Contributory Negligence
Cases
Carroll v. Clare County Council
[1975] IR 311 Supreme Court
Kenny J.
The principal grounds of appeal in this case are (1) that the trial judge erred in the way in which he advised the jury to apportion the fault for the accident if they held that both parties were negligent; (2) that the apportionment which the jury made was grossly disproportionate to the admitted facts; and (3) that the general damages were excessive. The case raises important questions about the construction of s. 34 of the Civil Liability Act, 1961, and as to the form of questions to be submitted to the jury in regard to general damages, when these are claimed for disability and pain suffered before the trial and to be suffered after it.
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The first question submitted to the jury was whether the junction as it existed at the time of the accident was a danger to the public. The answer was “yes.” The second question was, if the answer to the first question was “yes”, whether the defendants were negligent in relation to the junction in (a) its design and construction, (b) its maintenance and (c) its lighting. To each of these questions the jury answered “yes.” They found that the plaintiff was negligent in failing to keep a proper look out and in driving too fast and that he was not negligent in driving on his incorrect side of the road. They apportioned 70% of the degrees of fault to the defendants and 30% to the plaintiff. They awarded £50 for damage to property, £9,650 for special damages (these were two agreed figures) and £36,000 for general damages. This amounted to an award of £45,700 and the judge gave judgment for the plaintiff for £31,990.
In my opinion the first question should not have been submitted to the jury as it served no purpose and tended to mislead them. The question whether the junction, as it existed at the time of the accident, was a danger to the public had no relevance to the questions which had to be tried; it involved the risk that the jury were asked to make a decision on a general matter which was not related to any specific issue relied on by the plaintiff. Moreover, the jury were asked to consider the issue of the defendants’ negligence only if they answered @”yes”# to the first question; they were thereby led to believe that what they had to try was whether the junction was a danger to the public generally, and not the real question which was whether the defendants were negligent in relation to the plaintiff.
There was, in my opinion, no evidence upon which the jury could conclude that the defendants were negligent in relation to the junction in its design and construction. There was nothing negligent in the design or construction of the traffic islands; the work was done to make the road safer and the defendants had made adequate arrangements for the lighting of the junction until bollards were erected. There was, however, evidence to support the finding that the defendants were negligent in the maintenance of the junction because they allowed the old broken line to become visible and there was evidence to support the finding that neither of the islands was lit. There was abundant evidence that the plaintiff was negligent in failing to keep a proper look out and in driving too fast.
Section 34, sub-s. 1, of the Civil Liability Act, 1961. in so far as it is relevant to this action, reads:
(1) Where, in any action brought by one person in respect of a wrong committed 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 or of one for whose acts he is responsible (in this Part called contributory negligence) 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. . . .”
The section does not say that the damages are to be reduced by such amount as the court thinks just and equitable having regard to the degrees of negligence, but the section refers to fault of the plaintiff and the defendant.
In O’Sullivan v. Dwyer 7 Mr. Justice Walsh (with whose judgment Ó Dálaigh C.J. and FitzGerald J. agreed) said at p. 286 of the report:
“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 8″#
I think that “fault” in s. 34 of the Act of 1961 means a departure from a norm by a person who, as a result of such departure, has been found to have been negligent and that @”degrees of fault”# expresses the extent of his departure from the standard of behaviour to be expected from a reasonable man or woman in the circumstances. The extent of that departure is not to be measured by moral considerations, for to do so would introduce a subjective element while the true view is that the test is objective only. It is the blameworthiness, by reference to what a reasonable man or woman would have done in the circumstances, of the contributions of the plaintiff and defendant to the happening of the accident which is to be the basis of the apportionment. I think that the use of the word @”moral”#, when addressing a jury in connection with blameworthiness, is likely to mislead them. Two examples may illustrate this: if an elderly lady is driving a motor car towards a traffic light which is showing red to her and if she, intending to put her foot on the brake, puts her foot on the accelerator and causes a serious accident, she is morally blameless but seriously blameworthy. If the plaintiff admits that some hours before the accident he had a glass of beer and if a member of the jury is of opinion that one should not drive when one has any alcoholic drink taken, the juryman may apply his particular standard of morality to apportioning blameworthiness and may decide to attribute blameworthiness to the plaintiff on moral grounds although no suggestion is made by either party that the plaintiff was unfit to drive or that his driving was affected by the alcoholic drink which he had consumed. Therefore. I think that judges, when addressing juries, should not under any circumstances use the word @”moral”# when speaking of blameworthiness, but that they should emphasise that the jury are to apportion the fault according to their view of the blameworthiness of the causative contributions to the accident and that it is to be measured and judged by the standards of conduct and care to be expected from a reasonable person in the circumstances.
I wish to emphasise that I agree with the principle in the passage which I have quoted from the judgment of Mr. Justice Walsh and I make these remarks only because @”moral blameworthiness”# (which he was so careful to define in exact language) when used to a jury introduces a subjective element which is not consistent with the objective standard laid down in the passage and which will probably be misunderstood by juries and so will produce verdicts of apportionment on a wrong legal basis.
The trial judge put before the jury for their consideration the view that somebody who maintains a danger must be the more blameworthy when compared with a driver who is guilty of one act of negligence. When the jury had retired, Mr. Liston (for the defendants) objected to this passage in the charge and the judge said that the view that a person who maintains a danger is more blameworthy than a person guilty of a casual act of negligence approaching that danger was supported by the decision of this Court in Walsh v. The Galway Harbour Commissioners (18th December, 1972). The trial judge in this case said that his statement of this had been approved by Ó Dálaigh C.J. in his judgment in the Supreme Court in Walsh’s Case ,supra. That case was heard at first instance by Mr. Justice Butler sitting without a jury; in the course of his judgment in that case he said that in normal circumstances he would be inclined to apply the principle that. when there has been an accident, a person who maintains or permits an unusual danger must be more at fault than one who is guilty of what might be described as a casual act of negligence which contributes to the accident. In his judgment in the Supreme Court, O’Dalaigh C.J. did not either approve or disapprove of this statementthough he did say that the trial judge’s apportionment of 50% to the defendants was the least which he could have allocated.
However, it is not a principle of law that a person who maintains or permits an unusual danger must bear a higher share of fault than that attributed to a person guilty of a casual act of negligence. Pressed to its logical conclusion, this leads to the result that a motorist is entitled to recover more than half the damages resulting from a collision at night between his vehicle and a traffic island which was insufficiently lighted, even though he had passed warning signs and had consumed far too much alcoholic drink and had been driving at an excessive speed. This is not the law.
In each case it is a question of fact whether a person who creates or maintains a danger is more blameworthy than a person who collides with it. As Lord Wright said in Tidy v. Battman 9 it is unfortunate that questions which are questions of fact alone should be confused by importing into them, as principles of law, a course of reasoning which has properly been applied in deciding other cases on other sets of facts. The dangers of stating general principles in relation to what are essentially questions of fact is well illustrated in our law reports. In O’Beirne v. Hannigan 10,FitzGibbon J. said that a motorist who plunged into a @”black shadow” without being able to see in front of him, and who collided with a stationary vehicle, must be held to have been guilty of contributory negligence. This statement was made at a time when contributory negligence was a complete defence to an action. Mr. Justice FitzGibbon’s remarks were frequently distinguished and explained (though much of the explaining was explained away) until they were finally overruled in Hayes v. Finnegan. 11
As it is not a principle of law that a driver who drives on when he cannot see ahead of him and collides with an unlighted object is necessarily guilty of contributory negligence (because this is essentially a question of fact which should not be judged by general principles), so in the same way someone who erects or maintains what is a danger in a public place need not, in the particular circumstances, necessarily have attributed to him the greater share of fault for an accident.
This Court will not generally interfere with the apportionment of fault made by a jury if it is not substantially different from the way in which the Court would have apportioned it. However, if there is gross disproportion between the apportionment by the jury and that which this Court would have made having regard to the undisputed facts, or if there has been a gross error on the part of the jury on the undisputed facts, this Court will reverse or review the verdict of the jury on this issue: Donoghue v. Burke 12; Murphy v. Cronin 13; and O’Leary v. O’Connell. 14
In this case the jury found that the defendants were negligent in failing to light the traffic islands and in failing to ensure that the old traffic lines did not become visible in any way: for this the jury held that the defendants were 70% at fault. They also found that the plaintiff was negligent in failing to take reasonable care because he did not keep a proper look out and because he drove too fast: for that they attributed 30%, of the fault to him. In my opinion this apportionment bore no relation to the undisputed facts and to a proper and rational assessment of the degrees of fault of the plaintiff and the defendants for this unfortunate accident.
The plaintiff must have known that he was tired and should have known that his reaction was bound to be slow because his day had started at 8 a.m. in Dublin. He saw the @”major road ahead”# sign and continued to drive at 40/50 m.p.h. He failed to see the vivid cross-hatched marks on the road, which he drove over. and the double line on the road. These together measured 158 feet and the plaintiff could have stopped his car so that there would have been no accident if he had slowed down when he had seen the “major road ahead” sign, and if he had seen the stop sign which he could not have failed to see for a considerable distance if he had kept any reasonable look out. Drinking four or six beers at his friends’ house certainly did not help his concentration. If he had been paying any attention to the road in front of him, the plaintiff would have seen the vivid crosshatched part of the road and the stop sign and he would have realised that he had to keep to the left of the cross-hatched part and of the white double line which led to the island. The defendants were negligent in failing to light the islands and in failing to ensure that the marks of the old line did not become visible again. In my opinion the proper apportionment of fault in this case is 30% to the defendants and 70% to the plaintiff.
I come now to consider the general damages which were awarded. The Court has been severely handicapped in its task of reviewing the damages by the failure to ask the jury to assess separately the general damages up to the date of trial and those from that date for the future. It has been pointed out on many occasions in the judgments of this Court and, in particular, in O’Leary v. O’Connell 15 that the jury should be asked to assess the damages under the various heads of claim. In that case, this Court approved of the way in which Mr. Justice Henchy framed the questions in McArdle v. McCaughey 16; where the jury were asked to assess separately the loss of earnings and the damages for pain and suffering up to the date of trial and the loss of earnings and damages for pain and suffering from the date of trial for the future. It is highly undesirable that the jury should be asked to award general damages from the date of the accident for the entire future because then this Court cannot satisfactorily review the reasonableness of the award. When there is a claim for loss of earnings or for pain and suffering to arise after the trial, the jury should be asked to assess the damages for the loss of earnings up to the date of trial and to assess separately the damages from the date of trial for the future, and a similar course should be adopted in connection with claims for pain and suffering. Neither counsel for the plaintiff nor for the defendants asked the trial judge to do this; we have been informed that there is a difference in practice in the High Court. Therefore, it is essential that it should be known that when there is any claim for future loss of earnings or disability or pain and suffering to arise after the trial, damages for these elements should be assessed separately up to the trial and for the future. It is the duty of counsel to ask the trial judge to frame the questions in this way, and it is equally their duty to draw the attention of the trial judge to the fact that the views expressed by this Court on numerous occasions (of which this passage in this judgment is merely a repetition) bind him to do so.
The plaintiff suffered appalling injuries. He had an injury to his right eye as a result of which there is a hole in the retina and he has no central vision in it. The vision in the left eye is 100% with the aid of a weak glass, and so the vision looking straight in front is affected. He also sustained multiple fractures of the skull and forehead. There was a compound depressed fracture which injured some of the brain matter and this made an emergency operation imperative. He had very severe headaches until 1968 and was suffering from amnesia for days after the accident. He owes his life to the skill of the surgeon in Barrington’s Hospital, Mr. Cantillon, who carried out the emergency operation on the plaintiff’s skull almost immediately after he was brought into the hospital. The plaintiff has had dizziness and there was marked residual scarring on his forehead and face. He also sustained a broken thigh bone in the left leg. A pin was put into the thigh and the leg was put in traction. His left leg is 31/3 inches shorter than the right, he has a pronounced limp and the pin in the thigh is permanent. He played cricket and golf before the accident and finds now that he cannot play more than nine holes of golf without getting tired and cannot walk more than a half mile, and he has continuous muscular pain. The risk of epilepsy is, however. fortunately remote. His knee will remain unstable and the doctors cannot rule out that he may now develop osteo-arthritis in the knee joint though they think this unlikely.
He was in Barrington’s Hospital, Limerick, from the 28th May to the 26th June, 1967, and was transferred from there by ambulance to St. Michael’s, Dun Laoghaire, when he was not able to walk. He was detained in St. Michael’s until the 14th October, 1967, and when he left he was using crutches as his left leg could not carry any weight. For twelve weeks after the accident he was not allowed to put his left leg on the ground. Because there was very grave scarring and a severe depression of his forehead it was decided to carry out plastic surgery and he went to Our Lady of Lourdes Hospital at Drogheda on the 1st January, 1968, where he remained until the 19th January. The operation was very successful but he still has scarring on his forehead. Subsequently he attended each day at St. Anthony’s Rehabilitation Centre from the 1st March until the end of June, 1968, to enable him to recover his balance which he had lost and to be taught to walk. He attended at St. Anthony’s each day from 10 a.m. to 4.30 p.m. He was using a stick for one year after treatment at St. Anthony’s ended at the end of June, 1968. He finally returned to work in October, 1970.
We have been informed that the sum of £9,650 included damages for any future loss of earnings. The case was heard in March, 1974, though the accident happened in May, 1967. Both parties have asked us to assess the damages now. In my opinion, £12,500 would be the appropriate damages to award to the plaintiff (apart from his loss of earnings) for the seven years from the accident to the date of trial, and that £10,000 would be the proper sum for future pain and suffering and the embarrassment of the disfigurement which he has received; therefore 30% of the total damages (£32,200) will be £9,660. The defendants were given a stay of execution on terms that they paid the plaintiff £7,500 and this has been done. The amount now due to the plaintiff is therefore £2,160 together with interest17at 10% from the 29th March. 1974, up to the date of payment.
Hamill v. Oliver
[1977] IR 73 Supreme Court
.
Griffin J.
On the 2nd September, 1973, the plaintiff was a passenger in her husband’s car when it was involved in a collision with a car the property of the defendant on the main Dublin-Derry road near Slane in the county of Meath. She claimed damages against the defendant and her action came on for trial in the High Court on the 26th February, 1976. At the trial the defendant admitted negligence, but his counsel sought to have a question on contributory negligence left to the jury on the ground that at the time of the accident the plaintiff was not wearing a seat belt, although one was fitted in the car for use by the front-seat passenger. The learned trial judge refused to allow this question to go to the jury in the absence of evidence on behalf of the defendant that the accident would not have happened, or that the plaintiff would not have suffered the type of injury sustained by her, if the plaintiff had been wearing a seat belt. The only question left to the jury was that of damages, and the plaintiff was awarded £6,000 for general damages in addition to agreed special damages.
The two questions which arise for consideration in this appeal are (1) whether the judge was correct in deciding that the question of contributory negligence did not arise, and (2) whether the jury’s award of £6,000 for general damages was excessive.
The first question is whether the trial judge should have ruled out contributory negligence although the plaintiff was not wearing the seat belt provided in her husband’s car. Neither the plaintiff nor her husband was wearing a seat belt at the time. This was a new car, being only a few months old, but she said in evidence that they had never worn the seat belts provided.
The Road Traffic (Construction, Equipment and Use of Vehicles) (Amendment) Regulations. 1971S.I. No. 96 of 1971made it obligatory to fit safety belts and anchorage points in motor cars for use by the driver and the front-seat passenger farthest from him. The regulations apply to all cars first registered on or after the 1st June, 1971, and the car in which the plaintiff was travelling was so fitted. Since March, 1973, all main roads in the country display large road-safety posters with the slogan “Live with a safety belt” painted in very large letters thereon. Advertisements appear regularly on television advocating the wearing of seat belts and drawing attention to the risks involved to those who travel in the front seats of a motor car without wearing such belts. When the Oireachtas made it compulsory to fit seat belts to a motor car, it must have been intended that they should be worn although the wearing of seat belts was not made compulsory. The plaintiff cannot but have been aware of the advisability of wearing a seat belt and of the risks incurred if she failed to do so.
In the accident, the plaintiff, as she herself described it, was “thrown on to the gear handle” of the car, and received injuries to her chest and ribs. She fractured the fifth, sixth and seventh ribs on the right side, and she suffered a right pneumothorax with collapse of the lung on that side. The nature of the accident, coupled with these injuries, shows that the primary cause of her injuries was an impact with the gear lever, which would have been situated to her right. She was obviously thrown forward and to the right. This was a type of accident which could not have happened if she had been wearing a seat belt.
Prima facie, therefore, there was contributory negligence on her part. As was held in Froom v. Butcher 3, any person who travels in the front seat of a motor car, be he passenger or driver, without wearing an available seat belt must normally be held guilty of contributory negligence if the injuries in respect of which he sues were caused wholly or in part as a result of his failure to wear a seat belt. There may be excusing circumstances for not wearing the seat belt, such as obesity, pregnancy, post-operative convalescence, and the like, where the wearing of a seat belt may be thought to do more harm than good; but it is for the plaintiff who has not worn it to raise and prove such excusing circumstances.
In this case, the trial judge ruled out contributory negligence on the ground that there was no evidence that the wearing of a seat belt would have prevented the accident. However, as was decided in Froom v.Butcher 3, that is not the correct test. The question is whether the wearing of a safety belt would have prevented or reduced the injuries. Here, as in most cases, no special evidence was required on the point. The jury could not but have come to the conclusion that the impact injuries the plaintiff received when her right chest and ribs struck the gear lever would not have happened if she had been wearing a seat belt. Therefore, the issue of contributory negligence was incorrectly ruled out.
As to the question of damages, the plaintiff was detained in hospital for three weeks during which time it was necessary to insert a tube into the right side of her chest to relieve her extreme difficulty in breathing and to allow the air which had accumulated between the chest wall and lung to escape. She suffered very considerable distress while in hospital.
Subsequently, she had pain in her chest, right shoulder, and right arm and this subsisted to a greater or lesser degree up to the date of the trial, which was almost 21/2 years after the accident. In addition, she suffered acute gastritis, and developed an anxiety condition; the medical evidence at the trial was to the effect that it would probably be a further six to twelve months before her anxiety, gastritis and pain cleared up. Having regard to the total extent of her pain, discomfort and worry, I do not think that the award of £6,000 is in any way excessive. It is not, at any rate, so excessive as to justify interfering with it. Therefore, I would reject this ground of appeal.
I would order a new trial confined to the question of contributory negligence and the question of apportionment of fault. If, at that trial, the plaintiff does not adduce special circumstances capable of excusing her failure to wear a seat belt, the trial judge should direct the jury that she should be found guilty of contributory negligence because of such failure. At the same time, as the accident was caused by the negligent driving of the defendant, and as the injuries resulted only to a minor extent by reason of the failure to wear a seat belt, the jury should be directed that, in the apportionment of degrees of fault between the plaintiff and the negligent defendant, much the greater attribution of fault should be held to fall on the defendant as the person primarily responsible for the plaintiff’s injuries.
Boyne v. Bus Atha Cliath and Anor
[2002] IEHC 135 Finnegan J.
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 of 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.
Allen -v- Trabolgen Holiday Centre Ltd
[2010] IEHC 129 (30 April 2010)
JUDGMENT of Mr. Justice Charleton delivered on the 30th day of April, 2010
1. The Occupiers’ Liability Act 1995, codifies responsibility in tort by the occupiers of premises towards entrants. There are three categories; visitors, trespassers and recreational users. As with previous common law as to the liability of occupiers for injury caused to those on premises which they control, the obligations under the legislation are limited to the static condition of the land and buildings. Harm alleged to arise out of action taking place on the premises, be that a sporting event like show jumping, or the cutting down of trees for timber, are adjudged under ordinary negligence rules.
2. Under s. 3 of the Act the occupier owes a common duty of care towards a visitor. This duty is defined as an obligation to take such care as is reasonable in all the circumstances to ensure that a visitor does not suffer injury or damage by reason of any danger existing on the property. As to that duty, it is clear that merely establishing that an accident occurred on premises is not enough. The plaintiff must show that a danger existed by reason of the static condition of the premises; that in consequence of it he/she suffered injury or damage; and that the occupier did not take such care as was reasonable in the circumstances to avoid the occurrence. The duty of care so defined is at a markedly higher level than that which applies to recreational visitors, such as those exploring the countryside or historical sites, or to trespassers. A visitor is defined in s. 1(1) of the Act as a person who enters as of right, for instance a fire fighter; or someone paying to go to the theatre would be an examples of that; who is in the premises on the invitation, or with the permission of, the occupier, this would extend to both the customer of a shop and a guest coming to a private house for a meal; and those who come to a place for a recreation without charge and who are a family member, or someone invited, or are there for social reasons.
Facts
3. On the 20th August, 2008, Louise Allen, the plaintiff, claims that she slipped on a muddy and unpaved footpath at Trabolgan Holiday Centre. She was there as a paying guest on holiday, so she is a visitor and the defendant is the occupier. The defendant does not deny that she slipped, as that is obvious. Rather, the defence is that the accident was her own fault and that her version as to where she slipped is to be doubted. It is pleaded that Ms. Allen cannot demonstrate any want of care as she shows neither a danger on the premises nor any want of such care as was reasonable in the circumstances to avoid her being injured by that danger. While everyone accepts that she slipped and fell, an issue has arisen as to whether she was wearing appropriate footwear and as to whether the accident took place on the footpath leading back to her holiday chalet or on the grass immediately beside it.
4. I find myself in a position where, as a matter of probability, I feel I can accept some, but not all, of the plaintiff’s evidence and that of her sister-in-law. In looking at whether I can accept some of her evidence, having rejected a piece of her evidence and that of her sister-in-law, I have carefully considered demeanour. In my judgment, the portion of the evidence of Ms. Allen and her sister-in-law which I do accept has not been undermined by the single fact which I feel constrained to hold against her. Further, the theory that she slipped on wet grass and not on the path is not backed up by evidence but is based on speculation. No one saw that happening and because when Trabolgan Holiday Centre employees came on the scene they did not ask her what had happened. This is not surprising as she was in agony.
5. Ms. Allen is a young woman who comes from Dunlavin in County Wicklow. She works in Clondalkin as a credit controller and has established an exemplary record of diligence. She has always been interested in Gaelic football. Prior to this accident, she had discontinued her playing career but was involved in coaching at a high level. She is now involved in management and some coaching by direction, as opposed to by example. This is because of the accident. When it happened, she, accompanied by her brother and her sister-in-law Gina Allen, and niece and nephew aged three years and six years, were taking a holiday break. It was a wet August. While Trabolgan was good choice, as it has many indoor activities, the outside ground was soaked. By the time photographs came to be taken on behalf of the defendant the day after the accident, the weather had changed, with brilliant sunshine in the place of the misty rainy conditions that prevailed for most of the previous day.
6. At about 18.00hrs, together with her sister-in-law and niece and nephew, Louise Allen went from her holiday chalet to the central area of the holiday complex. There they booked for a family meal a bit later on in the evening. Then, the two adults and two children returned along the designated paths to their chalet in order to change for the meal. Both women were wearing jeans. Gina Allen has told me, and I accept, that she was nervous of her jeans trailing on the path where the accident occurred, because it was muddy. I regard it as probable that a similar consideration applied to Louise Allen. They went along tarmacademed paths and then took a designated path up a slight incline through some trees towards their chalet. The path was narrow and not covered in any binding agent. The sisters-in-law were almost together. Louise Allen was carrying her three year niece on her back while her nephew cavorted on ahead. I do not regard it as probable that Louise Allen diverted from the path with a small child on her back. Rather, given the state of the ground and the fact that she was carrying a child, it seems to me to be highly probable that she confined herself to the path. Her nephew, on the other hand, was probably running all over the place. Since Louise Allen was entirely involved in minding her niece, it is more probable, to my mind that, that if anyone stepped off the path it would have been her sister Gina Allen. I also regard the evidence of the two Allen ladies on this issue to be both consistent and credible.
7. Louise Allen described the accident. She said her right foot slipped on an accumulation of mud on the edge of the path and that she went over, hearing a crack. She was unable to get up and was in severe distress. Her ankle was disfigured by a complete displacement. Her sister-in-law sent her nephew for help and, in due course, her brother, and then the lifeguard at the centre Ross Broekhuizen, arrived. The life guard rendered first aid, arranged blankets and propped her head. He was then replaced by the duty manager John Devlin, when he had to return to work. About fifty minutes later the men in the company assisted in helping paramedics carry her to an ambulance.
8. Ms. Allen said that she did not walk on the grass. Whereas as she had walked down this path before, she did not remember using it coming up to the chalet. Her right foot slipped on something that she said was not a big hole, but an accumulation of mud. Possibly because she wanted to protect the child on her back, and because of the extra weight, she fell very severely completing displacing her left ankle. I will return to this later. When seen by Trabolgan employees, she was on the grass. She says, and I think it is true, that she was moved slightly by her brother and sister-in-law for comfort’s sake.
9. Nike runners were produced in court. These were what the plaintiff says she was wearing. They were white and very new looking. Her sister-in-law agreed with her evidence. In contrast, the Trabolgan duty manager remembers one of her feet being bare and the other being shod with footwear that was variously described in cross-examination as ‘plimsolls’ and ‘rubber dollies’. Mr. Devlin’s actual description in evidence was of a multi-coloured canvas upper shoe with a lace through six eyeholes and a plastic side having an underside that had virtually no grip. His description was of an unusually coloured and inexpensive canvas beach shoe. I do not think that he was making a mistake in his detailed description. It also seems to me to be probable that better footwear might have been saved, in the particular conditions, for later on. This, however, is the only aspect of the plaintiff’s case that I feel unable to accept. On the remainder of what she said, I have carefully scrutinised her credibility, and that of her sister-in-law. I accept it.
Danger on the property
10. It is undoubtedly the case that there was a danger on this property. It consisted of a ditching in the site of the path in which a quantity of slimy wet mud had accumulated. Anyone putting their foot into it might easily have skidded. That danger would be increased through carrying a small child. Since Trabolgan is a family resort, the occupiers must expect people of all shapes, ages and sizes and that they would behave in the way that families do while relaxing, whether that be carrying children in a piggy back or playing on the grounds. There might be dangers in playing on wet grass, and anyone who chooses to act that way is taken to accept the danger. A path is different. It is the occupier saying: this is how you go through the premises safely. Some paths may be different, as with a rough rural footpath. They may carry clear risks for those who choose to use them. This path was not a choice. It was the way from one building to another. The accumulation of mud and wet on this path was a clear danger to any visitor that might wander along this path. In that regard I accept the evidence of Desmond Kirwan-Browne, consulting engineer.
Reasonable care
11. Then, I asked myself, was there a failure to take such care as was reasonable in all the circumstances to ensure that Ms. Allen did not suffer by reason of the danger? In my view there was. Trabolgan Holiday Centre designated a number of tarmacademed paths between the buildings and the chalets. It is clear that the plaintiff could have chosen another route, and she was questioned about this. Her answers were convincing. The footpath provided both a handy route and it was a designated walkway. Perhaps at some stage it was planned to cover that footpath. At the time of the accident it was stones and mud. Because it was cut into a slope, water would inevitably run down it. At the edges, in the event of any ditching, both mud and water would accumulate. What care is reasonable in the circumstances depends to a large extent on how visitors could reasonably be expected by the occupier to behave on the premises. Probably the plaintiff would not have slipped had she not been carrying her niece, or if she did, the fall would not have been as bad. As I have said, Trabolgan Holiday Centre must expect that kind of behaviour. A slithery path is a clear hazard to someone in those circumstances. Perfection is not called for, simply reasonable care. That would have been present had there, perhaps, been extra gravel on the path or had the path been tarmacademed across with an appropriate surface that provided grip or otherwise treated so that water could run down the slope without the accumulation of mud. This was not a case where the plaintiff embarked on the exploration of woodland and where the expectation would then have been of paving that would require appropriate care. The circumstances oblige me to look at the use to which the path was put. It was clearly designated as an appropriate means of traversing the holiday centre in all weathers. There was nothing exploratory or risk-taking about using it.
Contributory negligence
12. The particulars pleaded in the defence of contributory negligence encompassed the plaintiff failing to exercise adequate care; failing to look where she was walking; and being the author of her own injuries. My view is that, on a muddy pathway, and with a child on her back, that the plaintiff made clear contribution towards this accident. Part of that involved footwear that did not have a proper grip.
13. In consequence, while Trabolgan Holiday Centre failed to take the care that was reasonable in all the circumstances as to the static condition of its property, and in particular allowed a danger to cause injury to Ms. Allen, her want of care must reduce the damages by 25%.
Damages
14. The plaintiff suffered a very severe ankle injury. She was in severe pain for a period of some hours after the accident. She was out of work for ten weeks returning, on crutches, because of a need to protect her employment. During the year after the accident she still had ongoing symptoms with swelling on the lateral side of her ankle and soreness on the medial side after prolonged walking. Then, her walking distance with comfort was approximately half an hour. This must have been a severe contraction of the enjoyment of her life in sport. The fracture to her ankle was healed in an anatomical position with normal congruency of the joint. This involved a skilful operation under general anaesthetic with the insertion of metal plating and screws. Rehabilitation has been difficult and is not complete.
15. As of the present time the plaintiff complains of not being able to get back fully into coaching. She says that in the morning she must warm up her ankle by doing exercises. She has had a lot of physiotherapy but, almost two years later, it is only intermittent now. After being stationery for a few hours she needs to exercise her ankle a bit before weight bearing on it. At times, there can be some swelling. Whereas she was on the usual range of medication for pain and swelling for some months, she takes little enough now.
16. I think the up to date summary and prognosis is that provided by Dr. Pegum in his report of the 15th December, 2009:-
“Ms. Allen’ ankle has improved. Her symptoms can be expected to improve further but she will probably always have an occasional twinge, especially if she runs. The tendency to ache and swell at the end of the day will subside. The only affect of the metal in place will be to make the wearing of boots uncomfortable, since there would be pressure over the plate itself. None of the other symptoms are related to the presence of metal and there appears to be very little risk of developing arthritis.”
17. Nonetheless, having read the medical reports, and seen relevant photographs, and having regard to the plaintiff’s evidence, which carries no trace of exaggeration, I regard this as a significant ankle fracture with some ongoing problems. It cannot be classified, however, according to the Personal Injuries Assessment Board book of quantum, as a serious and permanent condition. Given, on the other hand, the seriousness of what the plaintiff has been through, it certainly does not fit into the lowest category of a substantially recovered ankle injury.
18. I would assess the plaintiff’s general damages in the sum of €50,000. That may be divided as to €30,000 to date, and because the plaintiff is young, €20,000 into the future. In addition, there are medical expenses of €7,020.
19. While the plaintiff was out of work, her employer paid her net wages. As in Hogan v. Steele & Company Limited [2000] 4 IR 587, she gave an undertaking to her employer to repay that money. It does not matter, in my view of the law, whether that undertaking was given before sickness pay was offered to her, or after she returned to work. Nor does it matter whether the undertaking was given in writing or orally. The reality is that I accept that it was given. Therefore the obligation arises. That is the only question. The figures here are somewhat uncertain. Ms. Allen was paid €8,679 during her time off sick. In addition to that, she also received about ten weekly payments under social welfare entitlement which amounted to about €1,800. These she passed onto her employer. So, she owes him €6,879 but this must be reduced as well by 25%. Total damages are therefore €63,899. So, dividing that by four and multiplying it by three, one gets the figure of €47,924.25 as the correct figure taking into account her contributory negligence.
Result
20. Therefore, there will be judgment for the plaintiff in the sum of €47,924.25 and costs will follow that event.
Hussey v Twomey
[2005] I.E.H.C. 17udgment of Mr Justice Michael Peart delivered the 18th day of January 2005:
On the 20th July 1999 the plaintiff was a front seat passenger in a car belonging to the first named defendant, and being driven at the time by the second named defendant. The car went out of control at a bend and hit a lamp-post, as a result of which the plaintiff was injured.
Liability is admitted, save that the defendants allege that the plaintiff is guilty of contributory negligence because she allowed herself to be driven in the car on this occasion by the second named defendant when she knew or ought to have known that he had consumed more than the permitted amount of alcohol. It is appropriate to consider this issue ahead of dealing with the plaintiff’s injuries and the other evidence related thereto.
At the time of the accident in 1999 the plaintiff was a student aged 21 years. It appears that she knew the first defendant, who was at that time the girlfriend of the second named defendant. She did not know the second named defendant other than that he was the boyfriend of the first named defendant.
Contributory negligence:
According to her evidence, she and the first named defendant went to a bar in Parnell Street, Cork on the night of this accident at about 7pm, and the second named defendant arrived there sometime later, which she put at about 7.30pm. Her evidence has been that she spent most of the evening in an area, where there was a pool table, and which was away from the first and second named defendant and some other friends who were in the bar area.. She says that she did not see the second named defendant come into the pub and was in his company only for about half an hour at the end of the evening around 11 – 11.30pm. On cross-examination she accepted that he could have arrived at about 7.30pm. She had not seen him drinking during the course of the evening, and she herself consumed six or seven drinks during the course of the evening.
It appears that at some point during the evening the first and second named defendant had some sort of row or altercation which resulted in the first named defendant leaving the pub ahead of the others, and in particular ahead of her boyfriend. The plaintiff says that she had arranged to spend that night in the first named defendant’s house, and that at closing time the second named defendant offered to drive her to that house. That is how she came to be in the first named defendant’s car with the second named defendant on this occasion.
According to her evidence this accident occurred a few minutes after her journey in the car started. He was driving too fast at the time. She stated in cross-examination that before the accident happened she had asked him to slow down and even to stop but that he had not done so.
It was put to her that the Gardai had noted when they spoke to him after the accident, whereas she says in her evidence that as far as she was concerned he did not appear to be drunk. She says that she was surprised to learn that the Gardai were of the opinion that he was heavily intoxicated. She stated that even though it was a small enough pub, she had not seen him during the course of the evening and therefore did not know that he had been drinking. She accepted when it was put to her in cross-examination, that she had not attempted to establish his state of intoxication before getting into the car. She says that during the course of the evening in the pub she herself had consumed about 6 or 7 drinks, but that she was unaware that he had taken any drink, and that it was only during the final hour in the pub that she had seen him at all. She stated that she had not expected him to be drunk because he was a designated driver that evening.
This set of facts raises interesting questions concerning the possible culpability of a plaintiff, from the point of view of contributory negligence, who gets into a car about to be driven by a person either known to have consumed more alcohol than the legal limit, or by someone whom the plaintiff ought to have known had or might have consumed such a level. We know in the present case from the evidence that the plaintiff made no enquiry as to the state of sobriety or otherwise of the second named defendant. On the other hand there is no real dispute that he was present in the licensed premises from about 7.30pm that evening until closing time, and that the Gardai are satisfied, from speaking to him about one hour after the accident, that at the time of the accident he was “heavily intoxicated”. She has stated that as far as she was concerned he did not appear to be drunk.
One question which arises certainly is whether the state of knowledge on the part of the plaintiff should be assessed subjectively or by reference to an objective test as to what is involved in the taking of reasonable care for one’s own safety. Of course it goes without saying almost that a finding of contributory negligence is no longer, except in the most exceptional of cases, a complete defence to the plaintiff’s claim. There can be the most rare of cases where there is so great an element of contributory negligence as to cancel out an award against the defendant. It follows that even if the plaintiff ought to have at the least made enquiry as to the sobriety or otherwise of the second named defendant before getting into his car, it cannot avail him of an absolute defence to the plaintiff’s claim. In former times the defence of ‘volenti non fit injuria’ could provide an absolute defence to a plaintiff’s claim. But nowadays the doctrine of contributory negligence has been introduced on a statutory basis by s. 34 of the Civil Liability Act, 1961 which provides a scheme for the reduction of damages in proportion to the degree of “negligence or want of care” on the part of the plaintiff. This phrase is interesting and bears some examination in the context of the facts of the present proceedings.
I should say first of all that I am not satisfied on any balance of probability to accept that this plaintiff was as unaware as she says she was as to whether the second named defendant had or had not been drinking. This was a small pub, and even though she says that she was in the area where the pool table was and therefore away from the bar area where her friends were, including the second named defendant, it is unreal to think that she would have had no contact during the evening with her friends and acquaintances in the pub throughout the four to five hours they were there.
I am certainly not satisfied as a matter of probability, that she had no knowledge of whether the second named defendant was drinking, or reasonable means of acquiring it had she had so endeavoured. The fact that she herself had, on her own evidence, consumed six or seven drinks may well have impaired her own judgment at the end of the night, as to the sobriety of the second named defendant, and the evidence of the Gardai is quite definite, and I accept it, regarding the state of intoxication of the second named defendant – albeit one hour following the accident. The evidence of Garda Ruttle is that the second named defendant confirmed to him that he had not consumed any alcohol between the time of the accident and his conversation with Garda Ruttle one hour later. Garda Ruttle’s evidence was that this man was dishevelled, his eyes were blurred, his speech was slurred, he had to support himself with one hand on the jamb of the front door, and that when he brought him to the hospital from the house in Dominick Street, he had to link his arm to support him to the car. As far as Garda Ruttle is concerned, the second named defendant was “very drunk” one hour after this accident, and in his view any normal adult would have known that.
In cross–examination, reference was made to the fact that the second named defendant had a cut to his head, and it was suggested that whatever blow to the head he had received in the accident, and the accident itself, could have resulted in the demeanour and appearance of the second named defendant. Garda Ruttle could not accept that proposition, and neither do I. Garda Ruttle also referred to a strong smell of drink from the second named defendant.
Given this evidence, I am of the view the plaintiff ought reasonably to have at the least suspected that he may have had drink taken during the evening, and have been upon enquiry as to that situation before entering the car he was going to drive, particularly on the basis of an objective test of reasonableness.
But given the evidence of Garda Ruttle and the other evidence as to the time he was in the pub, I do not accept that the plaintiff is being truthful when she says that she had no idea he had been drinking. On the balance of probability, it must have been obvious to any adult such as the plaintiff, if she had been concerned about the possibility, and certainly sufficiently obvious for her to make enquiry of him, which she says she did not, if she was in any doubt about it. In my view her evidence has lacked candour in this regard.
What consequence does this finding have at law, as far as contributory negligence is concerned?
The starting point has to be the terms of s. 34(1) of the Civil Liability Act, 1961 which provides as follows:
“Where, in any action brought by one person by another in respect of a wrong committed 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, or of one for whose acts he is responsible (in this Part called contributory negligence) 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…”(my emphasis)
This provision is subject to certain provisos which are not relevant to the present case.
It is notable that the provision speaks of ‘wrong’ on the part of the defendant, but of ‘negligence or want of care’ on the part of the plaintiff. This nomenclature is of some importance. Clearly a defendant’s ‘wrong’ equates to a plaintiff’s ‘negligence’. But the word ‘negligence’ is here used as an alternative to ‘want of care’ on the plaintiff’s part, and the two words must therefore give rise to different meanings, otherwise ‘want of care’ is superfluous, and that could not have been the intention of the Oireachtas.
The legislature clearly contemplates that a plaintiff as opposed to a defendant can be guilty of contributory negligence even if the conduct on her part falls short of the ‘wrong’ of negligence, but yet amounts to a ‘want of care’. In that sense ‘negligence’ is a term of art perhaps, capable only of a strictly legal definition. The alternative concept of ‘a want of care’ is not so technical and seems to me to be indicative of a more flexible and less technical, and therefore wider, definition. In their seminal work ‘Law of Torts’, McMahon & Binchy refer to this section, and state at para 20.14 of the Third Edition;
“Contributory negligence essentially involves a lack of reasonable care for one’s own safety or the safety of one’s property in contrast to negligence which involves a breach of duty towards others. An act may of course constitute both contributory negligence and negligence at the same time – a foolhardy lack of caution for one’s own safety, such as climbing a mountain without proper equipment, may induce a rescue attempt, resulting in injury to the rescuer.” (my emphasis)
The ‘want of care’ concept seems to be ideally suited to the facts of the present case, where any reasonable adult person would know that it was unwise to the point of carelessness, and even recklessness as to one’s own safety, to get into a car about to be driven by a man who either had, or might reasonably be suspected to have taken more alcoholic drink that was legally permitted or was safe, while at the same time was not negligence in the sense of being a breach of care to another person causing them an injury. To that extent the objective test of a reasonable want of care is met in the present case, since it is reasonable that the plaintiff ought to have at least considered the possibility, if it was not in fact completely obvious to her, that the second named defendant might be ‘over the limit’, and did not even attempt to enquire or establish that fact one way or the other. This is particularly relevant in the light of the Garda opinion, that he was in fact very drunk.
Another matter arising from the terms of s. 34(1) of the Act is that in cases of contributory negligence, damages are to be reduced based on ‘the degrees of fault’ which the Court finds on the part of the plaintiff and the defendant. The defendant will have to show, if he is to succeed in the plea, that the plaintiff’s failure to exercise reasonable care for her own safety contributed the injury complained of. It will avail a defendant nothing to establish that a plaintiff lacked care for her own safety unless he can also show a connection between that lack of care and the injury suffered. In the present case, there is a clear connection between the plaintiff’s lack of care in not making herself aware of the state of sobriety or intoxication of the second named defendant, and the injury which she sustained when the car he drove hit the lamp post when it went out of control. There was no other car or factor involved.
In this regard McMahon & Binchy [op. cit.] state at para 20.17;
“…the courts will not adopt an unduly specific investigation in determining the risk to which the plaintiff’s conduct exposed him: ‘it is sufficient if it is a danger of a particular class whose occurrence he should anticipate and take reasonable precautions to guard against’ ”
It does not follow from what I have stated that I consider that in all cases in which a person accepts an offer of a lift in another’s car, he/she must initially establish reasonably as to the state of sobriety of the driver before accepting a perhaps genuine and kind offer. But on the other hand, I am of the view that part of the duty to take reasonable care for one’s own safety and avoid the ‘want of care’ referred to in s. 34(1) of the Act involves so doing, where there are reasonable grounds for suspecting that the driver may have consumed alcohol – that situation being assessed by an objective test of reasonableness.
For example, where the plaintiff ought reasonably to have, or did in fact get a smell of alcohol from the driver’s breath, it would be hard to argue that it would not amount to a ‘want of care’ to accept a lift from that driver without further enquiry. Similarly, a lack of sobriety on the part of the plaintiff may not excuse a failure to make reasonable enquiry, and similarly again, as in the present case, where the plaintiff’s own evidence is that the second named defendant was present in the bar area of the pub from about 7.30pm until closing time, and that she was not in his presence during most of that time (which might have been sufficient to reasonably assure her or allow her to assume that he had not been drinking alcohol during the evening) it must be a ‘want of care’ not to even attempt to establish the position – and it is fair and reasonable for the Court to have regard to the actual evidence as to the fact that he was found to be very drunk one after the accident (not having consumed alcohol thereafter) in assessing whether the plaintiff ought to have reasonably suspected and/or enquired as to the possibility that he had consumed alcohol.
I am satisfied that in the present case there is sufficient evidence on a balance of probability that the plaintiff was lacking in care within the concept of ‘a want of care’ for the purpose of contributory negligence. I am also of the view that in the present case it is a significant want of care given the reasonableness in present times of attaching to a normal and indeed intelligent person, such as the plaintiff, full knowledge of the dangers to herself, as well as others, of a drunken driver, and that to make merely a nominal finding of contributory negligence would be to in part condone, or at least forgive/understand that lack of care in a way which would fail to underline the seriousness and obviousness of the dangers of drink driving. If the Courts see fit to substantially reduce damages for not wearing a seat-belt, it should do so all the more in respect of a person who voluntarily, or carelessly, or even recklessly places herself in danger at the hands of someone such as the second named defendant in this case.
In the circumstances, there will be a reduction of damages in the amount of 40% in respect of contributory negligence.
The injuries:
The plaintiff described that as a result of the heavy impact in this accident a rere seat passenger in the car was thrown against the rere of the front seat in which she was seated, and that the driver was also thrown over to her side of the car. Her seat and the door of the car were jammed and she managed eventually to get out of the driver’s side of the car. It is not disputed that she was fortunately wearing a seatbelt at the time.
In her evidence she stated that after the impact she could not move her head and had difficulty breathing. She stated also that she was sore everywhere down to her torso, and she also had bruised her leg. She says that she walked to the Mercy Hospital but as a result of a delay in being seen there her parents brought her to the University Hospital at about 2am – which is about one hour and forty minutes after the impact.
Mr Stephen Cusack, A&E Consultant:
Mr Stephen Cusack, A&E Consultant has stated in his report that the plaintiff complained of “neck pain, back pain and chest wall pain”. On examination she was found to be alert and awake, but tearful, and he noted that there was “tenderness over the upper back between the shoulder blades, and in the neck posteriorally”, as well as bruising over the right shin. X-rays were taken of the cervical spine, thoracic spine and right shin, and no acute bony injury was revealed. His diagnosis was of soft tissue injury for which analgesic and anti-inflammatory medication was prescribed. He states also that in the days following the accident she experienced quite significant pain and upset. He saw her again on the 22nd July, 24th July and 26th July 1999.
He expressed the view in his report dated November 1999 that her recovery would take “a number of weeks”, but that it was quite possible that she would have persistent symptoms for a significant period of time. He suggested in his report a further review in eight months.
He stated in cross-examination that when he saw the plaintiff after the first accident he found nothing which indicated any injury to her low back area, and that he had not ordered any low back x-rays. He was also questioned about the significance of the possible fact that she did not start to receive treatment for low back pain until after the second accident had happened in June 2000. He stated that it was his understanding that in fact she had received some treatment for her back problem before her second accident. But when pressed further to say if it would be significant if in fact his understanding was not correct, he accepted that this would be significant, but not that the significance would be that it would indicate that the back problem must have been produced by the second accident. He said at one point that it was possible that the first accident aggravated her pre-existing degenerative changes in her lower back, such that the second accident produced the symptoms. He was not prepared to accept that simply because she did not have any symptoms prior to the second accident that it must necessarily follow that it was the second accident which caused them. He was of the view that the first accident could have done some injury which only became apparent after the second accident. He was prepared to accept that the second accident had something to do with her back pain, even if he was not prepared to accept that it necessarily caused that problem to the exclusion of the first accident.
Dr Fergus O’Connell:
She went to her G.P. Dr Fergus O’Connell on the 27th July 1999. At that stage he noted that her complaints were of (1) a lump in her anterior chest wall on the right side which was very tender, (2) stiffness in her neck and shoulder, and (3) pressure in her abdomen. On examination he has noted that she had large bruises below both knees and her neck movements were normal; that there was swelling over the 2nd rib at the sternal border, and pain on raising the right arm. He also noted at that stage that her straight leg raising was normal on both sides and tendon reflexes were normal. However he states that “on examination of her lower back I noted that forward spinal flexion impaired”. There is no note that she complained of low back pain on that date, but he appears to have examined it nevertheless.
His clinical notes for 22nd November 1999 indicate that he saw her again on that date and that she complained then of pain in her sterno-costal joint (2nd on right side), as well as pain in her right shoulder and low back. On examination in relation to the low back pain, however, he notes that “forward spinal flexion – N” (N = normal)
He saw her again on the 27th January 2000 and he noted that she still had pain in her neck and shoulder, but that on examination her neck and shoulder movement was normal, as were her forward spinal flexion and tendon reflexes.
I want to just say at this point that on the 29th July 2004 Dr O’Connell wrote to the plaintiff’s solicitor and in that letter he set out details of his consultation with the plaintiff on the 27th July 1999, and a further consultation on 22nd November 1999. It will become relevant later in relation to whether the plaintiff had back pain prior to June 2000, but I want to note at this point that this letter does not contain all the information which is contained in Dr O’Connell’s clinical notes. In particular his notes indicate that while the plaintiff is noted as complaining of low back pain on the 22nd November 1999 his examination of her showed everything tested as being normal, including “forward spinal flexion”. This is not mentioned in the letter dated 29th July 2004. However I will return to that matter in due course.
