiff brought an admission that the drilling could be ruled out as a possible source of injury; the drilling machine was on the plaintiff’s right side and he was struck on the left eye. Next, as to the wire mesh. The plaintiff’s evidence rejected the possibility that he could have been hit by a piece of wire mesh which was in the wheelbarrow as he bent over it. At Question 572 the plaintiff said:”The things [that is to say the wire mesh or other waste] wouldn’t be that long to stretch up from the wheelbarrow.” The other suggestion with regard to wire mesh was that after the accident the plaintiff had said to the defendants’ foreman, Mr. Carroll, that he (the plaintiff) had been bending down under the bench to pick up scrap material when he felt something sharp in his eye. The plaintiff denied this conversation. Moreover, and this is of importance, the medical evidence was that the injury to the plaintiff’s eye was caused by a sharp metal object which was travelling at a high speed, and that the plaintiff could not have developed the required velocity by bending down unless he were to bend down very suddenly, and that he would then have to come down with full force or throw himself downunless the thing sprang up suddenly.
As we have seen, this evidence clearly left it open to the jury to hold as a reasonable inference that the more probable of the three sources of the injury was the welding process. Other evidence by one of the welders described how little bits of molten lead fly out during the welding process and he described how the slag or rough surface is chipped off with a hammer after the welding is completed and he said that, as this is being done, the slag breaks up like the black crust of a loaf of bread. I am satisfied that the evidence points to the welding process as being the most likely of the three sources of injury. I think that the jury’s finding that the plaintiff was struck by a flying fragment was well warranted.
It perhaps should be emphasised that the negligence alleged against the defendants was their failure to supply the plaintiff with goggleshaving regard to the conditions of danger prevailing in the factory. The circumstances of the accident are of course relevant: if it had been established that the plaintiff had been injured when bending down to pick up waste matter or while bending over the barrow, and not by a flying fragment, it may be doubted if any blame could attach to the defendants. But the jury being satisfied that the probable source of injury was a flying fragment, it mattered little in the circumstances of this case whether the fragment was thrown off in the welding process proper or in the course of the “slagging.” Equally these were dangers against which, in the jury’s view, precautions should have been taken.
The jury’s verdict on damages was made up as follows:
(a) Loss of earnings to date
£363
(b) Pain and suffering etc., to date
£1,200
(c) Pain and suffering etc., in the future
£3,200
———-
Total £4,763
———
The defendants’ complaint is confined to the award under item (c); the award under item (b) has been referred to merely for the purpose of pointing out that the total award for general damages was £4,400.
The plaintiff’s injury occurred on the 28th August, 1967, and the trial took place in February, 1970, shortly after the plaintiff attained full age. On examination of the plaintiff in hospital after the accident it was found that in the cornea of his left eye there was a perforating wound 5 mm. long, which damaged the lens 3 or 4 mm. behind the cornea. The lens, which is normally clear, was then opaque, and visual acuity was reduced to a mere ability to perceive light. On the 9th September an operation was performed to remove the opaque matter from within the capsule of the lens. The plaintiff was discharged from hospital on the 16th September, but he was re-admitted for a further operation on the 5th November for a short period. The result was that he was left with a vertical scar in the cornea, about 6 mm. in length, which interferes to some extent with his vision. First, the scar distorts things slightly; it scatters the rays of light as they enter the eye. Secondly, the plaintiff is now left without his own lens which means that the eye is out of focus and cannot alter its focus. His medical adviser recommended the fitting of a contact lens to replace the one he has lost. The contact lens is placed in front of the cornea and is in part covered by the upper lid. There is a certain amount of difficulty in inserting and removing the lens. There may also be difficulty in adapting or adjusting oneself to having a contact lens. Some people can wear it during the whole day with comfort, and others can only wear it for two or three hours; but the majority of people are able to adjust satisfactorily. The plaintiff’s ophthalmic surgeon, Dr. Blake, said that he would expect that the plaintiff would have very little pain left a few weeks after the accident.
At the trial it appeared that the plaintiff used the contact lens for a period of eight weeks only. He said that it did not help him because he was not used to it. He said that it did not improve his vision and that it came down around his eye and made the eye bloodshot and sore. He complained of headaches, and strain, and glare from strong light, whether it was sunlight or artificial light. He lost the contact lens in March, 1968, and he had not got one since then because, as he said, he could not afford it. Dr. Blake said that if the plaintiff persevered with the contact lens he would expect that the plaintiff would get over the difficulty he formerly experienced, but that he would have a little bit of trouble always; having a contact lens is never a perfectly simple matter. Dr. Blake further pointed out that a contact lens is focused to a fixed distance, and that beyond and short of such distance it is out of focus. At the fixed distance the lens restores vision to about 85% of normal The plaintiff was back at labouring work, which he was able to do, at the date of the trial; but in the opinion of Dr. Blake any work which would expose the right eye to risk should be avoided, and that included working where there was machinery because of nervousness, or working on heights or where there might be flying particles. To this extent the plaintiff’s range of choice of labouring work is limited, but under this head no claim for future loss of wages was put forward in the pleadings or at the trial. The plaintiff, as a consequence of the injury, is subject to the risk of detachment of the retina. Dr. Blake described the risk as a small risk but a definite one, and he estimated the degree of risk at 5%. It should also be mentioned that if the plaintiff does not persevere with the contact lens there is a certain risk that the injured eye will in time diverge and (as it was put by Dr. Blake) “may wander out”; if it should diverge significantly it would be disfiguring.
The defendants summarised their criticism of the award of £3,200 for future pain and suffering and for loss of amenity by saying that it was more appropriate to the case of total loss of the eye, and that in fact in this case the plaintiff was immeasurably better off than someone who had suffered a total loss of the eye. The plaintiff’s counsel, in supporting the award, submitted that in some ways the plaintiff was worse off than someone who had suffered a total loss of the eye. He has some irritation and soreness, and he suffers periodic headaches. In addition to general loss of amenity it was submitted that the jury could properly take into account, in terms of compensation, the delay he may well encounter in finding a new job because of the more limited field of employment now open to him.
In my opinion the jury could not approach the assessment of the plaintiff’s damages under item (c) on the basis that he was to be equated with a workman who had lost an eye. The plaintiff’s disabilities and his loss of amenity of life are not to be minimised; but they fall a deal short of total loss. The trial judge properly told the jury they might have regard to the worry the plaintiff might undergo because his work opportunities are lessened, but nothing in the evidence or the course of the trial would justify allowing, as an element in the damages, a sum for loss of wages in respect of periods of unemployment between jobs. Such a case could arise; but it is not this case. In my opinion, after the best consideration I have been able to give the matter, I have come to the conclusion that the jury’s award of £3,200 under item (c) bears no reasonable proportion to the injury suffered by the plaintiff under this heading, and that it is so excessive as to call for the Court’s intervention and to require re-assessment.
At the conclusion of the argument, enquiry was made of counsel as to whether, in the event of the damages being considered excessive, the parties were agreeable to this Court re-assessing the damages in lieu of ordering a re-trial. Agreement has not been forthcoming. The parties were reminded that, independent of the agreement of the parties, the Court has jurisdiction to exercise that function. The jurisdiction is expressly conferred8 by s. 96 of the Courts of Justice Act, 1924. In my opinion in the circumstances of this case the Court should exercise the power, as the costs of a re-trial on the matter comprised under this heading of the damages would be disproportionate to the amount involved, that is to say, the difference between the sum which has been awarded and a sum which would be sustainable on the evidence. As I understand my colleagues agree with this course, I would substitute the sum of £2,000 for the sum of £3,200 under item (c) and I would adjust the jury’s finding and the judgment of the High Court on apportionment accordingly. I would dismiss the defendants’ appeal on liability, and allow the appeal on damages.
WALSH J. :
I agree.
MCLOUGHLIN J. :
I also agree.
Cantillon v Collins
Supreme Court
6 March 1968
[1970] 104 I.L.T.R 1
Walsh, Budd, Fitzgerald JJ.
January 17, 18, 19, March 6, 1968
Walsh J.:
This appeal is brought against the verdict of a jury given in the High Court in the plaintiff’s action for damages for personal injuries against the defendant. The jury found that each party was negligent and apportioned the degrees of fault in percentages between the defendant and plaintiff as to 80 per cent to the defendant and 20 per cent to the plaintiff. The jury awarded £5,600 damages and upon the findings of the jury on the degrees of fault the learned trial judge gave judgment for the plaintiff in the sum of £4,480. The defendant has appealed on the grounds (a) that the verdict of negligence against the defendant was unsupported by evidence; (b) that the apportionment of the degrees of *1 fault apportioning 80 per cent to the defendant was perverse, was unsupported by the evidence and against the weight of the evidence; (c) that the trial judge failed to direct the attention of the jury to the provisions of section 34(1)(a) of the Civil Liability Act, 1961, in relation to the question of equal apportionment of fault and (d) that the jury failed to have regard to the same provisions.
The details of the evidence in the case are so fully set out in the judgments which will be read by my learned colleagues that it is unnecessary for me to set them out. It is sufficient to say that the action arose out of a collision between a motor car driven by the defendant and a motor car driven by the plaintiff on or about the apex of a dangerous bridge on the public highway near Horse and Jockey in the County Tipperary. On both approaches there was a white line down the centre of the highway. At the trial the plaintiff alleged that the accident was solely due to the defendant travelling at a high speed astride the white line. The defendant denied this and on the contrary alleged that the accident was due to the plaintiff travelling at an excessive speed which must have brought him, the plaintiff, over the white line into collision with the defendant. The run of the case, which is indicated by the judge’s charge to the jury and his summing up of the respective cases of the parties and of the evidence, indicates that the issues left to the jury for determination were whether either or both of the parties had crossed the white line.