Dr Michael Molloy, Consultant Physician/Rheumatologist:
The plaintiff was seen by Dr Molloy on the 2nd June 2000, having been referred to him by her GP Dr O’Connell. In his account of the history he says that when she was taken to Cork University Hospital after this accident she had X-rays of the neck, shoulder and low back. This would appear to be an error, since there is no doubt that Dr Cusack did not direct that her low back be x-rayed, since she had made no complaint to him in that area specifically. This report in the history also seems to be in error in reciting that after the accident she had reported pain in her low back. Again the clear evidence is that the back pain reported after the accident was interscapular – i.e. between the shoulder blades and not the low back. I presume that Dr Molloy either erred himself, or simply reported what the plaintiff told him.
The history also states that while the plaintiff was back in Jersey after the accident she continued to have pain in her neck, shoulder, right chest wall “with low back and right leg pain also occurring.” Again I assume that this is information which must have come from the plaintiff herself, and not from any clinical findings referred to, if any.
He noted, inter alia, that she had received significant injuries in this accident and still had residual pain in her neck, right chromioclavicular joint and chest wall with low back pain and right leg pain. He found on examination that she had a good range of lumbar spine movement; straight leg raise test was 85%, but there was tenderness to the lower lumbar area along the paraspinal muscles at L2 to S1. In cross examination he agreed that up to June 2000 he had found nothing wrong with her low back and that there had been no need to refer her on to Mr Michael O’Sullivan, which in fact was done later. He agreed that the plaintiff had concentrated more on the upper body pains than the low back. However, there is reference in this report to some tenderness to the lower lumbar region nevertheless.
He opines at that stage that further investigation will be necessary “to evaluate the shoulder, neck and low back”. Dr Molloy stated in his evidence that at this stage the plaintiff’s main concerns were related to her neck and shoulder pain, and not to any low back pain.
The Second Accident – 24th June 2000:
A complicating factor in the history of the plaintiff’s injuries is that on the 24th June 2000 she was involved in a further traffic accident in which she was driving. No other car was involved. She had three passengers all of whom were injured and have instituted proceedings. There was apparently €6000 of damage done to her car when it went off the road into a filed hitting a concrete post of some kind on the way. The plaintiff in her evidence stated that she took a bend too fast and went into the field. She was able to drive the car away. She stated that she did not believe that the injuries caused in the first accident were worsened by this second accident. However it is also a fact that by November 2000 the low back pain to which I have referred already became the main focus of medical attention, as this low back pain worsened, even though the plaintiff says that she does not believe that this deterioration is connected to the second accident. However, it is notable and indeed strange that the plaintiff never told her medical advisers about this second accident when she was seeking assistance for her low back pain, and it is certainly being contended by the defendants that the reason for this is that the plaintiff wished to relate the worsening of her low back symptomology only to the first accident since she could have no claim against any person in relation to the second accident. I will deal with this aspect again in due course.
Dr Molloy (cont’d):
Dr Molloy saw her again in December 2000. She did not say anything about the second accident which had occurred 6 months previously. But his report dated 4th April 2001 states that at this December 2000 examination, she had a good range of movement in her cervical spine, with discomfort at the extremes of movement as well as tenderness in the supraspinatus and trapezius muscles on both sides. There was also some prominence of the right sterno-clavicular joint again noticed with some tenderness. It is also noted at December 2000 that “Lumbar spine movements were full and pain-free. He also states “her SLR was normal and detailed neurological evaluation of her lower limbs entirely normal”. Dr Molloy arranged for CT Scan of the lumbar spine which happened on the 25th January 2001, and an MRI Scan of the cervical spine which was done on the 19th February 2001.
The MRI of the cervical spine showed degenerative changes at a number of positions “with changes suggestive of degenerative change and osteophyte formation rather than acute disc protrusion”. These abnormalities are at C4/C5, C5/C6, and C6/C7, and Mr Ryder felt that it would be important for him to review the films taken on the 20th July 1999 and he stated that he would seek these. In due course this took place and in his report dated 4th March 2002 he states that these disc spaces show osteophytosis and minor degenerative changes with small posterior osteophytes. He stated also that they pre-dated the accident “and this indicates that this young woman had significant degenerative disease of the cervical spine, prior to the accident and that this has been rendered symptomatic by the accident, rather than being caused in its entirety by it. It is impossible to say how much of the appearances on the MRI Scan can be attributed to the accident.”
The CT Scan of the lumbar spine “showed some bulging at L4/5 with no significant nerve root or cord compression. Large right postero-lateral disc protrusion at L5/S1.” He concluded that the Ct Scan and X-rays showed degenerative changes and significant disc damage of the cervical and lumbar spine and he states that this is significant in somebody of her age group. He thought that she may recover in 6 to 12 months but that if she disimproved she may require surgery. In his evidence he stated that at this stage her neck and chest had settled and that her back and leg pain were now the major concern.
Dr Dermot Ryder, Consultant Radiologist had carried out the CT Scan. In his report dated 17th March 2001 he states that three disc levels were scanned – LV.3/4 was normal; the middle of these discs was shown to have a “slight generalised bulge with slight compromise of the neural foramina, although they are not fully obliterated.” However the lowest disc scanned “shows a large right postero-lateral disc protrusion extending well over 1cm into the canal.”
Dr Ryder was not available to give evidence, but Dr. Denis Kelly, Consultant Radiologist gave evidence that he had looked at the CT Scans. He said that the 1cm disc protrusion shown was significant and certainly required surgery. In his report, Dr Ryder had stated in his conclusion as follows:
“This patient has very significant disc problems in both the neck and the lumbar spine. I personally do not see how, if these had been present prior to the accident, that they would have been asymptomatic and the choice is that there was either pre-existing asymptomatic degenerative disease in a very young patient which was aggravated by the accident, or the appearances were caused in total by the accident………”
Dr Ryder of course, as well as Dr Molloy, were not aware at that stage the plaintiff had been involved in the second accident to which I have referred, and have been prevented in their reports from taking that incident into account in the opinions which they have expressed.
Dr Molloy stated in evidence that he would have liked to have been told by her of that accident and was disappointed and found it strange that she had not done so, but stated that perhaps she had attached no importance to it herself. He stated that he was unable to say what part the second accident might have had in relation to the progress of her injuries. However, he regarded the apparent severity of the second accident, as described to him, as something which would have been relevant. He also remarked that at the December 2000 examination the plaintiff’s neck and chest injuries were settled and that the major problem was by then the low back and leg pain.
Mr Michael O’Sullivan, Consultant Neurosurgeon:
The plaintiff had been referred to Mr Michael O’Sullivan, Consultant Neurosurgeon because of her ongoing and persistent symptoms in her low back. He saw her in September 2001 when she had three sets of symptoms, namely pain in the neck radiating to both shoulders, pain in her right chest wall, and lastly, low back pain which he noted had started “approximately 6 months after the accident” (which is around the time of the second accident on the 24th June 2000). At this point she was given a “Back School Care programme”, but when she was examined again in November 2001 by Mr O’Sullivan she was still symptomatic. An epidural injection had not had any positive effect. In July 2001 the MRI scan had shown marked signal change in the L4/5 and L5/S1 discs with moderate right disc prolapse. In February 2002 she underwent a discectomy and when Mr O’Sullivan saw her again in March 2002 he noted that her neck and thoracic pain had largely subsided and that her back pain had gone from 7/10 down to 2/10 and was much more comfortable. However he noted also that she nevertheless could no longer engage in her hobby of Pool and Snooker, could not bend down, was unable to sit for long periods or lift, and had to take constant analgesia.
In his report dated 1st March 2002, Mr O’Sullivan refers to the fact that the plaintiff had a second accident in June 2000, noting that “she said this accident did not exacerbate her previous symptoms.” In the opinion section of this report he states, inter alia:
“3. Her MRI of the lumbar spine shows marked degenerative change in the lower two lumbar discs with a sizeable disc prolapse at L5/S1. A six month period elapsed from the date of her injury and the onset of her symptoms and, in all likelihood therefore, this had no bearing on her discogenic lumbar pain.”
She continued to progress well as far as her symptoms were concerned so that by January 2003 Mr O’Sullivan was able to report that her neck was largely asymptomatic, her thoracic spine remained asymptomatic, and her low back pain continued to improve, and that she had no leg pain or sphincter disturbance. He noted that her social activities were restricted since she could not bend and this affected her Pool and Snooker hobby, and she still found it difficult to sit, stand or bend for prolonged periods, but her use of analgesics had decreased dramatically.
In September 2003 it would appear that the plaintiff’s solicitor wrote to Mr O’Sullivan regarding the passage of his Report dated 1st March 2002 which I have quoted above where he stated that the 6 month delay from the date of the accident in the onset of low back symptomology meant that the first accident had no bearing on her discogenic lumbar pain. I do not have a copy of that letter but in reply, Mr O’Sullivan stated as follows:
“…I have reviewed my own case notes and these specifically record that her back pain symptoms started 6 months following her injury.
I have reviewed Dr Cusack’s report and under the 1st paragraph (History) it is stated that she complained of neck, back pain and chest wall pain. However, under treatment progress report, the rest of the symptoms referred to neck and chest pain only. There is a clear discrepancy between what I have been told by Cynthia Hussey and what Stephen Cusack records. Perhaps this should be clarified with Cynthia herself.”
In his further letter dated 26th September 2003 to the plaintiff’s solicitor, he states that he had by then had an interview with the plaintiff. He goes on:
“She informed me that she had back pain upon attending the Accident & Emergency Department of Cork University Hospital and it never eased over the following six months. By December/January however it became a noticeable feature of her syndrome and has persisted since.
She was however at that time more concerned with her neck and hence the low back pain was given a lower pain rating. This seems to confer (sic) with Dr Cusack’s report. On that basis I would wish to revise the original opinion.
Opinion – Revised, Point 3.
MRI of lumbar spine shows marked degenerative changes in the lower two lumbar discs with a sizeable disc prolapse at L5/S1. This became symptomatic following her injury, and, under the laws of probability therefore, this caused her disc prolapse to become symptomatic.”
There is then a further letter dated 10th September 2004 from Mr O’Sullivan to the plaintiff’s solicitor in which he states that plaintiff had attended his clinic on that date wishing to discuss her medical report. He referred the plaintiff to his letter dated 26th September 2003 to her solicitor in which he had revised his opinion 3. But she presented him with a copy of a letter (presumably this is the letter dated 29th July 2004 from Dr O’Connell to her solicitor) from her GP, Dr Fergus O’Connell which had recorded, inter alia:
“…On examination [on 27th July 1999] of her lower back I noted that forward spinal flexion was impaired. Straight leg raising however was normal. I prescribed distalgesic tablets for the pain. She returned on the 22nd November 1999 complaining of pain in the lower back as well as pain in the right shoulder………”
In relation to what is contained in the letter dated 29th July 2004 from Dr O’Connell, Mr O’Sullivan states:
“This again reinforces the view that she did have symptoms within a short time of the injury and, therefore, as detailed in my letter of September 26th 2003, it is likely that the accident caused her back symptoms.”
I have already referred to the fact that Dr O’Connell’s letter dated 29th July 2004 does not contain everything which is contained in his clinical notes for the consultation with the plaintiff on the 22nd November 1999, and in particular that while it is noted that the plaintiff complained of low back pain, his clinical examination showed all tests to be normal including forward spinal flexion.”
I also asked Mr O’Sullivan, after his cross-examination was completed, whether his “Revised opinion 3”, as a result of learning that she had complained of back pain to Dr Stephen Cusack after the first accident, was predicated on the assumption that the back pain complained of on that occasion to Dr Cusack was low back pain, and he agreed that it was. That of course has been shown to be wrong since it is clear that the reference to back pain on that occasion was inter scapular pain – in other words in the upper back between the shoulder blades.
Dr Diarmuid O’Connell:
It is worth noting his report dated 25th September 2003. The plaintiff was referred to him by her GP Dr Fergus O’Connell for acupuncture treatment for pain relief around July 2000 which is less than one month after the second accident. She never told her GP about that second accident apparently, and she does not appear to have mentioned it to Dr Diarmuid O’Connell either. In his history he makes no mention of it.
He noted what he had been told by the plaintiff and there is nothing to suggest either that when the plaintiff saw him on 21st July 2000 she told him that following the first accident she had any low back complaint, other than that he states:
“Generally she had aches and pains all over which lasted about two weeks. Over the following number of weeks these pains localised on her right shoulder area and right neck area.”
He examined her on the 21st July 2000 (which is almost one month after the second accident prior to giving her acupuncture, and he found that she had upper body restrictions of movement and treated her accordingly. He notes that she returned in November 2000 (5 months after the second accident) and he notes that “she also had some pain and tenderness over the low back.” He states that on frequent occasions during 2001 she returned with severe low back pain, muscle spasm, and tenderness over the lower lumbar and sacral spine.
His report goes on to deal with her later treatment and symptomology following her discectomy.
Pregnancy:
The plaintiff became pregnant during July 2003 and gave birth to a daughter in March 2004. When it was suggested in cross-examination that she seemed to have managed a pregnancy in spite of her alleged low back injury, the plaintiff stated in her evidence that in fact during her pregnancy she was improved as far as her symptoms of pain were concerned. One of the doctors explained this on the basis that perhaps during that time she might have been taking more care of herself and doing less. However, Dr Diarmuid O’Connell in his report dated 27th May 2004 states:
“During the pregnancy she developed several flare-ups of low back pain. I saw her on 14.10.03 with muscle spasm in her lower lumbar spine, tenderness over her sacro-iliac joints and pain in her right hip………She continued to have pain in her lower back and neck during the following months. She required further treatment to her left shoulder and left neck and lumbar spine in November 2003. She developed pain more specifically in her sacro-iliac joints in December and required treatment to this area. She required a further treatment in January 2004………
Back pain can sometimes be a feature of normal pregnancies but it appears Ms. Hussey’s was aggravated by her previous neck and back problem.”
To say the least, this statement sits uncomfortably with the plaintiff’s own evidence that she felt very good during her pregnancy and felt much better.
There is other medical evidence and statements in reports dealing with the plaintiff’s more recent progress following her discectomy, but before dealing with the prospects for the future generally, I want to set out what Dr Frank Matthews, Consultant, called on behalf of the defendants.
Dr Frank Matthews:
The plaintiff was first seen by Mr Matthews for the defendants on the 19th May 2000 which was about one month before the second car accident at the end of June 2000. In his evidence he stated that when he saw the plaintiff she complained of pain in her right shoulder and a stiff neck, and that she also told him that she had hurt her low back but had no symptoms. He stated that in his notes he had recorded that she had no other complaints by writing “Nil else”. He saw her again in March 2001 but says that she never told him of the second accident in June 2000. He also sated that the plaintiff who he saw before the second accident was a different person to the one he saw after her second accident.
In cross-examination he was referred to the fact that in his report in May 2000 he had referred to “back stiffness” as one of the complained made by the plaintiff on that occasion before the second accident. In response he stated that his notes for that examination noted “says LBP to LS junction” [low back pain to lumbar spine junction]. But he was not prepared to accept in any manner that the symptoms complained of to the low back after the second accident can be attributed to the first accident.
He was referred also to a portion of his report dated May 2000 where he has stated that “she located low back pain to the lumbo-sacral joint”. He said that his use of words was unfortunate in that regard because what he had intended to convey was that this was the area in which she indicated that in the past this was the location of some pain. He had not intended to convey that she was at the time of this examination in May 2000 experiencing pain in that area of her back. I notice that this sentence is in fact followed by the words “She had full low back movements”. But it was put to her that this region was in fact at L5/S1 and that this was also the location of the discectomy later performed. Nevertheless Mr Matthews was not prepared to accept that after the first accident and before the second accident the plaintiff suffered the low back pain complained of and treated after the second accident, even though she may have had some back tenderness and discomfort following the first accident. He was intensively cross-examined in this regard and he was unmoved in his opinion that the symptoms in her low back which led to her discectomy could not be attributed to the first accident given the lack of symptoms complained of in this area until after the second accident – albeit that there was some reference to back pain after the first accident.
Mr Kieran Barry, Consultant Orthopaedic Surgeon:
Mr Barry also gave evidence on behalf of the defendants. He saw the plaintiff on the 15th October 2001. He notes “she denied any prior history of note. Specifically, she denied any previous neck or back symptoms.” There is no reference of any kind to the second accident. She did not mention it to him.
When giving his evidence he was asked whether it was significant that in November 1999 she complained of low back pain to her GP. He stated that while she may have complained of symptoms in that area, it was not necessarily significant. He said that the low back pain complained of at the time may have been back stiffness. He was referred to the fact that Dr Molloy was of the view that since the pain had been located at L5/S1 in November 1999, and the discogenic lesion had been located at the same level, leading to the discectomy, it must be associated with the first accident. He stated that he could not understand how Dr Molloy could be so sure about that. He was certainly not of that view. He says that it is significant that the true situation did not become evident until after the second accident. In his direct evidence Mr Barry said that even without a trauma in an accident this plaintiff was at moderate to high risk of low back trouble, and that if one adds actual trauma to that situation, she is bound to have risk. In cross-examination, he stated that it would have been helpful to see the clinical notes of Dr Fergus O’Connell who saw the plaintiff seven days after the first accident. These are the notes which state that the plaintiff’s forward spinal flexion was impaired at that stage. Mr Barry stated in this regard that any person, a short period after an accident, would complain of general aches and pains, but it would not necessarily mean any more than that, and that the same could be said even after some weeks and up to three months. But in this case the first complaint by her of pain in the lower back was at the consultation in November 1999. His notes, as I have already pointed out, note that she complained of low back pain on that date but that he found nothing on examination to confirm this. All tests were reported as normal on that date. Dr Barry also noted that this plaintiff had stated that she had in fact improved after six months.
Conclusions re: injuries and first/second accident:
At the outset it is necessary to state that the onus is on the plaintiff to prove on the balance of probability that the injuries sustained and in respect of which she seeks to be compensated, result from the first accident. That onus is greater than mere statability. It must be proven as a matter of probability, which is of course short of proof beyond reasonable doubt. But she must show that it is more likely that the injuries were sustained in the first accident. She may also prove to the same level of proof that some ailment sustained in the first accident was exacerbated or made worse by the second accident. However in the present case she has given evidence that she did not consider that the second accident worsened her injuries sustained in the first accident, and in fact did not seek any medical assistance so far as we are aware.
But she cannot expect that injuries more probably sustained in the second accident, rather than the first, can be compensated by the defendants in the present case. That is a major feature of the medical evidence in this case, as there is some conflict of opinion as to whether the first accident caused the plaintiff’s low back pain. The Court will have to resolve that conflict on the basis of the balance of probabilities.
Low back pain:
I am satisfied that the “back pain” noted by Dr Cusack a couple of hours after this accident and recorded in his medical report dated 26th November 1999 was pain between the shoulders, and related to the “tenderness in the upper back” seen on examination. Symptoms related to her low back are absent at this point in time. Dr Cusack agreed that this was the case, and that there was nothing to indicate to him that an x-ray should be taken of her lower back. However that does not dispose of the possibility that some symptomology in her low back might reasonably ensue from this first accident.
Dr Fergus O’Connell has stated in a letter dated 29th July 2004 to the plaintiff’s solicitors, who I have no doubt were naturally anxious to establish that the later low back difficulties could be linked to the first accident, that when he saw the plaintiff on the 22nd November 1999 she was complaining of pain in her low back. However, I am concerned in this regard that his clinical notes give a fuller account of that consultation on the 22nd November 1999. Three complaints are noted. The first related to her chest, the second to pain in her right shoulder, and the third was “low back pain”. He examined her in the light of these complaints and found all relevant movements to be normal. Again no steps were considered to explore further this pain in her low back. Her forward spinal flexion was normal as was her straight leg raise test. These results were repeated on the 27th January 2000.
In addition to these matters, it is now evident from a CT Scan of the plaintiff’s lumbar spine at the end of January 2001 (seven months after the second accident) that she, unusually for her age, had pre-existing degenerative changes in her lumbar spine. Dr Ryder stated in his report dated 17th March 2001, as I have already set forth above: “This patient has very significant disc problems in both the neck and the lumbar spine. I personally do not see how, if these had been present prior to the accident, that they would have been asymptomatic and the choice is that there was either pre-existing asymptomatic degenerative disease in a very young patient which was aggravated by the accident, or the appearances were caused in total by the accident. Review of the plain films would help in this matter, but may not finalise the question.”
He stated that when he saw those films, it was impossible to state whether the disc level seen on the CT Scan (which was confirmed as the cause of the plaintiff’s pain by the discography) was caused by the accident or merely aggravated by the accident. It is necessary to state that Dr Ryder was not aware of the second accident, so we do not know whether his view would have been different had he done so, as he was not available to give evidence to the Court. But I am of the view, again on the balance of probability, that the pre-existing degenerative changes found on the CT Scan account for the low back pain of which she complained to Dr O’Connell on the 22nd November 1999. I am of this view because of his own clinical notes which describe all the tests undertaken as being “normal”. Again there was nothing found which prompted Dr O’Connell to have any further investigations carried out.
The second accident happened at the end of June 2000. Fortunately we have an examination of the plaintiff by Mr Molloy on the 6th June 2000. He found that the lumbar spine had a good range of movement albeit with some tenderness to the lower lumbar area along the paraspinal muscles at L2 to S1. Her SLR was normal. He examined her again in December 2001 when he notes that she continues to have low back pain, but he does not say this is new or different in any way from previously. She never mentioned the second accident to him. He arranged the MRI of her cervical spine and CT Scan of her lumbar spine, and as a result of these was able to state in April 2001 that she had the degenerative changes and significant disc damage in both the cervical and lumbar spine. He said in evidence that at this time in early 2001 her back and leg problems had become her main problems, whereas previously it had been her chest and neck, which had greatly improved. His report of April 2001 must be read in the light of the fact that he was not made aware by the plaintiff that she had in the meantime had a second accident, albeit one which she believes did not exacerbate her first accident injuries. But the fact remains that Dr Molloy was not allowed the opportunity to factor in the potential of that second accident into his consideration.
In my view the plaintiff’s situation is not improved in this regard by the “retraction” or alteration of opinion by Mr Michael O’Sullivan that the delay of six months in the onset of symptoms in the lower back meant “in all likelihood that this {her first accident] had no bearing on her discogenic lumbar pain.” The reason I say this is that he stated in answer to a question from me, as I have already stated, that his alteration of view which he was pressed to make, was predicated upon the back pain presented to Dr Cusack on admission was low back pain, and not as it was inter-scapular pain. It follows in my view that the Court should take his view as that expressed in his report dated 1st March 2002 in its unaltered form.
I should also refer top some of the particulars supplied to the defendants’ solicitors, such as those delivered on the 22nd June 2000 where it is stated that after the first accident x-rays were taken of the plaintiff’s low back. That is incorrect as the evidence has shown. The Civil Bill refers to the plaintiff complaining on admission to hospital after the first accident of low back pain. That was not correct , as the evidence has shown. In addition there is another unfortunate matter. It is in a document at Tab 3 of the Book of Pleadings produced to the Court. It bears the date “22nd March 2000”, which predates the second accident by some months, but a reading of that document reveals that this date must be incorrect since it refers to matters which occurred in 2002, such as the laminectomy on the 4th February 2002, and examinations later than that. I notice nowhere in that document any reference to the second accident, in spite of a reply therein to paragraph 5(a) of the Notice for Particulars which enquired if the plaintiff had ever either prior to or subsequent to this accident suffered any injury in any other accident. The reply which must have been furnished after taking instructions from the plaintiff states that “the plaintiff was involved in an accident in 1996……”
If she did not tell her own solicitors about the second accident when instructing them for that reply to particulars in 2002, it means that she has not displayed the candour which the Court must be entitled to expect of any plaintiff.
I will not refer to all the medical evidence again in these conclusions. While it is possible to suggest or state that the low back injury may have emanated from the first accident only, or that an injury suffered in the first accident was made symptomatic by the second accident, the argument cannot in my view be sustained to the point beyond 50% of probability. I am firmly of the view, on a reasonable interpretation of the available evidence, that the first accident has not been shown to be the cause of the low back pain which later led to the discectomy.
That being the case, the plaintiff is entitled to be compensated to the injuries related to the first accident and these comprise the upper back, shoulder and neck pain reported after the first accident, and the consequences these injuries had on the plaintiff’s life.
Effects on the plaintiff’s life and studies:
The most immediate effect of the injuries was that she had been due to sit some examinations two or three days after this first accident and, quite understandably, she was unable to do so. She was on a course in Financial Services at the College of Commerce. It was a two year course which she had started in August 1998. Before the accident she had failed some of her examinations and had come back from Jersey in order to sit repeats which were to take place just after this accident. It seems strange to me that having failed some exams and having applied to repeat same she would go to Jersey to work rather to spend that time to devote to her studies for the repeats, but the fact is that that was what she chose to do. In any event, the accident meant that she did not do the repeats, and the consequence of that was that she would have to repeat the whole year in academic year 1999/2000. She was not prepared to do that. She spent the following year instead working in Jersey as a barmaid for a time, as well as in a Snooker Club in Cork, as well as a waitress in a hotel in Cork. She had difficulty performing any of these jobs due to the symptoms she was suffering from this first accident.
She began an Arts Degree Course in UCC in October 2001. It is noted by Ms Feely, Vocational Rehabilitation Consultant, that she missed one of her exams in Computer science due to severe back pain. She also missed a couple of other exams due to a tummy upset/vomiting unrelated to the accident. She is now in the third year of this course and is hoping to gain an honours degree. There is no need to go through Ms. Feely’ evidence and report in full detail. She is of the view that the effect on the plaintiff of not sitting the repeat exams in the summer of 1999 is that if she had sat and passed those exams she would in all likelihood have qualified in the summer of 2001 with her qualification in Financial services. At that point she could have gone into employment, or have gone back to college for a further qualification at 3rd level. Ms. Feely states that the plaintiff is unsure what option she might have taken. A job at that point according to Ms Feely may have paid between €15000 – €19,000. That would be gross.
Ms. Feely was of the view that the plaintiff has lost two years and possibly more in relation to her career. She is of the view that the accident resulted in her achieving nothing for two year at least. She believes that the accident demoralised the plaintiff and knocked her off track, so to speak. She believes also that had this accident not happened she might have ended up in 2001 with some sort of job in banking services, or might have gone on to a 3rd level degree qualification in that area of study. She believes that the fact that the plaintiff now has an adverse medical history may militate against her job prospects in the future. That brings me to another matter which I do not propose to deal with in any detail, since my judgment may well be made public in some way. But the fact is that there is also another factor in the plaintiff’s life which she has dealt with but which is a fact in her life which has the capacity to come against her in the future in any search for employment. The plaintiff is to be commended in the manner in which she has dealt with that difficulty, but nevertheless she cannot overlook it in assessing any difficulties she may have in the employment market in the future, and it is certainly something to be weighed in the balance in considering whether this accident has reduced her chances of gainful employment in the future.
There is yet another matter which cannot be overlooked in considering the degree to which this accident may have delayed the plaintiff’s entry into employment and her study career generally. She became pregnant in about July 2003 and gave birth to a daughter in early March 2004. She has plenty of family support in relation to the minding of her daughter, but it still a factor to bear in mind.
Mr Desmond White, a Vocational Consultant engaged by the defendants was of the view that she had certainly lost one year as a result of the injuries. He felt that there were other factors in the plaintiff’s life which might have caused her delay in any event. He felt that there was evidence that she was an intelligent and, now, a well motivated person who has the capacity to do as well as anybody else, and that while the accident would have caused some disruption to her study career, she should have no difficulty getting a job. Some of what he was referring to however would have related to that aspect of the injuries which I have found is attributable more to the second accident than to the first accident.
The Court has to consider the view of each expert and the evidence generally and arrive at a conclusion on the balance of probability. In my view the plaintiff has lost two years for one reason or another, some of which cannot in all fairness be laid at the door of the defendants. There is no doubt that her student life seems to have been marked by instability and stress in her personal life, and that there are aspects of her personal life in these years which had the capacity to come against her prompt entry into the job market. It cannot be said with certainty that by the end of summer 2001 she would have emerged with a qualification from which she would have progressed into immediate employment. I feel that it is more probable that having passed her repeat examinations in the summer of 1999 she would have gone on to enrol in the next level of study which may have led to a third level degree. There are some uncertainties in that regard given what was going on in her life in other respects.
However, in fairness, I believe that a period of eighteen months is reasonable to allow the plaintiff in respect of her loss of career time. That may be on the generous side, but I balance it against some other findings I have made which the plaintiff may feel are somewhat harsh from her perspective, I am trying to strike a fair balance in the interests of justice to both sides.
Overall conclusions:
I have decided already that the low back pain is not something for which she can recover compensation in these proceedings. She is entitled to compensation for the injury to her neck, shoulder and upper back and for the degree to which these injuries interfered with her life generally.
I have no doubt that her symptoms from these injuries alone were significant over a considerable period of time. In fact Dr Molloy is of the view, and I accept what he states, that even after the birth of her daughter in March 2004, her upper body symptoms came against her in relation to the management of her baby’s care, such as washing, breast-feeding, lifting and so on. Because she wished to breast-feed her baby she was unable to take medication for pain. I have little doubt but that the plaintiff’s pregnancy was more difficult as a result of the upper body injury as opposed to the low back problems, even though the plaintiff herself in her evidence made little of the difficulties during her pregnancy. It appears from the medical reports that she had need of treatment from Dr Diarmuid O’Connell during that time. She had muscle spasm in her neck at that time and needed treatment. She needed treatment in her neck and shoulder region during her pregnancy according to Dr Diarmuid O’Connell’s report dated 27th May 2004. The same applies to the period after the birth. He feels that she will continue to recover over the years to come. Dr Molloy would be of the same view.
General damages:
For past pain and suffering in respect of her neck, shoulder and upper back, I assess the sum of €35,000.
She is likely to suffer into the future to some extent in relation to these particular injuries, but there has been substantial improvement. Nevertheless I award the sum of €15000 for future pain.
In relation to loss of employment opportunity, I believe it is fair to accept that she has lost 18 months employment. I believe she may have suffered monetary loss as a result based on a salary of €19000 gross. I have no evidence of what her nett loss would be based on that figure, but I am taking a figure of a nett loss of €15000 per year for a period of 18 months. That produces a figure of €22500 nett loss.
As far as special damages are concerned I have been handed a list of special damages the amount of which is agreed, but subject to the Court being satisfied that these expenses are properly incurred in the context of the proceedings. The Court has no way of deciding which of these items of special damages are attributable only to the injuries which I have found to be attributable to the first accident. Given that there is a finding of 40% contributory negligence in any event, I propose accepting these figures as they are on the list provided. The amount of same is €10,809.
The total of these items is €83,309.00. A deduction of 40% must be made in accordance with my findings in contributory negligence.
I therefore deduct the sum of €33.323.60, and give judgment to the plaintiff in the sum of €49,985.40.
Approved by : Michael Peart
7 February, 2005
Anderson v Cooke, [2005] I.E.H.C. 221, June 29, 2005
Judgment of Finnegan P. delivered on the 29th day of June 2005
The Plaintiff resides at 4 Maypark Lane, Co. Waterford. He was born on the 11th September 1979 and at the time of the events giving rise to this action was aged 22 years. He is now aged 26 years.
On the 18th November 2001 the Plaintiff was a passenger in a motor car the property of the first named Defendant and then being driven by the second named Defendant at Port Road, Belview, Waterford. The motor car left the road and collided with a ditch or wall. The Defence delivered does not deny the foregoing. The Plaintiff because of his injuries has no recollection of the accident or any relevant preceding or succeeding events.
The Defence delivered contains the following pleas –
1. The Plaintiff was not at any material time a lawful passenger in the Defendant’s vehicle, but was at all material times travelling in the said vehicle for the purpose of obtaining photographic evidence of it performing at maximum speed, which said material he required for submission for an internet website and he requested the second named Defendant to so drive the said car at maximum speed for the said purpose and thereby expressly or impliedly consented to the risks involved in travelling at such speed which said speed caused the loss of control and collision complained of and in the aforesaid circumstances the Plaintiff expressly or impliedly consented to the risks of being driven as a passenger at such speed and is thereby precluded from pursuing this claim against the Defendants.
2. The Plaintiff and the second named Defendant were at all material times engaged in a common or joint criminal enterprise, namely the driving of the said car at maximum speed and in excess of the prevailing speed limit and the collision complained of was caused by and consequent on the said enterprise and the Plaintiff is thereby precluded from pursuing this claim and the Defendant will rely in support of such contention on the doctrine of “ex causa turpe non oritur actus”.
3. The Defendants will, inter alia, rely on the defence of volenti non fit injuria.
The Defence further pleads that the Plaintiff was negligent and contributorily negligent in respect of the matters set out in paragraphs 1 and 2 of the Defence and also guilty of contributory negligence in failing to wear a seatbelt. There is an admission of driving at an excessive speed and other particulars of negligence pleaded are denied.
Garda John Killeen the investigating Garda gave evidence on behalf of the Plaintiff. The road on which the accident occurred is a new road servicing the new port of Waterford. He was called to the scene of the accident at about 8.05. The evening was dry. When he arrived at the scene he found that a car had crashed into a pole on the right hand side of the road as one goes towards the port. The car was facing away from the port. The road inclines slightly towards the port. Skid marks on the road indicated that the car was travelling towards the port and commenced on the incorrect side of the road for a car travelling in that direction. The Plaintiff was trapped in the car and was mostly on the driver’s side. As the second named Defendant was being placed in the ambulance called to the scene he said he was sorry, that he was showing off and that he had been travelling at 90 miles per hour. At the scene of the accident there was a slight bend to the right as the car was travelling. The nature of the impact was such as would push the passenger over to the driver’s side of the car and the position of the Plaintiff in the car was consistent with his having been a passenger. The car was a high powered vehicle. Arising out of the accident the second named Defendant appeared in the District Court and the Circuit Court pleading guilty to careless driving in each case. At no time in these proceedings was any mention made of a joint enterprise between the Plaintiff and the second named Defendant. The speed limit on the road is 60 m.p.h. There are three gentle curves the length of the road. The witness was unable to say whether or not the Plaintiff was wearing a seatbelt. Skid marks at the scene stretch for 230 feet after which the car made a high speed impact with the pole. The skid mark indicated that the car had pirouetted close to the impact with the pole.
John Tierney gave evidence on behalf of the Plaintiff. He is an employee of the South Eastern Health Board Ambulance Service and accompanied the ambulance to the scene of the accident. Part of his duty was to complete a form. In this form he recorded that the Plaintiff was wearing a seatbelt at the time of the accident. This he did from his observations at the scene.
The second named Defendant gave evidence. The car in which he was driving is a Toyota Corolla Twin Cam GTI model manufactured in 1989/1990. It has a far more powerful engine than the normal 1.6 Corolla and would be used for motor sport purposes. He had known the Plaintiff for a number of months. They had originally met in a car park where motor enthusiasts meet and discuss cars. At the time of the accident he was familiar with a website called MAXED.ie.net and both he and the Plaintiff had user names and passwords for that site. He had been using the site for some six months prior to the accident during which time he had communicated with the Plaintiff on the site. They had met at car parks on several occasions and had exchanged phone numbers. On the day of the accident he received a phone call from the Plaintiff and they agreed to meet. The Plaintiff suggested that they take the first named Defendant’s car and see how fast it would go and enable the Plaintiff to take a photograph of the speedometer which could be posted on the internet. He agreed. The Plaintiff had a camera with him. The Port Road was practically if not entirely empty. The Plaintiff prepared his camera and the first named Defendant then set off at high speed with a view to reaching the highest possible speed in the car. On the first run the Plaintiff took his seatbelt off so that he could lean over and take a photograph of the speedometer and he did take such a photograph. On that run the car travelled in excess of 125 m.p.h. They made a second run starting somewhat down the Port Road and did not achieve the same speed. As they came to the end of the Port Road he was slowing down when the accident happened. He did not know the speed achieved on the second run. No photograph was taken on the second run. The accident occurred when the back of the car spun out to the left causing the car to go out of control onto the right hand side of the road and collide with the pole. He estimated his speed at the time the car went out of control as 110 m.p.h. He could not recall whether the Plaintiff had put his seatbelt on for the second run. Several days following the accident he went to see the car and there were no personal belongings in the same. He then attended the Garda Station and recovered the contents of the car from Garda Killeen. These included a camera belonging to the Plaintiff which was damaged so that he could not remove the film. He left the camera into a photographic shop in Waterford to have the film developed. He identified one photograph that was developed and which showed the speedometer of the car indicating a speed of 126 m.p.h.
The witness was cross examined. He had never previously attempted to find out how fast the car would go. He had previously driven the car on the Port Road but not for the purpose of testing its speed but rather to meet with other car enthusiasts and do handbrake turns inside a shed.
Thomas Cooke the first named Defendant and Aleta Thorsson gave evidence that they had accompanied the second named Defendant to the Garda Station to collect the items taken from the car by the Gardai and that included among them was a camera.
In addition to the foregoing witnesses the Defendant called Dr. Woods an Engineer and John Paul L’Estrange who has a knowledge of cameras: I did not find their evidence of great assistance. Finally a private investigator, John Cahill, was called to give evidence of what he found on the internet and particular forums in which car enthusiasts exchange correspondence which can be viewed by other persons accessing the site. He found postings by the Plaintiff. Accepting that this was indeed the case the evidence did not assist me in my determination of the facts.
Having considered the evidence which I have summarised above I accept the account given by the second named Defendant as to the events of the evening on which the accident occurred. I am satisfied that the Plaintiff and the second named Defendant agreed between themselves that the second named Defendant should drive the car as quickly as possible along the Port Road with a view to the Plaintiff taking a photograph of the speedometer to record the speed at which the car was travelling. Such a photograph was indeed taken. I accept the second named Defendant’s evidence that the Plaintiff removed his seatbelt for the purposes of taking the photograph. The photograph was taken on the first run. On the second run which is that relevant to this case I have considered the evidence of the second named Defendant and of John Tierney. The onus is on the Defendants to satisfy me on the balance of probabilities that the Plaintiff was not wearing a seatbelt on the second run: this they have failed to do and accordingly insofar as this particular of contributory negligence is concerned I hold in favour of the Plaintiff.
Turning then to the legal issues raised by the Defendants these are as follows –
1. Volenti non fit injuria.
2. Ex turpi causa
3. Volenti non fit injuria as contributory negligence.
Insofar as volenti non fit injuria is concerned I first have regard to section 34 of the Civil Liability Act 1961 which deals with apportionment of liability in case of contributory negligence. Section 34(1)(b) provides as follows –
“This subsection shall not operate to defeat any defence arising under a contract or the defence that the plaintiff before the act complained of agreed to waive his legal rights in respect of it, whether or not for value; but, subject as aforesaid, the provisions of this subsection shall apply notwithstanding that the defendant might, apart from this subsection, have the defence of voluntary assumption of risk.”
The effect of this provision is that volenti non fit injuria is no longer a defence unless there was an agreement. See O’Hanlon v Electricity Supply Board 1969 I.R. 75 where Walsh J. said in relation to section 34(1)(b) –
“In section 2(1) of the Act the word “contract” is defined as meaning a contract under seal or by parole. This clearly refers to a contract supported by consideration or one under seal. There is no such contract alleged in this case and it is not necessary to consider this point further. It is already settled that such contracts are construed strictly against the party claiming the benefit of the exemption and there are instances where such contracts are actually prohibited by statute.
Under the terms of the Act of 1961 the Defendants must establish that the Plaintiff agreed to waive his legal rights in respect of the act complained of and that such agreement was made before the act. As no question of statutory duty arises in this appeal it is unnecessary to consider whether any such agreement, if it did exist, would be contrary to the statute or to public policy. In my opinion, the use of the word “agreed” in the Act of 1961 necessarily contemplates some sort of intercourse or communication between the Plaintiff and the Defendants from which it could be reasonably inferred that the Plaintiff had assured the Defendants that he waived any right of action that he might have in respect of the negligence of the Defendants. A one sided secret determination on the part of the Plaintiff to give up his right of action for negligence would not amount to an agreement to do so. Such a determination or consent may be regarded as “voluntary assumption of risk” in the terms of the Act but, by virtue of the provisions of the Act and for the purposes of the Act, this would be contributory negligence and not the absolute defence mentioned in the first part of subsection (1)(b) of section 34.”
The evidence has not established any such contract or agreement and in these circumstances the plea by way of defence of volenti non fit injuria fails.
In relation to the defence of ex turpi causa the Civil Liability Act section 57 is relevant. This provides as follows –
“57(1) It shall not be a defence in an action of tort merely to show that the plaintiff is in breach of the civil or criminal law.
The effect of section 57(1) is to modify but not to abolish the defence of ex turpi causa. While for some time there appears to have been doubt as to whether the maxim applied to actions based on contract only it is now well settled that it applies equally to actions grounded in tort: Hegarty v Shine 2 L.R.I. 273, and 4 L.R.I. 288 Palles C.B. at 299, O’Connor v McDonnell The High Court Unreported 30th June 1970 Murnaghan J., National Coal Board v England 1954 1 All E.R. 546. In O’Connor v McDonnell Murnaghan J. cited with approval the statement of the law by Lord Mansfield in Holman v Johnston 1 Cooper 341 –
“No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act if from the Plaintiff’s own stating or otherwise the cause of action appears to arise ex turpi causa or the transgression of a positive law of this country then the court says he has no right to be assisted. It is upon that ground the court goes: not for the sake of the defendant.”
The principle however was refined and it was not every crime committed by the Plaintiff which would cause his claim to be non suited. Thus in National Coal Board v England the Plaintiff was in breach of the Explosives in Coalmines Order 1934 the contravention of which was an offence. This was held not to bar him succeeding in his action. Lord Porter cited with approval from the judgment of Cohen L.J. in Cakebread v Hopping Brothers (Whetstone) Limited 1947 1 All E.R. 389
“The maxim ex turpi causa is based on public policy, and it seems to me plain that on the facts of this case public policy, far from requiring that the action shall be dismissed, requires that it shall be entertained and decided on its merits. The policy of the (Factories Act 1937) makes it plain that such a defence as was put forward by Counsel for the employers in this case would be inconsistent with the intention of Parliament when it passed the Act.”
He held that the policy of the Act was to ensure a safe method of working.
This policy based approach was also adopted in Canada in Henwood v Municipal Tramways Trust (S.A) (1938) 60 C.L.R. 438. The Plaintiff was a passenger in a tram and becoming affected by nausea put his head outside the window and was struck by two standards while the tram was in motion. His conduct was in breach of a byelaw which exposed him to a penalty. The Defendant was found liable and it was held that the Plaintiff’s breach of the byelaw was not a defence to his action. It was there held that there is no general rule denying to a person who is doing an unlawful act the protection of the general law imposing upon others duties of care for his safety. Thus at common law an occupier could incur liability to a trespasser. See also Revill v Newbery 1996 1 All ER 291 an occupiers liability case in which the occupier shot the Plaintiff who was attempting to break into his premises and in which the Defendant was found liable.
The maxim is more likely to have application in circumstances of joint illegal activity. This was the case in O’Connor v McDonnell where the Plaintiff and the Defendant with others were engaged in the poaching of deer when the Defendant accidentally shot the Plaintiff. Murnaghan J. held that the maxim applied and that the Plaintiff must fail. The applicability of the maxim to joint unlawful activities has been considered in a number of Australian cases – Smith v Jenkins 1970 119 C.L.R 397, Jackson v Harrison 1978 138 C.L.R. 438 and Gala & Ors v Preston 100 A.L.R. 29. In Gala the Plaintiff together with the three Defendants drank all afternoon and then stole a motor vehicle. They drove for some four hours drinking beer and sharing the driving after which the vehicle crashed while being driven by the first Defendant. On appeal it was held that the Plaintiff and the first Defendant were engaged in a joint illegal enterprise. It was held that the driver of the vehicle owed no duty of care to the Plaintiff as the parties were not in a relationship of proximity such as to give rise to a relevant duty of care since it was not possible or feasible for a court to determine what was an appropriate standard of care to be expected in the circumstances. In the course of a Judgment delivered by Mason C.J. Deane, Gaudron & McHugh J.J. the Court said –
“Commencing with Jaensch v Coffey (1984) 155 C.L.R. 549 this Court, in a series of decisions, has accepted that a relevant duty of care will arise under the common law of negligence only in a case where the requirement of a relationship of proximity between the Plaintiff and the Defendant has been satisfied. The requirement of proximity constitutes the general determinant of the categories of case in which the common law of negligence recognises the existence of a duty to take reasonable care to avoid reasonably foreseeable and real risk of injury. In determining whether the requirement is satisfied in a particular category of case in a developing area of the law of negligence, the relevant factors will include policy considerations. Where, as in the present case, the parties are involved in a joint criminal activity, those factors will include the appropriateness and feasibility of seeking to define the content of a relevant duty of care. Thus, it would border on the grotesque for the Court to seek to find the content of a duty of care owed by one bank robber to another in blowing up a safe which they were seeking to rob. On the other hand to take an extreme example the other way, it would be unjust and wrong for the Court to deny the existence of the ordinary relationship of proximity which exists between the driver of a motor vehicle and a passenger merely because the driver was, with the encouragement of the only passenger, momentarily driving in a traffic lane reserved for the use of cars with three or more occupants.”
The Court went on to find that the onus lies on the party who asserts that by reason of special and exceptional facts, the ordinary relationship of a driver towards a passenger is transformed into one which lacks the requisite relationship of proximity to give rise to a relevant duty of care. The same view as to onus was taken in the Canadian case Hall v Hebert 1993 101 DLR (Fourth) 129. Insofar as this conflicts with the statement of the Law by Lord Mansfield cited by Murnaghan J. in Holman v Johnston I prefer the latter view. As the issue historically was policy based I consider it appropriate that the Court may itself raise the issue even if the Defendant does not: there are cases in which the Court has regarded it as contrary to policy to lend assistance to a Plaintiff involved in joint illegal activity even though the defence of ex turpi causa is not raised by the Defendant by way of defence – I recall an action for an account of a joint venture between two highwaymen. The Defendant in this case has in fact pleaded ex turpi causa and has discharged the onus which rests upon a Defendant.
The approach adopted in Gala save in relation to onus, it seems to me, reflects the common law – it is not in every case in which the parties had acted together in a manner which was illegal that the illegality would be a bar to the action.
This being the case what is then the effect of section 57(1)? Firstly it seems to envisage the approach adopted by the Court in National Coal Board v England and Henwood v Municipal Tramways Trust that is to examine the policy of the statute or common law under which the Plaintiff’s illegality arises and then determine if a duty of care exists. Secondly it seems to me that the Civil Liability Act, even in cases of a criminal act in which both the Plaintiff and Defendant are jointly engaged, the Court is required to enquire upon the basis of proximity whether a duty of care and if so what duty arose on the part of the Defendant to the Plaintiff in the circumstances of the particular case: if the Court is unable to determine if, and if so what duty of care arose the Plaintiff’s claim will fail.
This being the view which I have formed as to the law I am satisfied that in the circumstances of this case it is not possible to determine the duty of care which the Defendant owed to the Plaintiff having regard to the illegal enterprise upon which they were both engaged. If the joint enterprise was that the car should be driven at 70 m.p.h. where speed was limited by regulation to 60 m.p.h. the Court might well be in a position to establish the standard of care owed by the driver to the passenger: each case must turn upon its own circumstances. In the present case I cannot establish the duty of care if any which was owned by the Defendant to the Plaintiff in order to determine if there was a breach of the same. Insofar as there is authority for the proposition that the Courts in a case in which the Plaintiff and Defendant were joint participants in illegal conduct the Court will not hear evidence to enable it to establish whether and if so what duty of care is owed by the Defendant to the Plaintiff by reason of section 57(1) of the Civil Liability Act 1961 that is no longer the law. The denial of relief is related not to the illegal character of the activity but rather to the character and incidents of the enterprise upon which the Plaintiff and the Defendant are engaged and to the hazards which are necessarily inherent in its execution. In the circumstances of this case as I am unable to determine the duty if any which was owed by the Defendant to the Plaintiff and accordingly to determine whether or not there was a breach of the same the Plaintiff fails.