An examination of the evidence discloses material which could have supported a case that the accident was due to negligence on the part of each of them and which would have involved only the defendant having crossed the white line. This will be elaborated by Mr. Justice FitzGerald in the course of his judgment. However, that case, which could have been sustained on the evidence and which, if it had been made, could justify the findings and apportionment of the jury, was not the case left to the jury. In this connection I think it desirable to refer to and re-emphasise the opinion expressed in the judgment in O’Leary v. O’Connell to the effect that the function of the jury is to decide only the issues of fact which are left to them for decision and that where these comprise several acts of negligence alleged against either or both of the parties and supported by evidence the jury should be asked for a specific answer to each such specific act of negligence alleged. Without this it is virtually impossible on an appeal to question an apportionment of degrees of fault between the parties since one cannot say whether the apportionment may have been based upon several findings of acts of negligence or of only one act of negligence against either or both of the parties. In the present case it is impossible to say what was the actual finding of negligence which the jury made against the plaintiff but in my view, having regard to the run of the case, it would not have been proper for the jury to make any finding of negligence against the plaintiff unless it was a finding to the effect that the plaintiff had crossed the white line. For the purposes of appeal, therefore, one must assume that that is the basis of the finding which the jury made. Similarly the finding of negligence against the defendant must also be based upon the jury having been satisfied that the defendant did cross the white line. In those circumstances an apportionment of 80 per cent and 20 per cent is so unreasonably disproportionate that it cannot be allowed to stand. Having regard to the course of the case, if the jury had apportioned 100 per cent of the fault to the defendant and none to the plaintiff, the defendant could not be heard to complain upon that score as it was clearly open to the jury upon the evidence to find that the defendant had crossed the white line and that the plaintiff had not. The fact that the plaintiff may have been guilty of other negligence causing the accident would not avail the defendant anything if he does not make that case. If a defendant should refrain from making a particular case of negligence against a plaintiff lest it embarrass his own main line of defence the jury must only make a finding in respect of the case which is actually made against that plaintiff.
For the reasons I have stated I am of opinion that there must be a new trial on the issue of liability because of the unreasonable disproportion of the degrees of fault attributed to the parties and there should, therefore, be a retrial on the whole question of liability.
With regard to the ground of appeal which claimed that the damages awarded by the jury were excessive I agree with the judgment on that point which is about to be delivered by Mr. Justice FitzGerald and for the reasons to be stated by him I think this ground of appeal fails. *2
Budd J.:
These proceedings arise out of a collision which took place between two motor cars on or immediately adjacent to a hump-back bridge near to Horse and Jockey in the County of Tipperary on the 28th April, 1965, at about 7:30 a.m. in the morning. The plaintiff was driving his son-in-law’s motor car, a red Vauxhall, and was travelling from Cork to Dublin. The defendant was driving his own car, a white Mercedes, and was travelling from Dublin intending to go to Cork. The plaintiff had in the car with him his son-in-law, Mr. Heneghan, who was sitting beside him, and his wife and daughter who were sitting in the back of the car. The defendant was by himself. As a result of the collision the plaintiff sustained serious injuries.
The bridge in question was a dangerous one for motorists. It is well above the road level on either side of it and the road on each side slopes up to the bridge. On the Cork side the road rises for about ninety yards, the average gradient being 1 in 16. On the Dublin side the road also rises for about ninety yards and the average gradient is 1 in 17. The bridge at the apex of the two gradients is some forty-four feet in length with parapet walls on either side, four feet six inches high. At the Cork end of the bridge the travelling surface of the highway is sixteen feet nine inches in width and there is a grass margin on the left hand side as you approach from Cork five feet wide which tapers off to a width of two feet six inches at the Dublin end of the parapet. As one approaches from Dublin the travelling surface of the road at the end of the bridge is seventeen feet two inches wide and on the left hand side there is a grass margin of five feet six inches tapering off to three feet five inches at the Cork end of the parapet. There was at the time of the accident a faded but solid white line running from the bottom of the slope on one side across the bridge and down the slope at the other side which divided the road more or less in the centre.
The bridge was described as being of a dog’s leg type. The approach to the bridge on either side was such that an approaching vehicle would go right at first and then swing slightly left to negotiate the bridge successfully and there was evidence to the effect that because of the nature of the bridge a motor car entering it at either side at anything over fifteen miles an hour would swing over the white line.
Taking the evidence as a whole and the measurements given it would appear that the collision must have taken place at a point either between the ends of the two parapet walls on the Dublin side of the bridge or a little further on on the Dublin side of the end of the bridge. The cars appear to have collided right front lamp to right front lamp but there was considerable damage extending across the front of the car driven by the plaintiff and as to how this came about was not satisfactorily explained.
After the collision both cars were on their proper side of the road. The car driven by the plaintiff faced the white line and was in a position more or less perpendicular to the grass margin on his own side of the road. The defendant’s car was in a position diagonally across the defendant’s proper side of the road with the back left wheel close in on its own side and the right front wheel some ten and a half inches from the white line.
The plaintiff gave this account of the collision. He was travelling at about thirty miles an hour as he was starting up the slope but slowed down to between twenty and twenty-five miles an hour as he approached the apex of the bridge. He said that he was on the proper side of the road. When he was going over the brow of the bridge he was on his left hand side and he saw the defendant’s car when it was about ten or twelve yards away and it was then about a foot over the white line on his, the plaintiff’s, side. He could see the tarmacadam between the wheel and the white line. He went for his brakes; he could not swerve. He shot out and went back against the seat and the next thing he got hit.
His passenger, Mr. Heneghan, said that he saw the defendant’s car some one hundred and twenty yards away and that it was then over the white line but on all the evidence it would appear that he must have been mistaken in this as it was not physically possible to see the car at that distance. He did, however, also say that the defendant was over the white line right up to the time of the collision.
The defendant’s account of the collision was in brief this. As he moved up the surface of the bridge he got the momentary impression of what he took to be the roof of a red car. He was then on his own side of the road travelling at between fifteen and seventeen m.p.h. He was on the incline of the bridge itself but never got to the apex. *3 After the flash impression of the roof of the car, the car itself came into sight and his impression was that it bounced to the right and it crashed into him and drove him slightly backwards. The plaintiff’s counsel did not challenge a Garda witness’s description of the car as being after the accident with the right front wheel approximately ten and a half inches from the white line on its proper side of the road. The defendant did not expressly state that the car driven by the plaintiff was on its incorrect side of the road but this was implicit in his evidence that he himself never left his own side of the road.
The jury found both the defendant and the plaintiff negligent and apportioned the degrees of fault in percentages between them as to 80 per cent against the defendant and as to 20 per cent against the plaintiff. They assessed damages at £5,600. On these findings the judge gave judgment for the plaintiff for the sum of £4,480 and costs.
The defendant appeals to this Court on the grounds that the finding of the jury that the defendant was negligent was unsupported by evidence and that the finding of the jury apportioning 80 per cent of the blame on the defendant was perverse and unsupported by evidence. The defendant further relied on the fact that the trial judge had failed to direct the attention of the jury to the provisions of section 34 (1)(a) of the Civil Liability Act, 1961, that if it is not possible to establish different degrees of fault the liability should be apportioned equally and that the jury had failed to have regard to these provisions. A further ground of appeal was that the damages were excessive.
The main contention of the appellant’s counsel was that in the Court below the case had been fought out on the issue as to which party had driven his car in such a fashion that it crossed the white line and put him on the wrong side of the road. That being the real issue in the case the jury had come back with a verdict finding both parties guilty of negligence. On the run of the case that could only have meant that both parties were at fault with regard to their position on the road at the time of the collision and that being so the apportionment of the blame of 80 per cent against the defendant and 20 per cent against the plaintiff was inexplicable on any rational basis. There were thus no grounds for attributing 80 per cent of the blame to the defendant. The contention of the respondent’s counsel in reply to this argument was this. In the first place it was submitted that the jury was perfectly entitled to find that the defendant’s motor car was over the white line having regard to the plaintiff’s evidence that he saw the right front wheel of the defendant’s car in such position that he could see the tarmacadam between the wheel and the white line. With regard to the attribution of blame in the proportion of 80 per cent against the defendant and 20 per cent against the plaintiff the contention was that the jury could properly have arrived at that verdict if they had taken the view that the plaintiff was on his proper side of the road but nevertheless was blameworthy to some extent in that he should have seen that the appellant was over the white line and should then have taken avoiding action by moving over more to his left or, in the alternative, that the plaintiff was negligent to some extent in that having regard to the nature of this bridge he was travelling at such a speed as put it out of his power to enable him to move away from what was in the circumstances a collision course. If the jury took either view it was said that they could in that state of affairs reasonably find the respondent guilty of a degree of fault assessable at 20 per cent. Appellant counsel’s answer to this contention was that this was not a tenable proposition. The only case made by the appellant against the respondent was that the respondent was over the white line and the case was tried on that issue and it was the issue put by the trial judge to the jury. The jury was not entitled to depart from that issue and on some roving speculation of their own to find the respondent guilty of some act of negligence not in issue, the nature of which was now a matter of mere speculation.
A reasonable assessment of the evidence given at the trial and the run of the case generally leads to the conclusion that the trial was conducted on the basis that the driver of whichever car was over the white line was at fault. It is quite true to say that speed came into the matter but, if it did, it came into the case as ancillary to the main issue in this way, that it was alleged that the speed at which the respondent entered this bridge with its particular configuration referred to as a dog’s leg was such that it would be bound to put him over the white line. That is the way that speed came into it and not as a basis for suggesting some different act of negligence, such as, that it was too great to enable avoiding action to be *4 taken or such as would put him on or prevent him from avoiding a collision course.
In addition to what appears on the transcript of the evidence the judge’s charge makes it abundantly clear what the issue was that the jury had to try. Having reminded the jury that he had said that if they came to the conclusion that one or other car was coming across the bridge at a speed even moderate and did in fact drive across the bridge on its incorrect side they would be justified in holding the act of the driver of that car negligent, he sums up the position in this way: “Clearly”, he says, “had each car stayed on its own side of the road there would not have been an accident—on its own side of the white line—there would not have been an accident. The fact that there was an accident means that one car or the other or both was over the white line.” He makes no reference whatsoever at that stage, very nearly at the end of his charge, to any separate act of negligence based on the speed of the respondent which the jury ought to consider in arriving at their verdict. He deals at other points in his charge with this matter of crossing the white line stressing the matter in such words as “it is clearly the height of folly for anybody to cross the white line” on a narrow hump-backed bridge skewed like this bridge was. Where he refers to matters of speed his references are not to any separate act of negligence distinct from that of crossing over the white line but as a matter to consider in deciding whether the white line had been crossed or not. For example, he says at one part of his charge “And it is suggested that because at the very apex of the bridge that a driver has to correct what had been a right hand swerve into a left hand swerve, that he would almost inevitably at twenty-five or thirty miles an hour be dragged across the white line on to his incorrect side.”