In these circumstances the third issue raised by the Defendant – volenti non fit injuria
as contributory negligence does not arise.
Approved: Finnegan P.
Kelly v Hackett
[2005] I.E.H.C. 229, High Court, July 5, 2005
JUDGMENT of Mr. Justice Diarmuid B. O’Donovan delivered on the 5th day of July, 2005.
The plaintiff in this case, Sandra Kelly, is a 37 year old married lady with two children, respectively aged 14 years and 4 years. She resides with her husband, her children and her parents at Ayrfield Road, Coolock in the County Dublin.
Sandra Kelly left school at 15 years of age with no examinations to her credit. However, from the time that she left school, she was in full time employment; in a variety of jobs, until the month of February, 2001, when, while she was on maternity leave, she was made redundant by her then employers, Messrs. Motorolo Limited. However, in the month of March, 2001, she applied for employment as a catering assistant at Beaumont Hospital and, following interview, was offered employment commencing on 13th April, 2001. In that regard, I had evidence from Ms. Kay Fleming, the catering officer at Beaumont Hospital, confirming the fact that Mrs. Kelly had been offered such employment and that it was to commence on 13th April, 2001 and indicating that she would have commenced employment on a salary of €17,240 gross per annum and, were she still in that employment, that her current salary would be €23,212 gross per annum. In that regard, Ms. Fleming, whose evidence I accepted without reservation, gave me to understand that she could think of no good reason why, were it not for the events which gave rise to this claim, Mrs. Kelly would not still be employed by Beaumont Hospital.
Sandra Kelly comes to court seeking damages for injuries which she suffered as a result of a traffic accident in which she was involved through no fault of her own on the 6th day of April, 2001; an accident which occurred at Luke Kelly bridge in the city of Dublin. On that occasion, Mrs. Kelly was a back seat passenger in a car driven by her husband. Also in the car was her four month old baby boy, Roy, who was strapped in a baby seat in the front of the car and her 10 year old daughter, Gemma, who was sitting in the back beside her. Mrs. Kelly was going into town to buy a new dress in anticipation of starting her new job in Beaumont Hospital in the following week. At the commencement of the journey, she was wearing a seatbelt. However, when the child commenced to cry, she decided to feed him and she removed the seatbelt so that she might give the child a bottle whilst sitting on her lap. As the car in which she was travelling was negotiating a junction controlled by traffic lights, it was struck on the right front by the defendant’s taxi which entered the junction against a red light. Apparently, the impact between the two vehicles was a relatively severe one and, at the time, Mrs. Kelly was actually burping her baby and was able to protect it from injury. Needless to say, liability for the said occurrence was not contested by the defendant but it was alleged by the defence that Mrs. Kelly was guilty of negligence contributing to her injuries by reason of her failure to wear a seat belt. Apart from the fact that I heard no evidence whatsoever to suggest that the injuries suffered by Mrs. Kelly would have been any less severe had she been wearing a seatbelt, given that the front seat of the car in which she was travelling was pushed back against her legs, I do not think that she would have been any better off had she been wearing a seatbelt. Accordingly, I am not persuaded that she was guilty of contributory negligence.
Immediately after the impact between the two vehicles, Mrs. Kelly was conscious of both her husband and her two children screaming and she told me and I accept that she herself was shocked and very frightened. She said that she could not move and was conscious of pain in both of her legs which were trapped by the front seat. An ambulance was sent for and, apparently, it took in excess of an hour to cut Mrs. Kelly out of the car in which she was travelling and, in that regard, while she was very upset, Mrs. Kelly said that the ambulance men were very kind to her. Both she and her husband were taken to the Mater Hospital in separate ambulances and the two children were taken to Temple Street Children’s Hospital in another ambulance. Apart from the pain in her legs and the shock which she was experiencing, Mrs. Kelly told me that she was very concerned about the welfare of her husband and of her two children and I have no doubt but that that was so. Fortunately, neither her husband nor her two children were badly injured and they were all discharged from hospital within a relatively short period of time.
Insofar as Mrs. Kelly, herself was concerned, when she was brought to the Mater Hospital, she was subjected to x-ray examination following which she was told that she had sustained no bony injury but that both of her legs were very badly bruised; so much so that she could not walk. However, it was not considered necessary to detain her in hospital and, while she was given crutches to help her to mobilise, she found them impossible to use and, in fact, was wheeled out of the hospital in a wheelchair. However, when she got home, she told me that, because of her inability to walk on her legs, she had, as she put it, to “bum around the house” which she did for the next four weeks. However, the bruising of her legs gradually subsided although it was some months before it abated altogether and, for some weeks after her accident, she experienced pain in her legs which necessitated pain killing medication from time to time. However, she suffered no long term discomfort or disability arising from the injury which she had suffered to her legs. On the other hand, a huge problem manifested itself about four or five weeks after her accident on the first occasion on which she travelled in a car. On that occasion, when she was going into town she experienced what appears to have been a panic attack manifested by;
(a) terrible fear,
(b) difficulty in breathing,
(c) a choking sensation,
(d) uncontrollable crying, and
(e) vomiting.
The attack was so bad that she could not continue her journey and had to return home. She told me and I accept that she could not understand what was happening to her and that she had never had a similar experience in her lifetime. As a result of this experience, she attended her General Practitioner, Dr. T.M. Coghlan, who advised her to continue taking Prozac tablets which, in fact, she was taking at the time to counter a condition of post-natal depression which she had suffered following the birth of her son some months earlier. However, the Prozac did not help to counter the fear which she continued to experience every time that she tried to travel in a car. In fact, it was not even necessary that she be in a car before she experienced a fearful attack similar to that which she had experienced on the first occasion on which she had got into a car after her accident. In the presence of heavy traffic she was fearful, even the sound of the horn of a car terrified her. Accordingly, although, prior to her accident, she enjoyed walking, she was no longer able to enjoy a walk in the presence of traffic. On account of these problems, Mrs. Kelly continued to attend Dr. Coghlan on a regular basis. However, as the Prozac which he was prescribing did not help to alleviate Mrs. Kelly’s problems, Dr. Coghlan referred her to Dr. Robert Cantrell, a consultant psychiatrist, who has furnished reports on her and who gave evidence before me to which I will refer in due course. Dr. Cantrell prescribed different medication for Mrs. Kelly and advised counselling to which end he put her in touch with a man, who she called Pat, at a health centre. For many months following, Mrs. Kelly attended counselling sessions at that health centre on a weekly basis for sessions lasting approximately an hour. She told me that she thought that those counselling sessions helped her and, in particular, helped her to relax. She told me that, while she travelled to the health centre by car; a journey lasting five to ten minutes, those journeys were always a fearful experience for her and, at the end of the day, while, as I have indicated, the counselling sessions did help her to relax somewhat, she continued to experience great fear on any occasion on which she travelled in a car. She said the situation was not too bad while driving through a housing estate but that she became very panicky while driving through the city, or in heavy traffic. She told me that, on one occasion, she travelled on a bus but that she became so upset that she had to get off the bus after one stop. Indeed, she gave me to believe that the fear which she experienced on the bus was worse than that which she had experienced in a car. At the same time as she was attending counselling sessions, Mrs. Kelly was taking anti-depressant medication, medication to relax her and sleeping tablets because she was restless at night. All of that medication was prescribed by Dr. Cantrell and, indeed, she still takes that medication to the present day and, as I interpreted Dr. Cantrell’s evidence, the probabilities are that she will continue to do so for the foreseeable future. In that regard, Mrs. Kelly has attended Dr. Cantrell every six weeks since November, 2001 and, again, as I interpreted Dr. Cantrell’s evidence, the probabilities are that she will continue to have to attend him on a regular basis for the foreseeable future.
Although she told me that she had learned how to drive, Mrs. Kelly said that, in fact, she has never driven since her accident and although she keeps trying to accommodate to travel by car, she has been unable to do so. In that regard, she instanced an occasion last Christmas when she was driven to a social function in Ashbourne and became so ill that she could not move her legs and had agonising pains in her arms so that she had to come home. Indeed, she told me that, since the incident which gave rise to this claim, her social life has been totally disrupted. She agreed that she can go to local shops but that she gets so panicky if she goes into town that her mother now has to do any shopping that she wants done in town. In that regard, Mrs. Kelly told me that, only last week, she was required to attend an occupational therapist in connection with her case. She said that she went by car and that it was “a horrible experience”; that she vomited and experienced severe pain in her arms. Indeed, she told me that, when she was driven to court for her case she was ill. Essentially, therefore, she is unable to travel by car or bus with any comfort and, accordingly, is unable to go to work.
Mrs. Kelly told me that, before her accident, she led a very full social life with her colleagues in Motorolo and with her family and that she was accustomed to going on annual holidays; both in Ireland and abroad. However, since her accident, she stays at home most of the time and even finds it difficult to go out with her daughter, Gemma. Indeed, since her accident, she has developed a fear for Gemma’s safety when she is away from home with the result that she very often prevents Gemma from going out and there is really no good reason for doing so and, when Gemma is away from the home, she finds herself timing her absences. Moreover, while, before her accident, Mrs. Kelly used to attend parent/teacher meetings, she has only attended one such meeting since the accident. Mrs. Kelly agreed that she did go on some family outings but that, if she did, she is always anxious when she is away from home and the prospect of going out always worries her.
Mrs. Kelly told me that, following Gemma’s birth, she suffered from post-natal depression which necessitated her attending Dr. Coghlan, who prescribed appropriate medication which she took for a number of weeks. However, that depression did not prevent her from working. Similarly, after her son, Roy, was born, she also suffered from post-natal depression for which Dr. Coghlan prescribed Prozac which she was actually taking at the time of her accident.
Under cross-examination, Mrs. Kelly said that the symptoms of post-natal depression which she experienced following the birth of her two children were that she was weepy and tired. However, that depression did not create any problems for her when travelling in a car, or in a bus. She reiterated, however, that, since her accident, she cannot travel in a car or a bus with any ease and is fearful of the noise of traffic. When asked about the counselling which she had at the health centre with the man named Pat, she agreed that some of that counselling took the form of group therapy at which she and others with psychological problems discussed their fears and she thought that those sessions helped her. She also agreed that she had been advised to confront the problem which she experienced when travelling in a car and she maintained that she had tried to do so without success although she agreed that she did not travel in cars very frequently. She agreed that she had come to court in a car but that, if she did, she was violently sick afterwards. Insofar as the counselling was concerned, she said that the man named Pat left the centre and was replaced by a woman and that she had not attended counselling within the last 18 months.
Under further cross-examination, Mrs. Kelly agreed that she had been very upset by her father’s death in the year 2003 and that, following it, she had had bereavement counselling. She also agreed that her father had been very ill for about a year before he died and that she was stressed on that account. Under further cross-examination, Mrs. Kelly accepted that she was also very upset by the death of her father-in-law and required bereavement counselling following that demise. However, as she pointed out, her father-in-law died some eight years ago. Mrs. Kelly also gave evidence that she has a brother who is seriously disabled and, as a result, is now institutionalised. She agreed, however, that, when her brother resided with her and her parents, she found living with him very stressful.
Under further cross-examination, Mrs. Kelly conceded that, currently, she might undertake two or three journeys a week by car but that, if she did, they would be short journeys; usually to local destinations. However, if she spends more than ten minutes on a journey, she becomes very fearful and ill. When it was suggested to her that, as time passed, her fears were not as bad as they had been, she totally rejected that suggestion and, indeed, said that she thought they were getting worse; so much so that, if she can avoid travelling in a car, she does so and she said that ten minutes in a car is like ten hours to her. She agreed that, when she visits Dr. Cantrell, she goes by car but that, if she does, she tries to ensure that she is not driven on main roads. When pressed as to what she says happens to her when she travels in a car, she says that she is stressed, that she roars and screams, experiences pain in her legs and that, after a journey in a car, she is drained. She said that, as a result of her inability to travel by bus or car, she is prevented from going to work and cannot live a normal life. When it was suggested to her that her fears were irrational, she agreed that that might be so but that, unfortunately, she was unable to control them. She said that, while she did not know what was going to happen in the future, she did not believe that she would ever recover although she accepted that Dr. Cantrell was hopeful that she would. As far as she was concerned, however, she is afraid of everything on the road and does not go anywhere on her own.
As I have already indicated, I had the benefit of reading several reports on Mrs. Kelly furnished by Dr. Robert Cantrell, the consultant psychiatrist whom she has been attending since the month of November, 2001 and, in addition, I had sworn testimony from Dr. Cantrell. In that regard, Dr. Cantrell assured me that, so far as he was concerned, Mrs. Kelly had been entirely consistent with regard to the complaints which she had made to him over the years and, in his view, she was a completely genuine person. That, indeed, was also my assessment of the lady as I watched her giving evidence before me. She impressed me as a totally reliable and honest historian of the events which she described in the course of her evidence and of the feelings which she has experienced following the traffic accident in which she was involved on 6th April, 2001. I was particularly impressed by the emotion which she manifested when challenged by counsel for the defence that her fears were irrational; her response being that, whether or not they were, she could not control them; much as she would love to be able to. I have no doubt but that the tears which she shed on that occasion were very genuine. Dr. Cantrell gave evidence that, when he first saw Mrs. Kelly, he diagnosed that she was suffering from incapacitating anxiety symptoms related to cars; symptoms which were precipitated by the accident in which she was involved on 6th April, 2001 and symptoms which were provoked by the presence of cars and the presence of heavy traffic. He said that, initially, he had embarked upon a regime of intensive relaxation treatment which included anti-depressant and anti-anxiety medication but that, while Mrs. Kelly’s mood improved, the anxiety symptoms were resistant to the treatment notwithstanding that he had increased the amount of medication which he had prescribed for her. In this regard, Dr. Cantrell expressed disappointment at the lack of improvement in Mrs. Kelly but he said that, in his experience, it was not all that unusual that persons suffering phobic and anxiety problems are resistant to treatment and, as I have already indicated, Dr. Cantrell said that he had no reservations whatsoever about the genuineness of the fears which Mrs. Kelly expressed. Moreover, he was satisfied that she was not employable outside of the home and that while he was hopeful that, with the passage of time, she would improve, he would not expect a significant improvement for another three to five years and it could well be that her problems would prove to be chronic. One way or the other, however, Dr. Cantrell was satisfied that Mrs. Kelly would have to continue to see him and would require ongoing treatment for the foreseeable future. When asked to put a label on Mrs. Kelly’s problems, Dr. Cantrell said that she was suffering from Post Traumatic Stress, from agoraphobia, from depression and from phobic panic. He said that, in his view, there was no relationship between her current problems and the depressive symptoms which she had experienced in the past and that, were it not for the accident which gave rise to this claim, she would be well able to cope with all the demands of normal living. While it may well be that her reaction to the accident in which she was involved was disproportionate, it is nevertheless a reality.
Under cross-examination, Dr. Cantrell indicated that the best label for Mrs. Kelly’s condition was Post Traumatic Stress and while, more often than not, persons suffering from that condition make a good recovery, that does not always happen and, in some instances, the condition can prove to be chronic. He said that, since Mrs. Kelly first came to him, her mood has improved but, otherwise, she is no better. He agreed that she should continue to try to confront her fears but he accepted that this will be difficult for her and that, one way or another; any gains from so doing will not be short term. He also agreed that it is not good for Mrs. Kelly to stay at home but that, outside of the home, she was, as he said “crippled by her symptomology”. He also agreed that physically and psychologically, there is no reason why Mrs. Kelly would not be able to work. However, her problem is getting to a place of work.
Nevertheless, he was hopeful that, with the passage of time, she would be able to overcome her problems to the extent that she would be able to return to work. At the same time, in response to a direct question in that behalf from me, he was not prepared to say that, as a matter of probability, that was going to happen.
Mrs. Brenda Keenan, a vocational rehabilitation consultant, gave evidence that she assessed the plaintiff’s employability in the light of what Mrs. Kelly, herself, had told her about her experiences since the incident which gave rise to this claim and in the light of the medical evidence of Dr. Cantrell and that it was her, Mrs. Keenan’s, opinion that she is currently unemployable outside of the home. Mrs. Keenan added that, in the event that Mrs. Kelly were to overcome her current problems to the extent that she was able to return to the workforce, the likelihood is that she would have to undergo a retraining programme before doing so. Under cross-examination, Mrs. Keenan agreed that Mrs. Kelly was suffering from no disability which would prevent her from working at home. Her problem was that she is unable to travel by public transport, or by car, so that she cannot get to or from a place of work.
Mr. John Logan, a consulting actuary, gave evidence that the amount of disability benefit which Mrs. Kelly had received to date together with the amount of disability benefit which she is expected to receive during the balance of a period of five years since the date of the incident which gave rise to this claim is €38,415. Moreover, in the light of the evidence of Ms. Kay Fleming, the catering officer from Beaumont Hospital, Mr. Logan calculated that, had she been able to take up employment in Beaumont Hospital on 13th April, 2001, as she expected to, Mrs. Kelly’s average net weekly earnings to date would be €347.15 and that, therefore, as a result of her inability to take up that employment, she has lost a total of €75,961 to date. In that regard, Mr. Logan gave evidence that Mrs. Kelly’s current net weekly salary would be €390. Mr. Logan also gave evidence that the capital value of the future loss of €1.00 per week for Mrs. Kelly to age 65 is €965 and that a similar loss for a period of five years from the present day would be €242 and that for a period of ten years from today would by €450.
No evidence was called on behalf of the defence and, in particular, no evidence was called to challenge or contradict the opinion evidence of Dr. Cantrell. In that regard, as I have no reason to doubt that evidence and, indeed, thought Dr. Cantrell to be a very impressive witness, I accept without reservation all that he had to say about Mrs. Kelly, and in particular, his prognosis for her future. That being so and allowing, as I have already indicated, that I considered Mrs. Kelly to be a very honest and trustworthy witness, it seems to me that an appropriate sum to compensate her for all that she has suffered and for the considerable disruption of her lifestyle since the 6th April, 2001, the sum of €25,000. As for the future, allowing that Dr. Cantrell does not expect a significant improvement to Mrs. Kelly’s condition for another three to five years and has voiced the possibility that she may never recover although he is hopeful that that doomsday situation will not arise, I think that an appropriate sum for general damages into the future is a sum of €65,000. On top of that, I am satisfied that Mrs. Kelly is entitled to be recouped the loss of earnings to date amounting to €75,961 and loss of earnings into the future. In that regard, Dr. Cantrell suggested that it would be three to five years before he would expect Mrs. Kelly to improve and, as I have indicated, he voiced the possibility that she would never improve. In my view, I must take that possibility into account in assessing future loss of earnings. I must also take into account Mrs. Keenan’s evidence that, even if Dr. Cantrell’s best hopes for Mrs. Kelly’s future are realised, she is going to have to undergo a retraining programme before she will be able to return to the workforce. In those circumstances, I do not think it unreasonable that I should; perhaps somewhat speculatively, assume that it is unlikely that Mrs. Kelly will return to work in the next eight years and I propose to allow her loss of earnings based on that assumption. In that regard, I had evidence that, were she currently at work, Mrs. Kelly would be earning a net weekly wage of €390. While I have no evidence as to what is the capital value of the future loss of €1.00 per week for Mrs. Kelly for a period of eight years from today, Mr. Logan gave evidence that that figure for a period of five years is €242 and for a period of ten years is €450. In the light of those figures, I calculate that the capital value of the future loss of €1.00 per week for Mrs. Kelly to €360 and, therefore, allowing that, if she was currently working, she would be earning a net weekly wage of €390, the capital value of her future loss of earnings is €140,400. However, allowing for the possibility that, during that eight year period, Mrs. Kelly might be unable to work due to illness, redundancy or the unavailability of work it is always a possibility although, given Mrs. Kelly’s work history to the date of her accident, I think that that possibility is a relatively small one, I must, as the Supreme Court has laid down in the well known case of Reddy v. Bates, give the defence a discount on the plaintiff’s claim for future loss of earnings and, in that regard, it seems to me that an appropriate discount is 15% so that I will assess Mrs. Kelly’s claim for future loss of earnings in the sum of €119,340. In addition to the foregoing, Mrs. Kelly is entitled to be recouped all out of pocket expenses which she has incurred and which are agreed in the sum of €602 but, of course, there must be deducted from her award a sum of €38,415 in respect of the disability benefit which she has received and will receive as a result of her injuries.
In the light of the foregoing, I will award Mrs. Kelly a sum of €247, 488 calculated as follows:-
General damages to date €25,000
General damages into the future €65,000
Loss of earnings to date €75,961
Loss of earnings into the future €119,340
Special damages €602
_____________
Total €285,903
Less €38,415
_____________
Balance €247,488
O’Sullivan v Ryan
[2005] I.E.H.C. 18, January 25, 2005, Peart J.
Judgment of Mr Justice Michael Peart delivered on the 25th day of January 2005:
General Career background:
The plaintiff is a 46 year old man who lives in Midleton, Co. Cork with his wife and two daughters.
He has been a member of An Garda Siochana since 1977, becoming a Detective Garda in 1995/96. It so happens that five or six years ago, a Special Detective Unit was being set up for the Munster area under the direction of then Superintendent Timothy O’Callaghan. Its purpose seems to have been to carry out surveillance and investigate serious crime in the Munster area. That work involves what might be loosely called special operations when an event occurs when members of that elite unit will be called upon to do work giving rise to levels of overtime greater than would normally arise on ordinary station duties. Normal overtime restrictions do not apply in these situations, and the plaintiff has said that considerable overtime hours are worked by him and members of that team, as may be required. I will return to that matter in due course, as it is one of the matters seriously in issue in this case.
The plaintiff states that the work of this special unit can involve him in being out all night on surveillance operations, following suspects, driving at night without lighting, doing a special driving course. It also involves carrying firearms, and being able to use a handgun as well an Uzi machine gun. He said that it was not a seven day a week job in special operations, and that he would spend most of his time in Midleton, but that he could have to at short notice deploy elsewhere for as long as was necessary. Sometimes he would have to travel to Dublin for a few days or sometimes two weeks. It was not regular, and depended on what job had to be done. He mentioned the longest such assignment being a two month stint watching activity at a beach.
The evidence has been that the plaintiff was hand-picked by the then Supt. Callaghan, as being one of the best detectives in his area and ideally suited to the tasks required of this unit. The allegation now is that as a result of an injury to his left upper arm in a car accident on the 25th March 2002, he is likely to have to cease being a member of this elite Special Unit, since the injury will interfere with his ability to deal with violent confrontations with criminals, and also with his ability to use firearms to the level required. His former superior, Supt. Callaghan, now retired, has given evidence, as has the current Supt. Hayes that they have fears or concerns that the plaintiff’s injury could compromise the safety both of the plaintiff himself, and those with whom he is engaged in operations of a dangerous kind, and that it is possible that he may have to take up work of a different kind, which does not expose him, and possibly others, to risk. If he has to do other work, he states that there will be a loss of overtime opportunity. I shall return to that also in due course.
It appears that these special operations happen every now and then, and in other times the plaintiff is engaged upon the more usual type of detective work, involving the investigation of crime, the interviewing of witnesses and suspects and so on. At that work, he states he would work more normal hours, with less overtime available. But the suggestion is being made also that even the normal type of detective work involving crime investigation and interrogation of witnesses and suspects may be inappropriate for him since there can be situations where confrontation with violent persons could be involved, such as when making an arrest, and that it would be more appropriate for him to take up an offer which has already been made to him, and declined, that he transfer to a job as a scenes of crime officer, where such risks would be absent.
Fitness:
Prior to the accident the plaintiff was a very fit man, who engaged in a good deal of physical activity, such as golf, cycling, indoor football, some squash and so on. He says that his ability to do some of these activities has been curtailed by the accident, although he still plays a lot of golf and enjoys a certified playing handicap of 22. He enjoyed keeping himself fit, and says that he is now not as fit as he was. He does not play football any more because there would be a risk that he could injure his arm again or indeed his knee. The same would presumably apply to squash. I cannot see any evidence that he cannot at this stage resume walking and cycling though these activities would have been curtailed for some time following this accident.
The accident:
On the date of this accident the plaintiff was a passenger in a car being driven by a Garda colleague, the defendant. They were off duty, and had each attended a social function at a Golf Club at Fota, on the evening of 25th March 2002.
He states that at about 8.45pm on that evening, he left the function with the defendant as a passenger in the defendant’s car. He was seated in the front passenger seat but by the time of this accident had not fastened his seatbelt. He states that his normal routine or habit would be to fasten his seatbelt when being carried in a car, except perhaps when on duty, but on this occasion he had not done so. It appears that there is a long lane or road leading from the Golf Club to the main road.
The plaintiff states that the defendant was driving too fast along this roadway, and that he turned towards him in order to tell him to slow down, but the car went off the roadway on the left hand side, and hit a tree. The car was written off in this accident. As a result of the impact, the plaintiff states that his head hit the windscreen, and his right knee struck the dashboard, and that his left arm struck against the pillar of the car on the passenger side. This pillar is located just behind the passenger seat, and the plaintiff believes that it is this that his left arm struck causing a nasty fracture at a point just above the left elbow.
The defendant on the other hand suggests that in fact the plaintiff’s left arm more likely struck the front dashboard as a result of the fact that the plaintiff was not wearing his seatbelt and was turned towards the defendant at the time of the impact. The suggestion of the plaintiff is that if the arm was injured when it struck the pillar behind him, the fact that he was not wearing his seatbelt would be irrelevant, whereas, as submitted by the defendant, if it struck the dashboard, the seatbelt factor would be relevant to the cause of that injury. I will deal with that aspect of the case in more detail later.
The injuries sustained:
He was very frightened by this accident and was afraid he would not be able to get out of the car. There was a lot of smoke coming from the car. He was taken to A&E at Cork Regional Hospital by a man who came upon the accident shortly after it happened. He was treated for his injuries and released home on the following day, the 26th March 2002.
Dr. Stephen Cusack, Consultant in Emergency Medicine:
Dr. Stephen Cusack reports that the plaintiff was admitted under the care of Mr George Mullen, Consultant Orthopaedic Surgeon for an open reduction and fixation of a complex fracture of the left humerus. He notes also that the plaintiff had also sustained an injury to his right knee. He states in his report dated 4th October 2004 that in September 2004 an arthroscopy was performed on the knee and revealed the presence of degenerative change and a tear of the posterior horn of the medial meniscus.
He states at the conclusion of the report that “it is quite possible for such injuries to occur independent of the use of seatbelts.” In his oral evidence he said more about this view. In his direct evidence he stated that the purpose of a seatbelt is to reduce mortality and the severity of injury, but that it does not mean that a person will not sustain any injury, and that it was quite possible for injury to occur even when a seatbelt is worn. When cross-examined he agreed that whether or not injury was sustained by a person wearing a seatbelt would depend on a number of factors, and that for example if another car hit the person’s car on the left hand side the person would still be injured. It was put to him, on the other hand, that where there was a front impact, as in the present case, the forces of the impact are against the seatbelt and if it is worn it is more likely that the seatbelt will either eliminate injury altogether or minimise it. Dr Cusack agreed, and that where the evidence is that the plaintiff at the time of this accident was turning towards the driver of the car at the time of the accident, it was more likely that injury to the upper left arm would occur against the dashboard if the person was unrestrained in the seat by a seatbelt.
Dr Cusack was also asked to agree that in these circumstances it was also more likely that the plaintiff’s right knee would not have been injured against the dashboard had he been wearing his seatbelt. Dr Cusack expressed the view that his knee injury may have occurred due to him bracing his right leg in anticipation of the accident, rather than by being thrown forward against the dashboard, but Counsel stated that there was no evidence that he in fact braced his leg before the impact.
He also stated that the tear of the meniscus found on examination is not something which would simply happen over time, but would require what he called “an event”. It was suggested that it was perhaps something which happens very often in a sports injury, and he agreed that this was so, but there has been no evidence in fact that this plaintiff had suffered any sports injury at his right knee prior to the accident, and if he had it would be something which he would know about.
I will return to that note when dealing with the question of contributory negligence.
Dr. Rosemary Hutch – GP: Report dated August 2002:
She states in her first report dated 28th August 2002 that she saw him first on the 26th March 2002. He was in great pain, was tired and in obvious distress at home. She recites in her report that on the previous day a plaster of Paris was applied to the left humerus fracture, which extended from his shoulder to his wrist, and his fingers were in a support. He had been provided with a powerful analgesic at the hospital, and she decided to give him also a non-steroidal anti-inflammatory analgesic agent.
The plaintiff’s evidence regarding that day is that he had not slept the night before and was very tired and distressed. He had been worried about the prospect of surgery which had been discussed as a possible option. His wife took him home, and he stated that the pain was what he called “unbelievable” if there was any jolt of the car. He said that Dr Hutch, his GP called to see him. He recalls that his knee was sore and swollen at that stage, but that it was his arm that he was most worried about. He had to attend the hospital for x-rays about once every fortnight. The plaintiff stated that he had a very heavy plaster on for about seven or eight weeks and that this was changed to a lighter one after that. Dr Hutch states that the Plaster was removed about mid-May 2002. He complained that this plaster cast was extremely heavy and prevented him from exercising such as by walking. It was also uncomfortable in bed and he could not turn on his own. He was unable to shower for a period of three months until it was removed. He found all these restrictions very distressing and frustrating.
By August 2002 Dr Hutch was noting that the plaintiff still complained of a burning pain and hyper-sensitivity above his left thumb and index finger, and that he wakes at night when turning in the bed. In addition she notes that his hand swells. In July 2002 she noted that he could not move his left wrist, and was unable to wriggle his fingers and was able to straighten his elbow to 45 degrees. He had intensive physiotherapy following the removal of the plaster cast in order to gradually retrieve movement in the left arm due to immobilisation. He was also being referred for EMG studies (electrical conduction tests) of the nerves of his left hand.
Knee:
She noted that in April 2002 he complained of right knee soreness and swelling which had improved by the end of May 2002. It was still a little swollen on that occasion, but was otherwise stable. By 1st July 2002 she was of the view that his knee had fully recovered.
In her oral evidence she stated that on the day following the accident the plaintiff had mentioned his knee to her, but she felt that he was too unwell on that day for her to examine it.
Travel Anxiety:
Dr Hutch noted that the plaintiff had developed anxiety and expressed the view as of August 2002 that this might need some psychological intervention should it persist. In fact, in due course, the plaintiff attended Dr David Walshe, Consultant Psychiatrist in relation to what has been described as Travel Phobia, being a fear or anxiety when being driven in a car. I will deal with that matter separately in due course.
She has provided another report dated 2nd October 2004. She noted that “he has almost recovered full use of his hand but has ongoing difficulties.” She noted that he complains of tenderness in the left elbow around the site of the fracture, as well as some restriction of flexion and extension. He also has some difficulty closing his fist, but can do so. She noted that his forearm gets tight, and he must loosen it up by movement of his hand. She also noted that he had some difficulties doing tasks with his thumb and finger such as tying a tie or twisting an Allen key.
She states that the arm injury kept him out of work until April 2003 when he returned to light duties with no confrontational exposure. Thereafter he returned to his normal pre-accident duties, and Dr Hutch notes that he has to be able to use a gun with both hands, and that he did a functional capacity test by ICOR Limited in this regard and passed, and that the conclusion was that he was fit to resume duty. She notes that he was found to have a reduced grip strength in his left hand which was 82% of his right hand. He is right hand dominant, and 82% was regarded as being within normal limits for a right dominate handed person.
She mentions that Dr Molloy and Mr Mullen have concerns about the possibility of osteo-arthritis developing, and states that she herself has concerns about the plaintiff’s ability to defend himself in close combat or a confrontational situation because if he is struck in the left arm he may be rendered helpless. She is worried also that his left hand may not function to the required level if he needs to pull the trigger in order to save his life.
In her evidence Dr Hutch in addition stated that since at an earlier point in time had given some sort of certificate to the Garda Chief Medical Officer that the plaintiff was fit for duty, she felt under a continuing duty to contact him again now in order to voice her present concerns that the plaintiff is not fit to do his job. For some reason, not exactly clear to me, she feels that she must do this even though the plaintiff would not wish her to do so. Mr Curtin expressed the view that she would not need to do this in this unilateral way, unless perhaps she had a very serious concern. But she stated that she had discussed this matter with the plaintiff about transferring to forensics, and that she intends to tell the Chief Medical Officer of An Garda Siochana that in her view he is not safe to perform his duties. She is of the view that he is currently on a trial period to see how he gets on, but that he has already had an incident where he ran into difficulties handcuffing a fifteen year old. It was put to her in cross-examination that Mr Curtin would say that he is surprised that she would be of the view that the plaintiff was unfit for his work, but she said that she had concerns, but she accepted that at the end of the day it would be a matter for the Garda doctors.
She was also of the view that there was a risk of arthritis developing in the elbow since the fracture had extended into the joint. She agreed that the x-rays showed no arthritic changes, but she feels that there is a risk since the fracture went into the joint.
Under cross-examination, she stated that the plaintiff had always minimised his complaints about his knee, and agreed that she had expressed the opinion in July 2002 that the knee had recovered, but that in her view this was because he had been inactive since the accident, and that the difficulties arose after he began to be fully active again. That was her view. It was pointed out to her that it was almost a year after he returned to work that he complained again about his knee, and that at a consultation immediately before her referral about the knee to Dr Molloy she in fact has no note of a complaint by the plaintiff about his knee. She stated in relation to this that she did not note the complaint in her notes but that she was surprised that he still had problems in the knee.
In relation to all these views she stated that she would defer to the opinions of the specialists in the different fields.
In her evidence she stated that she would not have any difficulty with the plaintiff continuing with physiotherapy sessions on a once or twice monthly basis, since he finds them helpful.
Reports and evidence of George Mullen, Orthopaedic Consultant:
After admission to Cork Regional Hospital, the plaintiff came under the care of Mr Mullen. In his report dated 31st July 2002, some 4 months after this accident he notes that the plaintiff suffered a comminuted fracture of the middle and lower third of the left humerus with fracture lines extending to the left elbow joint. Examination revealed a radial nerve palsy giving rise to a wrist drop. Mr Mullen noted in this report that at the most recent examination the plaintiff did not appear to have recovered from this palsy and that the plaintiff was awaiting to undergo electrical nerve conduction tests in order to assess the function of the ulnar and medial nerves (Dr McNamara). He noted that the fracture of the humerus had united.
In his evidence Mr Mullen stated that on first examination of the plaintiff there were two medical options considered, namely an open reduction of the fracture or conservative treatment. The latter was chosen because of the established nerve injury and he did not wish to add a further insult to this injury by operating. He stated also that if the radial nerve is in continuity it will recover.
The electrical nerve conduction tests to which he referred were in due course carried out by Dr Brian McNamara and I will briefly set out his findings, and then return to the evidence and reports of Mr Mullen.
Dr Brian McNamara, Consultant in Clinical Neurophysiology:
In August 2002 the EMG testing was carried out by Dr McNamara, who gave evidence and has issued some reports on this matter. I will deal with this evidence shortly, but for the moment it suffices to say that in August 2002 he found a severe left radial neuropathy due to blunt trauma of the nerve, even though media and ulnar nerve conduction studies were within normal limits.
By December 2003 there was improvement in the left radial nerve, and he opined that: “while function will continue to improve these findings imply that there is likely to be residual mild disability and discomfort. While Mr O’Sullivan will be able to perform most of the normal tasks of daily living, this may interfere with the performance of specialist tasks such as handling firearms which are part of his occupation as a member of An Garda Siochana.” This improvement had been to the level of 4 out of 5.
By October 2004 he reported that he had conducted a further test and found no further improvement had taken place.
He also gave oral evidence. He stated that the results of the tests which he carried out were consistent with severe bruising of the radial nerve which is close to the humerus. He stated that there was severe bruising and that the muscles had lost immediately a lot of nerve supply in this impact. He described a consequence of this to be what he called “a wrist drop” and that it would have impaired his ability to hold objects in that hand, and that finer movements of the fingers would be affected since a steady had is needed for these. He explained that the muscles involved are required in order to brace the hand in order to hold small things, such as a notebook. In relation to heavier objects there was increased possibility of dropping, and he stated that forceful movement of something such as a golf club could be adversely affected. The improvement which had taken place was not total and he did not see at this point in time that there would be any further improvement to the point of level 5.
Mr Mullen – cont’d:
Mr Mullen’s next report is dated 12th May 2003. He refers to the electrical tests to which I have referred and says that they verify the presence of a recovering radial nerve palsy, and that the plaintiff is continuing to have physiotherapy and was showing marked improvement. He saw the plaintiff for the purpose of that report and states that the plaintiff himself stated that he was greatly improved in the previous six months. There is a reference to a “definite tingling sensation on tapping the distal left forearm”. Mr Mullen stated that this was part of normal recovery and is in fact a positive sign related to nerve recovery.
Mr Mullen noted that the plaintiff flexes to 90 degrees, but has minus 10 degrees of flexion, with no evidence of wrist drop. He was hopeful that the plaintiff would recover full strength in his left arm.
Mr Mullen stated that until Dr Molloy referred the plaintiff to him in August 2004 in relation to his knee, the plaintiff had never made any complaint about his knee.
In his final report dated 28th September 2004, Mr Mullen noted that the plaintiff continued to complain of symptoms in his left arm, including tingling in his left hand, even though he also stated that the function of his left upper limb was normal, “and he is able to carry out all duties expected of him by his employees”. Mr Mullen examined the plaintiff on 28th September 2004 and stated the results of this examination in the following way:
“Left upper limb – there was no noticeable deformity. There was a full range of movements in his left shoulder. The patient was lacking approximately 5 degrees of full flexion of the left elbow and 5 degrees of full extension of the left elbow. He had full pronation and full supination. Finger pressure on the muscles in the proximal forearm give rise to some local pain and a tingling sensation experienced on the dorsum of his left hand. There appeared to be full power in the grip of his left hand. There is no evidence of residual weakness of dorsi flexion of the left wrist.”
The knee:
The plaintiff had been referred by Dr Molloy to Mr Mullen quite recently before the date of this report so that the plaintiff’s right knee could be examined since the plaintiff was having problems with it. Mr Mullen did an examination under anaesthetic and an arthroscopy which indicated quite extensive degenerative changes affecting the medial femoral condyle of the right knee together with a tear of the posterior horn of the medial meniscus of the right knee. Certain procedures were undertaken at that procedure which Mr Mullen indicates will continue to give the plaintiff relief from his knee condition, but he could not at that point give a medium or long-term prognosis. In his direct evidence, Mr Mullen expressed the view that since the plaintiff had no knee problems with his knee before the accident, and no knee injury took place after the accident, the likelihood was that the knee problem was caused by hitting it against the dashboard in this accident. He stated that it was totally in accord with a front seat passenger hitting his knee against something solid on impact. He is also of the view that there will be problems in the future with the knee since it is a weight bearing joint. This progression may lead to pain at first, and it may be necessary eventually to provide a knee replacement, depending on the severity of the symptoms. He stated that he was not a knee expert but would think that a replacement may be necessary in 5-10 years, and that a replacement joint would have a life span of 15-20 years.
Cross-examination:
Mr Mullen agreed that from an early stage he had been happy with the plaintiff’s recovery progress and was of the view that he would recover well. He stated that the plaintiff had no functional disability with his elbow and that any evident limitation of movement was very small (5% extension and 5% flexion)
He also agreed that it was not until August 2003 that he had been consulted about the plaintiff’s knee. He felt that the plaintiff should be able to do his job as a Garda officer, but added that he would not be in a position to express a view as to the plaintiff’s ability to use a weapon, since he had no expertise or knowledge as to what was required for that. But he expressed the view at a later stage of his cross-examination that the plaintiff should be able to use a handgun by the time his treatment concludes, but did not know about the Uzi gun as he did not know about that. As far as he was concerned there was nothing in his clinical notes to indicate that the plaintiff could not do his work.
Mr Mullen believes that the problems with the medial femoral condyle was a result of the plaintiff’s knee hitting the dashboard, inspite of the evidence that the plaintiff was turning towards the driver at the time of the impact. He felt that the right knee would still have been facing the dashboard even if the plaintiff was turning towards the driver. But he mentioned that he did not believe that the cartilage aspect of the knee difficulties resulted from the accident.
Dr Michael Molloy, Consultant Physician/Rheumatologist:
His first report is dated 15th April 2004 and he sets out a summary of the plaintiff’s history which adds nothing of significance to what we already know up to this point. On examination the plaintiff was seen to have a full range of movements in his cervical spine and shoulder, and in relation to his left elbow he noted that the plaintiff lacks 10 degrees of extension and 15-20 degrees on flexion with good rotation and with some weakness of dorsi flexion of the wrist and of grip in that hand as well as some loss of fine movement in his fingers. He stated that the continued existence of tingling meant that there was still some element of palsy remaining.
In relation to the plaintiff’s knee he stated that the plaintiff had full movement with crepitus and evidence of anterior crusciate laxity.
In the “Opinion” in this report, Mr Molloy states that further improvement can be expected in the fine function of the hand, but that he might expect some residual restriction. He also states that the plaintiff is likely to develop osteo-arthritis in his elbow joint. He also stated that “there is some doubt about his ability to be able to return to his full active Garda duties in the foreseeable future.” He noted that the plaintiff was most concerned about this and the prospect of the onset of osteo-arthritis in the future.
In a report dated 30th September 2004, Dr Molloy states that the plaintiff has three problems which he lists as follows:
1. Left elbow, which is stiff and uncomfortable and lacking full movement;
2. Pain and parasthesia in the left hand into the fingers, involving the ulnar distribution and the thumb on occasions and weakness of the forearm and grip on that side;
3. Right knee – the right knee was arthroscoped by Mr Mullen and he had a partial menisectomy carried out and he was found to have marked degenerative changes involving the medial surface of that right knee.”
Dr Molloy noted that the plaintiff had gone back to work full-time but that he had difficulties and is concerned about his arm where he lacks movement in the elbow, has weakness and discomfort in the forearm, as well as some problems still with his right knee. Dr Molloy states that this knee “has been giving him trouble throughout but which has been dealt with surgically now.”
Mr Molloy’s conclusions are very pessimistic and are in the following terms:
“In my opinion, in view of the nature of his work, where his life and others’ is at risk, I feel that it is unsafe for him to continue because of his left upper limb where the symptoms have not receded after three years and in a confrontational situation he would have difficulty coping with an assailant in protecting himself and others. The weakness, pain and discomfort he gets on activity would leave him very vulnerable and at risk. His right knee has marked degenerative changes from Mr Mullen’s note, which means that his knee will get troublesome and worsen in the future with a question of a total knee replacement in the next five to ten years. On balance, I feel that he is unfit to continue his present job and as he is fully trained in the scene of crime and forensic work, this would be a more appropriate environment for him. To be exposed to an assailant or criminal in his present continuing state would leave him at risk of more serious injury. I would strongly recommend that he is changed from his present role to the scene of crime/forensic role and this would be more appropriate for him and it would also ensure that his expertise over the years would be fully utilised. He is a highly motivated man and very keen to remain at his present job but in my opinion it would be unwise to continue there into the future.”
In his direct evidence he gave evidence consistent with this opinion and there is no need to set it out in any detail as far as his view is concerned of the implications for the plaintiff’s ability to do his job.
He also stated that the plaintiff may need a knee replacement in the future, and that in his view the impact with the dashboard has produced the arthritic condition which might lead to knee replacement. Any degenerative changes in the knee which might have predated the accident were, in his view made symptomatic by the accident.
Dr Molloy was also of the view, when cross-examined, that the delay in the onset of knee symptoms was because for a significant time after this accident the plaintiff was fairly immobile and that it was only when he began to resume significant activity that the knee problems came on. Dr Molloy referred to the fact that he had made complaint to Dr Hutch about his knee immediately after the accident. He is of the view that the knee injury would need a trauma for its occurrence and that this was not something which could simply have happened gradually over time.
He was cross-examined about his view that the plaintiff will not be able to do his job. He is of the view that the arm will be a problem. It was suggested to him that since the fracture of the humerus went into the joint only to a minimal extent this would in fact not become a problem as far as any onset of arthritis is concerned, but Dr Molloy thought the risk was there. As far as the strength in the plaintiff’s wrist is concerned, Dr Molloy lays a good deal of emphasis on the fact that Dr McNamara’s conduction tests has shown a permanent loss of function. He also remains of the view that the plaintiff cannot properly do his job inspite of the fact that the plaintiff passed the ICOR competency test and was passed fit for his job. Dr Molloy is nervous about the plaintiff being back doing his job, even though he had advised the plaintiff to go back to work as soon as he could.
It was put to him that Mr Curtin would say that the limitation of movement which the plaintiff has now and will continue to have, is of no functional significance. But Dr Molloy is of the view still that given this plaintiff’s particular job, it is of significance.
Bernadette Whelan, Physiotherapist:
The plaintiff attended for physiotherapy first on the 17th June 2002, which is almost three months after this accident. His plaster cast had been removed and he had considerable restriction of movement in his left elbow joint, as well as his shoulder and wrist. He also had marked wasting of his deltoid muscle, the biceps, triceps and the extensor muscles of his left arm. He underwent intensive physiotherapy, three times a week until the 26th July 2002. The treatment was then reduced to two treatments per week. In addition to these treatments he was put on a home exercise programme, which he attended to very diligently and conscientiously. Ms. Whelan noted that he was responding very well and had regained a good deal of movement, and would continue to improve with further treatment from her and the home exercise programme.
She gave evidence of his continuing attendance for physiotherapy though it has become less frequent gradually, but she is firmly of the view that the plaintiff needs ongoing physiotherapy, inspite of Mr Curtin’s view that the need for such treatment is now over and that home exercise is now sufficient. She explained very clearly how this need arises, and without setting out her evidence in detail, she has stated broadly that the plaintiff’s arm still causes difficulties and that the sort of treatment which she can give him for that, is not something which he could do for himself. She is of the view that without the on-going treatment, perhaps once a month, his function in his left arm would deteriorate. She stated that while Mr Curtin may be of the view that further treatment will not contribute anything more to his further recovery, it was nevertheless still an important feature of maintenance of the arm. Dr Molloy in his evidence also said that in his view if the plaintiff did not continue with physiotherapy his elbow would stiffen up. He was of the view that the plaintiff definitely gets benefit from it.
I have to say that I was very impressed with the evidence of Ms. Whelan and am left in no doubt as to the positive benefits to be derived in the future from further physiotherapy from a maintenance point of view, even though the restorative function of physiotherapy has gone as far as it can do as far as muscle function is concerned.
Dr. David Walshe, Consultant Psychiatrist:
He dealt with what has been called Travel Phobia. This is a state of heightened anxiety which the plaintiff suffered from following this accident when being driven by another person. It suffices to say that the plaintiff was referred to Dr Walshe, and that he underwent some treatment from him, and that he made rapid progress and has improved greatly as far as this anxiety is concerned.
Dr Denis Kelly, Consultant Radiologist:
Dr Kelly was called to give evidence by the defendants. He has taken a look at the x-ray photographs taken after this accident of the plaintiff’s as well as subsequently. He has also seen the MRI Scans of both the knee and the elbow taken in June 2004. He has expressed the view in his opinion that the fracture of the humerus has healed very well with no radiological evidence of traumatic arthritis, and that since it is a non-weight-bearing joint the risk of long-term osteoarthritis is “very low”. In his oral evidence he stated there was, as a result of the accident, a very slightly increased risk of osteoarthritis developing because the articular surface was breached as a result of the impact to the knee.