There can be no doubt that the issue put before the jury was whether one or other or both parties had been negligent in crossing the white line or, put in another way, in being on the wrong side of the road. On the run of the case and having regard to the nature of the judge’s charge the proper prima facie deduction is that the jury must have considered the facts and arrived at their verdict on the basis that the issue they had to try was whether either or both of the parties were over the white line and what would then have to be considered is as to whether or not the apportionment could be sustained on that basis. It is, however suggested that although the matter was never debated before them the jury was entitled to take into consideration one or other or both of these two suggestions of separate acts of negligence based on speed which, be it observed, could only become relevant in the jury’s deliberation if they took the view that the respondent had not in fact crossed the white line. If the jury had found that the respondent had crossed the white line then he was guilty of the same kind of negligence as that attributed to the appellant and the fact that his speed caused him to cross the white line became irrelevant.
One very strong objection to accepting this course of treating the matter of speed with the two attendant results as constituting separate acts of negligence as either a proper or possible one for the jury to adopt is that in fact the possibility of their taking these matters into consideration in that particular way was never put to them by the learned judge. Furthermore the jury’s attention was not specifically called to the portions of the evidence which they should consider in relation to these particular allegations, nor did the judge give them any instruction as to how they should approach a consideration of these allegations as separate acts of negligence or as to how they might regard them from the point of view of apportioning the degrees of fault. One of these two allegations of negligence involved some consideration of matter of law of the type dealt with in British Columbia Electric Railway Co. Ltd. v. Loach [1916] 1 A.C. 719, namely, that a person may deprive himself of the opportunity of avoiding an accident by his previous conduct as for example travelling at such a speed that he was unable in the circumstances to take avoiding action or to avoid keeping on a collision course. Some guidance on this matter would have been called for if the jury were to consider in a proper fashion these two allegations of negligence on which it is now suggested they might have come to a finding as against the respondent. I should add that in my view the judge was perfectly right in not dealing with these matters on the run of the case. I have also to remark that a great deal of the time which this appeal took to hear was taken up in what amounted to a speculation as to what lines the jury might have gone on in arriving at the verdict which they did.
In my view this Court should be exceedingly cautious before it arrives at any *5 assumption that a jury arrived at any particular conclusion unless there is some reasonable ground for supposing they did take some particular view of the facts based on the run of the case and on the judge’s charge. More particularly is this so when it has been demonstrated that what they did find on the facts is very much a matter of speculation. It would seem that this Court is in reality being asked to support a verdict on the basis of a speculation that the jury might have gone off on a roving enquiry of their own on these two matters relative to speed not argued at the trial and on which they had received no instruction from the learned trial judge. In my view the circumstances do not support the suggestion that the jury arrived at its verdict in the fashion alleged nor indeed in all the circumstances would it be proper for them to do so. The deduction which I have already stated as being the prima facie correct one stands, namely, that the jury in arriving at their verdict must have come to the conclusion that both parties were at fault in being over the white line. On that basis there is no rational reason for dividing the degrees of fault, 80% against the appellant and 20% against the respondent. Even if one party was found to have been more over the white line than the other that would not justify the apportionment arrived at. As in my view the apportionment of degrees of fault cannot be justified I would allow this appeal on the issue of liability and order a new trial on the whole question of liability.
With regard to the appeal on damages I agree with the judgment which is about to be delivered by Mr. Justice FitzGerald on that matter and for the reasons to be stated by him would disallow the appeal on this issue.
FitzGerald J.:
This action arises out of an accident which happened at about 7:30 a.m. on the 28th April, 1965, at Horse and Jockey on the main road between Dublin and Cork. The plaintiff, who is a bakery proprietor by occupation aged about 51 years, was driving his son-in-law’s car in the Dublin direction when it was in collision with a car driven and owned by the defendant who was travelling in the opposite direction. The plaintiff was driving a Vauxhall Viva, the defendant driving a Mercedes 180. The collision occurred near the apex of a bridge which carried the road over the railway line at Horse and Jockey. The road was narrow, being only about seventeen feet in width between the parapets of the bridge. Approach to the apex of the bridge on both sides was by an incline having a gradient of about 1 in 16 for a distance of some ninety-five yards. On both approaches there was a white line approximately in the centre of the roadway. Each approach had grass margins of some three or four feet and was bounded on either side by stone walls. The road across the apex of the bridge was not straight. On the approach from either side the road veers slightly to the right and then to the left.
The evidence of the plaintiff and his son-in-law, Mr. Heneghan, who was a passenger in the Vauxhall, and of the defendant and the position of the cars after the accident establishes beyond doubt that the collision occurred on the Dublin side of the apex of the bridge.
The plaintiff sustained serious personal injuries and brought this action for damages in respect of them. The action was tried on the 25th, 26th and 27 April, 1967, by Mr. Justice Butler and a jury. The jury found both parties negligent, apportioned liability as to 80% against the defendant and 20% against the plaintiff and assessed damages at the sum of £5,600.
The defendant has appealed against the verdict and judgment contending that the finding of negligence against him was unsupported by the evidence and against the evidence, that the apportionment of 80% of the blame against him was unsupported by the evidence and was perverse and that the damages were excessive.
The plaintiff and Mr. Heneghan gave evidence that they saw the defendant’s car coming towards the apex of the bridge with its right front wheel to the incorrect side of the white line and could see the surface of the road between the white line and the tyre of the car. If this evidence is correct the defendant’s car must have been at least a foot across the line. The plaintiff’s evidence was to the effect that he came to the apex of the bridge on his correct side of the white line travelling at about twenty or twenty-five miles per hour and saw the defendant’s car at a distance of about ten yards. Heneghan gave evidence that from the apex of the bridge he saw the Mercedes travelling fast as it was coming to the commencement of the incline to the bridge, that is some ninety-five yards from the apex. This portion of his evidence is clearly unacceptable as on this *6 basis the collision would have occurred some considerable distance on the Dublin side of the apex whereas in fact it happened between the parapets of the bridge, that is within some twenty feet of the top. In my opinion the jury could not reasonably accept Mr. Heneghan’s evidence as to his having seen the defendant’s car at the distance he describes. The defendant gave evidence that he approached the apex of the bridge driving on his correct side of the white line at about fifteen to seventeen miles per hour. He said that approaching the apex he got a momentary impression of the roof of a red car and then saw the car itself and then got the impression that it bounced to the right and was going to bounce on top of the bonnet of his car and that the collision then occurred. He does not say that he ever saw the Vauxhall on its incorrect side of the white line but this is a necessary inference if Collins’s evidence as to his own car’s position on the road is to be accepted. If both cars kept to their proper side of the white line there would have been no collision.
At the trial the issue of liability was contested on the basis that each side blamed the other for driving on the incorrect side of the white line. It was clearly open to the jury to accept one story or the other and find either party wholly responsible. It was equally open to them to find that both cars crossed the white line and find both drivers to blame on this basis. In this event they would presumably have apportioned blame equally or nearly equally between the drivers.
The defendant contends that the jury’s finding of negligence against the plaintiff can mean only that they found he had crossed the white line and that consequently they should have found him wholly to blame for the accident and acquitted the defendant or alternatively should have found both parties equally to blame. He contends that a finding of only 20% of the fault against the plaintiff is perverse once the jury found him to have driven on the incorrect side of the white line.
In my opinion the jury were entitled to accept the evidence of the plaintiff and Mr. Heneghan that the Mercedes was driven with its right front wheel on the wrong side of the line, while rejecting Heneghan’s evidence as to its speed and the distance at which he first he first saw it. On this evidence they would be justified in convicting the defendant of negligence. I see no other basis of negligence laid against Collins and in my view the verdict does mean that they held he drove on the wrong side of the white line. The real issue is whether the finding against the plaintiff necessarily means that the jury held that he also drove across the white line. If it does a verdict against him of only 20% of fault cannot stand.
Collins did not say that he saw the plaintiff’s car across the line. He did say it bounced to the right and the case was made for him at the trial that this was caused by the plaintiff taking the apex of the bridge too fast and failing to negotiate the turn to the left on the apex. In my view the jury were entitled to hold that the plaintiff’s car did not cross the white line but that his speed and failure to steer his car to the left caused the car to move to its right from a course which would have kept it clear of the Medcedes into the path of the Mercedes although still on the plaintiff’s correct side of the line. On this basis a finding of negligence against the plaintiff would be justified and an apportionment of 20% of the blame reasonable. Consequently in my view the verdict on liability and apportionment is sustainable and the appeal fails.
On the issue of damages it appears that the apecial damage was agreed at a sum of £531 odd. Assuming the jury took the figure at £600 it leaves £5,000 for general damages. The plaintiff sustained an incapacitating injury to his back, was away from his work for some months, and now has a condition in his sacroiliac joint which may give rise to trouble in the future. Having regard to his age and occupation the jury might well think that quite apart from pain and discomfort the disability might well affect his working capacity in years to come. While I consider the verdict generous I do not consider it to be so disproportionate to the injuries sustained as to justify its being rejected by this Court. I would dismiss the appeal on this issue also.
Maura O’Sullivan v Denis Mellerick
Supreme Court
18 May 1965
[1970] 104 I.L.T.R 8
O’Daly C.J., Lavery, Haugh JJ.
May 14, 18, 1965
Negligence — Personal injuries — Damages — Apportionment of blame — Guiding principle of appellate Court—Amount of damages—Whether excessive—Whether so excessive as to be unreasonable.