Mr John Curtin, Consultant Orthopaedic Surgeon:
He was called by the defendants to give evidence. In his first report dated 16th December 2002 he stated that the fracture to the left humerus was soundly healed and that his nerve palsy was well on the way to full recovery. He states also in that report that the plaintiff was fit to return to his work as a Garda. I should just mention that in his oral evidence it seemed to me that he was not appraised of the exact nature of his duties as a Garda and that this opinion may have been expressed without the knowledge of the particular duties the plaintiff is engaged upon which I have already set out in detail. Mr Curtin at this stage noticed on examination that the plaintiff lacked about 15 degrees of extension, and elbow flexion was 100, 120 being normal. He noted full movement of the wrist and that the plaintiff had full power in that wrist. He noted that power in his fingers was 4, with 5 being normal. In his oral evidence he confirmed that at this first examination the plaintiff did not mention his knee injury at all. He also described the risk of arthritis in the elbow joint as “miniscule”, even though he described the fracture itself as being a nasty one, complicated by a paralysis of the radial nerve.
By November 2003, he noted that he lacked 10 degrees of extension and 10 degrees of flexion in his left elbow. He noted that he had regained full power in his wrist and finger extensors and was able to make a full fist. In his oral evidence he stated that by “full power” the plaintiff had regained power 5, whereas previously he had been at power 4. He was of the view by then that his nerve palsy had recovered fully except for some minor alteration of sensation on the back of his left thumb. He also stated that while there was “some very minor loss of flexion and extension” it would not give rise to any functional impairment. He also stated that the plaintiff was fully fit for Garda duties and that there was no long-term risk of arthritis developing.
In a final report dated 23rd July 2004 he stated that the impact of the knee against the dashboard would not have caused the damage to the plaintiff’s cartilage for which he was treated by Mr Mullen in 2004. I should say that Dr Kelly was asked about and he said that he would not say that it could not have happened in the accident, but nevertheless he was not saying either that it probably did happen then.
In summary Mr Curtin would be of the view that the plaintiff has fully recovered with no risk of arthritis and no need for ongoing physiotherapy, and that while Dr McNamara’s nerve conduction test may show what will now be a permanent loss of nerve function, there is no clinical indication of this and that the plaintiff for all practical purposes has full function of the limb. He would also be of the view that the plaintiff’s knee injury does not result from the impact in the accident.
In cross-examination it was put to him that his first examination of the plaintiff lasted a matter of four or five minutes, but he disagreed and said it would have lasted about ten to fifteen minutes. Mr Mullen was at the examination also since his rooms are adjacent to Mr Curtins. He agreed that when he was examining hm he did not know that the plaintiff was a Detective Garda attached to a Special Unit as described in evidence.
He was surprised to know now that by October 2003 the plaintiff was still undergoing physiotherapy, and is of the view that physiotherapy has no further place in the plaintiff’s condition, since he has recovered as much as he will. In rel;ation to the deficit found by Dr McNamara in nerve conduction, Mr Curtin stated that after an injury, a nerve conduction test never returns to normal. But in the plaintiff’s case there is no longer any reduction in muscle bulk, and he has a normal function on clinical examination.
It was put to Mr Curtin that the plaintiff has stated in his evidence that as a fact he experienced a difficulty recently trying to arrest a violent 15 year old. Mr Curtin was of the view that from a physical point of view he should not have any difficulty, but that after any fracture there can be a lack of confidence which will resolve in time. He has no doubt but that the plaintiff has full power in his arm and full muscle bulk on clinical examination.
He was also satisfied that even though the fracture went into the joint, it was only a linear extension and would not give rise to arthritis at a later stage. In relation to the views of Dr Molloy in this regard, he stated that Dr Molloy’s specialty was in soft tissue injuries and he does not treat or operate on fractures.
In relation to the knee injury Mr Curtin was of the view that if it was the result of the accident the plaintiff would have become aware of it within a very short time thereafter. But it was put to him that the situation had been that immediately after the accident complaint had been made to Dr Hutch of bruising and swelling, and that having been sedentary for a time after the accident the knee began to give problems after he had become more active. Mr Curtin did accept when it was put to him that it was “possible” that the knee could have been injured in the impact with the dashboard when the patella impacted against the femur. But there is no doubt that he has some reservations about that when one takes his evidence generally.
In relation to a possible knee replacement, Mr Curtin stated that he was surprised if Dr Molloy had said that the knee would need to be replaced in 5 to 10 years time. He stated that the progression would be very slow and he could not see that he would need one within that time span.
Conclusions:
Contributory negligence:
The plaintiff accepts that he was not wearing his seatbelt at the time of this accident.
I am satisfied that the plaintiff was thrown forward by the impact against the tree. I am satisfied on the balance of probability that the plaintiff injured his left arm when it impacted against the dashboard rather than that he hit it against the heft pillar of the car as surmised by the plaintiff. The evidence is that he was turned at least to some extent towards the driver when the accident occurred. It seems to me that it is more than likely that the plaintiff’s left arm was facing at least partially towards the dashboard and that it impacted severely against it causing the nasty fracture. The impact with the tree was a significant impact. The plaintiff also hit his head against the windscreen which makes it absolutely certain that he was thrown forward to a significant extent. His right knee also impacted with the dashboard. I have no doubt that the absence of restraint of the plaintiff by means of a seatbelt contributed significantly to these injuries including the knee injury. The suggestion that even if he had been wearing a seatbelt he would have hit his knee off the dashboard is not one which in my view can assist the plaintiff on any balance of probability test in relation to contributory negligence. The purpose of the seatbelt is to restrain the plaintiff from being thrown forwards, and also of course from being generally thrown about the car and even propelled out of the car altogether. It must in my view follow from the absence of wearing the seatbelt that the plaintiff has been guilty of a want of care for the purpose of s. 34(1) of the Civil Liability Act, 1961, as well in fact as being guilty of negligence, since the failure to wear a seatbelt is a breach of a statutory duty, and negligence for the purpose of the Act includes breach of statutory duty.
The particular injuries suffered by the plaintiff in this case are such as would, in my view, have been either significantly reduced or possibly eliminated altogether by the wearing of a seatbelt. On the balance of probability this plaintiff would have been restrained from being propelled towards the dashboard. One could speculate that he might have suffered whiplash instead, but that is mere speculation.
I am satisfied that the defendant has discharged the onus of proof upon him to demonstrate that the plaintiff has been guilty of contributory negligence and that damages should be reduced having regard to the degrees of fault of the plaintiff and the defendant.
I have no hesitation in reducing the award of damages in this case by 25%. Given the extent to which these injuries have been caused by the failure to wear the seatbelt, I would favour an even larger reduction in damages, but I feel constrained in that regard by what the Supreme Court has stated on this topic in O’Sullivan v. Dwyer [1971] IR 275 where it is emphasised that damages are to be apportioned between the plaintiff and defendant on the basis of the “moral blameworthiness of their respective causative contributions” and not “on the basis of the relative causative potency of their respective causative contributions to the damage”. On this basis I will reduce the plaintiff’s damages by 25%. There can be no forgiveness surely for a responsible and experienced member of An Garda Siochana failing to wear a seatbelt while being driven while off duty as in this case. A smaller reduction might be in order in respect of a person of capable of being credited with a lesser understanding of the importance and necessity to wear one. This distinction seems to be compatible with the concept of assessing the degree of moral blameworthiness.
The knee injuries:
Given the severity of this impact I am satisfied that in all probability, especially in the absence of evidence of any other likely cause, that the plaintiff suffered injury to his knee in this accident. The failure to wear the seatbelt meant that he was unrestrained when he was thrown forward and we know that he hit his right knee severely against the dashboard. There is no doubt in my view that he suffered bruising and swelling to the knee since he reported such to Dr Hutch the next day. I accept that the focus of everybody’s attention at that time, and indeed for a good time thereafter, was the more significant injury to his arm. It is relevant to say at this stage and I will return to it at a later stage, that I have been impressed by the somewhat understated or even stoical way in which this plaintiff has dealt with his injuries. He has not attempted in any way to exaggerate his symptoms. He is highly motivated to his recovery and the resumption of his full Garda duties, and is fearful of any possibility that he may be required to change career path within the force. He may well have made little of his knee difficulties in a situation where he was much more concerned with his arm injury and its effects on his life. Dr Molloy is certainly of the view that the degenerative changes which already existed in his knee became symptomatic as a result of the accident, and that the plaintiff may need a knee replacement, whereas without the accident he should have been able to continue without one. Dr Mullen is of the view that since the knee is a weight bearing joint the arthritic condition will progress, albeit slowly. He also stated that depending on the effectiveness of any medical treatment he may receive for pain which might ensue, he might require surgery, but he stated that he was not an expert on knees. Mr Curtin’s opinion about a knee replacement was that it was highly unlikely that he would need one during his working life, and that if he did it certainly was not on account of the impact with the dashboard. He did not think he would need one before the age of 60, and if he had one it should last him between 15 and 20 years.
I believe that the fact that the plaintiff was relatively inactive at first during his recovery meant that the knee became problematic only really when he began to be active again. I have no evidence that anything of significance occurred later to bring on the symptomology.
I am not however satisfied to the required degree that it is likely or probable that he will need a knee replacement in the short to medium term. I am not satisfied either that the accident will have been the cause of any such replacement should he have one. It is possible that he may need one before the end of his life but that is too far into the future to predict with any certainly or even probability. Certainly Dr Curtin’s evidence is that the risk is that he may need one but not within 5 or even 10 years. Beyond that seems too unpredictable.
Need for physiotherapy:
I am completely satisfied that it is reasonable that the plaintiff should continue with physiotherapy for the future. If he were not to do so I believe his arm would remain a problem for him and would worsen, and could in fact lead to the sort of deterioration which would in all probability lead to the plaintiff being unable to continue with his present position in the Garda Siochana. I believe that it is in the defendant’s interests from a compensation point of view to pay the sum proposed for future physiotherapy rather than have compensation assessed on the basis of future long-term disablement due to long-term difficulties with his left arm. I propose to deal with the matter on that basis.
Onset of arthritis in the elbow:
I am satisfied that the evidence from Dr Kelly and that of Mr Curtin is to be accepted in regard to the likely onset of arthritis in the elbow joint. They each described it in terms which suggests that there is little or no likelihood, much less a probability of such an event occurring. That will be a comfort to the plaintiff no doubt for the future. It is true that Dr Molloy has concerns about arthritis developing. I suppose that is natural given that the fracture did extend somewhat into the joint. But Mr Curtin has a great deal of experience of treating and operating on these joints, and it is his specialty, over a great many years, and I could not disregard his view in favour of Dr Molloy’s, or indeed that of the plaintiff’s GP Dr Hutch. Certainly no specialist orthopaedic has been proferred by the plaintiff to say that such an onset is probable.
I have little doubt but that the onset of arthritis in the elbow joint is remote in the extreme. I accept the expert evidence of Mr Curtin in this regard and also that of Dr Kelly who looked at the x-rays. Both described the risk as very low and minimal.
Likelihood of loss of overtime:
This is a matter on which medical opinions have been divided. Dr Molloy, the Consultant Physician and Rheumatologist who treated the plaintiff, and his GP, Dr Hutch are of the view that he is not fit to resume the particular duties involved in his position in the Garda Siochana, given what they consider to be a weakness in the plaintiff’s left arm. Dr Hutch had given him a certificate of fitness but is concerned that she should now alter that opinion because of his on-going symptoms and is concerned for his safety and the safety of others with whom he may be working, if a situation arose in which he was required to use his firearm or carry out an arrest in a confrontational situation. Dr Molloy says that given the difficulties with the arm he would have difficulty lifting something heavy and would not be as capable as previously. His biggest worry also would be that some further impact to the elbow would cause further damage. Dr Molloy’s view is that he would be at risk, and Dr Molloy would be nervous about him returning to his former duties.
There are factors to balance against these opinions, in my overall assessment of the probability of the plaintiff being permitted to remain as part of the elite force and as a detective generally, as opposed to being removed, or at least encouraged to take up some alternative position within the force, such as forensics where he would not be exposed to confrontation and the potential dangers feared by Dr Molloy and Dr Hutch.
1. The plaintiff’s own motivation and determination. I heard evidence from Superintendent Callaghan who handpicked the plaintiff for membership of this elite Special Unit, because he knew his capabilities over a number of years. He spoke of the plaintiff in very glowing terms as a member of the Garda Detective Unit. Similarly, Superintendent Hayes who took over from Superintendent Callaghan when the latter retired. The plaintiff is quite obviously a man of exceptional ability, and motivation and who loves his work. He is someone who quite clearly his employers would be very sorry to lose from that part of An Garda Siochana. He is also a man of exceptional determination to continue with his present work, and has gone to great lengths to ensure as far as he possibly can that he will be able to continue doing his present work. He very much wants to see out his days in the force doing detective work, and certainly for the foreseeable future the work of the Special Unit as well as the other more normal or usual detective work.
2. The fact that he has passed the ICOR test and has been passed fit by Surgeon Collins who is the Chief Medical Officer of An Garda Siochana.
ICOR Limited is apparently a company which tests, inter alia, members of An Garda Siochana in order to assess whether they are fit for duty. In the case of the plaintiff he underwent such a test, which took account of the particular characteristics of his position as a member of the Special Unit, in as much as the test included the ability to use a handgun and an UZI submachine gun. He was tested as to his ability to use these arms in respect of the left hand and right hand individually and then both hands together. He passed. I am not informed as to what other tests were carried out.
In addition, the plaintiff was passed fit by the CMO as I have stated. This is an important consideration, since the Court must be entitled to presume, in the absence of any evidence to the contrary, that he is the man who makes the decision as to whether the plaintiff is fit for duty, rather than someone such as Dr Hutch who may express a view of her own, or indeed Dr Molloy. Surgeon Collins presumably knows what it takes to do various Garda duties, including the plaintiff’s and can make an assessment in the light of that knowledge and experience. There has been some suggestion, not explicitly stated in evidence, that certain unspecified “pressure” was brought to bear upon Surgeon Collins to pass the plaintiff fit to resume his normal duties. I have no idea what this means really, and the plaintiff did not elaborate upon what he stated, but the suggestion being made at the time by the plaintiff was that while he may have been passed as fit, he in reality was not really fit to do his job, but that he in some way prevailed upon the Chief Medical Officer to pass him fit.
Given the implications for the plaintiff and for others with whom he would work of his doing his job when unfit, and the possible consequences of that, it is not possible for me to take that at face value. I would have needed to hear from Surgeon Collins and he was not called. Neither were any other members of the Detective Unit or the Special Unit who work with the plaintiff.
For Surgeon Collins to certify a person as being fit, who in his professional and medical opinion was not, is something which the Court cannot be expected to accept without very specific evidence in that regard. Neither would it be fair to Surgeon Collins himself from the point of view of his professional reputation.
3. The fact that he has gone back to his former work and there has been no complaint about his performance, even tough Supt Hayes may have worries.
4. The fact that from a clinical point of view the plaintiff has no functional disability or loss of muscle bulk and strength, at least according to Mr Curtin whose area of specialty it involves. Even though Mr Curtin is called by the defendant and is not the plaintiff’s treating doctor, the fact is firstly that Mr Curtin is called as an expert and that has certain well accepted and recognised implications. He is called to assist the Court, and not simply to be on one side or the other of the argument. He gives his evidence as an expert and with objectivity in the light of his clinical examination and findings. Some measure of allowance must be given to the plaintiff given that the evidence of Mr Curtin results from one or possibly fairly brief examinations of the plaintiff. But in this case the examinations took place in the presence of Mr Mullen who is the plaintiff’s treating orthopaedic surgeon, and that is of some significance.
All the evidence and these factors lead me inexorably to the conclusion that the plaintiff has not discharged the onus of proof in relation to the probability that he will be unable to continue in his present duties. That means that I am not satisfied that there will be the continuing loss of overtime pleaded and apprehended.
Assessment of damages:
· General damages in respect of the elbow, knee and forehead to date: €75,000
· Future pain and suffering: €20,000
· Special damages to date:
€6580 – doctors, x-rays etc;
€4700 – physiotherapy to date;
€30,737 – loss of earnings to date, based on an historical three year average;
€11511 – future physiotherapy;
Total: €53,528
Having made the necessary deduction for contributory negligence, there will therefore judgment for the plaintiff in the sum of €111,396.
Kerr v Molloy and Sherry (Lough Eglish) Ltd
[2006] I.E.H.C. 364JUDGMENT of Mr. Justice Herbert delivered on the 16th November 2006.
The onus lies on the Plaintiff to prove his case on the balance of probabilities. The only account of the alleged incident is that given by the Plaintiff himself. The Plaintiff gave evidence that Mr. Peter O’Donoghue, formerly Assistant Operations Manager of the first named Defendant, participated in the activity which the Plaintiff claims led to his injury and, witnessed the injury occurring. Mr. O’Donoghue, who impressed me as a truthful and careful witness, stated in evidence that he was not denying that the alleged incident had occurred but was surprised that he had no recollection of an incident involving twelve to fifteen heavy boxes falling at the same time, something which he considered to be most unusual.
Mr. O’Donoghue told the court that these twenty to thirty kg. cardboard boxes of beef were blast frozen until they were as hard as wood. However, he said, that in the course of being moved from the cold stores at the first named Defendant’s Plant to the transport containers they often became wet and slippery because of the change in temperature and it was not uncommon for individual boxes to slip and fall. Mr. O’Donoghue agreed with the expert opinion of Mr. Frank Abbott the well known Consulting Engineer who gave evidence in the Plaintiff’s case, that these boxes would have fallen, – if in fact they fell, – vertically from a height of five and a half to six feet, with an impact force of sixty kg. Mr. O’Donoghue gave evidence that his principal and, very important duty, was to check in and out of the Plant the hundreds of loads of Intervention Beef processed by the Plant each week.
Mr. Damien Hannaway, a fork-lift driver, formerly employed by the first named Defendant, told the court that the Plant had eight loading bays. He corroborated the evidence of the Plaintiff that pallet loads of boxes were transferred from the cold stores to these loading bays by employees of the first named Defendant and, thereafter were moved by the employees of the second named Defendant, including the Plaintiff, from the loading bay into the containers. Mr. Peter O’Donoghue accepted that on many occasions he had assisted the Plaintiff in stacking these individual boxes in containers.
There was no dispute that the dimensions of these boxes were on average twenty four inches long by sixteen inches wide by eight inches high. Mr. O’Donoghue confirmed the evidence of the Plaintiff that these boxes were stacked five flat and one on edge up to a height of about five and a half to six feet in the containers. He agreed with the evidence given by the Plaintiff that the correct method of stacking these boxes was to alternate the side at which the single box was placed on edge so as to provide cohesion and stability by ensuring that the vertical spaces between the individual boxes were staggered and not in line. Mr. O’Donoghue accepted in cross examination that he had not received any instruction from the first named Defendant in carrying out this task, but he said that he had learned the proper method of stacking the boxes through working with experienced packers.
Mr. O’Donoghue told the court that while he felt that he would have always adhered to this method of stacking the boxes in a container, he was not insisting that the Plaintiff was wrong, when he said that on 18th March 1999, the last three rows of boxes to be stacked had been stacked without the vertical spaces between the individual boxes being staggered. The Plaintiff gave evidence that when he noticed that this was not happening he had warned Mr. O’Donoghue of the danger involved. He said that as Mr. O’Donoghue, whom he regarded as the person in charge in the absence of his own supervisor from the second named Defendant, – Mr. Denis Daly, – did not change the order of stacking, he felt that he had no option but to continue on with the work. The court was told that Mr. Denis Daly had left the employment of the second named Defendant and was not available to give evidence.
By order of this court (Mr. Justice Peart) made the 2nd day of December 2002, Judgment in default of Appearance was entered against the second named Defendant.
The Plaintiff told the court that he was standing with Mr. O’Donoghue between the pallet of boxes and the row of boxes which they were stacking in the back of the container. He said that the pallet of boxes was positioned about four feet away from this row. They had already filled about thirty feet of a container, forty feet in length, with rows of boxes. He said that Mr. O’Donoghue was lifting a box onto the top of the row which was at a level of about five and a half to six feet. He himself was bending down to lift one of the last boxes remaining on the pallet. He said that his knees were bent and his upper body was turned away from the row of stacked boxes. Mr. O’Donoghue suddenly shouted, “get out, get out”. However, before he could react boxes came tumbling down from the last three rows they had built and one of the boxes struck him on the area of his right big toe. Mr. O’Donoghue told the court that he always wore steel-capped work boots and, that the first named Defendant insisted that all of its employees wore protective foot wear. The Plaintiff was not asked in evidence about what footwear he was wearing. In Replies to Particulars, he had initially stated the he was wearing steel-capped boots, but this was subsequently amended to state that he was wearing ordinary boots or work shoes. Mr. O’Donoghue told the court that he had no recollection of any such incident, or of the Plaintiff suffering an injury to his right foot, but he was not prepared to state emphatically that the events described by the Plaintiff did not occur, even though he was surprised that listening to the Plaintiff’s evidence had not jogged his memory in any way.
In cross examination Mr. O’Donoghue told the court that he had left the employment of the first named Defendant about five years ago. He agreed with Mr. Abbott that the boxes in falling could have brushed past the Plaintiff without injuring him but that the Plaintiff’s feet would be particularly exposed to being struck by the falling boxes.
The medical reports, admitted into evidence disclose that the Plaintiff suffered a crack fracture of the neck of the proximal phalanx of his right big toe without displacement. I find that this injury is consistent with the sort of incident described as having occurred by the Plaintiff. It was put to the Plaintiff in cross examination by Senior Counsel for the first named Defendant that he had dropped the box which he was lifting from the pallet on his toe. The Plaintiff denied this and, no evidence of any sort was led in support of this suggestion. Mr. Francis Bannigan, the then and present Operations Manager of the first named Defendant gave evidence that the first named Defendant in compliance with Law maintained an Accident Report Book. This Accident Report Book was not produced in evidence, but Mr. Bannigan told the court that there was no entry in that Book of an incident such as that described by the Plaintiff or, of any injury having occurred to the Plaintiff, thought it was company policy, in order to comply with the Law, that either he or Mr. O’Donoghue should enter any such incidents in the Book, whether or not they resulted in an injury to someone. He told the court the first time he became aware of the Plaintiff having suffered an injury on 18th March 1999, was when the first named Defendant received a letter dated 22nd January, 2002, from a firm of Solicitors making a claim on behalf of the Plaintiff.
The Plaintiff told the court that after the impact he had gone to a coldwater tap in the yard of the Plant and soaked his foot for a considerable time because it was very sore and starting to swell. When his Supervisor with the second named Defendant – Mr. Denis Daly,- arrived in the yard of the first named Defendant’s Plant at about 3.30 pm, he had told him about the incident and the injury to his foot. The Plaintiff told the court that he had continued to work that afternoon driving a fork-lift truck. The Plaintiff was subjected to a very comprehensive, though scrupulously fair cross examination by Senior Counsel for the first named Defendant. So far as his account of the events which he states occurred on 18th March 1999, is concerned, I find that he did not deviate in any way from the account given in examination in chief, nor was his evidence inconsistent, improbable or exaggerated. I find, on the balance of probabilities, that the events described by the Plaintiff as having occurred on 18th March 1999, did occur. Senior Counsel for the first named Defendant very correctly accepted that if the events described by the Plaintiff had occurred, that was sufficient to establish a breach of the duty of care owed by the first named Defendant to him and, also a breach of statutory duty on the part of the first named Defendant.
In its defence, the first named Defendant pleads that the Plaintiff was guilty of negligence and additionally or alternatively of contributory negligence in that he:-
“(a) Failed to take any or any adequate care for his own safety.
(b) Caused or permitted the box of meat to fall on his foot.
(c) Failed to wear protective foot wear.
(d) Failed to pay any or any adequate attention to the task being performed.
(e) Failed to bring the skill, care and experience which could reasonably be expected of him to bear on his work.”
At the hearing of this action, the claim of contributory negligence on the part of the Plaintiff was advanced on a single ground, that the Plaintiff had more experience in stacking these boxes in containers than Mr. O’Donoghue, so that, even though Mr. O’Donoghue was Assistant Operations Manager of the first named Defendant and, the Plaintiff a contract packer provided by the second named Defendant, the Plaintiff ought to have refused to continue with the work when Mr. O’Donoghue, for whatever reason, continued to build up the row of boxes without staggering the vertical spaces between the individual boxes. I find that the evidence did not support the contention that Mr. O’Donoghue had less experience in this work than the Plaintiff, so that he should be regarded as the helper and the Plaintiff found to be the person in charge of the operation. Mr. O’Donoghue’s own evidence clearly demonstrated that he had ample knowledge and very considerable experience of stacking these boxes in containers. In cross examination Mr. O’Donoghue accepted that he would not expect the Plaintiff to challenge him on any aspect of the job. The Plaintiff protested that having pointed out to Mr. O’Donoghue the possible danger involved in stacking the boxes in the manner in which he was doing it, he could hardly be expected to leave the job and go across to the office and complain to Mr. Bannigan, the Operations Manager. I find that it would be wholly unreasonable to expect the Plaintiff to do this. His own supervisor from the second named Defendant, Mr. Denis Daly, did not come to the Plant until an hour or more after the incident had occurred.
I find, applying the principles stated by Ó Dálaigh C.J., in Kennedy v. East Cork Foods [1973] I.R. 244 at 249, that his continuing with the work in the circumstances did not, “enter into the realm of downright carelessness”. In the Plenary Summons and in the Statement of Claim, the Plaintiff pleads his case both in negligence at common law and for breach of statutory duty pursuant to the provisions of the Safety, Health and Welfare at Work Act, 1989 and, in particular s. 6 and the Fifth Schedule of that Act. I find that the Plaintiff was not guilty of contributory negligence in relation to his claim based upon breach of statutory duty and is therefore entitled to succeed in full against the first named Defendant. It is unnecessary for the court in these circumstances to go on to consider the position in relation to his alternative claim based upon negligence at common law.
In the course of his cross examination of the Plaintiff, I find that Senior Counsel for the first named Defendant established the following facts:-
“That the Plaintiff despite the incident had completed his days work on 18th March 1999 by driving a fork-lift truck and had worked at packing every day thereafter on which work was available to him at the Plant, – by its nature the work is not continuous, – up and including 30th April 1999.
On the evening of 30th April 1999, the Plaintiff was asked by Mr. Bannigan to do some extra packing. The Plaintiff refused and was very abusive to Mr. Bannigan. The following day Mr. Bannigan informed the Plaintiff’s supervisor from the second named Defendant, – Mr. Denis Daly, – that the Plaintiff would not be allowed to work again at the first named Defendant’s Plant.
The Plaintiff had not sought to be reconciled with Mr. Bannigan, was drawing unemployment assistance but was not receiving Disability Benefit, and there was no evidence of any attempts on the part of the Plaintiff to obtain alternative employment since 30th April 1999. The Plaintiff was aged forty one years of age on the date of the incident and his normal working life would be to age sixty or sixty five.
The first letter from his Solicitors making this claim on his behalf was dated 22nd January 2002, – just three days inside the Statutory time limit.
Apart from three visits to Dr. Michael O’Gorman, on 24th March 1999, 13th November 2001, and 4th December 2001, and his attendance at Monaghan General Hospital for x-rays on referral by Dr. O’Gorman, the Plaintiff had not attended any Physician or Surgeon in relation to the injury to his right foot, other than Mr. Michael A. Moloney, who examined him on behalf of the first named Defendant on 25th May 2002.
Other than a course of Difene 50 mg. anti-inflammatory capsules prescribed by Dr. O’Gorman on 24th March 1999, the Plaintiff was otherwise self medicated using ordinary non-prescription analgesics on occasions.”
In cross examination, the Plaintiff told the court that he had, “battled on even though he was in awful pain”, up to 30th April 1999. Mr. Bannigan was putting pressure on him to do more work and he was not able for it, because of pain and swelling in his right foot. His evidence was not at all clear that he had explained this to Mr Bannigan. Mr Bannigan told the court and I accept his evidence, that he had only became aware of the Plaintiff’s claim that he had hurt his foot on 18th March, 1999 when the Solicitor’s letter of 22nd January 2002, was received by the first named Defendant. His recollection of the incident on 30th April 1999, was that he had asked the Plaintiff at about 5.00 pm in the evening to pallet some additional boxes. The Plaintiff responded that he had done enough for that day. Mr. Bannigan insisted that he carry out the work, at which point the Plaintiff became very agitated, had verbally abused him and had refused to do the work. Senior Counsel for the first named Defendant put it to the Plaintiff that it was the fact that he felt he was being pressurised by Mr. Bannigan which had led to this incident. The Plaintiff replied that it had been a very long day and his foot was terribly sore and he simply could do no more work. I find it impossible to accept, that if the Plaintiff had told Mr. Bannigan that a box had fallen on his foot earlier that afternoon and his foot was very sore and swollen, that Mr. Bannigan would have insisted that he continue to work. Even if not moved by humanitarian considerations, he would have had to be extremely conscious of the possibility of further injury to the Plaintiff or caused by the Plaintiff and the likelihood of consequent legal claims.
In a Medical Report, dated 1st June 2002, admitted into evidence, Mr. Michael A. Moloney, M.Ch., F.R.C.S., who examined the Plaintiff on behalf of the first named Defendant on 25th May 2002, makes the following observations:-
“It proved a very difficult matter to extract reliable information from him”, – (as to the Plaintiff’s pervious medical history).
“He states that his Right Big Toe becomes swollen and sore when he walks on it or stands for a long time. He refuses to state how far he could walk, or whether he could run or not.”
When this observation was put to the Plaintiff in cross examination he insisted that he had told Mr. Moloney that he could walk, but with some pain, a mile and a half to a local shop. As Mr. Moloney did not give evidence, I propose to give the benefit of the doubt on this matter to the Plaintiff, as I found it difficult at times during the course of the hearing to fully grasp on a single narration all that the Plaintiff was saying. Also, in his Medical Report dated 2nd December 2005, Dr. O’Gorman reports that the Plaintiff had told him that his right big toe continued to pain him when walking over one mile.
“I attempted to find out whether he could stand on tiptoe, or squat, with his heels of the ground and he refused to co-operate in this.”
When this was put to the Plaintiff in cross examination he insisted that he had done all that Mr. Moloney had asked of him. I am unable to accept this recollection of the Plaintiff. These were important physical tests, which the surgeon, very correctly wished to carry out in order to enable him to assess the extent and possible impact of the injury indicated by the x-ray plates. No issue can possibly arise here of Mr. Moloney perhaps not picking up all that the Plaintiff said to him, – however remote that might be. Senior Counsel for the first named Defendant put to the Plaintiff that he had refused to co-operate in this matter because he wished to disguise from Mr. Moloney the fact that he had made a full and complete recovery and there was no medical reason why he should not be back at work. The Plaintiff replied that he was not fit for work. Senior Counsel for the first named Defendant put to the Plaintiff that all the Medical Reports demonstrated that this was not so. The Plaintiff, however, insisted that he was not fit for work since the incident.
Senior Counsel for the first named Defendant, then very carefully read the provisions of s. 26 of the Civil Liability and Courts Act, 2004, to the Plaintiff. I then adjourned the court for some time to enable Senior Counsel for the Plaintiff to explain to him the meaning and effect of this section in plain ordinary terms. When the court resumed, Senior Counsel for the first named Defendant asked the Plaintiff if there was any evidence which he wished to change and the Plaintiff replied in the negative. Senior Counsel for the first named Defendant then asked the Plaintiff if he had made a full recovery and again the Plaintiff responded in the negative. Senior Counsel for the first named Defendant then put to the Plaintiff that he was fit to work and had in fact returned to work on 25th March 1999. The Plaintiff again stated that he was not fit for work.
Four Medical Reports were, by agreement of the parties, admitted into evidence: those from Dr. O’Gorman dated 6th March 2002, 3rd November 2005, and 2nd December 2005, and, one from Mr. Moloney dated 1st June 2002.
In his report dated 6th March 2002, Dr. O’Gorman reports that he first saw the Plaintiff on 24th March 1999, (six days after the incident). On examination on that occasion the Plaintiff’s right foot was swollen and inflamed, – worse over the right big toe and metatarsal arch. He prescribed anti-inflammatory capsules, – Difene 50mg. An x-ray report of 30th March 1999, showed a fracture at the neck of the proximal phalanx of the right big toe. Dr. O’Gorman records that he next saw the Plaintiff on 13th November 2001, when he complained of swelling of the metatarsal phalangeal joint of the right big toe. He records that the Plaintiff had told him that he had intermittent pain and swelling since the incident. Dr. O’Gorman records that the Plaintiff was not seen by him in the interval. Senior Counsel for the first named Defendant put to the Plaintiff what Dr. O’Gorman records, but the Plaintiff insisted that he had told Dr. O’Gorman that he had constant pain in his right big toe area since 18th March 1999. As Dr. O’Gorman was the Plaintiff’s own treating physician and his reports were proffered in evidence as the sole medical evidence on behalf of the Plaintiff, I must decline to accept this recollection of the Plaintiff.
Dr. O’Gorman in his Medical Report of 6th March 2002, goes on to record that he had sent the Plaintiff for further x-rays which showed that the fracture had healed in a good position. However a slight irregularity of the head of the proximal phalanx suggested the possibility of early arthritis. Uric acid levels were shown by blood tests to be at normal levels. Dr. O’Gorman reported that he had again seen the Plaintiff on 4th December 2001. The swelling of the Plaintiff’s right big toe had cleared but there was very slight diminution in flexion of the interphalangeal joint of the right big toe. Dr. O’Gorman considered that the fracture had united in a good position and within the expected period of six to eight weeks. He felt at this time that there was a possibility that arthritic changes could progress resulting in stiffness and pain in the Plaintiff’s right big toe.
In his Medical Report dated 3rd November 2005, Dr. O’Gorman noted that the Plaintiff complained of pain in his right big toe on walking long distances. No change was observed on clinical examination and Dr. O’Gorman’s opinion was the same as of 6th March 2005. In his Medical Report dated 2nd December 2005, Dr. O’Gorman reports that the Plaintiff was still complaining of pain in his right big toe on walking long distances. Dr. O’Gorman then gives his opinion as follows:-
“In my opinion this man suffered a fracture of the proximal phalanx of his right big toe as a result of his accident at work. The fracture united in good position, this usually takes six to eight weeks. X-ray in November 2001, suggests slight arthritic changes. However the recent x-ray on 1st November 2005, does not confirm this. He continues to date to have diminution of flexion of his right big toe. There is slight swelling of his metarso-phalangeal joint of his right big toe which, continues to cause him pain when walking over one mile. This type of swelling can occur following a crush type injury and can remain as a permanent feature and can cause pain after walking a long distance. The possibility to arthritic changes in this joint is very slight in the light of the recent x-ray.”
The Plaintiff was seen on behalf of the first named Defendant by Mr. Michael A. Moloney, M.Ch., F.R.C.S., on 25th May 2002. Mr. Moloney states his findings on clinical examination and his opinion in the following terms:-
“EXAMINATION
1. Movements of the Right Ankle and Right Sub Talar Joints were normal. Movements of the Right Big Toe were identical to those present in the case of the Left Foot.
2. There was no evidence of the Hallux Valgus or of Calcaneal Spur. The Arterial Pulses in both Feet were normal and there was no evidence of Varicose Veins in his Legs.
3. X-rays of Right Big Toe were carried out on 14th November 2001. I have seen theses films and the fracture of the Proximal Phalanx of the Right Hallux is solidly united by bone, in excellent position. There is no abnormality in the Interphalangeal Joint or Metatarso Phalangeal Joint of the Right Hallux.
4. I attempted to find out whether he could stand on tiptoe or squat, with his Heels off the ground. He refused to co-operate in this.
OPINION
I feel that this man has made a full recovery from the injury which he sustained on 18th March 1999. Permanent Disability is not expected to arise from the fracture of his Right Big Toe. I would regard it as reasonable to consider him to have been unfit for work for three – six months after the accident, but I can find no reason whatever why he should claim to be unfit for work for three years, due the accident concerned.”
In the course of cross examination of the Plaintiff, Senior Counsel for the first named Defendant, on a number of occasions asked the Plaintiff to name the medical advisor or advisors who had advised him that he was not fit for work. The Plaintiff’s reply, expressed in different ways, was that he could not work because of the pain and swelling in his right big toe area. At the request of Senior Counsel for the Plaintiff and with the agreement of Senior Counsel for the first named Defendant I examined the Plaintiff’s feet. I noted that the Plaintiff’s right big toe and the underside of his right foot in the area of the ball of the foot are considerably enlarged by comparison with the same areas of his left foot, but are not otherwise discoloured or deformed.
I am driven by the evidence to the conclusion that this Plaintiff is seriously exaggerating his injuries and that his evidence with regard to his inability to work and his suffering constant pain in the area of his right big toe is false in a material respect. I am satisfied on the evidence that the Plaintiff knows that this evidence is false. I must therefore ask myself whether to dismiss his action would result in an injustice being done.
No claim was made in the course of this action for damages for loss of earnings. I asked Senior Counsel for the Plaintiff if it was being contended that as a result of his injury the Plaintiff was disadvantaged in the labour market for general operatives. I was assured by Senior Counsel for the Plaintiff that no such claim was being advanced. In the Statement of Claim at para. 6 under the heading “Loss of Earnings (Estimated)” a sum of €2,000 is claimed as special damage. However Senior Counsel for the Plaintiff told the court at the start of the hearing that this claim was not being pursued.
On the medical evidence, on the balance of probabilities, I am prepared to accept that up to December 2002, the Plaintiff probably suffered pain in the area of the metatarso-phalangeal joint of his right big toe if he walked for more than one mile. Though the Plaintiff told the court that he had limited education, (Primary level and two years at a Vocational College but without obtaining any certificates), he did not strike me, observing him in giving evidence, as an intellectually challenged or naïve person. However, I do feel that despite his own physician’s Report that the Plaintiff had told him that he suffered pain intermittently, the Plaintiff’s response, each time he was asked about the matter, that he had constant pain, had a certain formulaic quality about it rather than appearing to be a consciously considered reply. Given the clear medical reports from Dr. O’Gorman, – in this context I do not consider it appropriate to have regard to the medical report from Mr. Moloney, – the court was not at any stage mislead by these replies. In these circumstances, I believe that it would be altogether disproportionate and therefore unjust to dismiss this Plaintiff’s action, though I would have done so had he made a claim for loss of earnings or loss of ability to compete in the labour market.
As I am required to do by Law, I have had regard to p. 27 of the Personal Injuries Assessment Board Book of Quantum, where the suggested parameters for general damages for fractures of the big toe which have substantially recovered are given as €11,800 to €16,700. There can be no doubt but that the injury suffered by this Plaintiff must have been very painful at the time it occurred. On the medical evidence I accept that it must have been consistently painful for up to one year from the date of the incident but at a constantly diminishing level. Thereafter, I find that up to December 2005, the Plaintiff probably did suffer intermittent pain in the area of his right big toe if he walked for distances of over one mile. There was no evidence before the court as to how often he walked such distances but it must have happened on occasions. I find on the medical evidence, that there is no measurable risk of the Plaintiff developing osteo-arterthric changes in the metatarso-phalangeal joint of his right big toe. I find on the medical evidence also, that the loss of flexion in the Plaintiff’s right big toe is minimal.
The court will therefore award this Plaintiff general damages for pain, suffering and inconvenience to date, in the sum of €12,500. On the evidence, I find that the Plaintiff will not suffer any significant pain or inconvenience in the future by reason of the injury sustained on 18th March 1999. I will hear the parties on the issue of costs.
Approved: Herbert J.
McNeilis v Armstrong
[2006] I.E.H.C. 269Judgment of Mr Justice Michael Peart delivered on the 31st day of July 2006:
I heard these three plaintiffs’ actions together since they arise out of the same tragic event on a road from Ardara to Letterkenny on the 13th August 1999 in which two vehicles collided leaving all four occupants of one car dead. In the other car one child lost his life, four other children, including the present plaintiffs, were seriously injured (the rere seat passengers), and injuries were sustained also by two adult ladies seated in the front. One lady, Grainne McNeilis, is the second named defendant and driver of the car, and she is the mother of three of the children, namely the plaintiff Sean McNeilis, the plaintiff, Eamonn McNeilis, and another son Michael who died in the accident. The other lady, who was seated in the front passenger seat is Margaret McGill, the mother of the plaintiff, Martha McGill, and also of another daughter, Briana McGill whose action has already been disposed of.
Ages of the children in the rear:
As one faces towards the front of the vehicle (which I shall hereafter refer to as “the Passat”) in which the plaintiffs were travelling, the five children were positioned from left to right as follows across the rear seat:
Martha – then aged 14 years
Briana – then aged …(slightly older than Martha – ?15)
Sean – then aged 12 (almost 13)
Eamonn – then aged 8
Michael (deceased) – then aged 10
The second named defendant:
There is no suggestion, and nor could there be on the evidence, that the second named defendant was in any way responsible for the impact which occurred. The first named defendant accepts that the accident happened as a result of the negligence of the driver of her vehicle. The fact that the second named defendant is a party to the proceedings is explained by the fact that after proceedings were commenced by these plaintiffs against the first named defendant only, she delivered a Defence, and thereafter sought to join the second named defendant as a Third Party on the basis that the latter had been negligent in not ensuring, as the driver of the Passat in which the plaintiffs were travelling, that the plaintiffs were wearing seatbelts, and that she was in breach of Article 7 the Road Traffic (Construction, Equipment and Use of Vehicles) (Amendment)(No.3) Regulations, 1991.
Counsel for the plaintiffs, Garret Cooney S.C., (with him Gerald Tynan SC) during the course of opening these cases, informed the Court that on that application, the plaintiffs, as a matter of prudence only, made the decision to join the proposed Third Party as a co-defendant in the proceedings, and an order was made to that effect. The first named defendant has in each case filed and served a Notice Claiming Contribution and/or Indemnity against the second named defendant.
Plea of Contributory negligence:
It is a fact also that the Defences delivered on each defendant’s behalf included a plea of contributory negligence against each of the plaintiffs, on the basis that they failed to wear the seatbelts which were provided in the rear of the vehicle. However at the trial before me the second named defendant has withdrawn that plea against each of the plaintiffs. But the first named defendant maintains her plea of contributory negligence against the plaintiffs.
How the accident happened:
The accident happened in the early afternoon of the 13th August 1999. The plaintiffs, along with their siblings and cousins, all being seated across the rear seat of the Passat were on their way to the cinema during holiday time, being brought by their respective mothers who were seated in the front of the car.
The Passat was hit head-on by another vehicle (hereafter referred to as “the Nova”) owned by the first named defendant. It was travelling towards the Passat but at such speed that it went out of control at a bend in the road. The second named defendant had no chance of avoiding the impact. She brought her vehicle almost to a standstill before the impact but the Nova was out of control.
The passenger or near side of the Nova hit the front of the Passat, and such was the force of the impact that the Nova rose up over the bonnet of the Passat, and having passed over that car landed in an adjoining field. As I have stated already, very sadly all four occupants of the Nova perished.
All the occupants of that car were wearing seatbelts but nevertheless lost their lives. This has been explained in evidence as being a result of the side-on angle at which the Nova presented to the Passat at the time of impact. That angle had the effect of rendering the seatbelts ineffective, as these are effective principally in a head-on impact, and have no effect on passenger safety when the impact is to the side of the vehicle.
The seat-belts:
It is not in dispute that in the rear of the Passat there were two three-point seatbelts fitted to the outboard positions, and that in the centre position there was what is called a lap-belt available, which is of the kind found on an aircraft seat and which restrains its user across the pelvis only and not, additionally, across the chest and shoulder area. Another undisputed fact is that these five young children were seated in the rear of the Passat at the time of the collision and in the positions described. Quite clearly, even if any three of the children had availed of these seatbelts, two other children would have to remain unrestrained, or not travel in the vehicle.
There is also no dispute about the fact that the impact to the plaintiffs’ vehicle was a high velocity impact and therefore one of great severity. I will deal with some of the scientific evidence which has been adduced in that regard, but it suffices for the moment to describe the impact as very severe.
The first named defendant submits that as a matter of probability none of the plaintiffs would have suffered the injuries which they suffered if they had been wearing a seatbelt, and that any injury which they may have suffered even if restrained would have to be of a more minor nature than the injuries actually sustained. Her seatbelt expert, Mr Parkin, supports that view.
The plaintiffs on the other hand submit that because of the high velocity nature of the impact, it cannot as a matter of probability be said that if the plaintiffs had been restrained by seatbelts they would not have suffered any injury, or that the injuries would have been less severe than they each sustained. In fact they go further and submit that if these three children had been wearing the seatbelts provided, they would have more probably sustained even worse injury or been killed. This view is supported both by orthopaedic specialists and by a seatbelt expert, Mr Jordan, called on behalf of the plaintiffs.
There has been both medical and engineering evidence in relation to the issues raised in relation to the non-wearing of seatbelts. I will come to that in due course.
The issues arising in relation to liability:
Two separate issues arise in each case for determination apart from the question of quantum.
The first issue is that of contributory negligence against each plaintiff which is maintained by the first named defendant.
The second issue is the extent if any to which the second named defendant should be held through negligence to have contributed to the injuries sustained by each of the plaintiffs herein by virtue of not ensuring that the available seatbelts in the rear of the vehicle were being worn.
Since each issue will essentially depend on the same factual determinations, I will first deal with the evidence which I have heard in relation to the injuries to the each plaintiff, and then consider the evidence related to the impact speed (which is distinct from the speed at which the vehicles were travelling at up to the point of impact), the efficacy of seatbelts as a restraint for rear seated children, particularly in a high velocity impact, and their capacity, if any, to reduce the level of injury in such circumstances.
Having made any necessary findings of fact, I can then address the legal issues as they relate to plaintiffs’ contributory negligence, and contribution by the second named defendant.
The injuries to each plaintiff:
Eamonn :
On the 13th August 1999, the date of this tragic accident, Eamonn was eight years old. He was seated in the back of the car behind the driver’s seat, and between his brother, Michael who was seated at the window, and his brother Sean who was in the centre of the back seat. He was not restrained at the time of the impact by either a three point belt or a lap belt. He is now aged 15 years.
He probably did not lose consciousness in the accident but had bruising to his right cheek. On admission to hospital he had no abdominal injury but had acute discomfort in both legs. There was bilateral swelling of both thighs with deformity, and x-rays revealed mid-shaft fractures to the femur in both legs. Because of the severity of his injuries, Eamonn remained in hospital from the 13th August 1999 until the 9th October 1999.
Pins were inserted to unite the fractures, after which both legs were treated on balance skeletal traction until the pins were removed under general anaesthetic on the 4th October 1999. He was then discharged home in a wheelchair. He remained immobilised in a wheelchair until mid- November 1999, and when he was seen by Mr O’Rourke, Orthopaedic Surgeon on the 20th December 1999 he was mobilising satisfactorily and both fractures appeared to have healed satisfactorily. By March 2000 he was discharged from medical care completely.
Mr O’Rourke’s medical report dated 15th May 2000 (9 months after accident) notes that Eamonn becomes emotional about the loss of his brother, Michael, in the accident, and notes also that while he has had a number of psychological assessments already, he will require further psychological treatment. Mr O’Rourke was unable to state in that report whether the emotional effects of the accident had deteriorated Eamonn’s existing psychological problems. But as far as the physical injuries were concerned he stated that there should be no long-term problems. In his report dated February 2002 (two and a half years post accident) Mr O’Rourke notes that Eamonn walked without a limp and without pain, and that his activities are not limited in any way, and that there is no leg length discrepancy.