The plaintiff was riding her autocycle at a cross roads in Co. Cork and was emerging from the southern arm of the cross intending to turn right into the eastern arm. The defendant was travelling along the eastern arm intending to continue straight on. The plaintiff stated that she stopped at the cross looked to her right then “waded” over the cross to the left of the eastern arm of the cross. She then saw the defendant’s car about two hundred yards away approaching at a fast speed on its wrong side. She put her autocycle in gear and had gone approximately twenty yards when she was hit by the defendant’s car and carried back for a distance of ten yards and fell with her cycle on the grass margin. The defendant stated that he was travelling at approximately 45 m.p.h. approaching the cross and eased his speed a little. The plaintiff emerged suddenly across his path without warning her cycle moving under its own power. He braked and swerved to the right and struck her cycle broadside on. The marks on the road indicated that the defendant was five feet from his left side on a twelve foot wide road and he left a brake mark of some forty-eight feet. It also showed that the accident took place in the mouth of the cross and before the plaintiff had straightened up. The jury found both parties negligent and apportioned fault as to 70% on the part of the defendant and 30% on the part of the plaintiff and awarded damages totalling £4,525. The plaintiff was a domestic servant carning £2 per week and being supplied with her meals valued at £2 per week. Her loss of wages to the date of the trial would amount to under £300. Her right femur was fractured and she was four weeks in hospital, four months on crutches and approximately another five months on sticks. She was left with a slight limp and restriction of the movement of her right knee. The defendant appealed on the grounds that the apportionment of blame was wholly unreasonable and that the damages were excessive.
Held: (O’Daly C.J., Lavery and Haugh JJ.)
1. On the evidence a jury could apportion blame equally between the plaintiff and the defendant but could not apportion the major part of the blame to the defendant.
2. The damages awarded by the jury admitted of no other view than that they were excessive.
A new trial was ordered on both the apportionment of fault and the amount of the damages.
Appeal from the High Court.
The trial of this action took place before Mr. Justice McLoughlin sitting in Cork and a jury. The jury assessed damages generally at £4,500 and to property at £25 making a total award of £4,525. On those findings and on the apportionment, as found by the jury, the trial Judge gave judgment for the plaintiff for £3,167.10.0d with costs. From those findings the defendant appealed. The grounds of his appeal were as follows:—
1. That there was no evidence of negligence against the defendant appellant.
2. That the evidence did not justify the finding of the jury that the defendant appellant was negligent.
3. That on the evidence the jury ought to have apportioned the blame on the plaintiff respondent to the extent of a hundred per cent.
4. That the evidence did not justify the jury in apportioning seventy per cent blame on the defendant appellant and thirty per cent blame on the plaintiff respondent.
5. That the finding of the jury apportioning seventy per cent blame on the defendant appellant and thirty per cent blame on the plaintiff respondent was contrary to the evidence to the weight of the evidence and was perverse.
6. That the evidence did not justify an award of £4,525 damages to the plaintiff respondent.
7. That the said award of £4,525 damages by the jury to the plaintiff respondent was excessive and was perverse. *8
Representation
W. O’B. Fitzgerald, S.C., T. K. Liston, S.C., and R. Sutton for the defendant appellant.
J. Gleeson, S.C., H. E. Wellwood, S.C., and S. Brosnan for the plaintiff respondent.
Cur. adv. vult.
O’Daly C.J.:
These proceedings arose out of a collision between the plaintiff, who was riding an autocycle, and the defendant’s. Austin Cambridge car at a cross known as Kenny’s Cross some three miles east of Fermoy.
The cross is not a true cross in the sense that the northern arm is a mere dirt track, but the other three arms are well surfaced, “tarmacadamed”.
The plaintiff was emerging from the southern arm of the cross, the Castlelyons Road, and intended to turn right into the eastern arm which leads to the village of Conna. The defendant was travelling along this eastern arm, the Conna Road, intending to continue straight over the cross to the western arm in the direction of Fermoy.
The Castlelyons Road comes up in a steep incline of 1 in 15 to 1 in 12 to the cross, and the junction which it makes with the Conna Road is blind.
The Castlelyons Road is seventeen and a half feet in width broadening at the mouth of the cross to twenty-five feet or more. The Conna Road is twelve feet in width, broadening at the mouth of the cross to about fifteen feet and having a grass margin on either side. The plaintiff and defendant gave conflicting accounts of how the accident happened.
The plaintiff said she stopped when she came to the cross, put her autocycle out of gear, looked to her right, saw no traffic approaching, put her left foot to the ground and with her right foot waded over the cross to the left of the Conna Road, saw the defendant’s car approaching at a fast speed two hundred yards away on its wrong side, put her cycle in first gear, and gone twenty yards when she was hit by the defendant’s car and carried back ten yards, and fell with her cycle on the grass margin.
The defendant’s account is: that he was travelling at 45 m.p.h. as he approached the cross, which he appreciated was a dangerous one; that he eased his speed a little; that he cannot say he blew his horn; that the plaintiff emerged suddenly across his path without warning, her cycle moving under its own power; that he braked and swerved to the right; that he struck her cycle broadside; that when he pulled up, the plaintiff was so close to the offside of his car that he could speak to her from the open window of the car at the driver’s seat.
There has to be added to the accounts of the protagonists the physical evidence of the accident observed by the Garda Sergeant who came on the scene shortly afterwards.