Psychological impact:
Eamonn is a child with a diagnosis of Asperger’s Syndrome, which is a condition at the high functioning end of the autism spectrum. In early childhood he had speech and language difficulties as well as some behavioural issues, but it would appear that with appropriate therapy he was able to progress academically quite well, but there are nevertheless some deficits consistent with the diagnosis. I mention this matter by way of background only, since there is no suggestion that the accident in which he suffered so severely caused or in any way exacerbated this condition.
Without detailing the contents of the reports under this heading it is clear that for a long time after this accident Eamonn was very upset at the loss of his brother, and experienced flashbacks, nightmares and so on. He has also become very anxious as a passenger in a car. He has been and even remains to an extent preoccupied by the death of his brother, and becomes tearful when discussing it. It appears that Eamonn was particularly close to his older brother Michael, depending upon him for emotional and social support. While there has been improvement in this regard there is still a great void in his life. He has attended a bereavement group which has helped him. Dr McDwyer has stated that Eamonn suffered Post Traumatic Stress symptoms following the accident and that his underlying Aspergers Syndrome has made his recovery more difficult.
Mr Patrick Scallan expressed his view about Eamonn’s ability to cope with the loss of his brother, and stated that because of the condition with which he suffers, it is likely that he will continue to be affected by the trauma of the accident, and the loss of his brother for the rest of his life, since one of the characteristics of Aspergers is that the person has what he described as “quite advanced memory mechanisms”. But given the enormous amount of devoted and caring family support, the outlook for Eamonn is regarded optimistically despite the appalling nature of the accident itself, the injuries suffered by him and the loss of his brother.
A report dated 17th January 2002 from Mr Paul McQuaid, Consultant Psychiatrist, on behalf of the defendant, states in conclusion that “the prognosis, given his particular and special personality type, should be excellent.” That is not inconsistent with anything stated by any of Eamonn’s own consultants. Eamonn is described as well adjusted and coping well with the loss of his brother, Michael, and the sadness within the family.
The Court had the benefit of evidence from Eamonn himself and from his mother, Grainne McNeilis. She stated that Eamonn had begun to improve as far as his Aspergers Syndrome was concerned about a year before the accident, and that for the first time they had been able to take a family holiday together. He was having language comprehension difficulties, but speech therapy assisted him. She stated that for Eamonn the prolonged stay in hospital was particularly difficult because of his condition. It was difficult also apparently for the nursing staff, who may not have been familiar with the behaviours associated with Aspergers. Mrs McNeilis was in another part of the hospital after this accident, because she herself was badly injured and the nurses would tell her often about these difficulties and that Eamonn was very upset. She would go to his bedside to talk to him and sing him to sleep for example. She described how when Eamonn came home from hospital at first he cried a lot. While she accepts that the fractured legs healed, but is of the view that the loss of his brother left an enormous gap in his life which, particularly for Eamonn given his condition, was particularly hard to bear. She stated that even to this day he will cry when discussing the loss of Michael.
Damages:
I do not propose to award a figure for future pain and suffering given the recovery achieved as reported.
I award the sum of €100,000 for general damages to cover the fractures to both femurs and associated treatment over the lengthy period in question, as well as the psychological effects of the accident, including by reference to the loss of his brother, Michael to whom he was very close, and which I regard as significant. Special damages for Eamonn have been agreed in the sum of €65,252.74.
Sean:
Sean was born on the 16th September 1986 and was therefore almost thirteen at the date of this accident. He was seated unrestrained in the centre of the back seat, with his two brothers, Eamonn and Michael to his right and his two young cousins Martha and Briana to his left. He is now aged nineteen years.
Sean suffered a serious fracture to his right femur, as well as bruising to his right knee. He was conscious throughout and after the accident and was able in his evidence to recall the immediate aftermath of this terrible accident and how his brothers and cousins, as well as his mother and aunt were. He described how in the immediate aftermath of the accident he knew that his leg was broken because it was visibly out of shape and he was in a lot of pain. He also saw that his younger brother Eamonn had sustained two broken legs and that his other brother Michael was unconscious and had a head injury.
He recalls clearly the journey to hospital in the ambulance. He was required to lie on the floor of the ambulance due to the fact that the bunks were needed for those more seriously injured than himself. He endured a great deal of pain both before the ambulance arrived and during the journey to hospital.
At any rate was brought to hospital. He recalls coming out of the general anaesthetic after surgery to his leg and seeing that a pin had been inserted through his shin-bone and that there were weights attached to that and to a frame attached to the bed. He remained on traction for a period of about eight weeks until the end of October 1999. While in bed for that length of time he had a lot of discomfort and pain, as well as boredom. His ability to turn in the bed was very restricted.
He was discharged home at the end of October 1999 on crutches, and his leg was in a cast until about April 2000. Unfortunately he had a fall at school in November 1999 causing a fracture to the same leg and in the same position. It necessitated another five days in hospital, and delayed his recovery.
As he was unable to mount the stairs on crutches he had to sleep in his brother Eamonn’s room downstairs. By January 2000 he was back at school.
However, about a year to a year and a half later it became apparent that there was a discrepancy between the length of his two legs. This discrepancy was measured at 3cms. Following advice from Mr Damien McCormack, Consultant Surgeon at Cappagh Hospital, Dublin, a decision was made that Sean would undergo an operation to lengthen his right leg. This operation was carried out in January 2000, when, following fracturing the leg, an external fixator was applied to the leg by the use of pins. This naturally involved Sean in further pain and discomfort, and of course interrupting his schooling. This fixator was removed after some ten months. However the operation was largely successful in eliminating the discrepancy for all practical purposes. Sean completed his secondary education and is now attending third level education where he studies construction management. In my summary of Sean’s treatment in this somewhat cursory fashion I do not wish to be taken as overlooking or minimising the degree of pain and discomfort endured by Sean over the entire period of his treatment and recuperation. I have heard the evidence and read the reports and I am fully cognizant of the appalling discomfort he will have endured over a lengthy period.
Psychiatric sequelae:
In addition to his physical injuries, Sean also suffered the loss of his brother Michael in this accident, and there are reports which suggest that his method of dealing with his grief has been to bury it and not discuss how he feels in this regard in any open way. In evidence he stated that he was close to Michael, since he was only a year and a half older than Michael. Mr Patrick Scallan, Consultant Psychologist is of the view that Sean has coped very well with the loss of his brother, Michael.
Sport:
Sean was a keen sportsman before this accident, taking part in boxing and Gaelic football. He has had to discontinue these pursuits which he enjoyed very much.
Damages:
As shown, Sean suffered a bad leg fracture, and having been left with a significant shortening of his leg, inspite of three months’ traction, he had to undergo further surgery to lengthen the limb. He experienced a very great deal of pain and discomfort over a long period. He also suffered the loss of his brother Michael in this accident. He had to give up his hobbies of boxing and Gaelic football, and no doubt the normal enjoyment of his teenage years was diminished in many ways as would be expected.
To his credit he has not sought in any way to exaggerate his injuries or their effect on his life, and it is remarkable how he has succeeded in getting on with his life.
Taking into account therefore the serious leg fracture, the recovery time involved, as well as the second operation to lengthen his right leg, and recovery from that, the psychological effects of the accident, and its effect upon his social life and general enjoyment of the teenage years during recovery, and the loss of his brother Michael, I assess general damages in the sum of €120,000. I have not considered it necessary to make any award for damages for the future.
Special damages have been agreed in the sum of €84,165.96
Martha:
Of these three plaintiffs Martha was by far the most seriously injured. Martha sustained a fracture dislocation of her left hip, as well as a fracture of the mid shaft of her right femur, and a fracture of the surgical neck of her right humerus. She underwent a general anaesthetic in order to reduce the fracture dislocation of the hip, and while thereafter it was thought that this had been achieved, in fact it was necessary to undergo further surgery three days later as it was discovered by x-ray that she had a subcapital fracture of the femural neck, and a screw was inserted to deal with this. She was then put on traction for about three months until November 1999, so as to achieve the reduction of the hip. This traction involved the insertion of a skeletal traction pin in both her upper tibia. These pins were removed prior to her discharge home in about October 1999.
She spent the next couple of years undergoing intensive physiotherapy, and she had great difficulty dealing with the normal activities of daily living during this period. In January 2000 she was noted to have mobilised well, but that there was some shortening (2 cms.) in the right leg which was not then considered to be a problem.
By June 2000 Mr Peter O’Rourke, Consultant Orthopaedic Surgeon was able to report that while she has no pain in her right leg, there is shortening and she has a limp. He noted that she had difficulties bending and therefore doing things which required bending such a tying a shoe lace, but he also noted that she still had discomfort in the left hip. His opinion at that date was that in the long term there was “a very high risk” of a vascular necrosis developing in the head of the femur” which would result in osteoarthritis developing, and that more than likely this would develop in the short term.
Dr M.J.Cooke, General Practitioner in Glenties, in his report states that by August 2001 she had made poor progress, having severe difficulty moving and a severe limp. These problems with her left hip were exacerbated in due course by the development of avascular necrosis in the femural head, and in addition the hip joint was showing signs of arthritis.
In August 2001, Dr Dominick Cooke, Consultant Physician and Rheumatologist reported that she would require a total hip replacement but that he understood at that time that the orthopaedic surgeons were reluctant to do a hip replacement at such a young age. He opined therefore that was likely to remain in considerable pain and disability. But he also noted that she was suffering from “significant post-traumatic anxiety and stress disorder.”
In November 2001 she was admitted to Cappagh Hospital so that a group of orthopaedic consultants might discuss her condition and decide on the best course of action. One must continue to bear in mind that Martha in November 2001 was just sixteen years of age.
In February 2002, Mr O’Rourke reported that a hip replacement was the only hope Martha had of having a pain-free and normally functioning hip. But he was also of the view that it might not be possible to give her legs of equal length even with a total hip replacement. He was sure at that time that she would never have a normal level of physical activity, and that she would not be able to partake in high impact sports or work activities.
Eventually in July 2002 it was agreed by all, including Martha’s parents that a total hip replacement was the best option to adopt, and this operation was duly carried out. But from 1999 to that time Martha was extremely disabled and moved about with great difficulty and discomfort.
Following this operation she improved as far as her mobility is concerned, but she is still left with leg shortening, and a limp. She is however, as reported by Mr O’Rourke in his report of 1st April 2003 still left with a leg shortening of 2.5cms.
She had extensive physiotherapy over all these years since the accident. It goes without saying that this accident and its sequelae over the years since same have blighted her life in many ways, including her schooling and her social life.
She is in addition left with significant scarring in the area of the left hip following the hip replacement, and these are a source of embarrassment to her in the context of swimwear, as would be understandable. The scar on her left hip is twelve inches in length and runs from her left buttock to halfway down her thigh. It is described by Mr McHugh as being a broad stretched scar, and as being noticeable and visible. I have seen this scar and it is certainly significant and clearly visible. It is completely understandable that Martha would be upset and concerned about this scarring. She has also scarring of a lesser order related to the insertion of the traction pins.
Further hip replacements will be required throughout the remainder of her life. Mr O’Rourke is of the view that she will require further hip replacements every 15-20 years, and that “each of these procedures will be more difficult and the outcome less predictable.” In a later report, Mr O’Rourke has stated that this type of revision surgery is more difficult in the case of Martha on account of the fact that “she is of short stature with very small bones.”. Mr McManus, called by the first named defendant also was of the view that further hip replacements would be needed every fifteen to twenty years.
Psychological sequelae:
In addition to these physical injuries, Martha had also to deal with the psychological sequelae having regard to the effect of these injuries on her teenage life and life generally, as well as the effect on her of the bereavement following the death of her cousin Michael in the same accident. As reported by Dr Cooke she had to deal with the change in her physical Appearance, her limp, her inability to take part in sport and the normal activities of a teenage girl. She had sleep disturbance, nightmares, headaches and these lasted for two years. She had to give up her hobby of dancing also. Dr Cooke describes her social life as “shattered”.
Dr Mary McGuire, Consultant Psychiatrist, saw Martha in March 2005 and described her as having become depressed after the accident, as well as self-conscious on account of having to wear a shoe-lift prior to her hip replacement, but that following that surgery she remains very self-conscious about her scars and her general gait. She is of the view also that Martha developed post-traumatic stress syndrome following the accident. However she notes Martha as being a positive young girl, and that as her physical injuries abated so did her psychological symptoms. But she regards as very significant the effect of these injuries on Martha’s self image, and on her social life, including into the future. The scarring in the hip area is also something which from a psychological point of view will affect her into the future, according to Dr McGuire. She has concerns also about Martha not having yet come to terms with and discussed the impact on her social and emotional development. She feels that Martha would benefit from some form of therapy to assist in dealing with these issues for the future.
Dr John Cooney, Psychiatrist describes Martha as having suffered from “adjustment disorder” arising from the accident, and that while she has shown improvement, the outlook is “somewhat guarded”. But he does note that her mother has confirmed that Martha has been able to apply herself to her studies, even though her concentration is “somewhat defective”. She is also reluctant to go swimming as she did pre-accident and this is on account of the scarring to her hip.
Mr Patrick Scallan, Consultant Psychologist has given evidence that Martha has not yet dealt with the anger she feels about the injuries caused to her in this accident. He feels that if these feelings of anger are to dissipate she will need therapeutic input, so as to deal with self-confidence and self esteem. He is of the view that she has great difficulty keeping up with her peers socially and interacting with them. She has in a sense been left behind by them and cannot keep up. He was also of the view that it will be difficult in the future for Martha in this regard because of the need for ongoing surgery in relation to further hip replacement and the scarring related to that. This will have difficulties for her in the future, including in relation to how she will relate to men in the future.
Leo Finnegan, Consultant Clinical Psychologist/Psychotherapist was asked to give a report on Martha’s educational potential and the effects of this accident on her education and results. He assessed her in September 2003 i.e some four years post accident and when Martha was just over eighteen years of age. He tested her intellectual functioning across a range of areas – verbal, non-verbal, written language, mathematics and so on, and without going into the results of these tests in detail, it is fair to conclude that Mr Finnegan is of the opinion that her current level of intellectual functioning reflects her pre-accident level, and that therefore it is unlikely that the accident adversely affected her in this respect. He believes that the results which she achieved are in line with her general level of intellectual ability. On the other hand he expresses the view that her level of social functioning has been adversely affected and that she has a more restricted lifestyle and more negative self-image than might otherwise have been expected.
Job prospects:
I am not satisfied that Martha’s employment prospects have been affected in any way which should be taken account of in damages. This is encouraging.
Damages:
I will not attempt a summary of her injuries both physical and psychological. They are adequately detailed already, and in so far as I may have failed to detail particular aspects of her injuries and sequelae, I have considered all the evidence given and all the reports. Suffice to say that Martha has suffered a very serious injury indeed which will leave her seriously disabled for the rest of her life, and such that she will on the balance of probability need up to four further hip replacements over the remainder of her expected life.
These injuries and the scarring associated with them have devastated her life into the future, not to mention the terrible amount of pain and suffering which she has had to endure to date. She must be entitled to very substantial damages. The scarring is very significant and permanent, and for a young girl of Martha’s age, it is reasonable that they should be a source of great distress, and that she will be self-conscious about them.
In my view, I should award in respect of past pain and suffering a sum of €200,000 to take account of all the orthopaedic injuries, the physical scarring associated therewith, and the psychological effect these have had on her life to date in the ways described. This sum will not replace the good health which she previously enjoyed, it is a proportionate award bearing in mind the guidance which the Supreme Court has given in relation to the top end of awards for general damages. For the future, and leaving aside the need for future hip replacements, I believe that a sum for future pain and suffering, including psychological sequelae in the sum of €100,000 is appropriate in relation to the injuries already suffered. But I award, in addition, a sum of €75,000 in respect of the pain and discomfort associated with the hip replacement surgery she will have to endure into the future. The total of general damages for Martha then amounts to €375,000.
Special damages have been agreed in the sum of €70,632.31
The issue between the first and second defendants on the Notice Claiming Contribution and/or Indemnity:
While that issue is different in nature to a claim against a plaintiff of contributory negligence, since the latter is an allegation that a plaintiff was in breach of a duty of care towards himself, I am satisfied that essentially the same considerations are relevant in deciding whether the second named defendant has been guilty of negligence in failing to ensure either that three of the five children availed of the seat belts provided, or in driving with more than three of the children in the rear so as to avoid any child being driven unrestrained, and therefore should contribute to the award of damages to the plaintiffs or any of them. The fact that this issue is being dealt with on foot of a Notice Claiming Contribution or Indemnity rather than on foot of a Third Party Notice does not seem to alter the nature of the issue in any way. I have heard some very interesting evidence from engineers called by the both defendants.
Mr Steven Parkin:
Qualifications/expertise:
Mr Parkin was called on behalf of the first named defendant, and he holds an Honours Degree in Mechanical Engineering, is a Chartered Engineer and a member of the Institute of Traffic Accident Investigators, and the Association for the Advancement of Automotive Medicine, all in the United Kingdom. He carried out research for about ten years for the Accident Research Centre at University of Birmingham, and from about 1988 until 1996 was Deputy Director of that centre. He describes himself as being an expert witness in accident reconstruction for road traffic accidents and seat belt effectiveness. His studies and research have examined how occupants are injured in car accidents, and this involves examining vehicles to see, if seatbelts had been worn, how the occupants interacted with the vehicle interior, as well as measuring what he called “the depth of the damage” so as to calculate what was the “impact speed”. He would also consult the medical records of the occupants, and by reference to those injuries and the contact points within the vehicle, predict the cause of the injury. He stated that relevant to this task were factors such as the age, sex, seating position, seat-belt use or otherwise, impact direction, impact severity and so on.
In addition to that crash investigation work, he has done work also in the area of seatbelt effectiveness generally, while at the Accident Research Centre at the University of Birmingham.
The damage to the vehicles:
Mr Parkin examined the Passat and the Nova involved in the collision in these cases. He did so one week after the date of the accident. There is no need to set out the basis on which he arrived at his conclusions as to how the accident itself happened, but he was able to say that it was the near side of the Nova which came into contact with the front of the Passat, hitting the ‘A’ pillar on the near-side (passenger side), which is the pillar at the side of the windscreen. He said that it was a very severe impact. He described how he had found that the front of the Passat had been driven back by 68cms – just over two feet. The engine had been driven back into the bulkhead and there was some intrusion by the engine into the footwell and the facia in front of the passenger, which would then have caused the bulkhead and the facia to move from the front backwards towards the person seated in the front passenger seat. He stated that on impact the Nova in fact rode up over the Passat and landed in an adjoining field.
Calculation of ‘speed change’:
He then calculated what is termed the “speed change” of the Passat resulting from this impact. He did this by measuring the frontal damage to the vehicle, i.e. the 68cms referred to, and with the assistance of a computer programme he could calculate from the damage what the speed change was on impact, and in this case this was measured at 38mph. This speed change figure is referred to as the “Delta V”. He stated that the severity of accidents is rated in terms of their ‘Delta V’.
I should clarify at this stage that the Delta V or speed change does not refer in any way to the speed either vehicle was travelling at prior to the collision, although obviously those speeds will be one of the factors which will determine what the Delta V will be – the others being the absorption capacity of the front of the vehicle and, if seatbelts are worn, the ride-down capability of the belt in question. The Delta V is the residual speed change which the body of the passenger in the vehicle must absorb when interacting with the interior of the vehicle, after the initial speed has been absorbed by the front of the car and the seat-belt if worn.
It is the scale of that Delta V and the extent to which the tolerance of the body of the occupant to injury is exceeded at that point of interaction, which determines the extent of the injury that will be sustained. Relevant also would be the nature of the surface within the vehicle which the passenger interacts with – i.e. whether it is a hard surface such as a pillar or windscreen, or perhaps the back of one of the front seats which would be softer.
Mr Parkin stated in fact that the Passat had absorbed the severe impact amazingly well given that severity, since there was actually very little intrusion of the front structures of the vehicle towards the front passenger seat.
The seat-belts:
He confirmed that in the rear of the Passat there were three seat-belts available none of which had been worn by any of the children. There was a three point belt at each outboard position and in the centre there was a lap-belt. He was able to confirm from his examination of the seat-belts in the front of the Passat that both the driver and the front passenger had been wearing their seat-bets at the time of the impact. Indeed that examination was able to confirm that in this collision there had been very heavy loading on the seat-belts, and this indicates a very severe impact, as well as additional heavy loading caused by the unrestrained rear seat passengers being thrown against the backs of the front seats. He was able to see also very marked distortion and damage to the front seats where they had been, in his words, “overwhelmed by the load from the rear”. This would indicate the force with which rear passengers were thrown into contact with the front seats. All of these matters confirm what is not in doubt, namely that whatever the mathematics involved, this can only be described as a very severe impact collision.
Injury:
Mr Parkin stated that as far as unrestrained rear seat passengers are concerned, it was difficult to predict what injuries would be sustained in any particular impact since it depends on which part of the car interior the occupant strikes and with which part of the body and this is difficult to predict. But he was of the view that legs would go through the backs of the front seats, which would have the effect of decelerating the lower part of the body but not the upper part, and this has the effect of tipping over the body so that the occupant is moving head-first towards the front of the vehicle and will inevitably come into contact with a hard surface at the front at whatever residual speed the body is travelling at after the initial absorption of some of the impact speed by the crushing of the front of the vehicle. He stated that if it is the head which impacts against a surface such as the windscreen at a high Delta V there will be some ‘give’ or deformation of that windscreen by 15 to 20 cms (six to eight inches) but nevertheless it is a hard surface, and the deformation will be significantly less than the 70 to 80 centimetres of the seatbelt. Alternatively the head could impact with a head rail where there would be very little deceleration capability, and more severe and certainly fatal injury would be sustained. He concluded that the exposure to injury in such an impact if unrestrained is significantly different over different parts of the body and dependant on what part of the vehicle is hit by the occupant.
He stated that the unrestrained rear passenger is likely to first come into contact with the rear of one of the front seats. He described those seats in the Passat as “pretty flimsy affairs made of tubular steel or aluminium”. They are not designed to withstand heavy loading, and they will accordingly start to deform at low levels of load, and will not withstand people hitting them. They are designed according to Mr Parkin to support people sitting in them. He did not consider that they provide great protection to the rear passengers and that usually the front seats will splay outwards at impact, as happened in the case of the Passat in this case, and that permits a rear seat passenger to pass between the seats from the back of the car to the front area causing the occupant to hit a hard surface in the front.
Predictability of injuries?:
Mr Parkin spoke of the difficulty in trying to predict what injury would be suffered by an unrestrained person in any collision since people vary as to their tolerance of injury, with factors such as age, size, sex to be taken into account, as well as what object within the vehicle the occupant contacts. But he was able to say that from the research which he had carried out, the prevailing view is that “seat belts will save about 50% of all serious and fatal injuries, but that doesn’t take into account accidents where seatbelts will do no good whatsoever” – and he instanced in that regard a side impact with a tree, which would render the seatbelt irrelevant. He stated that the purpose of a seatbelt was for frontal impacts and to prevent ejection from the vehicle. A seat belt would insure against what he described as the “lottery of decelerations by hitting stiff structures in front of you where they are not going to be as forgiving as 70 to 80 centimetres [absorption capability of the seatbelt]”.
Describing the sort of injuries which could result from a person wearing a seat-belt, he stated that he would expect to see bruising and abrasions at all points of contact with the belt, such as the hip, chest and shoulder area, and that the legs would tend to flail forward and hit the front seat bases and that this could lead to ankle fractures or ankle dislocations. It was possible but unlikely that there could be lower leg fractures also, as well as injury to parts such as the clavicle, sternum and acetabulum, though the latter would be unusual. Mr Parkin was in no doubt that the chances of sustaining significant injury is much greater if the person is unrestrained in the rear of the car. He was of this view inter alia because in his opinion three point belts perform very well for rear seat passengers because, unlike for a front passenger, there will be no intrusion in a frontal accident into the rear passenger area.
He disagrees that in the present case these plaintiffs would have suffered greater injury if they had been wearing a seatbelt. Specifically he stated that the femural injuries would not have been sustained because these occur when there is heavy loading through the knee, and furthermore if that loading is even greater, then the head of the femur will be driven out of the back of the acetabulum, i.e. a fracture of the acetabulum initiated by contact at the knee driving the forces backwards.
It will be recalled that all three plaintiffs suffered femural fractures. Sean suffered one to his right leg, Eamonn had femural fractures to both legs, and Martha suffered such a fracture to her right leg as well as a dislocation and fracture of her left hip. Mr Parkin is satisfied that if restrained these passengers would not have hit the front seats with sufficient force to cause these fractures.
Dr Mark Jordan – Engineer
Dr Jordan was called to give evidence on behalf of the second named defendant, and his qualifications include a Ph.D in 1990 from University College Dublin on impact dynamics. He is amongst other things a Fellow of the Royal Academy of Medicine of Ireland for “biomechanical engineering and research”.
He had worked in Sweden in 1983 with the Volvo motor company, who he described as the world leader at that time in crash worthiness investigation. When he returned from Sweden he undertook six years of full-time research in that area of study. He considers that he has built up a lot of experience and knowledge, both academic and practical, in relation to vehicular safety in general and in seat-belts. For some years now he has practised in the west of Ireland as a crash consultant. He was called to give evidence on behalf of the second named defendant.
He made it clear that in conducting his investigations and reaching his views he had taken into account each plaintiff’s age, injuries sustained, and where each was actually seated in the rear of the Passat. This is a matter which the Court is urged by the second defendant to take into account in order to favour Mr Jordan’s evidence and conclusions, rather than those of Mr Parkin, who had not done so. Dr Jordan expressed the view that these details were very important since the potential for injury was dependant on where each person was seated, as was the physical stature of each plaintiff and their position on the seat.
The solicitors instructing him had requested his opinion as to the likelihood of the plaintiffs being injured whether or not they wore a seatbelt, and also what those injuries would probably have consisted of. In his summary report and in his evidence, he stated that it is highly unlikely that the children would have escaped injury in this impact because of its severity, even if they had been wearing a seatbelt.
In relation to predicting what injuries they would have suffered he stated that it was not possible to predict accurately what their injuries would have been had each been wearing a seatbelt. He stated that it was not likely that they would have suffered the precise injuries which each of them actually suffered, and that the injuries would have been of a different nature. He did go on however to express the view that the severity of injury would have been worse for each plaintiff if a seatbelt had been worn, than those each plaintiff suffered unrestrained.
He agreed that from a public policy perspective it was clearly better that in general a seatbelt be worn than not, but that people should be aware that seatbelts do not in all collision scenarios provide protection from injury. He stated also that his researches showed that in the case of a severe frontal impact where a seat belt is worn, some of the injuries sustained would be accounted for by the seatbelt itself
Dr Jordan went on to deal with the “Delta V” – in other words the speed change that a vehicle goes through in an impact, and the energy or force which this generates on a passenger. He explained that the potential damage depends on the energy generated, and he described this damage potential as being proportional to the velocity squared, and not simply to the velocity.
In this respect he opined that Mr Parkin was simply in error when he stated that the difference between a Delta V of 30mph and a Delta V of 38 mph was only 20%. That comment was in the context of Mr Parkin stating in one of his reports that the impact speed was 38mph, and through an error in another report stating it as 30mph, and to him making the comment that there was only a 20% difference between the two figures in any event and that the error was not of any significance to the overall picture. In Dr Jordan’s opinion this was incorrect since it was not simply the impact speed but that speed squared which gave the degree of force or Delta V, and therefore the Delta V of a 38mph impact speed was over 60% greater than one of 30mph, and not the 20% stated by Mr Parkin. Conversely the 30mph impact speed is only 60% as damaging as the 38mph impact speed.
He went on to explain further that the Delta V is the speed change through which the impacted vehicle passes after initial impact, and that this so-called speed change is absorbed over what he called the “deformation distance of the car”. A number of factors affect the speed at which the impacted vehicle will decelerate and the impact of that deceleration speed on a passenger, such as the absorption capacity of the vehicle and the wearing or not of a seatbelt. In other words some makes of car will be designed so as to crumple at the front on impact less than another. The former vehicle can be said to better absorb the force of the impact. This in turn has the effect of slowing down the vehicle in the very short space of time before the body of a passenger interacts with the structure of the car, reducing the amount of injury to the person.
Where the front of a car does not as effectively absorb the force generated by the impact, the car then interacts with the unrestrained passenger at a faster speed, thereby causing greater injury when the passenger comes into contact with some part of the vehicle. He explained that if it were possible to have some technology which allowed the passenger’s body to be fully attached to the car for the entire period of “deformation” of the car, then both the car and the person would decelerate at the same speed, causing no injury. But that is not possible. But if a seatbelt is worn, this is a means of allowing the wearer avail also of what he called the “ride-down characteristics of the belt”. In other words, in addition to the absorption capability of the car as a means of deceleration, there is the restraining and absorption capability of the seatbelt itself to slow down the speed at which the passenger interacts with the interior of the vehicle itself. In an ideal world the combination of these factors would bring the deceleration speed down to within the tolerance level of the human body to withstand injury. But he explained that the greater the deceleration speed the greater the chances of the human injury tolerance level being exceeded.
He concluded therefore that there comes a point at which the Delta V is such that even though the impacted vehicle will have absorbed some of the force of the impact, and even though added to that feature a person is wearing a seatbelt and has the benefit of the ride-down capabilities of the seatbelt, injury will still be sustained since the residual Delta V exceeds the human body’s capacity to absorb it without injury. The extent of the resulting injuries will then depend of course on the extent to which the body’s tolerance was exceeded and on what part of the car the body comes into contact with – a soft surface such as the back of a front seat, or a hard surface such as a windscreen or metal door pillar, for example, in addition to what part of the body is involved.
In this respect, different bodies will have greater or less tolerance depending on factors such as age and size, and the effectiveness of a seatbelt will depend on the stature of the wearer. He stated that while seatbelts are designed so as to fit the majority of the population, and can be of different configurations, they will never restrain a person so that they are fully attached to the car in the way mentioned above so as to ensure that the deceleration speed of both car and person coincide, thereby avoiding any injury. He stated that in a head-on impact the normal seatbelt will be activated and the wearer will be propelled forwards against the seat belt straps which he called “webbing”. The entire load of the impact force is transferred and concentrated into this webbing, and these straps in turn interact and interfere with soft tissue, and that soft tissue is in effect being supported across soft tissue areas, even with a perfectly fitting seatbelt. But if the normal three point belt when worn by a passenger is not for some reason fitting perfectly, and has for example some slack in it, the body of the wearer comes to a more sudden stop when coming into contact with the webbing, and increased deceleration speeds are experienced, with greater injury the result.
In view of this factor, his evidence was that a young person, who is smaller than the person regarded as average for the purpose of seatbelt design, will find that the belt is not ideally positioned on the body. For example, he stated, in relation to the three point belt, such a young person would find that the lap portion of the belt would not remain properly at the iliac crest – the upper part of the pelvis – but rather would ride up on the abdomen. Similarly, the diagonal strap across the chest could conflict with the young person’s neck. He stated that factors such as these expose such a person to risk of injury simply on account of the nature of the belt and its interaction with the smaller body.
He was of the view, unlike Mr Parkin, that if Martha was seated on the far left of the car in question and had been wearing a three point belt, she would first of all have had the four other children seated to her right, that she would have been squashed up against the left side of the car and that in such a position the diagonal strap of the seatbelt would have been conflicting with her neck at the high point, especially since she is a small framed girl and at the date of this accident was aged fourteen years. He stated that in the impact her entire trunk would have passed under the shoulder part of the belt, and the belt would have caught her neck and fractured it. He is of the view that a child or small framed person, even if seated properly, will not fit the belt properly, and that there would be slack in the belt causing the body to “submarine” under the belt and that this has the potential to cause injury to the neck. In addition if the body submarines, so to speak, beneath the belt, this can cause the body to move forwards causing the legs to come into contact with some unyielding part of the vehicle.
Dr Jordan also referred extensively to a report by the U.S. Bureau of Accident Investigation of the National Transportation Safety Board. This is a report which looked at the performance of lap-belts and lap/shoulder belts in relation to injury sustained, compared to passengers who are unrestrained, in relation to high velocity impacts. He summarised the conclusions of that report as far as matters relevant to the present case is concerned, by stating that it shows that in an impact as severe as the present case, restrained occupants, whether wearing a lap-belt or a lap/shoulder belt, are no better off in the back seat than unrestrained occupants as far as potential for injury is concerned. Put slightly differently, he stated that it showed that a restrained occupant is as liable to injury as an unrestrained occupant. He was also of the view that high speed impacts render seatbelts “practically irrelevant”. It will be recalled that some of the medical experts stated that at speeds in excess of 40mph “all bets are off” as far as what injury will be suffered whether or not seatbelts are worn.
Specifically in relation to whatever plaintiff or passenger may have been able to wear the centre lap belt, Dr Jordan was of the view that this belt would not have properly fitted any of the children and if worn, the child’s body would have engaged with the belt in a way which would have caused the belt to ride up into the gut, causing a hemicorpectomy – a slicing in two of the body. He stated in particular that if Sean (aged 12 at the time) as was suggested by Denis McCullough S.C. on behalf of the first named defendant, had been wearing the lap belt he may well not have received the exact injury which he in fact received, but that he would certainly have been seriously injured, since in his view lap belts cause injury to children, and this particular lap belt was after the accident found to have been a poorly fitting belt and could not have maintained the injury thresholds below what his body could have sustained. He was of the view that it did not require engineering knowledge to appreciate how such a lap belt would cause injury to the abdomen of a child, and that the abdomen would be exposed to far greater forces than if the child was unrestrained completely. In the event of being unrestrained he would probably come into contact with one of the back seats of the car, and that the force is thereby spread across a much larger contact area. If Sean had been restrained by the lap belt as Mr McCullough suggested he should have been, Dr Jordan referred to the fact that Sean would have been reliant entirely on that belt to dissipate the speed change of 38mph/ high Delta V. He described such energy levels as “phenomenal forces”. Dr Jordan is of the view that the American study to which he referred already demonstrated clearly that had Sean been wearing the centre lap belt he would have fared much worse than being unrestrained completely. He described this opinion as being a matter of scientific probability, and not simply conjecture or speculation. He is firmly of the view that while the injury would be different, the injury would be as serious or more serious than the injury actually sustained while unrestrained. This view differs from that of Mr Parkin who, as already stated, was of the view that if the plaintiffs had been restrained, there would at worst have been fractures to ribs and sternum with bruising and abrasions to the chest area, but any injuries above that were the result of failure to wear a seatbelt. Dr Jordan completely disagrees, and states that fractured ribs can in such a situation rupture the aorta and that this would be catastrophic.
Dr Jordan stated that as far as the plaintiff Eamonn was concerned there was no seatbelt available since he was between Sean (seated in the centre) and Michael (who died) who was next to the window on his right. The only possibility suggested in relation to Eamonn is that perhaps both he and Sean might have been able to avail of the lap belt. In so far as that may be suggested Dr Jordan stated that it would have been catastrophic, certainly as far as one of them is concerned, that being the boy who would be seated in front of the other. In the event that each could have availed of the lap-belt while being seated side by side, he was of the view that each would probably have slipped through the lap-belt and the outcome would have been just as bad as what actually occurred i.e. very severe injury.
Looking at the situation of having five children and two adults travelling in the car on this occasion ands what was the safest way of dealing with the fact that in the rear of the car there were only three available seatbelts, Dr Jordan stated that one option would have been for one child to have travelled in the front passenger on the lap of the passenger adult, leaving four children to sit in the rear, one of whom would not have worn a seatbelt. But in that event the child in the front would have suffered catastrophic injury, and have been ejected from the vehicle, and that the safest course to adopt was that which occurred, namely that all five children were seated unrestrained in the back He went on to express the opinion that seatbelt or no seatbelt the data which he has studied shows clearly that these children would have had the same severity of outcome given the nature of this crash – high speed head-on collision with a significant Delta V (38 mph or even more possibly), as explained above.
When cross-examined by Mr McCullough he expressed that his engineering expertise in this area of seatbelt safety and biomechanics is the appropriate expertise from which to express opinions in relation to these matters, rather than a medical specialist, although he did go on to say that some medical specialists may also have some expertise in the area of biomechanics, and that there can be an element of crossover between the two areas of expertise. But he described biomechanics as an engineering discipline, and that it was engineers who discovered body tolerance levels and so on.
While he accepted that Mr Parkin had the same type qualifications as his, he nevertheless felt that Mr Parkin had relied upon his own personal experience and data drawn from that experience, rather than, as he had done, drawn not only upon his own personal experience of crash investigation and data drawn therefrom, but had also drawn upon worldwide data for the purpose of reporting on and giving evidence in relation to this particular accident, which was an unusual one. This was because in his own personal experience, he would have come across only a few such accidents involving high speed frontal impact with five rear seated children. He feels that Mr Parkin’s evidence suffers from the limitation that his data is confined to his own experience and data drawn from that. He felt that Mr Parkin’s personal experience and his own was similar in size, and that while 20% of accidents are frontal impacts, one has to look for a subset within that 20% which would come within the kind of collision involved in this case, and that a very small percentage of such accidents would have occurred. That is why he felt it preferable to draw on a wider statistical database than his own.
Dr Jordan, in answer to Mr McCullough, made it clear that he would agree with the general public policy that it was better to wear a seatbelt than not to, but as an engineer and if it was possible to predict before setting out on a journey that he would be involved as a rear seat passenger in a high speed frontal impact, he would have a preference to being seated in the rear behind a front seat passenger and not to wear his seatbelt. From an engineering point of view and in view of all the data he has read and research which he has carried out, he would consider this to be the optimal way of minimising injury. He of course accepts that it is not possible to predict the nature of any collision which might occur, and that informs his view, which he expressed, that the wearing of a seatbelt is a prudent and safe thing to do, and he advises people to do that. He would also advise that children should wear a seatbelt or, when appropriate, sit in what he called a booster seat. It depends on the age and size of the child in question as to the nature of the appropriate restraint in any given situation.
In cross-examination, Dr Jordan also conceded or accepted that it was a matter of common sense for a driver adult to ensure that a child travelling in the car has available a properly fitting and appropriate seatbelt, and that it is worn.
In relation to the situation in the present case where there were only three belts available for five children, Dr Jordan stated that in general it would be better to use the available seatbelts in some way, although in the present case his view is that the wearing of the belts would not have resulted in a better outcome for the plaintiffs given the nature and severity of the impact. He agreed, when asked, that a reasonably prudent adult would ensure before setting off on a car journey that as many of the children as possible being carried was wearing a seatbelt.
He also agreed that none of the plaintiffs would have suffered the particular injuries which they suffered in this accident if they had been wearing a seatbelt. He agreed also with something which Mr Parkin had stated namely that research had shown that the wearing of even a lap belt was 18% safer than wearing no belt at all. He did not think that 18% was a significant improvement, but he accepted that the research of a Leonard Evans had shown this to be so in his study. There was further questioning of Dr Jordan about how that percentage of safety improvement would move upwards when irrelevant collisions were removed from the data from which the conclusion was drawn – in other words collisions such as side-impact collisions, in which the lap belt would have no effectiveness whatsoever. Dr Jordan stated that for any meaningful distillation of the data all data relating to collisions other than high velocity frontal impacts would have to be taken out, and he opined that when that exercise is undertaken, the result on the 18% safety improvement figure is to bring the results into line with the report by the U.S. Bureau of Accident Investigation of the National Transportation Safety Board to which I have already referred, but without looking at that report in detail he was unable to say what the percentage shown actually was.
In relation to the difference in effectiveness between a lap belt and a three point belt, Dr Jordan was in agreement that generally speaking the three point belt is better in safety terms than a lapbelt, and that studies have shown that the wearing of a three point belt by front seat and rear seat passengers in frontal impacts will reduce fatality levels, but that for children the wearing of the three point belt does not show the same level of reduction. On the other hand the research shows that while fatalities have been reduced, there is what he called a “concomitant increase in certain types of injuries… [and] some of these can be fatal.”
Dr Jordan was asked also about at what age it would be appropriate for a child to not sit in a booster seat, but rather be restrained by means of an adult belt. He responded by referring to size rather than age. He stated that seatbelts are designed to fit females in the 25th percentile, and that this means in effect a person of about five feet in height, and that the cut-off point would be four feet and eleven inches. He agreed with Mr McCullough that at some point during the teenage years an adult seatbelt became appropriate. Reference was made to an Australian paper on the subject: “Adult seatbelts, how safe are they for children” by Michael Henderson. That paper has stated that for maximum protection a child should be restrained in a child seat or an adult belt supplemented by a booster seat “unless they are of a size appropriate to the use of adult belts.” That paper went on to state, as referred to by Mr McCullough:
“However, field data from investigating crashes involving 121 children, aged 1 to 14 years in adult lap/shoulder belts [i.e a three point belt] show they were generally well protected even in severe frontal crashes. None sustained belt induced inertia neck injury. Change of velocity was related to injury risk but age was not……….
Lap belted children sustained a higher proportion of abdominal injuries and a similar proportion of head injuries despite almost all being seated in central positions away from the side of the car.”
Dr Jordan had some reservations about accepting this material since the paper according to him did not give any breakdown of what particular injuries were sustained at particular Delta V speeds. He also stated that the term “frontal impact” could be anywhere in an arc of 120 degrees, and not just 20 degrees which was the angle of impact in the present case, so he was hesitant to draw any definite conclusion from the paper itself for the purpose of this particular case. He also felt that the paper suffered from the fact that in the sample used there was a very small cohort of unrestrained occupants.
Mr McCullough cross-examined Dr Jordan also in relation to certain of the findings in the report of the National Transportation Safety Board. There is no disagreement about the greater efficacy of the three point belt over the lap belt, even for young children, and the potential hazards deriving from the use of a lap-belt especially by young children, although there is some evidence that the use of a lap-belt in some crashes is better than using no belt at all. Dr Jordan felt that while the report showed that the use of the three point belt reduced fatalities in cases of a Delta V of up to 40mph, it also showed that significant non-fatal injuries were sustained. He agreed that it was not possible to say with any accuracy what particular injury these plaintiffs would have suffered had they been wearing a belt of any kind, since there would be a wide range of possible injuries. But he maintained his opinion that each plaintiff, if restrained, would have suffered at least as severe an injury as occurred, and probably worse.
Doctors – re: effect of seat-belt to reduce injury:
A number of medical experts gave evidence as to their opinion as to the efficacy of seat-belts to reduce or eliminate the likelihood of injury in a motor accidents. All agree that as a general principle persons travelling in cars should wear seatbelts. However, it is true also that each of these orthopaedic consultants was of the view that when the impact speed exceeded about 40 mph, a person was likely to suffer significant injuries even if a seatbelt was worn, although, as Mr Damian McCormack, Consultant Orthopaedic Surgeon puts it in his evidence, “the pattern of injury would be different”. He described an impact speed of greater than 40mph as a “lethal impact” and that the injury pattern will just depend on the mechanism of the injury”. He went on to say that “the seatbelt might itself crack your clavicle, but the impact deceleration will rip your aorta and kill you.” Mr McCullough, while allowing for the fact that the greater the impact the greater the likelihood of injury, nevertheless asked Mr McCormack did it still not remain the case that a person is better off wearing a belt than not wearing a belt. He replied:
“Yes is the answer until the impact speed exceeds say 40 miles an hour – then unfortunately all these things are irrelevant.”
He was asked also was it not a fact, where persons were involved even in a high speed impact accident and were wearing a seatbelt, that their injuries would tend to be to the upper body, the chest, sternum, and ribs. Mr McCormack stated in response that it was very difficult to generalise, and that it would depend on the mechanical circumstances of the accident. He said for example that Sean McNeilis (unbelted) had received in this accident sufficient kinetic energy to crack his femur, and that had he been belted his body would have still received the same kinetic energy and had he been wearing the lap belt, for example, this energy “probably would have broken his lower spine rather than his femur”, and added: “there is no escaping the impact velocity and the kinetic energy imparted to his body – something was going to be broken or injured.” At a later point in his cross-examination Mr McCormack stated that that the majority of people who came under his care following accidents in which they have received lower limb fractures state that they had been wearing seatbelts, and that in his experience lower limb fractures do occur in passengers who are restrained by seatbelts. He stated in this regard that it really does depend on the impact forces, and their direction. Again he was of the view that at high impact speeds “all bets are off” as far as the effectiveness of belts to reduce injury is concerned.
He was however sure that if he had worn a seatbelt his femur would not have been broken, but he would have suffered another injury such as a dislocation of his lower thoracic lumbar spine. He was of the view that the pattern of injury would have been different but the severity would have been worse. Mr McCullough was at pains to get Mr McCormack to agree that as a matter of probability the injuries, if seatbelts had been worn, would not have been the same injury as in fact was suffered. To that specific question, Mr McCormack was in agreement, although he retained his opinion that given the impact speeds involved the injury would have been significant and possibly greater. He accepted that this was a matter of some speculation as to exactly what injury would have been suffered if a belt was worn.
Another Orthopaedic Consultant, Mr William Quinlan stated, in relation to Martha’s injuries, that at a mild to moderate speed a seatbelt would have erstrained Martha and that she would not have been thrown around the car, but that even people who are wearing seatbelts receive what he called “ferocious injuries”, and that he would regularly see such people with fractured femurs and hips. But he stated that at high speeds, as in this case, he felt that no seatbelt would restrain an occupant. He agreed that this was his “opinion” gained from seeing the aftermath of road traffic accidents, rather being based on any studies.
Specifically in relation to Martha’s injuries he could not agree that if she was wearing a seatbelt she would not have received the type of injury which she received. He felt that in a highs peed impact she would have been very susceptible to similar type injuries. When asked whether as a purely general principle, people who wear a seat-belt suffer less injury, he agreed, but remained of the view that the position was not clear in this respect in cases of high speed impact, such as the present case.
The issue of contributory negligence against the plaintiffs:
I have come to the conclusion that these plaintiffs cannot be found to be guilty of contributory negligence in the particular circumstances of this accident. This conclusion is reached by me without reference to the question as to whether the plaintiffs would or would not have suffered different, worse or reduced injuries had they been restrained, but rather on account of other matters such as their respective ages, and/or maturity, and the nature of the somewhat unusual and complex situation which presented itself to them in relation to the number of seat belts relative to the number of rear seat passengers.
First of all there is no evidence that any of these plaintiffs was asked by the first named defendant ( or indeed by the front seat passenger Mrs McGill) to wear a seat-belt. Sean was almost 13 years of age. He could not recall if he would normally have worn a seat-belt in the back of a car at that time, but he agreed that if he had been told to wear one, he would have done so. He was asked whether at that age he would have known that wearing a seatbelt was safer than not doing so, and answered in reply: “I don’t know, maybe not.”
Martha was about fourteen years old at the date of the accident, and she was asked by Mr McCullough why she had not worn the three-point seat-belt that was available at the position she was seated in the rear of the car against the door. She replied by saying that it was impossible since there were five children in the back of the car. She went on to explain that they were all crammed on top of one another. It was put to her that she would have been able to put on the belt in her position even if the others were unable to do so, and she agreed when pressed. She also agreed that she would have known at her age that as a general rule it was safer to wear a belt than not to do so. She agreed that she was saying that the only reason why she did not wear a belt was that there were five children in the back. She stated that nobody in the front of the car (i.e. her mother or her aunt) told her to wear a belt.
Eamonn was not questioned about not wearing a belt, but being even younger than the others, and suffering from the condition referred to, there could be no question of a finding against him of contributory negligence.
These admissions by both Sean and Martha must be seen in the light of their age and immaturity Martha has agreed that she knew that it is safer to wear a belt than not, but Sean was not sure. Martha stated this in cross-examination, and when pressed. I had the important opportunity of seeing these plaintiffs giving their evidence. I am not prepared to take these answers to questions put to them in cross-examination by Mr McCullough as sufficient evidence in order to fix them with the sort of realisation as to the desirability of wearing seatbelts in the circumstances of this case, so as to determine that they were each so in breach of their duty of safety to themselves that I should find them guilty of contributory negligence. These are immature children. Needless to say I do not use that term in any critical or pejorative way, but simply to describe a certain innocence and lack of what I might call ‘street-wisdom’. They are not to be judged by reference to standards perhaps to be expected of the more sophisticated and street-wise teenagers who sometimes come before the Court. I have no doubt whatsoever that these particular children still depended as of the date of this accident, on guidance and direction from their respective mothers when in her company. They were each in this car with their mother, and in an unusual situation where there were five in the back and three belts fitted. In spite of any knowledge or awareness which Sean and Martha may have had regarding the desirability of wearing a belt if available, I do not find it fair and reasonable that they should be found to be negligent in that regard given their particular age and characteristics, especially where there is no evidence that they were asked or told by either the second named defendant or Mrs McGill (the front seat passenger) to wear the belts as best they could.
The Road Traffic (Construction, Equipment and Use of Vehicles)(Amendment)(No.3) Regulations, 1991 – S.I. No. 359/1991 (“the regulations”):
As part of the issue in this case as between the first named defendant and the second named defendant (the driver of the vehicle), it is alleged that the latter was in breach of article 7 of these regulations, which provides as follows:
“7. (1) This article applies to every passenger vehicle having passenger accommodation for not more than eight persons exclusive of the driver, when used in a public place.
(2) Subject to the provisions of article 8 of these regulations, a person occupying a forward facing seat, not being a front seat, of a vehicle, to which this article applies shall, as and from the 1st day of January 1993, wear a safety-belt or an appropriate child restraint.
(3) Subject to the provisions of article 8 of these regulations, the driver of a vehicle to which this article applies shall not, as and from the 1st day of January 1993, permit a person who is under seventeen years of age to occupy a forward facing seat, not being a front seat, unless that person is —
(a) 4 years of age or upwards and is wearing a safety belt, or
(b) restrained by an appropriate child restraint.”
Article 8 of these regulations contains a number of exclusions from the application of the regulations, and relevant to the present case is that appearing at article 8(3) which states as follows:
“8. (3) If and so long as three or more children under the age of 15 are being carried on a vehicle the provisions of sub-articles 7(2) and (3) of these regulations shall apply only in so far as is reasonably practicable.” (my emphasis)
The second named defendant submits that in a situation where she was the driver of a vehicle in which in the back seat were five children under the age of fifteen years and where there wear only two three point belts and a centre lap-belt, it was not reasonably practicable for the purpose of these regulations to comply with article 7 thereof, and that therefore she was not in breach of the regulations. The first named defendant on the other hand submits that the second named defendant could have easily ensured that some three of these children could have been wearing the available belts, and that if she had so done it would have been a reasonable compliance with the regulations, even though a situation would have remained where two children would have remained unrestrained.
I am of the view that the second named defendant on balance was not in breach of the regulations, given the existence of three belts for five children, and in view of some of the evidence which I have heard, namely that it would not have been feasible for the outer three point belts to be properly and safely worn by the two children who occupied the outboard seats, when there were three other children in the middle. There would inevitably in such a situation have been a bunching of the children across the back seat which would have precluded a proper application of these belts, and it would have been impossible for one of the children in the centre to have applied the lap belt. I do not feel that it was reasonably practicable in these circumstances to comply with the regulation, and that the situation is covered by article 8(3) accordingly.
The seat belt issue as between the defendants:
From the evidence of Mr Parkin and Dr Jordan, the Court can be completely satisfied that this was a high speed impact, and that the Delta V as discussed above was very significant. There is no real dispute between these two experts in this regard. These experts do however disagree over the question of what injury would have been received by these plaintiffs if they had worn a seat-belt.
Mr Parkin is of the view, as I have already set forth, that if they had been restrained the injuries would have been confined to bruising and abrasions at all points of contact with the belt, such as the hip, chest and shoulder area, and that the legs would tend to flail forward and hit the front seat bases and that this could lead to ankle fractures or ankle dislocations. He stated that it was possible but unlikely that there could be lower leg fractures also, as well as injury to parts such as the clavicle, sternum and acetabulum, though the latter would be unusual. It is a fair summary of this evidence that Mr Parkin is of the view that not only would these plaintiffs not have suffered the injuries which they in fact suffered but that the injuries which would have been sustained would have been less severe.
Dr Jordan disagrees, as do Mr Quinlan and Mr McCormack, the orthopaedic consultants, although they come to these matters from different specialties. I have considered the competing views carefully, and in arriving at a conclusion for the purpose of these proceedings, I can do so only on the basis of probability. However, it is first necessary to decide what is the question which the court is required to determine. Mr McCullough on behalf of the first named defendant submits that the question to be decided is simply whether the first named defendant has discharged the onus which is upon her of showing as a matter of probability that if these plaintiffs had been wearing any of the belts available in this vehicle, they would have suffered the injury which each suffered. He submits that this is the only issue arising, and that it is not a question of determining whether the second defendant is correct in saying that if they had been wearing a seat-belt they would have suffered injuries which were either as severe though different, or perhaps even worse, including causing death. If that is the correct question, then the evidence is clear, and it is inconceivable that in any case whatsoever, that precisely the same injury would have been sustained whether or not a seat-belt is worn. It is hard to see how such could ever be the case. Certainly in the present case, there can be little room for doubt that each of these plaintiffs would have received precisely the same injury whether or not they were restrained, leaving aside completely the speculation involved as to whether those injuries would be more severe than those actually occurring.
In making that submission, Mr McCullough relies on the decision of the Supreme Court in Hamill v. Oliver [1977] I.R. 73. In that case it was held that the plaintiff’s failure to wear a safety belt amounted to negligence on her part if her injuries would have been prevented or reduced had she been wearing the safety-belt at the time of the collision. Mr Parkin’s evidence would support the first named defendant’s reliance on this decision. But Mr McCullough refers specifically to a particular passage in the judgment of Griffin J. (with whom the then Chief Justice and Henchy J. agreed) where at page 76 of the judgment he states as follows:
“In the accident, the plaintiff, as she described it, was ‘thrown onto the gear handle’ of the car and received injuries to her chest and ribs. She fractured the fifth, sixth and seventh ribs on the right side, and she suffered a right pneumothorax with collapse of the lung on that side. The nature of the accident, coupled with these injuries, shows that the primary cause of her injuries was an impact with the gear lever, which would have been situated to her right. She was obviously thrown forward and to the right. This was a type of accident which could not have happened if she had been wearing a seat-belt.
Prima facie, therefore, there was contributory negligence on her part. As it was held in Froom v. Butcher, any person who travels in the front seat of a motor car, be he passenger or driver, without wearing an available seat-belt must normally be held guilty of contributory negligence if the injuries in respect of which he sues were caused wholly or in part as a result of his failure to wear a seat-belt. There may be excusing circumstances for not wearing the seat-belt, such as obesity, pregnancy, post-operative convalescence, and the like; but it is for the plaintiff who has not worn it to raise and prove such excusing circumstances.
In this case, the trial judge ruled out contributory negligence on the ground that there was no evidence that the wearing of a seat-belt would have prevented the accident. However, as was decided in Froom v. Butcher, that is not the correct test. The question is whether the wearing of a seat-belt would have prevented or reduced the injuries. Here, as in most cases, no special evidence was required on that point. The jury could not but have come to the conclusion that the impact injuries the plaintiff received when the right chest and ribs struck the gear-lever would not have happened if she had been wearing a seat-belt. Therefore the issue of contributory negligence was incorrectly ruled out.”
Mr McCullough refers to the approval in that judgment of the judgment in Froom v. Butcher [1976] QB 286, a case in which the Court of Appeal that in determining whether a plaintiff was guilty of contributory negligence the question was not what was the cause of the accident but what was the cause of the damage, and he homes in as it were on the reference to the question being whether the injuries sustained would have been prevented or reduced by wearing of the seat-belt. He refers to the evidence that if a seat-belt had been worn the injury sustained by these plaintiffs would not have been sustained – ergo, he submits, there is contributory negligence, and it is irrelevant to that consideration whether the injuries instead would have been as severe, more severe or even fatal.
Edward Walshe S.C. on behalf of the second named defendant on the other hand submits that the issue as Mr McCullough would put it above, and that it is not sufficient to simply establish that the precise injury sustained would not have been sustained, and he submits that Hamill v. Oliver is not authority for that.
In considering Hamill v. Oliver, one must, I feel, have some regard to the nature of the injury involved, and from which one can reasonably infer that the impact in that case, while sufficient to cause the plaintiff in that case to be “thrown onto the gear lever” was of an entirely lower degree of force that that we are dealing with in the present proceedings. There can be no doubt about that, particularly when one considers that the plaintiff, Hamill, was an unrestrained front seat passenger. The Supreme Court was dealing in that case with a situation where it was reasonable to conclude that the only reason that the plaintiff suffered any injury was the fact that she was not wearing a seat-belt. That is the context in which Griffin J. stated that “this was a type of accident which could not have happened if she had been wearing a seat-belt”, and also, when referring to Froom v. Butcher, the learned judge stated that “any person who travels in the front seat of a motor car, be he passenger or driver, without wearing an available seat-belt must normally be held guilty of contributory negligence if the injuries in respect of which he sues were caused wholly or in part as a result of his failure to wear a seat-belt.” (my emphasis)
Context is important, and if taken out of the appropriate context, it is easy to see where Mr McCullough seeks to gain support for what appears to be a somewhat illogical and unfair conclusion – namely that even if the plaintiff succeeded in establishing as a matter of probability that the wearing of a seat-belt would have caused either the same degree of injury, or a greater degree of injury, including fatal, it still follows that such plaintiff is guilty of contributory negligence if the precise injury sustained and sued for would not have occurred. I cannot be satisfied that this is a reasonable interpretation of, and conclusion to be reached on the basis of, the judgment of the Supreme Court in Hamill v. Oliver – a decision which is of course binding upon me. A more reasonable interpretation in my view, and one which can take account of the different nature and severity of individual accidents, would be that the question arising is whether the wearing of a seat-belt would have prevented injury altogether, or reduced same. It is not simply whether it would have prevented “the injuries”.
It does not seem to me to be correct that a person can be held to have negligently contributed to his own injury where it can be established by him that in any event the wearing of a seat-belt would not have availed him. It seems to me that the causative link between the negligent act alleged, namely the failure to wear the seat-belt, and the damnum suffered, would be missing. I do not believe that Hamill v. Oliver is authority for the latter. This is supported in my view by the reference by Griffin J. in the extract from his judgment quoted above, namely that: “the jury could not but have come to the conclusion that the impact injuries the plaintiff received when the right chest and ribs struck the gear-lever would not have happened if she had been wearing a seat-belt”, and to his earlier statement that “she was obviously thrown forward and to the right. This was a type of accident which could not have happened if she had been wearing a seat-belt”. It seems clear that in that case the plaintiff, if she had been seat-belted, would have been restrained so that she would have received no injury whatsoever. That is a significant distinction from the present case, where given the very high impact nature of the collision, these plaintiffs were always going to be injured even if belts were worn.
Having thus concluded as to the correct question to be addressed it remains to consider the question as to whether the second named defendant has been guilty of negligence so that she should contribute to the damages awarded in this case.
That question involves firstly a consideration of the duty of care owed by her towards these plaintiffs as the driver of the car. In my view there can be no doubt but that the driver of a car is under a duty of care towards his/her passengers to ensure that they are transported in the car as safely as is reasonably practicable. This extends to ensuring that seat-belts are provided, and in the case of young children especially, ensuring that such children are belted appropriately to their ages, including where necessary by the use of a booster seat for very young children.
There are regulations in place and to which I have already referred. That indicates a legislative intention as regards ensuring as far as practicable passenger safety. But the fact that I have concluded that the second named defendant may not have been in breach of these regulations, does not lead also to the conclusion that she was not in breach of her common law duty of care. In the present case the second named defendant, as the driver of the car, owed a duty of care to these plaintiffs and the other children. The requirement of proximity is clearly present between her and these plaintiffs. I am completely satisfied that it was foreseeable that in any collision which might occur the plaintiffs would be exposed to injury. I do not have to decide whether the particular type of impact or the particular injuries which were sustained were themselves foreseeable. Neither is there any room for any suggestion that there might be any public policy consideration which might mandate that she not be under this type of duty of care, and it is fair and reasonable that such a duty of care be upon her. In this way all the requirements for the existence of a duty of care exist in this case in relation to the second named defendant towards the plaintiffs herein.
I make no finding in relation to whether in respect of Martha, Martha’s mother who was seated in the front passenger seat shared with the second named defendant (her sister as it happens) the duty of ensuring the safety of her own daughter by ensuring that she wore a seat-belt. It is outside the issues arising for determination in the present case, and must await an appropriate case in which the issue is raised.
Having so concluded, the next question is whether there was a breach of that duty in the particular circumstances of this case by failing to ensure that the plaintiffs wore the seat-belts provided. As we know, there were five children being placed in the back of this car. There were only three belts in total. It follows that even if three children wore the available belts, two were going to remain unrestrained. The Court cannot speculate as to whether or not two of these particular three plaintiffs would have been those who would not have been belted. I have heard no evidence from the second named defendant as to what if any consideration was given by her to the question of how to use the available belts between the five children in the back. She gave some evidence in her capacity as the mother of the plaintiff, Eamonn, but she was not cross-examined as to the seat-belt issue, which is understandable since she gave no direct evidence in that regard. But the fact is that no evidence was lead by her in relation to that matter. There is therefore no evidence as to whether any consideration at all was given to this question, and I must conclude therefore that she did not give consideration to the problem of having five children in the back, and that there were only three belts. She must be taken to not having even decided that in the circumstances where there were five children and only three belts available, that it was safer to leave all children unrestrained. I must conclude, and do so, that she gave no consideration to the matter at all, and that the children were simply put into the back, and they were left to their own devices as to the seat-belts.
In those circumstances, I must conclude that there was a breach of the duty of care upon her since she failed to give any consideration to the safety of the plaintiffs. Had she at least considered the problem, and made a reasoned decision in the light of the circumstances prevailing, I might have been able to conclude that she had not breached her duty of care, even if I might also form the view that the decision taken by her was wrong. But in the absence of any evidence from her, I must conclude that she was in breach of the duty of care upon her.
Lastly it is necessary to consider whether the breach of the duty of care has a causative link to the injuries sustained by the plaintiffs and in respect of which they seek compensation. The second named defendant has sought to adduce evidence that even if these plaintiffs had been wearing a seat-belt, they would have been injured at least as badly as they were, and potentially more seriously. The first named defendant submits the contrary, namely, firstly, that it is safer to wear seat-belts than not to, and secondly that as a matter of probability, if they had been wearing a seat-belt they would not have suffered these particular injuries, and further, that any injury which they would have suffered would as a matter of probability have been of a lesser degree than what was actually suffered.
Mr Parkin’s engineering evidence for the first defendant is to the effect that the injuries would have been less, and that certainly the femural injuries would not have been sustained if belts had been worn, and that the injuries would have been more to the upper body. No orthopaedic surgeon was called to give evidence in this regard by the first named defendant, and I am asked by the second named defendant to infer from that fact that no such evidence would have been forthcoming to back up Mr Parkin’s evidence in this respect, which of course is given from an engineering perspective and from Mr Parkin’s professional experience and his studying of data and research into the question of injuries related to the wearing or otherwise of seat-belts. The orthopaedic surgeons who gave evidence on behalf of the second named defendants are of the view that while in low impact crashes a seat-belt will in all probability be effective in reducing the extent of injury which will otherwise be sustained, in a high or severe impact crash “all bets are off”, and the extent of the injury sustained even if belted is completely unpredictable given the high energies involved, and which are transferred to the bodies within the car. Dr Jordan’s engineering evidence on behalf of the second named defendant is also to that effect, and he has produced some very interesting research evidence which he says supports his opinion. He believes that this research shows that the injuries likely to have been suffered by these plaintiffs, if belted, would have been more severe and possibly fatal.
I have considered all this evidence carefully. I am of the view that the severity of the impact in this particular case is crucial and central to this question. This is an impact at the higher end of the scale. There is no controversy as to the severity of the impact. I am impressed by the evidence of the orthopaedic consultant’s view that in such an impact “all bets are off”. Each consultant expressed this view, albeit in differing terms. There experience on the ground as it were treating persons who have been involved in high impact crashes is that even where persons have been wearing seat-belts they often receive very serious injuries, including injury to the femur. I accept of course that neither of these consultants has carried out research as such, and therefore it is not possible to take their evidence other than anecdotal and as a general proposition. They have not sought, for example, to distinguish between injured persons who might have been front seat passengers, drivers, children of various ages and so on. But nevertheless it is helpful for the Court to hear their overall view in order to arrive at a view on the basis of a probability. Dr Jordan’s research also points to the probability that it is unpredictable as to what injury will be sustained in a high impact collision. Even with the benefit of Mr Parkin’s evidence, which was most helpful, informed and interesting, I am left in some considerable doubt, I have to say, that these plaintiff’s would have suffered significantly less serious injury had they been belted. There is too much speculation involved in determining whether the injury which would be sustained would be less than was suffered if belts had been worn, in order to reach a conclusion in that regard in favour of the first named defendant.
If the question to be determined was simply, as posed by Mr McCullough, whether the plaintiffs would have suffered “the injuries” which they suffered, if they had worn a belt, I would have no doubt that the answer would be different. But it is not so simple a question, as I have already found. I am satisfied as a matter of probability that even if these plaintiffs had been wearing a seat-belt, they would have suffered significant and serious injury of some kind. The first named defendant had not discharged the onus upon him to show that the injury would have been less.
In arriving at my conclusion in this regard, I believe that I am entitled to have regard also to the available evidence as to how this accident happened in the first place. The second named defendant was in no way responsible for the occurrence of this accident. The blame lies fairly and squarely on the driver of the other vehicle. That is in no doubt whatsoever, and no contrary suggestion is even put forward. But even without that particular feature, I am satisfied in any event that the injury would in all probability be significant and severe, though different possibly in nature, or even worse. In these circumstances, I conclude that the necessary causative link between the breach of the duty of care owed by the second named defendant to these plaintiffs, and the injuries sustained by them is absent, and that in this respect she cannot be found liable to contribute to the first named defendant’s liability to the plaintiffs on foot of the Notice of Contribution/Indemnity filed and served herein.
I would like to conclude by suggesting that there is another issue which arises in cases such as the present one. While in the light of my findings as to causation the issue does not arise in the present case, it is an important issue which could arise in other cases. This is whether in circumstances where a driver knew, or ought to have known, that there were only three available seat-belts, it is negligent to carry more than three children in the back at all, regardless of whether three can use the available belts. This would be in spite of the exclusion contained in article 8(3) of the regulations referred to. Where an adult driver is carrying more children in the back of the car that there are belts available, it seems to me to be highly arguable that even if three of those children wear the available belts, it is negligent to carry the remaining children where they must inevitably remain unrestrained. It seems to me arguable that the necessary ‘proximity of relationship’ exists, that the likelihood of injury is ‘foreseeable’, that there can be no possible countervailing public policy consideration, and that, given the prevalence of motor accidents and the obvious desirability of reducing the incidence of injury, that it would have to be ‘fair and reasonable’ that a duty of care of that scope should be imposed on such a driver. As I say, in the present case that issue itself can be left aside, since causation of injury has been decided in a particular way. But I leave it for another case to decide whether it is negligent to carry in the back of a vehicle more persons, especially children, than there are available belts, even where the available belts are used. In the present case, if it had been necessary to do so, I would have concluded that it was no excuse for the second named defendant to plead that given that she had five children in the back, and only three available belts, it was impossible to decide which child should wear a belt.
The final matter which I should like to address is the disturbing evidence which I heard during this case as to the dangers for young children who wear the lap-belt in the centre of the back seat. The evidence has been that the lap-belt is singularly inappropriate for young children to wear. The reason for this has been stated to be that such belts are designed so as to fit across the iliac crest, which is the strongest part of the pelvic area. When a normal adult applies the lap-belt, it crosses across the iliac crest, and this has the effect that in an impact where the person is thrown forwards, it is the iliac crest which impacts against the belt, and that part of the body is particularly well-suited to withstand the force generated. However, where a small child, or even a lightly built young teenager is wearing a lap-belt, the belt will not, in an impact, remain over the iliac crest, but will ride up the abdomen somewhat. This has two effects at least. The first is that the person will ‘submarine’, as it is called. In other words, the young person will be thrown forward and under the belt with all the obvious risks of not being restrained appropriately. In addition, there is a clear and known risk that when the young person is thrown against the lap-belt, it will be positioned at the abdominal area, and the force generated into the body will cause massive internal organ damage, including catastrophic damage to the aorta and fracture of the spine, or even worse, hemicorpectomy. I do not believe that parents and others in charge of young children in vehicles are aware of the fact that in all probability the wearing of a lap-belt by a child will in relatively severe impacts render the child more likely to suffer serious injury or even death, than if they were unrestrained altogether. That is the content of some of the expert evidence which I have heard, and I believe it is appropriate that I should say so, even if the precise issue did not as it happens need to be the subject of a determination in relation to the particular plaintiffs with which the proceedings are concerned. It is perhaps a matter for legislation.
I therefore give judgment in favour of Eamonn McNeilis in the sum of €165,252.74; in favour of Sean McNeilis in the sum of €204,165.96; and in favour of Martha McGill in the sum of €445,632.31.
Devlin v Cassidy [2006] I.E.H.C. 287, Peart Judgment of Mr Justice Michael Peart delivered on the 31st day of July 2006:
At a time of escalating numbers of fatal and other car accidents on our roads, and when there is ample evidence that many of these occur late at night on country roads after the consumption by drivers of copious amounts alcohol, it is hard to have any sympathy with someone such as the now-28 year old plaintiff herein.
He claims damages for the injuries which he sustained when, after a night’s drinking with his friends, he agreed to be driven home at 3am. by one of those friends whom he knew to be drunk, and when that driver lost control of the car, causing it to leave the road and hit a tree. The driver himself was killed. Fortunately he neither killed nor injured any persons other than those in that vehicle. No other car was involved in the accident.
It is unsurprising for the Court to be informed that the driver of the car was not insured to drive the car on this or any other occasion, hence the inclusion of the second named defendant in these proceedings. Neither is it surprising to be told by the plaintiff, a front seat passenger, that he was wearing his seatbelt. There has been no objective or independent evidence of this, such as from an ambulance man who might have attended the scene and taken the plaintiff out of the car, or from the existence of seat-belt burn marks or other evidence of restraint being applied to his chest/upper body.
I have only the plaintiff’s own assurance given in evidence that he was wearing his seatbelt, and this is in the face of the fact that in some of the medical reports the doctors state that the plaintiff told them that his last memory of prior to the accident and until he awoke in hospital, is of being outside the night-club. For some reason he now has complete recall of wearing his seatbelt. The Court is asked to accept the plaintiff’s word for this, and as support for the proposition, to infer from the fact that his spleen was bruised, and from the absence of significant head or facial injuries, that he must be correct in his evidence in this regard, even though he remembers nothing else about the accident.
He was unconscious for some hours following the impact, which says something about the actual severity of any impact which occurred to the plaintiff’s head. It is also urged upon the court that the defendant has not proven on the balance of probabilities that the plaintiff is guilty of contributory negligence by reason of not wearing a seatbelt. I will return to the evidence in this regard.
The first named defendant is the owner of the car being driven on this occasion, and the second named defendant is joined as a defendant since the person driving the car when this accident occurred, and who sadly died in the accident, was not insured to drive the car.
Liability is denied, and in addition both defendants plead that the plaintiff is guilty of contributory negligence by failing to wear a seatbelt, and by permitting himself to be driven in a vehicle when he knew or ought to have known that the driver was unfit to drive due to the consumption of alcohol.
In addition the second named defendant relies on s.5(2) of the MIBI Agreement dated 21st December 1998 to avoid liability to satisfy any judgment which the plaintiff might obtain, on the basis that the plaintiff knew and/or ought reasonably to have known that there was not in force an approved policy of insurance in respect of the use of the vehicle and the driving thereof by Stephen Gaffney, the driver on the occasion. Clause 5.2 of the 1988 MIBI Agreement provides as relevant to these proceedings:
“(2) Where at the time of the accident the person injured or killed……… knew or ought reasonably to have known, that there was not in force an approved policy of insurance in respect of the use of the vehicle, the liability of M.I.B. of I. shall not extend to any judgment or claim either in respect of injury or death of such person while the person injured or killed was by his consent in or on such vehicle……..”
Factual summary:
This sorry story began when the plaintiff and a group of his friends got together in the early evening of Saturday the 13th July 2002. According to the plaintiff’s own evidence he was twenty four years of age at the date of this accident which happened in the early hours of Sunday 14th July 2002. On the evening of Saturday the 13th July 2002 the plaintiff and a group of friends met up with the intention of going out for the evening together. At between 6.30pm and 6.45pm the first named defendant, Peter Cassidy arrived at the plaintiff’s house in his car. It would appear that the group got into the car. Peter Cassidy was driving, Stephen Gaffney was seated in the front passenger seat, and the plaintiff and three other youth sat in the back of the car.
They proceeded to go into Carrickmacross to a pub called “The Fiddlers Elbow”. The plaintiff says that when they got there they all sat together and remained there for between an hour and an hour and a half. He thinks that he had two pints of Carlsberg there and some sandwiches, and that Peter Cassidy and Stephen Gaffney also had pints of Carlsberg and some sandwiches. It was decided apparently that they should leave the Fiddlers Elbow at about 9pm and that they should take themselves to a disco bar called Zanzibar where more drink was consumed by all, including the plaintiff and Stephen Gaffney. The plaintiff thinks that they stayed in that premises until about midnight and that he may have consumed three or four more pints of Carlsberg there. He also stated that while in the Fiddlers Elbow they had all been seated in a group, it was different in Zanzibar in as much as they moved in and out of each others company.
This band of brethren then repaired to yet another premises, namely Oasis, where they remained until about 3am. The plaintiff states in his evidence that Peter Cassidy drove them in his car to Oasis where they all paid in. The plaintiff was of the view that in spite of the quantity of alcohol which Peter Cassidy had consumed up to that point he was fit to drive them all to Oasis. Needless to say, more pints were consumed by all in Oasis. The plaintiff thinks that he himself consumed maybe three or four pints of Carlsberg during the three hours he was in Oasis. Others were drinking pints also, but he says that he only saw Stephen Gaffney drinking one pint in Oasis. He was not in Stephen Gaffney’s company throughout the time in Oasis, as they were all up dancing or chatting to others.
It was put to him by Mr O’Hagan for the defendants that a report on Stephen Gaffney had showed that after the accident he had twice the permitted level of alcohol in his body as well as evidence that he had taken ‘ecstasy’. The plaintiff said that he had not seen Stephen Gaffney taking ‘ecstasy’. He thinks that he had seen him consume about five pints earlier in the evening but only one pint in Oasis. In answer to Mr O’Hagan, he stated that Stephen Gaffney “looked sober”,
The plaintiff stated that when they all exited Oasis, he himself was “rightly drunk”, and that his friends Colm and Liam and also Peter Cassidy (the owner of the car) were “very drunk”, but that Stephen Gaffney was “sober enough”. It appears that a decision was made collectively that it should be Stephen Gaffney who should drive the men home to Carickmacross – he being regarded as “the soberest of us”.
.
Awareness of insurance:
In relation to his awareness or otherwise of whether Stephen Gaffney was insured to drive Peter Cassidy’s car, he stated that he himself does not drive at all, and that he has never held a driving licence and has never driven a car. But he had been driven in a car before by Stephen Gaffney. It appears that Stephen’s girlfriend and the plaintiff’s girlfriend were friends and that they had all been driven by Stephen in his girl-friend’s car on a number of occasions. He stated that he thought that Stephen had a driving licence. In fact it turns out that Stephen had only a provisional licence. But he states that he never had any conversation with Stephen about car insurance, though he recalled Stephen at one time discussing with him the fact that he wanted, with the assistance of a credit union loan, to buy his own car. But he stated also that on the night of the accident he never even thought about insurance.
When cross-examined by Mr O’Hagan he stated that he had known Stephen Gaffney for about seven years. They had apparently grown up in the same area. He had also known him when both of them spent time in the United States, but he stated that while there he had never been driven in a car by Stephen Gaffney. He recalled that the first time he had seen him driving a car was in March 2002. He never asked him about when he had learned to drive, but that he had thought that he had a driving licence, and thought also that he had car insurance. He stated to Mr O’Hagan that he had never discussed matters such as the cost of insurance, and had never discussed whether he had car insurance.
Contributory negligence by reason of not wearing a Seat-belt:
The plaintiff stated that he recalls getting into the car and putting on his seatbelt, but he recalls nothing else until he regained consciousness in the hospital. He was unconscious for between four and six hours. To Dr Marion Carragher he is noted as having stated that “his last memory was sitting outside a disco in a car and then wakening up in hospital”. This appears in her report. Dr McDonough’s report dated 31st December 2002 records also that the plaintiff’s “last memory was sitting outside the disco and then he woke up in hospital”.
I am extremely doubtful that he can now recall putting on his seatbelt, and given the obviously self-serving nature of that statement, and the amount of alcohol which he admits that he had consumed, I am not accepting it at face value. I cannot see how he can say that given the state of his memory of anything else from the time he was seated outside Oasis until he awoke some hours later in hospital.
The defendants have pleaded contributory negligence on the basis that the plaintiff was not wearing a seatbelt. The onus is on them to satisfy the court on the basis of a probability that the plaintiff was not wearing a seatbelt in spite of his evidence that he was. The defendants have not called as a witness any person who may have been at the scene of this accident in its immediate aftermath, such as a Garda or ambulance witness, who might have been able to say that the plaintiff, who was unconscious at the time, was belted when they came on the scene. Presumably if there was such evidence it would have been called.
I have been asked to infer from the nature of the plaintiff’s injuries that he must have been wearing a seatbelt, and that if he was not, his injuries would have been much worse, especially given that the driver of the car died. It is not in controversy that the plaintiff sustained a head injury said to be “mild in degree” judging by the duration of the post traumatic amnesia. He was unconscious for 4-6 hours post accident. He also sustained a laceration of the scalp which was closed with staples. He also received an injury to spleen, which was treated conservatively. Mr Pidgeon notes some chest bruising occurred, and there was a small laceration adjacent to left eye stitched. In addition to these injuries there were injuries to his back i.e. a compression fracture of two bones which have healed very well, and in addition he sustained a right ankle fracture which was treated by the application of a steel plate and screw which are still in situ. The plaintiff remained in plaster for 8 weeks, and thereafter was on physiotherapy.
On the basis of these injuries I am prepared on the balance of probabilities to conclude that the plaintiff was wearing his seatbelt, even though I retain some doubts about the matter. I think that given the severity to be inferred from the fact that the car impacted with the tree, that the driver was killed, and the fact that the plaintiff was in the front passenger seat, it is more likely than not that he was restrained by a seatbelt. There is no evidence that his head came into contact with the windscreen, and while he obviously sustained a heavy knock to the head since he was unconscious for four to six hours, the laceration was to the back of his head and not the front, and the cut to his left eye was small.
If he was unrestrained in this impact it would be fair to assume that in all probability he would have been violently thrown forward; and his injuries do not appear to be consistent with that. He sustained an injury to his spleen, and while this could be consistent with other possibilities, it is certainly consistent also with the lap part of the seatbelt coming under pressure against his abdomen after the plaintiff was thrown forward in the impact against the seatbelt.
Contributory negligence by permitting himself to be driven in a vehicle when he knew or ought to have known that the driver was unfit to drive due to the consumption of alcohol:
I have set forth the evidence which has been adduced in relation to the consumption of alcohol by Stephen Gaffney on this night. The plaintiff was in or about the company of Stephen Gaffney throughout this night from about 7pm until 3am. The plaintiff has stated in his own evidence that he was aware that Stephen Gaffney consumed some pints of alcohol. It must be remembered that Stephen Gaffney was not the owner of the car. He was a passenger just like the plaintiff. He would not have been the intended driver of the car after the night’s drinking came to an end. The plaintiff, again rather self-servingly, gave evidence that while he knew that he, Peter Cassidy and some of the others had consumed a lot of drink, he had seen Stephen Gaffney consume only one pint while they were in Oasis from midnight until 3am. He says that when they all exited Oasis it was decided that Stephen Gaffney was the soberest of them all. Another way of putting that would be to say that he was the least drunk. Neither description satisfies me that the plaintiff was unaware that the late Stephen Gaffney was unfit to drive due to the consumption of alcohol. I must deal with this question on the balance of probabilities. The plaintiff’s evidence is unreliable. He has no recall of anything that evening until it comes to evidence which could benefit him in these proceedings. I do not accept his evidence even of his own consumption of pints that evening. He has been at pains to say how drunk he was getting into the car. I presume that this is in order to absolve himself in some way from any culpability in the decision to allow himself to be driven home by a person he would otherwise know to be drunk. On the balance of probability, I am satisfied that this plaintiff knew very well that the late Stephen Gaffney was drunk, or to put it more appropriately for these proceedings, unfit to drive due to the consumption of alcohol, as was he himself and all the others who entered the vehicle. The testing carried out on Stephen Gaffney confirms this also as a fact. By allowing himself to be driven by Stephen Gaffney on this occasion, the plaintiff has failed in the duty of care which he owes to himself. In fact the plaintiff along with the others appears to have encouraged the late Stephen Gaffney to drive the car. He seems to have been part of the decision that he was the soberest of them all.
The breach of that duty has caused him to suffer foreseeably, both in terms of the likelihood of an accident occurring in the first place, and the injuries themselves. It is perfectly foreseeable that a drunken driver is going to lose control of the car, and that in whatever impact occurs that the plaintiff would suffer an injury. The plaintiff’s own drunken state is no rebuttal of the allegation of contributory negligence.
In these circumstances I have no hesitation in finding the plaintiff to be guilty of contributory negligence to the extent of 50% in relation to any injury which he has sustained.
Clause 5.2 of the MIBI Agreement:
I have set forth the evidence such as it is about the plaintiff’s awareness or otherwise about whether the late Stephen Gaffney was insured to drive this car which he did not own. It can be summarised, I believe, by saying that the plaintiff had seen him drive his girlfriend’s car some time previously, and also had had a conversation with him on another occasion to the effect that he wanted to buy a car with the aid of a credit union loan. In addition, he says that he believed (wrongly as it happens) that he had a driving licence, but that at no time had he ever had any conversation with him about whether or not he had insurance.
He admitted in evidence that on this particular night the question of insurance had never entered his head. Nevertheless the plaintiff submits that he was entitled to assume, as he did apparently, that Stephen Gaffney was covered by insurance to drive this car which was owned by Peter Cassidy.
I am satisfied that the plaintiff gave no thought whatsoever to whether or not Stephen Gaffney was or was not insured to drive this car on this occasion. Clause 5.2 excludes liability where “at the time of the accident the person injured or killed……… knew or ought reasonably to have known, that there was not in force an approved policy of insurance…etc”.(my emphasis)
His knowledge of the insurance matter is as of the time of the accident. It is not a question of the plaintiff later on before the action in respect of his injuries comes on for hearing dredging up from the deep recesses of his memory a conversation or two which might be seen as entitling him to credit himself with knowledge as of the date of the accident.
The question is did he know that the driver had no insurance, or ought to have so known, at the date of the accident. In this regard we know that he made no inquiry at the date of the accident. He did not give it a moment’s thought. The fact that Stephen Gaffney may have driven his girl-friend’s car some time previously is hardly reason to believe that some time later he was insured to drive yet another car which he did not own. The same can be said of the supposed conversation about Stephen Gaffney about his desire to borrow money from the credit union to buy a car. But that is the best that the plaintiff can put forward as to the basis of his evidence that he did not know and ought not to have known, that there was no policy of insurance. All one’s instincts are against finding for this plaintiff in this regard. It seems wrong that a plaintiff who in a drunken state gets into a car which he knows is being driven by another drunken man who he knows does not own the car, and to whom he addresses no inquiry about whether or not that drunken man is insured to drive, can nevertheless recover damages for his injuries under the Agreement on the basis that he did not know, and ought not to have known, that the driver was uninsured.
Nevertheless the plaintiff submits that the law is that provided that he can demonstrate that he was never told by Stephen Gaffney in as many words on this particular night that he was not insured to drive, the Court must hold that at the time of the accident he neither knew nor ought reasonably to have known, that there was not in force an approved policy of insurance in respect of the use of the vehicle. He submits that the fact that he did not bother to make appropriate enquiry of Stephen Gaffney is neither here nor there, and that this failure to even enquire does not bring into play the concept of whether he ought to have known. The plaintiff submits that the bar is almost as high as requiring that the plaintiff having made enquiry and having been actually told by the driver that he had no insurance, nevertheless agreed to be driven by him, before the exclusion provision in clause 5.2 of the Agreement kicks in. I accept as a fact that the plaintiff did not know as a fact that Stephen Gaffney was not covered by a policy of insurance. The question is confined to whether he ought to have known.
Counsel for the plaintiff has referred to the judgment of Finlay C.J. in Kinsella v. Motor Insurers’ Bureau of Ireland [1997] 3 I.R. 586 which, it is submitted, supports a finding in favour of the plaintiff. In that case the facts were very different indeed to the facts of the present case. The plaintiff sought to recover under the Agreement in circumstances where he had lent his own car, for which he himself was insured to drive, to his aunt, having been encouraged to do so by some other members of his family so that she could see whether the car was one which suited her, as she was contemplating purchasing a car at the time. The plaintiff, aged 28 years at the relevant time, knew that his aunt already drove her husband’s car – her husband apparently being a disabled person. He has also seen his aunt driving a car which belonged to his own father. He admitted in evidence that he knew that she was not covered by his own insurance policy, but had stated that he believed that she was covered by virtue of the policy under which she drove her husband’s car. His aunt also gave evidence to the effect that she believed at the time that she was covered to drive the plaintiff’s car by virtue of her husband’s policy, and went further and stated that if the plaintiff had asked her whether she was insured to drive his car (accepting that he had not done so) she would have told him that she was. The learned Chief Justice concluded that considerable weight would have to be given to the uncontested evidence that the plaintiff had a bona fide belief that she was covered to drive his car, even though he had not made specific enquiry.
It will be appreciated immediately from the above factual summary how very different are the facts arising in Kinsella. But in his said judgment, the learned Chief Justice set forth a number of general principles which should apply to the interpretation of Clause 5(2) of the Agreement. At page 588 of his judgment he states as follows:
“Firstly, it is clear to me that the onus is upon the defendant to prove that a person claiming on foot of the a judgment in the circumstances in which the plaintiff is claiming in this case, either knew, or should reasonably have known, that the use of the vehicle on the occasion was not covered by insurance.
Secondly, I am satisfied that having regard to the terns of clause 5(2) that the question as to whether the claimant “should reasonably have known” of the absence of insurance is essentially a subjective question. The issue is not: would a reasonable person have known?”, but rather: “should the particular individual, having regard to all relevant circumstances have known?”. For example, obviously, a person with defective reasoning or mental powers, or a young child could not possibly be defeated by this clause.
It is also, in my view, relevant that a person who travels in a vehicle which he knows is being used by a person who is not covered by insurance under the Road Traffic Act is, essentially, blameworthy for he is clearly condoning, though probably not technically participating in the commission of a serious offence. Having regard to that principle, I am satisfied that a court in reaching a conclusion as to whether a person claiming under the agreement should reasonably have known of the absence of insurance, is to some extent at least concerned to assess as to whether the attitude or conduct of the person concerned at the time of the accident was in this particular sense blameworthy.”
Dealing with this final point first, it will I hope be abundantly clear at this stage that my view of the plaintiff is that he displayed at the time of this accident an attitude or conduct which was blameworthy. In my view the plaintiff has shown little to redeem himself on this particular occasion, no matter how changed a person he may subsequently have become. What he did is utterly irresponsible, and in these days of appalling carnage on our roads, it is appropriate that the Court speaks bluntly in this respect.
The second named defendant in my view has discharged the onus found to be upon it of proving that this plaintiff ought to have known that the driving of Stephen Gaffney was not covered by any policy of insurance. It has done so by the eliciting of evidence in this regard from the plaintiff himself, which is sufficient for the Court to reach a conclusion on the balance of probabilities.
The test to be applied to the question is a subjective one – in the words of Finlay CJ: “should the particular individual, having regard to all relevant circumstances have known?” In contrast to the plaintiff in Kinsella, the present plaintiff had absolutely no rational or reasonable basis for believing that the driver was covered on this occasion. I accept that he did not actually know as a fact, and therefore just about in my view escapes from a finding that he “knew”. But I have to say that I find it difficult to believe him when he says he did not know. But giving him the benefit of the doubt as to that, one has to ask what does “should reasonably have known” mean if it is not to permit of something short of actual knowledge gained by a false answer given to a specific enquiry by the plaintiff. It is a subjective test, but I feel that it must mean that given what this particular plaintiff knew about Stephen Gaffney, and I refer to these facts in the following paragraph, it is neither credible nor rational or reasonable for him to say that he did not know. Again, accepting the subjectiveness of the test, there is nothing about the plaintiff in the nature of the disability referred to by Finlay CJ in Kinsella, which would excuse his lack of knowledge that Stephen Gaffney was uninsured. It is not reasonable or credible for someone in the position of the plaintiff, with his characteristics and his knowledge of the relevant facts, to conclude that Stephen Gaffney was insured. In other words, he must be taken as having known, even if he did not in fact know.
The plaintiff was a friend of the driver’s for some years, had been to America with him, had socialised with him and their respective girl-friends for some time, knew each other well, and lived together in the same town. In fact the plaintiff in his evidence stated that he was closer to Stephen Gaffney and another friend in the car named Colm, than he would have been to the other occupants. He was therefore what one could reasonably call “a good friend” of Stephen Gaffney’s. He also knew that he did not own a car. He – that is this particular plaintiff- therefore “should have known” that Stephen Gaffney was not covered on any policy of insurance to drive Peter Cassidy’s car that night. No other sensible interpretation can be given to the concept of “should have known” in this case. In my view he should or ought reasonably to have known that there was no policy covering the driving. In all the circumstances of this case this plaintiff had reason to know, if he did not actually know, that the driver was not covered by insurance. I believe that to so hold is consistent with the judgment in Kinsella v. M.I.B.I [supra]. I do not believe that the plaintiff can be excused in this regard by pleading that he was so drunk that the question of insurance never entered his mind, the more so where he entered the vehicle voluntarily and was part of the joint decision that Stephen Gaffney would drive the car which, it was known, he did not own.
Finally on this particular topic, It is interesting to note the comments of Lord Nicholls in the House of Lords in White v. White [2001] 2 All ER 43 at p.48. He was considering, in the context of the same exclusion clause appearing in the MIBI Agreement in the United Kingdom, the question of what constitutes knowledge for the purpose of the exclusion clause. He states in this regard at p. 48:
“There is one category of case which is so close to actual knowledge that the law generally treats the person as having knowledge. It is the type of case where, as applied to the present context, a passenger had information from which he drew the conclusion that the driver might well be uninsured but deliberately refrained from asking questions lest his suspicions should be confirmed. He wanted not to know (‘I will not ask, because I would rather not know’). The law generally treats this state of mind as having the like consequences as would follow if the person, in my example the passenger, had acted honestly rather than disingenuously. He is treated as though he had received the information which he deliberately sought to avoid. In the context of the directive that makes good sense. Such a passenger as much colludes in the use of an uninsured vehicle as a passenger who actually knows that the vehicle is uninsured. The principle of equal treatment requires that these two persons shall be treated alike…”
There is nothing to distinguish the present plaintiff from the category of person referred to in this passage. The reference to collusion towards the end of the passage has a resonance of what Finlay CJ states in Kinsella , about the blameworthiness of the passenger who is at least condoning the commission of a serious offence, and that a court should accordingly be concerned “to assess as to whether the attitude or conduct of the person concerned at the time of the accident was in this particular sense blameworthy.”
For the sake of completeness, I need to assess damages for the plaintiff, since he is entitled to an award against the first named defendant, subject to the deduction of 50% in respect of the contributory negligence found against him. He lost consciousness, suffered a fracture dislocation of his ankle. Although quite a serious injury treatment assured that there were no long-term complications.
There may have been also a compression fracture at L5 of the lumbar spine, but Mr McQuillan viewed this essentially as soft tissue in nature and considered that it would improve with exercise.
He had a laceration to the left eyelid as well as to the back of the head, as well as some bruising of the spleen.
He suffered some amount of dental damage for which he received appropriate treatment.
He alleges that he was also suffering from depression following the accident, and was prescribed anti-depressants, and attended a counsellor.
As far as work is concerned the plaintiff has stated that were it not for this accident he would have had the wish and ambition to work in the construction industry, but that he cannot now do so because of difficult he would have lifting heavy weight due to the injury to his back and the stiffness associated with it. He is working now and there is not much difference in money terms between what he is doing now and the sort of work he was engaged upon at the time of the accident. But he does feel that he has lost the opportunity of gaining more remunerative employment in the building industry. I have received a report from a vocational rehabilitation consultant who states in her summary conclusions:
“he [the plaintiff] should be fit for a range of alternative work however, but unfortunately he has not been making any great effort to return to the labour market, or to retrain, and he was advised very strongly to explore what might be available to him, and given relevant information.”
She does not believe that this accident has relegated the plaintiff to a lower category of work or earning capacity that whet he had pre-accident. According to another report (Mr Vella’s) the plaintiff informed him that he had not looked for work. The plaintiff was out of work for some time after the accident, and I have been informed that Special Damages have been agreed in the sum of €35000.
For general damages I find that a sum of €50,000 is a sum adequate for the bad ankle injury sustained, as well as the other more minor injuries described. I do not find it necessary to assess any sum for future pain and suffering as none has been established. I am not impressed by the plaintiff’s lack of motivation as far as finding work is concerned. He has not struck me as the sort of person who would have availed of any opportunity which he might have had to work in the construction industry as he claims. He certainly had taken no steps in that direction pre-accident, and has shown no intent to even explore the possibility that he might join that industry in some capacity commensurate with his abilities. I have no basis for compensating him under this heading.
Neither do I feel that it is reasonable to assess any sum in relation to depression. I have formed the view that the plaintiff is and has been for many years a heavy drinker. There has been evidence also of a predeliction for gambling. I do not believe, and there has certainly been no evidence in this regard or suggestion made, that these characteristics of the plaintiff result in any way from the accident. It is to be hoped sincerely that now that this case is behind the plaintiff, he will adopt a more purposive and responsible approach to his life so that he can participate fully in society in a manner appropriate to his talents.
Having made the deduction of 50% for contributory negligence, I give judgment in favour of the plaintiff as against the first named defendant only, being the owner of the car, in the sum of €45,250, and dismiss the claim as against the second named defendant.
Approved
Peart J.
Hussey v Twomey
[2009] IESC 55.Judgment of Mr Justice Finnegan delivered on the 21st day of July 2009
On the 23rd April 1999 the respondent was travelling as a front seat passenger in a motor car the property of and then being driven by the appellant. The car collided with a wall and in consequence the respondent sustained personal injury and suffered loss and damage. Following a hearing over five days the learned High Court judge found that there was contributory negligence on the part of the respondent and apportioned fault to the appellant 85% and to the respondent 15%. He then proceeded to assess damages and awarded damages under the following headings:-
Special Damages
(i) Loss of earnings to-date €195,000
(ii) Loss of earnings for the future €650,000
(iii) Agreed special damages €2,691
(iv) Care and maintenance in the past €25,000
(v) Care and maintenance in the future €267,792
Deductible benefit €2,428
General Damages
(vi) Pain and suffering to date €80,000
(vii) Pain and suffering in the future €140,000
____________________
Total €1,154,37.00
The Notice of Appeal
The appellant appeals on the following grounds:-
Insofar as the learned trial judge found that the plaintiff/respondent was contibutorily negligent to the extent of 15% for travelling in a motor vehicle knowing that the driver was intoxicated:
(a) the learned High Court judge erred in law and in fact in not dismissing the plaintiff/respondent’s claim in circumstances where the proximate cause of his injuries, loss and damage, was the crash which occurred as a result of the driving of the intoxicated driver and where the learned High Court judge found as a fact that the plaintiff/respondent knew at the time he got into the car the defendant/appellant was intoxicated.