The right front lamp of the defendant’s car was in collision with the petrol tank of the plaintiff’s autocycle and there was no damage to either front wheel or handlebars of the plaintiff’s autocycle. There were parallel brake marks of the defendant’s car, the right hand mark measuring forty-eight feet and the left thirty-nine feet, commencing together about forty-eight feet back from the mouth of the cross, the near-side mark being about five feet from the left margin of the road. Then after a gap of some eight or nine feet there was a single brake mark of seven or eight feet veering to the right in the direction of the hedge at the north-western apex of the cross. The plaintiff’s motorbike stood against the hedge at the north-eastern apex of the cross. There was a quantity of splintered glass on the road from the headlamp of the defendant’s car. These fragments were scattered widely on the centre of the road and extended not further than five feet up the Conna Road.
The jury assessed the defendant’s fault at 70 per cent and the plaintiff’s at 30 per cent. The first part of this appeal is an appeal by the defendant against this assessment as being wholly unreasonable.
The defendant’s submission is that the physical evidence of the collision made it impossible for the jury to accept the plaintiff’s account of the accident. It is demonstrated, it is said, that she was not struck when she was twenty yards up the Conna Road but that the collision occurred while she was still almost on the cross and very nearly broadside to the defendant’s car.
Plaintiff’s counsel agrees that if the jury had accepted the plaintiff’s account of the accident then necessarily they must have made a finding of 100 per cent fault on the defendant’s part. Their apportionment involves a finding of some negligence on her *9 part, and, it is submitted, a rejection in part also of the defendant’s account.
This Court in Donoghue v. Burke & Shaughnessy [1960] I.R. 314 laid it down that an appellate court, when it accepts the finding of fact of the court below and its conclusion that both parties have been negligent should not, in the absence of gross disproportion having regard to the undisputed facts reverse the distribution of blame save in very exceptional cases.
In my opinion there is such a gross disproportion shown to exist here having regard to the undisputed physical facts of the accident. I agree with plaintiff’s counsel that the jury formed, and were entitled to form, a picture of this accident intermediate between the accounts furnished to them by the parties; but I nevertheless think that the jury could not, consistent with the physical evidence, form a picture of the accident which would apportion the greater share of blame to the defendant. I would not be disposed to set aside a verdict which measured the fault of the parties equally. The damage to the vehicles, the brake marks of the defendant’s car and, most significant of all, the position on the roadway of the splintered glass from the defendant’s headlamp left a jury no option but to site the collision in the mouth of the cross and before the plaintiff had straightened up. In these circumstances while a jury could apportion blame equally it could not in my opinion allocate the major share of fault to the defendant. For this reason the case must in my opinion go for a retrial.
The defendant has also appealed against the jury’s award of damages as being excessive. The jury’s award was £4,500. The trial took place sixteen months after the accident. The plaintiff was a domestic servant earning £2.0.0. and being supplied with her meals valued at £2 per week. Her loss of wages to the date of trial would amount to under £300. She suffered a fracture of the right femur, was 4 weeks in hospital, 4 months on crutches discarded for sticks which were not abandoned until 9 months after the accident. At the date of the trial her condition was static and not likely to show any improvement. She then walked with a limp, having a shortening of half an inch of the limb, and could not bend her knee beyond a right angle with, as a consequence, difficulty in kneeling or mounting a stairs.
In my opinion the jury’s award of a net £4,000 was excessive for the injuries stated and for the consequent pain, suffering, disability and loss of amenity, accepting that the plaintiff’s earning power would be somewhat diminished.
In holding an award of damages to be excessive the criterion to be applied is, in part, subjective. The basic factor is one’s own estimate of the damages; and, then, comparing this estimate with the jury’s assessment, one has to say whether the jury’s figure is so disproportionate to the circumstances of the case as to admit of no other view than that the damages are excessive. It is my judgment that the damages awarded here are such.
Lavery J.:
I agree that the verdict in this case must be set aside and the action sent for a new trial.
I am satisfied that while the jury were entitled to find that both the plaintiff and the defendant were negligent that the apportionment of fault of 70 per cent to the defendant and 30 per cent to the plaintiff was on the evidence unreasonable to a degree requiring this Court to set this finding aside.
The function of this Court on an issue of this kind is explained in Donoghue v. Burke and Shaughnessy [1960] I.R. 314 and again in Murphy v. Cronin 102 I.L.T.R. 57, [1966] I.R. 699.
Neither of these decisions of this Court were opened or discussed in argument.
It would be useless to restate the principle which is to be found in the judgments in these cases.
In Murphy v. Cronin I was of opinion for reasons which I explained that the verdict of the jury in apportioning fault 60 per cent to the defendant and 40 per cent to the deceased husband of the plaintiff should not be disturbed.
The other four members of the Court were of opinion that it should be set aside as wholly unreasonable and a new trial was therefore directed.
There was, however, no difference in principle. The facts of that case have a degree of similarity to those of the present case. *10 They are far from being identical and apart from the rating 70-30 here as contrasted with 60-40 in Murphy’s Case. I am of opinion that the plaintiff here is in worse case than was the deceased in Murphy v. Cronin.
I agree therefore that the verdict must be set aside and while the finding that both parties were negligent can be supported it seems to me that the proper course is to send the whole action for retrial.
Without hesitation, I agree that the damages are excessive to a degree requiring this Court to set the verdict for £3,167.10.0 aside and to direct a new trial on this issue also.
Haugh J.:
I agree that the appeal should be allowed on both grounds.