In the alternative to 1 above, insofar as the learned trial judge found that the plaintiff/respondent was guilty of contributory negligence to the extent of 15% for travelling in a motor vehicle knowing that the driver was intoxicated,
(a) The learned High court judge erred in law and in fact in finding that the plaintiff was only contributorily negligent to his injury, loss and damage by knowingly allowing himself to be carried in a car when the driver was intoxicated. The proximate cause of the plaintiff’s injury, loss and damage was the accident and the plaintiff would not have been involved in the accident if he had refused to travel in the car where he knew the driver was intoxicated.
(b) The learned High Court judge erred in law and in fact in failing to find that the contributorily negligence in this regard was not at least 50% or such other amount as this honourable court deems appropriate.
In so far as the learned trial judge found that the plaintiff/respondent was wearing a seat belt and was therefore not to be contributorily negligent;
(a) the learned High Court judge erred in law and in fact in making such a finding where the sole evidence on that point came from a witness (Mary Clifford) who admitted to having had at least five alcoholic drinks, where the uncontradicted evidence of the defendant was that she was drinking large bottles of cider, where the said Mary Clifford admitted being unconscious after the accident and where the medical report from Mr Kearns (Maxillofacial Surgeon) for the plaintiff/respondent) was agreed as to its contents and specifically recorded that the plaintiff/respondent told him that he was not wearing a seat belt.
(b) The learned High Court judge erred in law and in fact in not finding, on the evidence before him, that the plaintiff/respondent was not wearing his seat belt and in failing to find him contributorily negligent to at least the extent of 25% in that regard or such other amount as this honourable court deems appropriate.
(c) In the circumstances the learned High Court judge failed to properly evaluate the evidence before him or in the alternative reached a conclusion on the available evidence which no reasonable judge would have reached on the evidence.
Insofar as the learned High Court judge awarded the plaintiff/respondent the sum of €195,000 loss of earnings to-date;
(a) The learned High Court judge erred in law and in fact in awarding to the plaintiff losses which did not take into account the nature of his prior work history or incidents of unemployment in the course of his apprenticeship as block layer. Instead the award of loss of earnings to date was predicated upon him qualifying as a block layer and working without interruption thereafter.
(b) In the circumstances the learned High Court judge failed to properly evaluate the evidence before him or in the alternative reached a conclusion on the available evidence which no reasonable judge would have reached on the evidence.
Insofar as the learned High Court judge awarded the plaintiff/respondent the sum of €650,000 loss of earnings into the future;
(a) The learned High Court judge erred in law and in fact in awarding to the plaintiff/respondent losses of that magnitude. In that regard the learned High Court judge ignored the uncontested evidence before him from the plaintiff’s rehabilitation consultant that the plaintiff/respondent had a residual earning capacity of between €275 and €400 per week. Further the award made did not take into account his prior work history or incidents of unemployment in the course of his apprenticeship as a block layer. Instead the award of loss of earnings into the future was predicated upon him qualifying as a block layer and working without interruption thereafter.
(b) In the circumstances the learned High Court judge failed to properly evaluate the evidence before him or in the alternative reached a conclusion on the available evidence which no reasonable judge would have reached on the evidence.
In so far as the learned High Court judge awarded the plaintiff/respondent damages of €220,000 in respect of a brain injury;
(a) The learned High Court erred in law and in fact in awarding the plaintiff/respondent damages for any brain injury. The said finding was contrary to the weight of the evidence and had no regard to the fact that the first time it was alleged that the plaintiff/respondent suffered such an injury was some years after the event.
(b) In the alternative, if he did have a brain injury then there was no causal connection, on the evidence, between that injury and the accident.
(c) In the circumstances, the learned High Court judge failed to properly evaluate the evidence before him or in the alternative reached a conclusion on the available evidence which no reasonable judge would have reached on the evidence.
In so far as the learned High Court judge awarded the plaintiff/respondent damages in the sum of €267,792 in respect of future care costs;
(a) The learned High court judge erred in law and in fact in awarding to the plaintiff/respondent damages for future care costs at the level that he did in circumstances where he stated, prior to Noreen Roche, nursing consultant, giving oral evidence that that element of the case was minimal and was being approached as such by him. In that event Noreen Roche was not called. Having made such a finding it was not open to the learned trial judge to thereafter make an award in respect of that head of claim in the sum of €267,792. Any award in respect of future care costs should have formed a part of general damages in a modest sum bearing in mind the court ruling.
(b) In the circumstances, the learned High Court judge failed to follow his own finding in the case or in the alternative reached a conclusion on the findings made which no reasonable judge would have reached on the evidence and the findings made.
The law
The manner in which the Supreme Court exercises its appellate jurisdiction is clearly and succinctly set out in Hay v O’Grady [1992] I.R. 210 by McCarthy J. as follows:-
“Order 58 of the Rules of the Superior Courts 1986 provides:-
‘1. All appeals to the Supreme Court shall be by way of rehearing and (save from the refusal of an ex parte application) shall be brought by notice of motion (in this order called “the notice of appeal”). The appellant may appeal from the whole or any part of any judgment or order and the notice of appeal shall state whether the whole or part only of such judgment or order is complained of and in the latter case, shall specify such part’.
This does not mean that the Supreme Court re-hears oral evidence but, rather, the arguments based upon the findings of fact, including arguments that the findings are unsupported by evidence, itself a question of law. Although the jurisdiction confirmed by Article 34, s.4, sub-s.3 is, save as there expressed and already instanced, unlimited, the Court has, in effect, limited its jurisdiction in the manner detailed in the succession of cases cited in the course of argument. The role of this court, in my view may be stated as follows:-
“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. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes L.J. in “The Gairloch”; Aberdeen Glenline Steamship Co. v Macken [1899] 2 I.R. 1 cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v Madden [1977] I.R. 336 at p.339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference – in a case of this kind, was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found and either on the inferences drawn by the trial judge or the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly.
5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inferences to be drawn and the conclusion that follows.”
I propose to deal in the first instance with the grounds of appeal which relate to the seat belt issue and quantum of damages awarded, that is with grounds 3 to 7 inclusive. Thereafter I will deal with the grounds relating to contributory negligence raised at grounds 1 and 2.
The Seat Belt
In direct examination the respondent said that he would usually wear a seat belt. Putting this answer in context, the respondent had given evidence that he did not remember the accident and had no recollection of the day or days before the accident. He did not remember who was in the car with him at the time of the accident. In cross-examination it was put to the respondent that his injuries were consistent with his having struck his head on the dash board in the accident, and that the reason for that is that he was not wearing a seat belt. From the documents which were before the learned High Court judge the following appear:
a. On admission to Nenagh Hospital on the 23rd April 1999 it was recorded in the notes taken “seat belt?”
b. On admission to Limerick Regional Hospital on the 26th April 1999 it was recorded that he was not wearing a seat belt.
c. Gerard Kearns, Consultant Oral and Maxillofacial Surgeon, in his report of 26th May 1999 records that the respondent was not wearing a seat belt.
d. Dr. Simone Carton, Clinical Neurophysiologist, in a report of July 2003 records in the history that the respondent was wearing a seat belt.
e. In a report of Mr James M. Sheehan, Orthopaedic Surgeon, it is recorded that the respondent did not remember if was wearing a seat belt. It is also recorded that no air bag was fitted to the motor car.
f. The report of Dr. Kieran O’Driscoll, Consultant Neuropsychiatrist, dated 17th September 2003 records that the respondent was wearing a seat belt.
g. Other reports are silent on the question.
Mary Clifford gave evidence. She was a rear seat passenger in the car. The respondent was a front seat passenger. Her evidence was that the respondent was wearing a seat belt. In cross-examination she said that she had passed out after the accident and that her recollection of the accident was incomplete – she remembered bits and pieces. Her recollection prior to the accident was not tested in cross-examination. She said that she saw the respondent putting on his seat belt and that he was sitting in front of her.
In the course of his ex tempore judgment the learned trial judge said:-
“I am satisfied on the evidence of Mary Clifford that the plaintiff was wearing a seat belt, and that is out of it.”
I am satisfied that there was before the learned trial judge credible evidence for him finding that the respondent was wearing a seat belt notwithstanding the existence of some indications to the contrary. This being so I would not interfere with that finding.
Loss of Earnings to-date
The learned trial judge had the oral evidence of Mr Gerard Walsh and Mr Michael Walsh who together carry on a block laying business and for whom the respondent was working up to the date of his accident. Gerard Walsh gave evidence of the rates paid to block layers as of the date of hearing. Since about 2000 there had been ample work and as at the date of hearing he would not be idle for two minutes. A third or fourth year apprentice would earn €600 per week into his hand. A qualified block layer would earn €1,000 per week upwards. Mr Michael Walsh described the respondent as in the top three of the apprentices he had had up to the date of the accident. He described the respondent’s diminished ability since the date of the accident on his return to work – in short the respondent is no longer up to the job. When the respondent worked for him after the accident he paid him at most €170 to €180 per week and this is more than the respondent is worth. Sean O’Sullivan, Vocational Rehabilitation Consultant, gave evidence. He gave evidence of the amount which the respondent was earning at the date of the accident exclusive of overtime. As of the date of hearing the demand for block layers was such that the respondent could easily earn over €1,000 per week and more likely in the region of €1,200 per week. There was then virtually unlimited work.
Nigel Tenant, Actuary, gave evidence as to the respondent’s loss of earnings to date and into the future. The appellant did not call a Vocational Rehabilitation Consultant or an Actuary.
On the evidence before him the learned trial judge awarded a sum for loss of earnings to-date within the parameters of the evidence adduced. There was evidence to support the award made. In these circumstances I would not interfere with the same.
Future Loss of earnings
In relation to the fourth ground I have already outlined the evidence available
to the learned trial judge. As in the case of loss of earnings to-date, the award was within the parameters of the evidence adduced. In these circumstances I would not interfere with the award made. The learned trial judge expressly had regard to Reddy v Bates.
General damages
The award for general damages was divided into an award for pain and suffering to-date in the amount of €80,000 and for pain and suffering in the future of €100,000.
Central to the issue on the award of general damages is the conflict between the evidence adduced on behalf of the respondent and on behalf of the appellant as to the nature and extent of the brain injury suffered by the respondent. The appellant relies heavily on a divergence between the opinion expressed by Mr Michael O’Sullivan, Consultant Neurosurgeon, for the respondent in his first report dated 19th October 2001 and his evidence given at the hearing. On this basis it is submitted that the weight of the evidence did not support a finding that the plaintiff had suffered significant brain damage and that accordingly the award of general damages was in all the circumstances grossly excessive. The only medical evidence adduced on behalf of the appellant was that of Dr. Hugh Staunton, a neurologist.
The opinion of Mr O’Sullivan in his report of 16th March 2001 is that the respondent had moderate traumatic brain injury with symptoms of poor memory and change in personality and that it was unlikely that any future recovery would occur. Mr O’Sullivan had a second consultation with the respondent in October 2001 and furnished a report dated 19th October 2001 in which his opinion and prognosis was unchanged from that arrived at the previous March. A further report was based on a consultation on the 19th September 2003 and again his opinion and prognosis remained unchanged.
In his evidence Mr O’Sullivan said that he first saw the plaintiff in October 2000. At that time he had no access to reports of any other doctor or medical specialist and had no access to hospital records. He had sight of a CT scan of the cranium performed some four months following the accident which was normal. His opinion then was that the respondent had suffered a moderate diffuse type brain injury. He saw the respondent again in March 2001 and furnished his report on the 16th March 2001 when the respondent had symptoms consistent with a moderate diffuse brain injury. He saw the respondent again in October 2001 and September 2003 and on each occasion his opinion remained unchanged. On each occasion on which he saw the respondent he carried out the Serial Seven test. On each occasion it was slow. On the first occasion the respondent’s immediate recall were three out of four and on the subsequent two occasions two out of four. The test entails the patient being asked to subtract seven in a serial manner from one hundred and timing the exercise. The respondent had great difficulty in performing the test. A diffuse axonal injury can result in cognitive impairment particularly in memory, information processing and attention span and the test is used to elicit these abilities. His opinion was that the respondent had poor pre-morbid cognitive ability which was exacerbated and compounded by the injury which he sustained in the accident and the combination of these two factors would make it difficult for the respondent to undertake gainful employment. His opinion was that the respondent suffered a moderate traumatic brain injury of a diffuse axonal type. Patients may recover from such an injury for up to two years but thereafter there is very little improvement.
In cross-examination he corrected his reference to the Serial Seven test carried out on the 16th March 2001 as the test was normal on that date: however on an earlier test on the 11th October 2000 the test was slow and the respondent made numerous mistakes. On other occasions the respondent did not complete the Serial Seven tests. The respondent suffered a period of post-traumatic amnesia of three days and from the literature this will determine the outcome of a mild to moderate head injury: the outcome is not determined by performance on the Glasgow Coma Scale. He did not attach significance to a clear MRI or CT scan for an axonal type injury. It remained his opinion that the respondent suffered a diffuse brain injury in the accident.
Mr O’Sullivan’s was not the only evidence. Dr. L. Fitzpatrick, Consultant Psychiatrist, gave his opinion that the respondent was suffering from organic personality disorder with cognitive impairment resulting from the head injury sustained in the accident. There had been a poor response to therapeutic intervention and the prognosis for recovery in his opinion was poor. In later reports he noted significant personality change and depression. His opinion was that the deficits which he outlined are a consequence of the injury sustained by the respondent in the accident. Finally in a report of the 14th June 2004 he had this to say:-
“In view of Mr Moran’s established cognitive impairment and his propensity to substance abuse I would consider him an extremely vulnerable young man and one who is unable to manage his financial affairs particularly if awarded a significant sum of money. I also would have serious concerns regarding his vulnerability to exploitation by others. At present Mr Moran’s parents play a very supportive role in his life; consideration has to be given to the future however and the likelihood of Mr Moran requiring some type of care environment in the absence of his parents in the future. On the basis of these concerns therefore I would recommend that Mr Moran should be made a Ward of Court prior to the assessment of his compensation claim.”
Dr. Simone Carton, Clinical Neurophysiologist, detailed the very significant changes in the respondent’s life following the accident and attributed these to significant traumatic brain injury in the accident.
The learned trial judge was greatly influenced by the reports of Dr. Brenda O’Halloran, the respondent’s General Practitioner, who dealt in very great detail with the change in the respondent following the accident.
There was also available to the court the evidence and a report of Dr. Kieran O’Driscoll, Consultant Neuropsychiatrist. On the basis of a three day period of post traumatic amnesia he was of opinion that the respondent suffered traumatic brain injury of moderate severity.
For the appellant Dr. Hugh Staunton, a Neurologist, gave evidence. He examined the respondent, once only, on the 24th March 2003. The respondent outlined his then present condition in relation to his injuries. Dr. Staunton did not think that the accident was sufficient to cause such a long term outcome. Following that report he obtained information of hospital attendances by the respondent prior to the accident. In the period 1985 to 1987 he attended with complaints of being bad tempered, of headache and anxiety. He also learned of the normal MRI scan carried out in March 2002. If the respondent had developed severe behavioural problems as a result of a brain injury he would have expected to see secondary changes on the MRI scan at that time and accordingly a negative MRI scan is evidence against significant brain injury. In relation to the comments in evidence of the respondent’s Neurophysiologist these were outside the realm of that expertise. He would expect to see secondary atrophic changes in the brain on the MRI scan if the brain injury was severe. While it is difficult to come to an integrated answer he would feel that the problems of the respondent are psychological or psychiatric rather than neurological. In cross-examination Dr Staunton said that he could not say what was wrong with the respondent. He would agree that the respondent has a post-accident syndrome but not that it was associated with brain damage. He accepted that the respondent had a significant head injury. He was adamant that the significant affect on the respondent would be apparent on an MRI scan if it was due to a severe brain injury. However he had no explanation of how the respondent ended up in his then present condition. He accepted that in his initial report he said that the respondent experienced a significant head injury with a significant pre-traumatic and post-traumatic amnesia.
Clearly there was a conflict in the evidence. However Dr. Staunton’s evidence was to the effect that the respondent did not suffer a severe brain injury but did suffer a significant head injury. The respondent did not claim a severe brain injury but rather a moderate brain injury which impacted on the respondent’s pre-morbid cognitive ability. There were, however, other matters in conflict in the medical evidence. It is the function of the learned trial judge who heard the witnesses, and indeed had the opportunity of hearing and observing the respondent, to resolve these conflicts. There was ample credible evidence to support the learned trial judge’s findings and accordingly I would not interfere with the same.
7. Future Care Costs
This aspect of the respondent’s claim was based on a report of Noreen Roche, Nursing Consultant, dated 21st June 2004 and actuarial evidence. Ms Roche’s report was duly disclosed to the appellant. Notwithstanding this the appellant did not, pursuant to the Rules of the Superior Courts, Order 39, Rule 45 disclose an intention to call a nursing consultant as a witness nor did he disclose any nursing consultant’s report of his own. The finding of the learned trial judge as to the support which the respondent required up to the date of hearing and would require into the future is supported by the medical evidence and Ms Roche’s report.
On day 3 of the trial counsel for the respondent informed the court that he wished to call Ms Roche out of sequence as she could not be present after that day as she was travelling to China. For the appellant counsel submitted that there was no evidential basis for evidence of care requirements at that stage. The respondent relied upon the evidence of Dr. O’Driscoll, the only medical witness who had up to then given evidence. His reports had been seen by the learned trial judge and were admitted in evidence. The effect of Dr O’Driscoll’s evidence, according to the trial judge, was that the respondent would require minimal supervision. Counsel for the appellant admitted Ms Roche’s report “on that basis”. Then followed the following exchange:-
“Mr Tynan (for the respondent) – I will call her briefly. If my friend will permit the report then there is no difficulty.
Mr Justice Johnson – Make such use of it as you will but as far as I am concerned it is of minimal significance. Make whatever you want.
Mr Tynan – We can do it on that basis, My Lord. You consent to that? Do it on the basis of the report.”
Dr. O’Driscoll’s report is comprehensive and sets out the documents which were provided to him for the purposes of the report. The documents included reports of the other medical witnesses called. From the report it is clear that the respondent as a result of moderate traumatic brain injury suffers inter alia from symptoms of poor memory to a significant degree. From Dr O’Driscoll’s report it appears that the respondent cannot remember conversations. He cannot remember what his doctors tell him. He is a musician but has difficulty remembering tunes which he knew from before the accident. He has forgotten people from his class at school, including their names. He cannot either add or subtract or deal with money. He rarely knows what day it is. A collateral history taken by Dr. O’Driscoll from the respondent’s father makes clear that while the respondent had shown improvement he had difficulty in attending to his personal appearance in terms of shaving and cleanliness. His medical advisers, to whose reports Dr O’Driscoll had access, disclose that his compliance with medication and attendance on doctors was poor and that he forgot to take his medication. He suffered from poor concentration and slowness in mental activity. In his evidence Dr. O’Driscoll said that the respondent was neglecting himself and not washing or shaving properly. He was very sluggish mentally. Dr. O’Driscoll was asked if in his opinion the respondent required a certain amount of care or attention from outsiders and how the respondent would cope if living on his own. His reply was as follows:-
“I think he would struggle. He would certainly struggle in complying with medication, not necessarily because of him being obstructive, but I think his memory is so poor I doubt he would remember if he had taken his medication. For that reason alone he would require supervision. I think he would also potentially withdraw and neglect himself. He has a tendency to isolate, and with the apathy, he would need someone there to stimulate and encourage him. I think he is going to need his life, in a sense, organised for him with specific tasks and goals to which he could direct himself. In the short term with encouragement and motivation I think he could achieve a certain amount.
Dr. O’Driscoll was asked if the respondent could handle his own money and he replied as follows:-
“No, for a few reasons. One is, he says himself that he has difficulty in actual calculations, so I think he would have difficulty on that simple level. But I think he would struggle to remember what decisions he had made, be able to plan ahead and anticipate the consequences what he did with his money. So I think he would be quite vulnerable.”
Finally Dr. O’Driscoll was asked what the respondent’s position would be when his parents are no longer there to look after him and his reply was as follows:-
“He will need more help. The difficulty would be, also, in respect of relationships, building up a social network, having a partner, married, children, friends, work colleagues. I would worry about his social network. He does not display an ability to construct that safety net around him.”
What is clear from Dr. O’Driscoll’s evidence is that at the date of the hearing the respondent required the assistance of his parents and that when they are no longer available to him he will require even more assistance. On the evidence of the respondent’s general practitioner Dr. O’Halloran, which was given later in the hearing, the respondent’s deficits and needs became much clearer. Her evidence was in accordance with her disclosed correspondence and reports which were available to the appellant in advance of the hearing so that nothing in her evidence could have come as a surprise to the appellant. Thus in a report of 15th September 2003 she records that the respondent lived mainly on sandwiches and whatever meals his parents deliver out to him. She concludes her report as follows:-
“I am concerned for his future in that I don’t know how viable he will (be) on his own in the long run or how capable he will (be) at looking out for himself and basically his employment prospects are bleak.”
In a report of 26th May 2004 Dr. O’Halloran records a collateral history from the respondent’s father as follows:-
“He also confirmed that there were major problems in dealing with Roy on a day-to- day basis. He could forget to eat. He did not seem capable of caring for himself, he could forget his medication and he could forget doctors’ appointments. All in all Roy’s mother and father (have) spent quite a bit of time looking out for him and organising his life.”
Dr. O’Halloran expressed the opinion that the respondent is someone who as he gets older will find it increasingly difficult to look after himself.
In his reports, which were available to the appellant, Dr. L. Fitzpatrick, Consultant Psychiatrist, refers to the very supportive role the respondent’s parents play in his life and states that in the absence of his parents he would require a care environment and should be made a Ward of Court.
Dr. Simone Carton, Clinical Neuropsychologsit, in her report of July 2003, which was available to the appellant, records the following:-
“At the moment Mr Moran requires daily support in terms of ensuring that he is taking his medication and that he has safely undertaken basic activities of daily living.”
But for the intervention of the trial judge, it is submitted, that Ms Roche would have been cross-examined.
From the documents before the court the following matters are clear:-
1. By virtue of the respondent’s disclosure the applicant was aware of the witnesses to be called on behalf of the respondent and had available his expert’s reports.
2. The appellant had available the report of Ms Roche. From the appellant’s disclosure it is clear that he did not propose calling any witness to counter the same.
3. The report of Ms Roche discloses the expert reports upon which it is based. With one exception the witnesses gave evidence. The exception related to the respondent’s orthopaedic injuries.
4. The learned trial judge accepted the medical evidence adduced on behalf of the respondent.
5. At the time of admitting Ms Roche’s report the respondent was aware of the further medical evidence to be adduced on behalf of the respondent. The appellant called only one medical witness who did not dispute the evidence on behalf of the respondent as to his care needs.
Ms Roche’s report gave the cost of retrospective care for the respondent on the basis of the medical reports and of her own interview with the respondent and likewise cost of future care. Her opinion was that the respondent would require three hours care per day for fifty weeks of the year Monday to Friday and three hours care each Saturday and Sunday. For two weeks each year he would require additional care in relation to holidays. She gave evidence that the cost of care on days other than Sunday would be €10.45 per hour but on Sunday €20.90 per hour. From age sixty five her opinion was that the respondent would require sleepover care in addition. Excluding such sleep-over care the annual cost as estimated by Ms Roche was €22,723.49.
The learned trial judge dealt with Ms Roche’s evidence as follows:-
“Now, with regard to the future – and this is where I need the assistance of you gentlemen – it is a difficult case to assess, regarding the maintenance and care he needs in the future; but it was accepted by – Noreen Roche’s report was handed into me, and I am taking the lowest presenter of maintenance care set out in that. And I will allow the following hours, which can be worked out, then: for the next twenty years, two hours a day – and that is on the basis that hopefully his parents will continue to be in a position to have an eye out for him for the next twenty years. Thereafter I will allow three hours a day. And you gentlemen can do the calculations on that.”
Mr Brendan Lynch, an Actuary, was then called and he gave evidence that the cost for the first twenty years is €138,212 and thereafter €129,580 making in total €267,792.00.
It is clear that the learned trial judge carefully analysed the evidence of Ms Roche in the light of the evidence as a whole. He reduced substantially the care requirements suggested by her for the first twenty years from three hours per day to two hours per day thus giving to the appellant free of cost the care afforded to the respondent by his parents for that period of twenty years. Having regard to all the circumstances I am satisfied that in making this award no injustice to the appellant occurred, notwithstanding that the respondent may have been lulled into a false sense of security by the learned trial judge’s intervention immediately prior to the report of Ms Roche being admitted. I would not interfere with the award under this heading.
Having regard to the foregoing I would disallow the appeal on each of the grounds 3 to 7 inclusive and which relate to the quantum of damages awarded and would affirm the judgment and award of the learned High Court judge in respect of the same.
1 and 2 Contributory Negligence
The evidence before the High Court was as follows. The respondent had no recollection of the evening in question. As to the events of the evening the respondent led evidence of Mary Clifford. On the 23rd April 1999 she met with the respondent and the appellant. They went to a bar which was some twenty minutes from Nenagh where she was living. They arrived at the bar at about 9 p.m. and left at closing time. All three got into the appellant’s car the appellant driving, the respondent being the front seat passenger and the witness the rear seat passenger. She was not worried about the capacity of the respondent to drive. She noticed nothing strange about him and considered him “fine”. The accident occurred when they were approximately half way home and during the period of driving she had no concerns as to the ability of the respondent to drive because of his consumption of drink. She thought the accident occurred around midnight. She had perhaps five drinks during the course of the evening. If there was evidence that the respondent was drinking cider and shorts she would be surprised as he normally drank pints. She did not now how much the appellant or the respondent had to drink as she was not with them all the time throughout the evening.
Sean Hogan a fellow musician of the respondent gave evidence to the effect that on occasion he drank with the respondent and that on a night out the respondent would normally have five, six or at most seven pints.
Garda Graham Rollie, the investigating Garda, gave evidence. He arrived at the scene of the accident at 2.40 a.m. Both the appellant and the respondent were standing beside a crashed car. Ms Clifford was in the rear seat of the car. He spoke to all three and got a smell of intoxicating liquor. The respondent admitted driving and was arrested for drink driving. A sample taken at the Garda Station was returned with a reading of 155 milligrams of alcohol per 100 milligrams of urine. The respondent was charged and pleaded guilty. The legal limit at the time of the accident was 80 milligrams of alcohol per 100 millilitres of urine.
The appellant gave evidence. He, together with the respondent and Ms Clifford, arrived at the bar at approximately 8.30 p.m. and remained there until closing time, that is about 1.30 a.m. the following morning, the 24th April 1999. He had seven or eight pints. The respondent most likely had the same amount. The respondent was drinking large bottles of cider and had a short as well. Ms Clifford was also drinking large bottles of cider but had somewhat less perhaps five or six large bottles.
The learned trial judge’s finding was succinct:-
“On the question of drink, yes, he undoubtedly travelled in the car, and I think, in this day and age with the kind of publicity attached, there must be a finding of contributory negligence regarding that, and I will so find to the extent of 15%.”
On the basis of this evidence, on behalf of the appellant, it is submitted that as a matter of probability the appellant and the respondent having been in each others company in the bar all evening the respondent must have known that the appellant was incapable of driving safely. Reliance is placed on the decision in Judge v Reape [1968] 1 I.R. 226 where the plaintiff and the defendant had been in each others company for twelve hours during which time the defendant consumed a gallon and three pints of beer and a small whiskey. The plaintiff’s evidence as to the defendant’s condition was that he did not notice anything about him and that he was not drunk. O’Dálaigh J. at page 229 said:-
“It has not been questioned by counsel for the plaintiff – nor, indeed, could it be – that a person who knows, or should know, that a driver is by reason of the consumption of alcohol not fit to drive, and who nevertheless goes as the driver’s passenger is not taking reasonable care for his own safety and must, therefore, be found guilty of contributory negligence.”
It was held that the jury’s finding of no negligence on the part of the plaintiff was made in the face of the plainest evidence to the contrary and a re-trial was ordered.
The appellant also relied on the decision in Hussey v Twomey and Ors, the High Court, unreported 18th January 2005 where the learned High Court judge assessed the plaintiff’s contributory negligence at 40%. The decision was upheld by the Supreme Court on appeal: the Supreme Court, unreported, 21st January 2009.
For the respondent the correctness of the decision in Judge v Reape is accepted. However, it is submitted that this court should only interfere with the determination of the trial judge on apportionment if it is satisfied that there was a gross want of proportion in the apportionment of fault between the parties which amounted to a gross error on the part of the trial judge and that on the evidence before the court no such gross want of proportion exists in this case. Reliance is placed on a passage from the judgment of Walsh J. in O’Sullivan v Dwyer [1971] I.R. 275:-
“(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 the respective causative contributions to the damage, but rather on the basis of the moral blameworthiness of their respective causative contribution. 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 a degree of capacity or knowledge which such a person ought to have had if he were an ordinary reasonable person…Fault or blame is to be measured against the standard of conduct required of the ordinary reasonable man and the class or category to which the party whose fault is to be measured belongs.”
In relation to the decision of the Supreme Court in Hussey v Twomey the Supreme Court’s conclusion that the apportionment of 40% for contributory negligence to the plaintiff should not be disturbed does not represent a wholehearted endorsement of that apportionment but rather a principled approach whereby the court declined to interfere on the basis that the apportionment against the plaintiff was not so grossly excessive as to justify interference in the circumstances of that case.
Conclusion on the Law
The Civil Liability Act 1961 section 34 insofar as relevant provides as follows:-
“34(1) Where, in any action brought by one person in respect of a wrong committed 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 or one for whose acts he is responsible (in this part called contributory negligence) 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 the defendant.”
Section 34 was considered by the Supreme Court in O’Sullivan v Dwyer [1971] I.R. 275. It was there held that fault in section 34 is not equated to causation but flows from causation in the sense that if there is no causation there can be no fault: “fault” in section 34 is equated with blameworthiness and the blameworthiness of the plaintiff is the measure for the reduction of damages recoverable by him and not the potency of his causative contribution to the damage.
This court when asked to interfere with an apportionment of liability should only do so if there has been an error of law or having regard to undisputed facts and findings of fact there is a significant disproportion.
In general it can be said that the blameworthiness of the driver will be greater than that of a passenger permitting himself to be driven. The decision to drive is that of the driver and it is he that poses the risk to his passengers and to other road users. Accordingly an apportionment to such a passenger will normally be less than that to the driver. However there may be other elements of fault, for example failure to avail of a seat belt. In such circumstances the correct approach for the court is to take an overall view of the blameworthiness of the passenger and arrive at an apportionment which is just and equitable. Should there be two or three elements of fault it is not necessary that the court should ascribe a percentage to each but rather on an assessment of the blameworthiness as a whole an apportionment should be made.
The law on this topic was most recently considered by this court in Hussey v Twomey and Ors, the Supreme Court, unreported 21 January 2009. In the course of his judgment Kearns J. said:-
“Finally, in relation to the extent of the apportionment, the same must be seen as one made against the back drop of changed societal perceptions as to how issues of this sort are to be regarded…In the context of a passenger travelling with an intoxicated driver the fault lies in the decision to travel with such a driver in the first instance. The more the passenger should have realised, or did realise, the risk being undertaken the greater the degree of contributory negligence. There is thus scope for a much higher finding of contributory negligence in this context than in the case of a failure to wear a seat belt. It is inescapable in my opinion to think other than that the plaintiff was well aware of the defendant driver’s inebriated condition, having spent an hour in his immediate company and having also had plenty of opportunities of seeing the defendant driver during the time spent in these licensed premises. On her own evidence she made no effort to ascertain whether he was fit to drive. I am satisfied, as was the trial judge, that she must have been aware his driving was likely to be impaired and the circumstances were clearly such as to put her on inquiry. In all of the circumstances I believe the apportionment of 40% for contributory negligence should not be disturbed.”
Conclusion
The following circumstances seem to me to be relevant to the apportionment of liability in this case:-
1. The evening was in the nature of a joint venture in that the appellant and the respondent travelled together by car on a twenty minute journey to a bar. On the evidence it is clear that their intention was to travel on the return journey having consumed alcohol.
2. They spent a period of time from approximately 8.30 p.m. to at least 1 a.m. the following morning in a bar in each others company.
3. They, in each others presence, consumed between six and nine alcoholic beverages in that period: on the respondent’s case he consumed between five and seven pints of cider and one short while in his presence the appellant had at least six pints..
4. The respondent knew, or certainly ought to have known, that the appellant’s ability to drive was impaired by drink and quite clearly ought not to have driven. This is so regardless, in the circumstances of this case, of whether or not the appellant’s appearance indicated the extent of his impairment as the appellant and the respondent were in each others company throughout the evening and the respondent had actual knowledge of the appellant’s consumption of alcohol.
5. The accident, the car having left the road, was entirely attributable to the appellant’s driving.
6. However the greater blameworthiness is that of the appellant. It was his decision to drive to the bar and to drive home notwithstanding his consumption of alcohol. It is he who had control of the car and its driving and it was he who represented a danger not just to the respondent but to road users and the public in general.
Having regard to the foregoing circumstances I am satisfied that the apportionment of 15% of fault to the respondent represents a significant disproportion between the respective blameworthiness of the appellant and the respondent. Accordingly I would set aside that part of the judgment and order of the High Court dealing with apportionment of fault and substitute for the same an apportionment of 35% to the respondent and 65% to the appellant.
Judgment of Mr Justice Finnegan delivered on the 21st day of July 2009
On the 23rd April 1999 the respondent was travelling as a front seat passenger in a motor car the property of and then being driven by the appellant. The car collided with a wall and in consequence the respondent sustained personal injury and suffered loss and damage. Following a hearing over five days the learned High Court judge found that there was contributory negligence on the part of the respondent and apportioned fault to the appellant 85% and to the respondent 15%. He then proceeded to assess damages and awarded damages under the following headings:-
Special Damages
(i) Loss of earnings to-date €195,000
(ii) Loss of earnings for the future €650,000
(iii) Agreed special damages €2,691
(iv) Care and maintenance in the past €25,000
(v) Care and maintenance in the future €267,792
Deductible benefit €2,428
General Damages
(vi) Pain and suffering to date €80,000
(vii) Pain and suffering in the future €140,000
____________________
Total €1,154,37.00
The Notice of Appeal
The appellant appeals on the following grounds:-
Insofar as the learned trial judge found that the plaintiff/respondent was contibutorily negligent to the extent of 15% for travelling in a motor vehicle knowing that the driver was intoxicated:
(a) the learned High Court judge erred in law and in fact in not dismissing the plaintiff/respondent’s claim in circumstances where the proximate cause of his injuries, loss and damage, was the crash which occurred as a result of the driving of the intoxicated driver and where the learned High Court judge found as a fact that the plaintiff/respondent knew at the time he got into the car the defendant/appellant was intoxicated.
In the alternative to 1 above, insofar as the learned trial judge found that the plaintiff/respondent was guilty of contributory negligence to the extent of 15% for travelling in a motor vehicle knowing that the driver was intoxicated,
(a) The learned High court judge erred in law and in fact in finding that the plaintiff was only contributorily negligent to his injury, loss and damage by knowingly allowing himself to be carried in a car when the driver was intoxicated. The proximate cause of the plaintiff’s injury, loss and damage was the accident and the plaintiff would not have been involved in the accident if he had refused to travel in the car where he knew the driver was intoxicated.
(b) The learned High Court judge erred in law and in fact in failing to find that the contributorily negligence in this regard was not at least 50% or such other amount as this honourable court deems appropriate.
In so far as the learned trial judge found that the plaintiff/respondent was wearing a seat belt and was therefore not to be contributorily negligent;
(a) the learned High Court judge erred in law and in fact in making such a finding where the sole evidence on that point came from a witness (Mary Clifford) who admitted to having had at least five alcoholic drinks, where the uncontradicted evidence of the defendant was that she was drinking large bottles of cider, where the said Mary Clifford admitted being unconscious after the accident and where the medical report from Mr Kearns (Maxillofacial Surgeon) for the plaintiff/respondent) was agreed as to its contents and specifically recorded that the plaintiff/respondent told him that he was not wearing a seat belt.
(b) The learned High Court judge erred in law and in fact in not finding, on the evidence before him, that the plaintiff/respondent was not wearing his seat belt and in failing to find him contributorily negligent to at least the extent of 25% in that regard or such other amount as this honourable court deems appropriate.
(c) In the circumstances the learned High Court judge failed to properly evaluate the evidence before him or in the alternative reached a conclusion on the available evidence which no reasonable judge would have reached on the evidence.
Insofar as the learned High Court judge awarded the plaintiff/respondent the sum of €195,000 loss of earnings to-date;
(a) The learned High Court judge erred in law and in fact in awarding to the plaintiff losses which did not take into account the nature of his prior work history or incidents of unemployment in the course of his apprenticeship as block layer. Instead the award of loss of earnings to date was predicated upon him qualifying as a block layer and working without interruption thereafter.
(b) In the circumstances the learned High Court judge failed to properly evaluate the evidence before him or in the alternative reached a conclusion on the available evidence which no reasonable judge would have reached on the evidence.
Insofar as the learned High Court judge awarded the plaintiff/respondent the sum of €650,000 loss of earnings into the future;
(a) The learned High Court judge erred in law and in fact in awarding to the plaintiff/respondent losses of that magnitude. In that regard the learned High Court judge ignored the uncontested evidence before him from the plaintiff’s rehabilitation consultant that the plaintiff/respondent had a residual earning capacity of between €275 and €400 per week. Further the award made did not take into account his prior work history or incidents of unemployment in the course of his apprenticeship as a block layer. Instead the award of loss of earnings into the future was predicated upon him qualifying as a block layer and working without interruption thereafter.
(b) In the circumstances the learned High Court judge failed to properly evaluate the evidence before him or in the alternative reached a conclusion on the available evidence which no reasonable judge would have reached on the evidence.
In so far as the learned High Court judge awarded the plaintiff/respondent damages of €220,000 in respect of a brain injury;
(a) The learned High Court erred in law and in fact in awarding the plaintiff/respondent damages for any brain injury. The said finding was contrary to the weight of the evidence and had no regard to the fact that the first time it was alleged that the plaintiff/respondent suffered such an injury was some years after the event.
(b) In the alternative, if he did have a brain injury then there was no causal connection, on the evidence, between that injury and the accident.
(c) In the circumstances, the learned High Court judge failed to properly evaluate the evidence before him or in the alternative reached a conclusion on the available evidence which no reasonable judge would have reached on the evidence.
In so far as the learned High Court judge awarded the plaintiff/respondent damages in the sum of €267,792 in respect of future care costs;
(a) The learned High court judge erred in law and in fact in awarding to the plaintiff/respondent damages for future care costs at the level that he did in circumstances where he stated, prior to Noreen Roche, nursing consultant, giving oral evidence that that element of the case was minimal and was being approached as such by him. In that event Noreen Roche was not called. Having made such a finding it was not open to the learned trial judge to thereafter make an award in respect of that head of claim in the sum of €267,792. Any award in respect of future care costs should have formed a part of general damages in a modest sum bearing in mind the court ruling.
(b) In the circumstances, the learned High Court judge failed to follow his own finding in the case or in the alternative reached a conclusion on the findings made which no reasonable judge would have reached on the evidence and the findings made.
The law
The manner in which the Supreme Court exercises its appellate jurisdiction is clearly and succinctly set out in Hay v O’Grady [1992] I.R. 210 by McCarthy J. as follows:-
“Order 58 of the Rules of the Superior Courts 1986 provides:-
‘1. All appeals to the Supreme Court shall be by way of rehearing and (save from the refusal of an ex parte application) shall be brought by notice of motion (in this order called “the notice of appeal”). The appellant may appeal from the whole or any part of any judgment or order and the notice of appeal shall state whether the whole or part only of such judgment or order is complained of and in the latter case, shall specify such part’.
This does not mean that the Supreme Court re-hears oral evidence but, rather, the arguments based upon the findings of fact, including arguments that the findings are unsupported by evidence, itself a question of law. Although the jurisdiction confirmed by Article 34, s.4, sub-s.3 is, save as there expressed and already instanced, unlimited, the Court has, in effect, limited its jurisdiction in the manner detailed in the succession of cases cited in the course of argument. The role of this court, in my view may be stated as follows:-
“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. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes L.J. in “The Gairloch”; Aberdeen Glenline Steamship Co. v Macken [1899] 2 I.R. 1 cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v Madden [1977] I.R. 336 at p.339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference – in a case of this kind, was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found and either on the inferences drawn by the trial judge or the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly.
5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inferences to be drawn and the conclusion that follows.”
I propose to deal in the first instance with the grounds of appeal which relate to the seat belt issue and quantum of damages awarded, that is with grounds 3 to 7 inclusive. Thereafter I will deal with the grounds relating to contributory negligence raised at grounds 1 and 2.
The Seat Belt
In direct examination the respondent said that he would usually wear a seat belt. Putting this answer in context, the respondent had given evidence that he did not remember the accident and had no recollection of the day or days before the accident. He did not remember who was in the car with him at the time of the accident. In cross-examination it was put to the respondent that his injuries were consistent with his having struck his head on the dash board in the accident, and that the reason for that is that he was not wearing a seat belt. From the documents which were before the learned High Court judge the following appear:
a. On admission to Nenagh Hospital on the 23rd April 1999 it was recorded in the notes taken “seat belt?”
b. On admission to Limerick Regional Hospital on the 26th April 1999 it was recorded that he was not wearing a seat belt.
c. Gerard Kearns, Consultant Oral and Maxillofacial Surgeon, in his report of 26th May 1999 records that the respondent was not wearing a seat belt.
d. Dr. Simone Carton, Clinical Neurophysiologist, in a report of July 2003 records in the history that the respondent was wearing a seat belt.
e. In a report of Mr James M. Sheehan, Orthopaedic Surgeon, it is recorded that the respondent did not remember if was wearing a seat belt. It is also recorded that no air bag was fitted to the motor car.
f. The report of Dr. Kieran O’Driscoll, Consultant Neuropsychiatrist, dated 17th September 2003 records that the respondent was wearing a seat belt.
g. Other reports are silent on the question.
Mary Clifford gave evidence. She was a rear seat passenger in the car. The respondent was a front seat passenger. Her evidence was that the respondent was wearing a seat belt. In cross-examination she said that she had passed out after the accident and that her recollection of the accident was incomplete – she remembered bits and pieces. Her recollection prior to the accident was not tested in cross-examination. She said that she saw the respondent putting on his seat belt and that he was sitting in front of her.
In the course of his ex tempore judgment the learned trial judge said:-
“I am satisfied on the evidence of Mary Clifford that the plaintiff was wearing a seat belt, and that is out of it.”
I am satisfied that there was before the learned trial judge credible evidence for him finding that the respondent was wearing a seat belt notwithstanding the existence of some indications to the contrary. This being so I would not interfere with that finding.
Loss of Earnings to-date
The learned trial judge had the oral evidence of Mr Gerard Walsh and Mr Michael Walsh who together carry on a block laying business and for whom the respondent was working up to the date of his accident. Gerard Walsh gave evidence of the rates paid to block layers as of the date of hearing. Since about 2000 there had been ample work and as at the date of hearing he would not be idle for two minutes. A third or fourth year apprentice would earn €600 per week into his hand. A qualified block layer would earn €1,000 per week upwards. Mr Michael Walsh described the respondent as in the top three of the apprentices he had had up to the date of the accident. He described the respondent’s diminished ability since the date of the accident on his return to work – in short the respondent is no longer up to the job. When the respondent worked for him after the accident he paid him at most €170 to €180 per week and this is more than the respondent is worth. Sean O’Sullivan, Vocational Rehabilitation Consultant, gave evidence. He gave evidence of the amount which the respondent was earning at the date of the accident exclusive of overtime. As of the date of hearing the demand for block layers was such that the respondent could easily earn over €1,000 per week and more likely in the region of €1,200 per week. There was then virtually unlimited work.
Nigel Tenant, Actuary, gave evidence as to the respondent’s loss of earnings to date and into the future. The appellant did not call a Vocational Rehabilitation Consultant or an Actuary.
On the evidence before him the learned trial judge awarded a sum for loss of earnings to-date within the parameters of the evidence adduced. There was evidence to support the award made. In these circumstances I would not interfere with the same.
Future Loss of earnings
In relation to the fourth ground I have already outlined the evidence available
to the learned trial judge. As in the case of loss of earnings to-date, the award was within the parameters of the evidence adduced. In these circumstances I would not interfere with the award made. The learned trial judge expressly had regard to Reddy v Bates.
General damages
The award for general damages was divided into an award for pain and suffering to-date in the amount of €80,000 and for pain and suffering in the future of €100,000.
Central to the issue on the award of general damages is the conflict between the evidence adduced on behalf of the respondent and on behalf of the appellant as to the nature and extent of the brain injury suffered by the respondent. The appellant relies heavily on a divergence between the opinion expressed by Mr Michael O’Sullivan, Consultant Neurosurgeon, for the respondent in his first report dated 19th October 2001 and his evidence given at the hearing. On this basis it is submitted that the weight of the evidence did not support a finding that the plaintiff had suffered significant brain damage and that accordingly the award of general damages was in all the circumstances grossly excessive. The only medical evidence adduced on behalf of the appellant was that of Dr. Hugh Staunton, a neurologist.
The opinion of Mr O’Sullivan in his report of 16th March 2001 is that the respondent had moderate traumatic brain injury with symptoms of poor memory and change in personality and that it was unlikely that any future recovery would occur. Mr O’Sullivan had a second consultation with the respondent in October 2001 and furnished a report dated 19th October 2001 in which his opinion and prognosis was unchanged from that arrived at the previous March. A further report was based on a consultation on the 19th September 2003 and again his opinion and prognosis remained unchanged.
In his evidence Mr O’Sullivan said that he first saw the plaintiff in October 2000. At that time he had no access to reports of any other doctor or medical specialist and had no access to hospital records. He had sight of a CT scan of the cranium performed some four months following the accident which was normal. His opinion then was that the respondent had suffered a moderate diffuse type brain injury. He saw the respondent again in March 2001 and furnished his report on the 16th March 2001 when the respondent had symptoms consistent with a moderate diffuse brain injury. He saw the respondent again in October 2001 and September 2003 and on each occasion his opinion remained unchanged. On each occasion on which he saw the respondent he carried out the Serial Seven test. On each occasion it was slow. On the first occasion the respondent’s immediate recall were three out of four and on the subsequent two occasions two out of four. The test entails the patient being asked to subtract seven in a serial manner from one hundred and timing the exercise. The respondent had great difficulty in performing the test. A diffuse axonal injury can result in cognitive impairment particularly in memory, information processing and attention span and the test is used to elicit these abilities. His opinion was that the respondent had poor pre-morbid cognitive ability which was exacerbated and compounded by the injury which he sustained in the accident and the combination of these two factors would make it difficult for the respondent to undertake gainful employment. His opinion was that the respondent suffered a moderate traumatic brain injury of a diffuse axonal type. Patients may recover from such an injury for up to two years but thereafter there is very little improvement.
In cross-examination he corrected his reference to the Serial Seven test carried out on the 16th March 2001 as the test was normal on that date: however on an earlier test on the 11th October 2000 the test was slow and the respondent made numerous mistakes. On other occasions the respondent did not complete the Serial Seven tests. The respondent suffered a period of post-traumatic amnesia of three days and from the literature this will determine the outcome of a mild to moderate head injury: the outcome is not determined by performance on the Glasgow Coma Scale. He did not attach significance to a clear MRI or CT scan for an axonal type injury. It remained his opinion that the respondent suffered a diffuse brain injury in the accident.
Mr O’Sullivan’s was not the only evidence. Dr. L. Fitzpatrick, Consultant Psychiatrist, gave his opinion that the respondent was suffering from organic personality disorder with cognitive impairment resulting from the head injury sustained in the accident. There had been a poor response to therapeutic intervention and the prognosis for recovery in his opinion was poor. In later reports he noted significant personality change and depression. His opinion was that the deficits which he outlined are a consequence of the injury sustained by the respondent in the accident. Finally in a report of the 14th June 2004 he had this to say:-
“In view of Mr Moran’s established cognitive impairment and his propensity to substance abuse I would consider him an extremely vulnerable young man and one who is unable to manage his financial affairs particularly if awarded a significant sum of money. I also would have serious concerns regarding his vulnerability to exploitation by others. At present Mr Moran’s parents play a very supportive role in his life; consideration has to be given to the future however and the likelihood of Mr Moran requiring some type of care environment in the absence of his parents in the future. On the basis of these concerns therefore I would recommend that Mr Moran should be made a Ward of Court prior to the assessment of his compensation claim.”
Dr. Simone Carton, Clinical Neurophysiologist, detailed the very significant changes in the respondent’s life following the accident and attributed these to significant traumatic brain injury in the accident.
The learned trial judge was greatly influenced by the reports of Dr. Brenda O’Halloran, the respondent’s General Practitioner, who dealt in very great detail with the change in the respondent following the accident.
There was also available to the court the evidence and a report of Dr. Kieran O’Driscoll, Consultant Neuropsychiatrist. On the basis of a three day period of post traumatic amnesia he was of opinion that the respondent suffered traumatic brain injury of moderate severity.
For the appellant Dr. Hugh Staunton, a Neurologist, gave evidence. He examined the respondent, once only, on the 24th March 2003. The respondent outlined his then present condition in relation to his injuries. Dr. Staunton did not think that the accident was sufficient to cause such a long term outcome. Following that report he obtained information of hospital attendances by the respondent prior to the accident. In the period 1985 to 1987 he attended with complaints of being bad tempered, of headache and anxiety. He also learned of the normal MRI scan carried out in March 2002. If the respondent had developed severe behavioural problems as a result of a brain injury he would have expected to see secondary changes on the MRI scan at that time and accordingly a negative MRI scan is evidence against significant brain injury. In relation to the comments in evidence of the respondent’s Neurophysiologist these were outside the realm of that expertise. He would expect to see secondary atrophic changes in the brain on the MRI scan if the brain injury was severe. While it is difficult to come to an integrated answer he would feel that the problems of the respondent are psychological or psychiatric rather than neurological. In cross-examination Dr Staunton said that he could not say what was wrong with the respondent. He would agree that the respondent has a post-accident syndrome but not that it was associated with brain damage. He accepted that the respondent had a significant head injury. He was adamant that the significant affect on the respondent would be apparent on an MRI scan if it was due to a severe brain injury. However he had no explanation of how the respondent ended up in his then present condition. He accepted that in his initial report he said that the respondent experienced a significant head injury with a significant pre-traumatic and post-traumatic amnesia.
Clearly there was a conflict in the evidence. However Dr. Staunton’s evidence was to the effect that the respondent did not suffer a severe brain injury but did suffer a significant head injury. The respondent did not claim a severe brain injury but rather a moderate brain injury which impacted on the respondent’s pre-morbid cognitive ability. There were, however, other matters in conflict in the medical evidence. It is the function of the learned trial judge who heard the witnesses, and indeed had the opportunity of hearing and observing the respondent, to resolve these conflicts. There was ample credible evidence to support the learned trial judge’s findings and accordingly I would not interfere with the same.
7. Future Care Costs
This aspect of the respondent’s claim was based on a report of Noreen Roche, Nursing Consultant, dated 21st June 2004 and actuarial evidence. Ms Roche’s report was duly disclosed to the appellant. Notwithstanding this the appellant did not, pursuant to the Rules of the Superior Courts, Order 39, Rule 45 disclose an intention to call a nursing consultant as a witness nor did he disclose any nursing consultant’s report of his own. The finding of the learned trial judge as to the support which the respondent required up to the date of hearing and would require into the future is supported by the medical evidence and Ms Roche’s report.
On day 3 of the trial counsel for the respondent informed the court that he wished to call Ms Roche out of sequence as she could not be present after that day as she was travelling to China. For the appellant counsel submitted that there was no evidential basis for evidence of care requirements at that stage. The respondent relied upon the evidence of Dr. O’Driscoll, the only medical witness who had up to then given evidence. His reports had been seen by the learned trial judge and were admitted in evidence. The effect of Dr O’Driscoll’s evidence, according to the trial judge, was that the respondent would require minimal supervision. Counsel for the appellant admitted Ms Roche’s report “on that basis”. Then followed the following exchange:-
“Mr Tynan (for the respondent) – I will call her briefly. If my friend will permit the report then there is no difficulty.
Mr Justice Johnson – Make such use of it as you will but as far as I am concerned it is of minimal significance. Make whatever you want.
Mr Tynan – We can do it on that basis, My Lord. You consent to that? Do it on the basis of the report.”
Dr. O’Driscoll’s report is comprehensive and sets out the documents which were provided to him for the purposes of the report. The documents included reports of the other medical witnesses called. From the report it is clear that the respondent as a result of moderate traumatic brain injury suffers inter alia from symptoms of poor memory to a significant degree. From Dr O’Driscoll’s report it appears that the respondent cannot remember conversations. He cannot remember what his doctors tell him. He is a musician but has difficulty remembering tunes which he knew from before the accident. He has forgotten people from his class at school, including their names. He cannot either add or subtract or deal with money. He rarely knows what day it is. A collateral history taken by Dr. O’Driscoll from the respondent’s father makes clear that while the respondent had shown improvement he had difficulty in attending to his personal appearance in terms of shaving and cleanliness. His medical advisers, to whose reports Dr O’Driscoll had access, disclose that his compliance with medication and attendance on doctors was poor and that he forgot to take his medication. He suffered from poor concentration and slowness in mental activity. In his evidence Dr. O’Driscoll said that the respondent was neglecting himself and not washing or shaving properly. He was very sluggish mentally. Dr. O’Driscoll was asked if in his opinion the respondent required a certain amount of care or attention from outsiders and how the respondent would cope if living on his own. His reply was as follows:-
“I think he would struggle. He would certainly struggle in complying with medication, not necessarily because of him being obstructive, but I think his memory is so poor I doubt he would remember if he had taken his medication. For that reason alone he would require supervision. I think he would also potentially withdraw and neglect himself. He has a tendency to isolate, and with the apathy, he would need someone there to stimulate and encourage him. I think he is going to need his life, in a sense, organised for him with specific tasks and goals to which he could direct himself. In the short term with encouragement and motivation I think he could achieve a certain amount.
Dr. O’Driscoll was asked if the respondent could handle his own money and he replied as follows:-
“No, for a few reasons. One is, he says himself that he has difficulty in actual calculations, so I think he would have difficulty on that simple level. But I think he would struggle to remember what decisions he had made, be able to plan ahead and anticipate the consequences what he did with his money. So I think he would be quite vulnerable.”
Finally Dr. O’Driscoll was asked what the respondent’s position would be when his parents are no longer there to look after him and his reply was as follows:-
“He will need more help. The difficulty would be, also, in respect of relationships, building up a social network, having a partner, married, children, friends, work colleagues. I would worry about his social network. He does not display an ability to construct that safety net around him.”
What is clear from Dr. O’Driscoll’s evidence is that at the date of the hearing the respondent required the assistance of his parents and that when they are no longer available to him he will require even more assistance. On the evidence of the respondent’s general practitioner Dr. O’Halloran, which was given later in the hearing, the respondent’s deficits and needs became much clearer. Her evidence was in accordance with her disclosed correspondence and reports which were available to the appellant in advance of the hearing so that nothing in her evidence could have come as a surprise to the appellant. Thus in a report of 15th September 2003 she records that the respondent lived mainly on sandwiches and whatever meals his parents deliver out to him. She concludes her report as follows:-
“I am concerned for his future in that I don’t know how viable he will (be) on his own in the long run or how capable he will (be) at looking out for himself and basically his employment prospects are bleak.”
In a report of 26th May 2004 Dr. O’Halloran records a collateral history from the respondent’s father as follows:-
“He also confirmed that there were major problems in dealing with Roy on a day-to- day basis. He could forget to eat. He did not seem capable of caring for himself, he could forget his medication and he could forget doctors’ appointments. All in all Roy’s mother and father (have) spent quite a bit of time looking out for him and organising his life.”
Dr. O’Halloran expressed the opinion that the respondent is someone who as he gets older will find it increasingly difficult to look after himself.
In his reports, which were available to the appellant, Dr. L. Fitzpatrick, Consultant Psychiatrist, refers to the very supportive role the respondent’s parents play in his life and states that in the absence of his parents he would require a care environment and should be made a Ward of Court.
Dr. Simone Carton, Clinical Neuropsychologsit, in her report of July 2003, which was available to the appellant, records the following:-
“At the moment Mr Moran requires daily support in terms of ensuring that he is taking his medication and that he has safely undertaken basic activities of daily living.”
But for the intervention of the trial judge, it is submitted, that Ms Roche would have been cross-examined.
From the documents before the court the following matters are clear:-
1. By virtue of the respondent’s disclosure the applicant was aware of the witnesses to be called on behalf of the respondent and had available his expert’s reports.
2. The appellant had available the report of Ms Roche. From the appellant’s disclosure it is clear that he did not propose calling any witness to counter the same.
3. The report of Ms Roche discloses the expert reports upon which it is based. With one exception the witnesses gave evidence. The exception related to the respondent’s orthopaedic injuries.
4. The learned trial judge accepted the medical evidence adduced on behalf of the respondent.
5. At the time of admitting Ms Roche’s report the respondent was aware of the further medical evidence to be adduced on behalf of the respondent. The appellant called only one medical witness who did not dispute the evidence on behalf of the respondent as to his care needs.
Ms Roche’s report gave the cost of retrospective care for the respondent on the basis of the medical reports and of her own interview with the respondent and likewise cost of future care. Her opinion was that the respondent would require three hours care per day for fifty weeks of the year Monday to Friday and three hours care each Saturday and Sunday. For two weeks each year he would require additional care in relation to holidays. She gave evidence that the cost of care on days other than Sunday would be €10.45 per hour but on Sunday €20.90 per hour. From age sixty five her opinion was that the respondent would require sleepover care in addition. Excluding such sleep-over care the annual cost as estimated by Ms Roche was €22,723.49.
The learned trial judge dealt with Ms Roche’s evidence as follows:-
“Now, with regard to the future – and this is where I need the assistance of you gentlemen – it is a difficult case to assess, regarding the maintenance and care he needs in the future; but it was accepted by – Noreen Roche’s report was handed into me, and I am taking the lowest presenter of maintenance care set out in that. And I will allow the following hours, which can be worked out, then: for the next twenty years, two hours a day – and that is on the basis that hopefully his parents will continue to be in a position to have an eye out for him for the next twenty years. Thereafter I will allow three hours a day. And you gentlemen can do the calculations on that.”
Mr Brendan Lynch, an Actuary, was then called and he gave evidence that the cost for the first twenty years is €138,212 and thereafter €129,580 making in total €267,792.00.
It is clear that the learned trial judge carefully analysed the evidence of Ms Roche in the light of the evidence as a whole. He reduced substantially the care requirements suggested by her for the first twenty years from three hours per day to two hours per day thus giving to the appellant free of cost the care afforded to the respondent by his parents for that period of twenty years. Having regard to all the circumstances I am satisfied that in making this award no injustice to the appellant occurred, notwithstanding that the respondent may have been lulled into a false sense of security by the learned trial judge’s intervention immediately prior to the report of Ms Roche being admitted. I would not interfere with the award under this heading.
Having regard to the foregoing I would disallow the appeal on each of the grounds 3 to 7 inclusive and which relate to the quantum of damages awarded and would affirm the judgment and award of the learned High Court judge in respect of the same.
1 and 2 Contributory Negligence
The evidence before the High Court was as follows. The respondent had no recollection of the evening in question. As to the events of the evening the respondent led evidence of Mary Clifford. On the 23rd April 1999 she met with the respondent and the appellant. They went to a bar which was some twenty minutes from Nenagh where she was living. They arrived at the bar at about 9 p.m. and left at closing time. All three got into the appellant’s car the appellant driving, the respondent being the front seat passenger and the witness the rear seat passenger. She was not worried about the capacity of the respondent to drive. She noticed nothing strange about him and considered him “fine”. The accident occurred when they were approximately half way home and during the period of driving she had no concerns as to the ability of the respondent to drive because of his consumption of drink. She thought the accident occurred around midnight. She had perhaps five drinks during the course of the evening. If there was evidence that the respondent was drinking cider and shorts she would be surprised as he normally drank pints. She did not now how much the appellant or the respondent had to drink as she was not with them all the time throughout the evening.
Sean Hogan a fellow musician of the respondent gave evidence to the effect that on occasion he drank with the respondent and that on a night out the respondent would normally have five, six or at most seven pints.
Garda Graham Rollie, the investigating Garda, gave evidence. He arrived at the scene of the accident at 2.40 a.m. Both the appellant and the respondent were standing beside a crashed car. Ms Clifford was in the rear seat of the car. He spoke to all three and got a smell of intoxicating liquor. The respondent admitted driving and was arrested for drink driving. A sample taken at the Garda Station was returned with a reading of 155 milligrams of alcohol per 100 milligrams of urine. The respondent was charged and pleaded guilty. The legal limit at the time of the accident was 80 milligrams of alcohol per 100 millilitres of urine.
The appellant gave evidence. He, together with the respondent and Ms Clifford, arrived at the bar at approximately 8.30 p.m. and remained there until closing time, that is about 1.30 a.m. the following morning, the 24th April 1999. He had seven or eight pints. The respondent most likely had the same amount. The respondent was drinking large bottles of cider and had a short as well. Ms Clifford was also drinking large bottles of cider but had somewhat less perhaps five or six large bottles.
The learned trial judge’s finding was succinct:-
“On the question of drink, yes, he undoubtedly travelled in the car, and I think, in this day and age with the kind of publicity attached, there must be a finding of contributory negligence regarding that, and I will so find to the extent of 15%.”
On the basis of this evidence, on behalf of the appellant, it is submitted that as a matter of probability the appellant and the respondent having been in each others company in the bar all evening the respondent must have known that the appellant was incapable of driving safely. Reliance is placed on the decision in Judge v Reape [1968] 1 I.R. 226 where the plaintiff and the defendant had been in each others company for twelve hours during which time the defendant consumed a gallon and three pints of beer and a small whiskey. The plaintiff’s evidence as to the defendant’s condition was that he did not notice anything about him and that he was not drunk. O’Dálaigh J. at page 229 said:-
“It has not been questioned by counsel for the plaintiff – nor, indeed, could it be – that a person who knows, or should know, that a driver is by reason of the consumption of alcohol not fit to drive, and who nevertheless goes as the driver’s passenger is not taking reasonable care for his own safety and must, therefore, be found guilty of contributory negligence.”
It was held that the jury’s finding of no negligence on the part of the plaintiff was made in the face of the plainest evidence to the contrary and a re-trial was ordered.
The appellant also relied on the decision in Hussey v Twomey and Ors, the High Court, unreported 18th January 2005 where the learned High Court judge assessed the plaintiff’s contributory negligence at 40%. The decision was upheld by the Supreme Court on appeal: the Supreme Court, unreported, 21st January 2009.
For the respondent the correctness of the decision in Judge v Reape is accepted. However, it is submitted that this court should only interfere with the determination of the trial judge on apportionment if it is satisfied that there was a gross want of proportion in the apportionment of fault between the parties which amounted to a gross error on the part of the trial judge and that on the evidence before the court no such gross want of proportion exists in this case. Reliance is placed on a passage from the judgment of Walsh J. in O’Sullivan v Dwyer [1971] I.R. 275:-
“(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 the respective causative contributions to the damage, but rather on the basis of the moral blameworthiness of their respective causative contribution. 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 a degree of capacity or knowledge which such a person ought to have had if he were an ordinary reasonable person…Fault or blame is to be measured against the standard of conduct required of the ordinary reasonable man and the class or category to which the party whose fault is to be measured belongs.”
In relation to the decision of the Supreme Court in Hussey v Twomey the Supreme Court’s conclusion that the apportionment of 40% for contributory negligence to the plaintiff should not be disturbed does not represent a wholehearted endorsement of that apportionment but rather a principled approach whereby the court declined to interfere on the basis that the apportionment against the plaintiff was not so grossly excessive as to justify interference in the circumstances of that case.
Conclusion on the Law
The Civil Liability Act 1961 section 34 insofar as relevant provides as follows:-
“34(1) Where, in any action brought by one person in respect of a wrong committed 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 or one for whose acts he is responsible (in this part called contributory negligence) 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 the defendant.”
Section 34 was considered by the Supreme Court in O’Sullivan v Dwyer [1971] I.R. 275. It was there held that fault in section 34 is not equated to causation but flows from causation in the sense that if there is no causation there can be no fault: “fault” in section 34 is equated with blameworthiness and the blameworthiness of the plaintiff is the measure for the reduction of damages recoverable by him and not the potency of his causative contribution to the damage.
This court when asked to interfere with an apportionment of liability should only do so if there has been an error of law or having regard to undisputed facts and findings of fact there is a significant disproportion.
In general it can be said that the blameworthiness of the driver will be greater than that of a passenger permitting himself to be driven. The decision to drive is that of the driver and it is he that poses the risk to his passengers and to other road users. Accordingly an apportionment to such a passenger will normally be less than that to the driver. However there may be other elements of fault, for example failure to avail of a seat belt. In such circumstances the correct approach for the court is to take an overall view of the blameworthiness of the passenger and arrive at an apportionment which is just and equitable. Should there be two or three elements of fault it is not necessary that the court should ascribe a percentage to each but rather on an assessment of the blameworthiness as a whole an apportionment should be made.
The law on this topic was most recently considered by this court in Hussey v Twomey and Ors, the Supreme Court, unreported 21 January 2009. In the course of his judgment Kearns J. said:-
“Finally, in relation to the extent of the apportionment, the same must be seen as one made against the back drop of changed societal perceptions as to how issues of this sort are to be regarded…In the context of a passenger travelling with an intoxicated driver the fault lies in the decision to travel with such a driver in the first instance. The more the passenger should have realised, or did realise, the risk being undertaken the greater the degree of contributory negligence. There is thus scope for a much higher finding of contributory negligence in this context than in the case of a failure to wear a seat belt. It is inescapable in my opinion to think other than that the plaintiff was well aware of the defendant driver’s inebriated condition, having spent an hour in his immediate company and having also had plenty of opportunities of seeing the defendant driver during the time spent in these licensed premises. On her own evidence she made no effort to ascertain whether he was fit to drive. I am satisfied, as was the trial judge, that she must have been aware his driving was likely to be impaired and the circumstances were clearly such as to put her on inquiry. In all of the circumstances I believe the apportionment of 40% for contributory negligence should not be disturbed.”
Conclusion
The following circumstances seem to me to be relevant to the apportionment of liability in this case:-
1. The evening was in the nature of a joint venture in that the appellant and the respondent travelled together by car on a twenty minute journey to a bar. On the evidence it is clear that their intention was to travel on the return journey having consumed alcohol.
2. They spent a period of time from approximately 8.30 p.m. to at least 1 a.m. the following morning in a bar in each others company.
3. They, in each others presence, consumed between six and nine alcoholic beverages in that period: on the respondent’s case he consumed between five and seven pints of cider and one short while in his presence the appellant had at least six pints..
4. The respondent knew, or certainly ought to have known, that the appellant’s ability to drive was impaired by drink and quite clearly ought not to have driven. This is so regardless, in the circumstances of this case, of whether or not the appellant’s appearance indicated the extent of his impairment as the appellant and the respondent were in each others company throughout the evening and the respondent had actual knowledge of the appellant’s consumption of alcohol.
5. The accident, the car having left the road, was entirely attributable to the appellant’s driving.
6. However the greater blameworthiness is that of the appellant. It was his decision to drive to the bar and to drive home notwithstanding his consumption of alcohol. It is he who had control of the car and its driving and it was he who represented a danger not just to the respondent but to road users and the public in general.
Having regard to the foregoing circumstances I am satisfied that the apportionment of 15% of fault to the respondent represents a significant disproportion between the respective blameworthiness of the appellant and the respondent. Accordingly I would set aside that part of the judgment and order of the High Court dealing with apportionment of fault and substitute for the same an apportionment of 35% to the respondent and 65% to the appellant.
Roy Moran v Séan Fogarty
Hussey v Twomey [2009] IESC 1
JUDGMENT of Mr. Justice Kearns delivered on the 21st day of January, 2009
These proceedings arise out of a road traffic accident which occurred on 20th July, 1999 in the City of Cork. They give rise to an important issue as to how contributory negligence is to be assessed in the case of a person who elects to travel as a passenger in a motor car when the driver has consumed alcohol.
Shortly after midnight on the date in question, the plaintiff who was then a twenty-one year old commerce student, was travelling as a front seat passenger in a motor vehicle owned by the first named defendant which at the time was being driven by the second named defendant. The second named defendant was the boyfriend of the first named defendant who in turn was a friend of the plaintiff. As the driving of the second named defendant was not covered by a valid policy of insurance the third named defendant was joined as a second co-defendant. Liability for the accident was admitted, but the defendants raised a plea of contributory negligence against the plaintiff for allowing herself to be driven in a motor vehicle when she knew or ought to have known that the driver was incapable of driving, or had reduced capability for so doing, by reason of the consumption of alcohol.
The action was heard in the High Court in Cork (Peart J.) in January, 2005 and the learned trial judge delivered a comprehensive written judgment within a week of the conclusion of the hearing. He held that the plaintiff was guilty of contributory negligence and reduced the plaintiff’s damages by 40%. The plaintiff has appealed that finding.
The plaintiff has also appealed the finding by the learned trial judge that the plaintiff did not sustain a low back injury as a result of the accident the subject matter of these proceedings. It was the defendants’ case that the plaintiff’s injury to the lower back arose as a result of her involvement in a further road traffic accident which occurred in the month of June, 2000.
BACKGROUND
The plaintiff was born on the 6th October, 1977. Having obtained her Leaving Certificate with four honours and three passes in 1996, she initially pursued a two year course in business studies in Tralee. However, due to a medical complication, she did not complete her second year and commenced a further course in financial services in the College of Commerce in Cork in the autumn of 1998. She completed her summer examinations in 1999 and went to work in a hotel in St. Helier in Jersey. She returned to Cork shortly before the accident to repeat a number of subjects which she had failed in her summer examination and was on a night out with her friend, Mary Twomey, the first named defendant, when the accident occurred. Both she and Mary Twomey had gone to a bar known as “Chevies” in Blarney Street in Cork. They arrived at about 7 p.m. in the evening. She was unsure what time Mary Twomey’s boyfriend, Eugene Courtney, arrived in the bar. The plaintiff admitted to having had maybe six or eight alcoholic drinks during the evening. It was common case that the bar in question was quite a small premises and while the plaintiff maintained she spent a great deal of the evening at the pool table and not in the immediate vicinity of Eugene Courtney, she also accepted that there was no obstruction of her view of him or of her friend’s group whilst they were all present on the premises. She accepted she had sat at the same table as Eugene Courtney for between half an hour and an hour towards the end of the evening when some sort of row occurred between Eugene Courtney and Mary Twomey as a result of which Mary Twomey went home on her own. Shortly before midnight Eugene Courtney said he would drive the plaintiff down to Ms. Twomey’s house on Dominic Street in Cork City.
Both in direct examination and cross-examination, the plaintiff was adamant that Eugene Courtney appeared to be “fine” and did not appear drunk to her. She maintained that if she had thought he was drunk she would not have gone in the car with him. She maintained she had not seen Eugene Courtney drink any alcohol during the evening. Despite the fact that Mary Twomey was her friend, she also maintained that she had never met Mr. Courtney prior to that particular occasion.
There were two backseat passengers in the Ford Fiesta motor car which Eugene Courtney drove that night. In cross-examination, the plaintiff accepted that the route taken by the driver was not one which would lead by the shortest route to her friend’s home. Apparently Eugene Courtney and one other occupant in the car wanted to visit a chipper. Asked if there was not one closer to their destination, the plaintiff replied that “the boys just preferred that chipper”. When asked in cross-examination if that knowledge was indicative of the fact that she knew Eugene Courtney better than she was admitting in evidence, the plaintiff again maintained she had not met him before the night in question and was not aware for how long he had been in the public house on the night in question, other than in respect of the period she spent in his company.
It is perhaps of some importance to record also that when the gardai arrived at the accident scene at 12.20 a.m., the accident having occurred some ten minutes after the party left the licensed premises, the vehicle in which the accident had occurred had been abandoned by its occupants. Eugene Courtney had gone to the home of Mary Twomey and the plaintiff had walked to the Mercy Hospital to seek medical treatment. Detective Garda Liam Ruttle gave evidence of arriving at the scene of the accident and finding the abandoned vehicle. He found out that the car was registered to the first named defendant and her address. He went to that address and knocked on the door until he got an answer. The person who came to the door was Eugene Courtney. Garda Ruttle noted he had a bruise on his forehead and had a dishevelled appearance. He noted the following:-
“His eyes were blurred. His speech was slurred. He was holding the door with one hand and the jam of the door with the other and he was being supported by the door and the jam. I was outside the door at this time. It was quite obvious to me that he was in a drunk state and had been in a drunk state. … He was very drunk. He was certainly incapable of having proper control of a mechanically propelled vehicle. … Any adult person would know that he was drunk to look at him. I actually remember linking him to the garda car, not in an arrested fashion, but to support him in walking, and the same at the Mercy Hospital, I brought him in supporting him all the way. He was very drunk and he needed support into the Mercy Hospital. I explained to the staff there the circumstances and they saw to his injuries – they were superficial cuts – and then we proceeded to Mayfield Garda Station where he was processed.”
In cross-examination Garda Ruttle stated that he had been a member of the Garda Siochana for eleven years and had dealt with “a fair few drivers and drunken drivers and people that are intoxicated at night on the streets”. He had noted a strong smell of alcohol from Eugene Courtney. He stated that, based on his experience, the smell of alcohol tended to get stronger the more alcohol a person had consumed. There was no suggestion in evidence that Mr. Courtney had consumed further alcohol in the aftermath of the accident.
THE HIGH COURT JUDGMENT
The learned trial judge commenced his analysis by referring to the terms of s.34 (1) of the Civil Liability Act, 1961 which provides as follows:-
“Where, in any action brought by one person in respect of a wrong committed 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 or of one for whose acts he is responsible (in this Part called contributory negligence) 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”.
In interpreting this sub-section, the learned trial judge decided that the legislature had thereby provided a mechanism whereby a plaintiff can be adjudged guilty of contributory negligence even if the conduct on his part falls short of a “wrong” in the sense of negligence which contributes to the accident, but yet amounts to a “want of care” for one’s own safety.
He cited in support the following passage at para. 20.14 of “Law of Torts” (McMahon & Binchy)(3rd Ed) at pp.559-60:-
“Contributory negligence essentially involves a lack of reasonable care for one’s own safety or the safety of one’s property in contrast to negligence which involves a breach of duty towards others. An act may of course constitute both contributory negligence and negligence at the same time – a foolhardy lack of caution for one’s own safety, such as climbing a mountain without proper equipment, may induce a rescue attempt, resulting in injury to the rescuer.”
Peart J. adopted the concept of “want of care” as being “ideally suited” to the facts of the present case, where any reasonable adult person would know that it was unwise to the point of carelessness, or even recklessness as to one’s own safety, to get into a car about to be driven by a person who either had, or might reasonably be suspected to have taken more alcoholic drink than was legally permitted or was safe, while at the same time that person was not guilty of negligence in the sense of being in breach of a duty of care to another person causing them an injury.
The learned trial judge emphasised that he was not stating that in all cases in which a person accepts an offer of a lift in another’s car, he or she must initially establish the sobriety of the driver before accepting an offer. He was however clearly of the view that part of the duty to take reasonable care for one’s own safety so as to avoid the “want of care” referred to in s.34(1) of the Act involves making inquiry and desisting from travel where there are reasonable grounds for suspecting that the driver may have consumed alcohol such as might impair his driving, and that situation should be assessed by an objective test of reasonableness. The learned trial judge did not state, nor should he or this Court be taken as stating, that the taking of a single alcoholic drink by the intending driver to the knowledge of an intending passenger should be construed as contributory negligence given that the law expressly so permits. It may however, depending on the circumstances, prompt an inquiry to ensure that any consumption has been within the limits of what the law permits.
Having decided that these were the appropriate legal principles to apply to the issue of contributory negligence, the learned trial judge made the following findings of fact:-
“Given this evidence, I am of the view the plaintiff ought reasonably to have at the least suspected that he (i.e. Eugene Courtney) may have had drink taken during the evening and have been upon enquiry as to that situation before entering the car he was going to drive, particularly on the basis of an objective test of reasonableness.
But given the evidence of Garda Ruttle and the other evidence as to the time he was in the pub, I do not accept that the plaintiff is being truthful when she says she had no idea he had been drinking. On the balance of probability, it must have been obvious to any adult such as the plaintiff, if she had been concerned about the possibility, and certainly sufficiently obvious for her to make enquiry of him, which she says she did not, if she was in any doubt about it. In my view her evidence has lacked candour in this regard.
I am satisfied that in the present case there is sufficient evidence on a balance of probability that the plaintiff was lacking in care within the concept of “a want of care” for the purpose of contributory negligence. I am also of the view that in the present case it is a significant want of care given the reasonableness in present times of attaching to a normal and indeed intelligent person, such as the plaintiff, full knowledge of the dangers to herself, as well as others, of a drunken driver, and that to make merely a nominal finding of contributory negligence would to in part condone, or at least forgive/understand that lack of care in a way which would fail to underline the seriousness and obviousness of the dangers of drink driving. If the court sees fit to substantially reduce damages for not wearing a seatbelt, it should do so all the more in respect of a person who voluntarily, or carelessly, or even recklessly places herself in danger at the hands of someone such as the second named defendant in this case.
In the circumstances, there will be a reduction of damages in the amount of forty percent in respect of contributory negligence.”
SUBMISSIONS
It was submitted by Mr. Henry Hickey, senior counsel for the plaintiff, that the evidence upon which the trial judge had reached his conclusions was not the “best evidence” which was available as to the plaintiff’s state of mind and such evidence was necessary before such a finding could have been made. He argued that the best evidence on the issue of contributory negligence in this case was the evidence which might have been given by the first and second named defendants. However, neither of these parties had been called by the defendants. Furthermore, none of the medical staff at the Mercy Hospital, where the second named defendant attended following his meeting with Garda Ruttle, had been called. Presumably such witnesses could have given evidence with a view to determining the sobriety or otherwise of Mr. Courtney. The medical records of the hospital had not been produced. Furthermore, there was evidence of a head injury sustained by Mr. Courtney which might have explained wholly or in part his appearance and speech in the aftermath of the accident. He cited in support the decision in Malone v. Rowan [1984] 3 All E.R. 402. Mr. Hickey further submitted that the apportionment of 40% contributory negligence was, in all the circumstances, excessive and unreasonable.
In response, Mr. Michael Gleeson, senior counsel on behalf of the defendants, submitted that there was no “best evidence” rule or any other rule which precluded the defendants from making out their case on contributory negligence by means of whatever evidence they cared to adduce, including cross-examination of the plaintiff herself. He submitted that the trial judge was perfectly entitled to prefer the evidence of Garda Ruttle as to the state of intoxication of the second named defendant, particularly as he formed the view that the plaintiff was a witness who was lacking in candour. A strong case for intoxication had been made out on the evidence of Garda Ruttle and no evidence in rebuttal had been led by or on behalf of the plaintiff. There was a clear contrast between the evidence of the plaintiff that she had no knowledge of the second named defendant having consumed any alcohol as compared with the evidence of Garda Ruttle, an experienced garda officer, that there was both a strong smell of alcohol from the second named defendant, that his eyes were blurred and his speech slurred.
The plaintiff herself had accepted that the driving of the second named defendant was the sole cause of the accident and there was no suggestion of any third party involvement.
With regard to the extent of contributory negligence, Mr. Gleeson drew a distinction between contributory negligence cases involving the failure to wear a seatbelt and cases such as the present. While a seatbelt may ameliorate the damage once an accident has occurred, the decision not to travel with an intoxicated driver may lead to the avoidance of injury altogether. That would suggest, he argued, that a greater degree of contributory negligence should attach to a person who voluntarily elects to travel as a passenger in a car driven by a motorist whom that person knows, or has reasonable grounds to believe, has consumed alcohol.
While not arguing that a greater measure of contributory negligence should have attached in this case to the plaintiff, he submitted that the apportionment of 40% was in no way unreasonable. He further submitted that this Court should only interfere with an apportionment of blame where, in the opinion of the Court, gross error on the part of the trial judge had been demonstrated. He cited in support the decision of this court in Snell v. Haughton [1971] 1 IR 305, a case in which the plaintiff had been found to be guilty of contributory negligence to a degree of 75% having been knocked down while walking on the left hand side of an unlit road. In that case Walsh J. had stated (at p.309):-
“It has been established by a series of decisions of this Court that this Court will not disturb the jury’s findings on the apportionment of fault unless the apportionment is shown to be grossly disproportionate on the evidence.”
Mr. Gleeson submitted that, on the evidence before the trial judge, his findings could in no way be characterised as disproportionate and submitted that they should not be disturbed or interfered with.
DISCUSSION
I think it fair to say that the society’s understanding of the role of alcohol in driving cases has undergone radical change in the space of the last forty years. The contrast between societal attitudes to drink driving in the 1960’s and in the present decade is nowhere better illustrated than in the Irish case of Judge v. Reape [1968] I.R. 226. The facts of that case would nowadays cause national outrage. On the day of the accident, the driver picked up his passenger in Ballina at about midday with the intention of driving to Dublin. However, at midnight on the same day a collision occurred on the Dublin side of Kinnegad. In the intervening period, the driver and passenger had made seven stops on the journey and at six of these seven places the plaintiff and the defendant consumed intoxicating liquor so that by the time of the accident the defendant’s total consumption of intoxicating liquor was a gallon and three pints of beer and a small whiskey, and the plaintiff’s consumption was just short of that. Even allowing for the time factor and the fact that some food had been consumed during this period, the quantities consumed were quite mind-boggling. Remarkably, the jury acquitted the plaintiff of contributory negligence. That particular outcome may partly be explained by the oratorical skills before a jury of the late Patrick Lindsay who was senior counsel for the plaintiff or it may also perhaps be reflective of a wider societal view at that time as to what might be tolerated where drink and driving were concerned. It should perhaps be mentioned that this Court directed a retrial on the issue of contributory negligence in that case.
There has been undoubtedly an enormous sea change in society’s attitude to drink driving since then, influenced no doubt by the extent of carnage on our roads and the effectiveness of multiple campaigns which inform the public of the hazards of driving whilst under the influence of even small quantities of alcohol. It is thus now commonplace, if not yet a universal practice, for groups of people on a night out to appoint one of the group as a designated driver who will drink no alcohol or alternatively to make arrangements whereby no member of the party will be driving under any circumstances. Thus, I think it can fairly be said that any measure of tolerance towards intoxicated drivers and their passengers, if indeed it formerly existed to any appreciable degree, is very much a thing of the past.
Seen in this light, most of the decisions opened to the Court in the course of the appeal must be seen as carrying a ‘health warning’ to the extent that they reflect attitudes from a different time as to the role and responsibilities of an intended passenger in a motor car about to be driven by a driver who has consumed alcohol. In Malone v. Rowan [1984] 3 All E.R. 402 the defendant driver had with him five passengers, including the deceased. Evidence given at trial included that of the defendant driver and the four passengers who survived. The party had retired to a public house shortly after midday and the defendant admitted to consuming four pints of lager before setting off on a return journey from Rhyl to Liverpool. Some ten minutes before the accident the party visited another public house where the defendant consumed three further half-pints of lager. The accident occurred at about 8.15 p.m. and resulted in fatal injuries to one of the passengers giving rise to a fatal claim by the widow of the deceased. In evidence all the passengers confirmed that they knew the defendant had been drinking during the course of the day and evening but none thought he was in any way unfit to drive and had noticed nothing unusual in his driving until the accident happened. In refusing to make a reduction for contributory negligence Russell J. concluded:-
“In this case I have no direct evidence of the deceased’s knowledge of what the defendant had consumed. They were not … the only two on the scene. Nor have I any evidence of the state of mind of the deceased and whether he ever appreciated, or was reckless, as to any risk that was being run. The burden of proof lies on the defendant. In my judgement, on the facts of this case, he does not discharge, or come any where near discharging, that burden, and I decline to make any reduction in the damages on the ground of contributory negligence.”
That finding was made notwithstanding there was medical evidence before the court indicating that at the time of the accident the concentration of alcohol in the blood of the driver would have been at least 148 mg. per 100 ml., something which plainly indicated that the driver was substantially in excess of the permitted maximum. The fact that the passenger had died seems to have altogether prevented Russell J. from considering whether, on the evidence that was before him, the deceased must have known, or should reasonably have known, that, to use the words of the learned judge, that a “risk was being run”. Russell J. appears to have approached the case on the basis that there was no need to do so as none of the witnesses gave evidence as to the deceased’s state of mind. Given that such evidence would in any event have been speculative and therefore inadmissible, I believe the reasoning in this judgment is clearly defective. The case of Owens v. Brimmell [1977] 1 QB 859, another important decision on this topic, was referred to by Russell J. in the course of his judgment. In that case the plaintiff and defendant were friends and the plaintiff had often travelled as a passenger in the defendant’s car. On the night on the occasion of the accident they visited a number of public houses and a club. During the course of the evening each party consumed eight or nine pints of beer. In the early hours of the morning the defendant who was driving the plaintiff home from the club lost control of the car with the result that the car collided with a lamp post. Watkins J. held that although the defendant had to take the greater responsibility, the plaintiff had been guilty of contributory negligence and the amount of damages would be reduced by 20%. In the course of his judgment, Watkins J. declined to apply the doctrine of volenti non fit injuria, although noting it had been much discussed in a number of Canadian cases, and contented himself, as did Peart J., by applying the principles of contributory negligence as elaborated by Lord Denning MR in Frume v. Butcher (insert ref) where he said at p.291:-
“Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself …”
Watkins J. concluded:-
“I think this is a clear case on the facts of contributory negligence, either upon the basis that the minds of the plaintiff and the defendant, behaving recklessly, were equally befuddled by drink so as to rid them of clear thought and perception, or, as seems less likely, the plaintiff remained able to, and should have if he actually did not, foresee the risk of being hurt by riding with the defendant as passenger. In such a case as this the degree of blameworthiness is not, in my opinion, equal. The driver, who alone controls the car and has it in him, therefore, to do, whilst in drink, great damage, must bear by far the greater responsibility. I, therefore, adjudge the plaintiff’s fault to be of the degree of twenty percent.”
In another case opened to the court by Mr. Hickey, albeit in relation to the measure of an apportionment, the Supreme Court of Canada in Hall v. Herbert [1993] 2 R.C.S. 159 made clear its preference for deciding issues of this nature by reference to modern principles of contributory negligence rather than the doctrine of volenti non fit inuria. At p. 207 of the judgment Cory J. stated:-
“No matter how the maxim or principle is characterised, volenti non fit injuria, like the common law defence of contributory negligence, constituted an absolute bar to recovery. While apportionment legislation such as the various negligence acts has reduced or removed entirely the draconian effects of the contributory negligence defence, volenti remains as a complete defence. Yet it has in recent years been severely restricted in its application.
In order for the doctrine of volenti to apply, there must be either an express or implied assumption of the risk of the activity which caused the damage. That is to say, both parties to the activity must have agreed that they would participate in it regardless of the risk of injury and give up their right to sue should injury occur as a result of the agreed upon activity. It must be observed that the consent goes to the legal as opposed to the physical risk of harm.”
I can see the attraction of an argument that a passenger who elects to travel with a driver whom he knows to be unfit through alcohol from driving safely should in consequence be seen as thereby surrendering his autonomy and accepting whatever risks ensue thereafter. This fits well with the doctrine of volenti non fit inuria because in a sense it can be said that a passenger who elects to travel with a drunken driver is in much the same position as a person who elects to walk blindfold across an eight lane highway. However, the approach of the courts in common law jurisdictions, at least in the latter part of the last century, was to regard such an outcome whereby a claimant failed in toto as being unduly harsh, not least for the reasons mentioned by Watkins J. in Owens v. Brimmell. Section 34(1)(b) of the Civil Liability Act 1961 expressly abolishes the defence of volenti (save to the limited extent provided by the subsection) and provides that such issues be resolved by reference to standards of contributory negligence only. I am satisfied that the mechanism provided by s.34(1) of the Civil Liability Act, 1961 is sufficiently flexible to allow Irish courts calibrate an apportionment for contributory negligence in a manner which does justice in cases of this nature
CONCLUSION On issue of contributory negligence
Both sides to this appeal accepted that the following principles apply in cases such as this:-
1. The court may, where a passenger voluntarily elects to travel in a motor vehicle in circumstances where he knows, or should reasonably be aware, that the driver has consumed alcohol, be penalised in contributory negligence
2. In determining the issue of contributory negligence, the court must approach the issue on an objective basis, though the test cannot itself be absolutely objective in that the personal characteristics of any given plaintiff and the circumstances in which that plaintiff elects to travel as a passenger must be taken into account. A passenger in a given case may be under a disability by reason of age or infirmity, or may be relieved of any responsibility to make enquiry in the particular circumstances, such as in the case of a passenger travelling in a taxi.
3. An intending passenger who has consumed alcohol can not rely on self- intoxication for the purpose of avoiding a finding of contributory negligence and in particular can not rely on self- intoxication in an effort to avoid the consequences of facts which would otherwise have been reasonably discernible to him.
While the onus rests on the defendant to establish the case in contributory negligence, I am quite satisfied that there is no “best evidence” rule which destroys the case in contributory negligence if certain immediate witnesses to the events are not called. There may be many reasons why such witnesses are not called, and where, indeed, it might be highly imprudent on the part of a defendant to attempt to rely on such witnesses. In the instant case the first named defendant was a friend of the plaintiff. The second named defendant was the boyfriend of the first named defendant. These facts suggest, as a matter of practical common sense, that if either side proposed calling these witnesses then it fell to the plaintiff, rather than the Motor Insurers Bureau, to do so. Phipson on Evidence (13th Ed.) (pp.69/73) makes clear that the maxim that “the best evidence must be given of which the nature of the case permits”, is a maxim which no longer enjoys favour. Phipson also notes that the divisional court as far back as Kajala v. Noble The Times (March 13, 1982) described it as having “gone by the board long ago”. At para. 5-04 Phipson states:-
“In the present day, then, it is not true that the best evidence must, or even may, always be given, though its non-production may be a matter for comment or affect the weight of that which is produced. All admissible evidence is in general equally accepted.”
I am thus satisfied it is open to a defendant to make out a case to the required standard either through cross-examination of a plaintiff, circumstantial evidence or indeed any other form of admissible evidence.
Nor in my view is there any basis for arguing that the learned trial judge drew incorrect inferences from the primary facts. His findings are amply supported and grounded in the evidence which was actually given at the trial. In particular, he was entitled to prefer the evidence of Garda Ruttle to that of the plaintiff, bearing in mind that he found the plaintiff to be a witness who in many respects, some referred to in the later part of this judgment, was lacking in candour. Garda Ruttle is an experienced garda officer with particular experience in dealing with cases of this nature. Having regard to the plaintiff’s evidence that she had no reason whatsoever to think the defendant driver had consumed alcohol, this was certainly not a case in which the judge could adopt some middle ground and he was thus clearly entitled to resolve the issue in the manner in which he did.
Finally, in relation to the extent of the apportionment, the same must be seen as one made against the backdrop of changed societal perceptions as to how issues of this sort are to be regarded. In this respect the apportionment of contributory negligence in respect of travelling with an intoxicated motorist is quite different from the type of contributory negligence which arises from the failure to wear a seatbelt. In the latter instance the causative effect of the omission may be evident from the fact that a particular passenger may have suffered severe facial injuries from windscreen glass as a result of failing to secure his seatbelt. In the context of a passenger travelling with an intoxicated driver the fault lies in the decision to travel with such a driver in the first instance. The more the passenger should have realised, or did realise, the risk being undertaken, the greater the degree of contributory negligence. There is thus scope for a much higher finding of contributory negligence in this context than in the case of a failure to wear a seatbelt.
It is inescapable in my opinion to think other than that the plaintiff was well aware of the defendant driver’s inebriated condition, having spent an hour in his immediate company and having also had plenty of opportunities of seeing the defendant driver during the time spent in these licensed premises. On her own evidence she made no effort to ascertain whether he was fit to drive. I am satisfied, as was the trial judge, that she must have been aware his driving was likely to be impaired and the circumstances were clearly such as to put her on inquiry.
In all of the circumstances I believe the apportionment of 40% for contributory negligence should not be disturbed.
DAMAGES
The second part of the plaintiff’s appeal relates to the award made by the learned trial judge in respect of general damages. In that regard the trial judge awarded €35,000 for past pain and suffering with a further €15,000 for future pain and suffering. He allowed her €22,500 for 18 months loss of employment opportunity and special damages of €10,809, making a total of €83,309 which, following the reduction of 40% for contributory negligence, resulted in an award of just under €50,000.
A brief review of the facts shows that as a result of the impact on the night of the accident, a rear seat passenger in the car was thrown against the rear of the front seat in which the plaintiff was seated and that the driver was thrown over to her side of the car. While her seat and the door of the car were jammed, she eventually managed to get out the driver’s side of the car. She had been wearing a seatbelt. She walked from the scene of the accident to the Mercy Hospital but because of a delay in being seen there, her parents brought her to the University Hospital where she complained of neck pain, back pain and chest wall pain. On examination she was found to be alert and wakeful with some tenderness over the upper back between the shoulder blades and in the neck posteriorly. She also had bruising over her right shin. X-rays were taken of her cervical and thoracic spine and right shin, but no bony injury was revealed. Significantly, no x-rays were deemed necessary for her low back. The diagnosis at the time was of soft tissue injury for which analgesics and anti-inflammatory medication was prescribed.
On any view of the medical evidence, which is set out in considerable detail in the judgment of the learned trial judge, the plaintiff suffered no more than relatively minor injuries in this accident. However, a CT scan later undertaken of the plaintiff’s lumber spine in January, 2001 revealed a large right postero/lateral disc protrusion at L5/S1. This was significant for a person of the plaintiff’s age and although the plaintiff was given a care programme for her back and had an epidural injection, neither form of treatment had any positive effect. In July, 2001 an MRI scan showed marked signal change at L4/5 and L5/S1 discs with moderate right disc prolapse. Accordingly, in February, 2002 the plaintiff underwent a discectomy as a result of which the plaintiff obtained considerable relief. Mr. Michael O’Sullivan, Consultant Neuro-Surgeon, who examined the plaintiff in March, 2002, noted that while the plaintiff was more comfortable, she could no longer engage in her hobby of pool and snooker, could not bend down, was unable to sit for long periods or lift and had to take constant analgesia.
The plaintiff became pregnant in July, 2003 and gave birth to a daughter in March, 2004.
The complicating factor which the trial judge had to resolve was whether these injuries were attributable to the accident the subject matter of the present proceedings or to a second accident involving the plaintiff which occurred on 24th June, 2000. On that occasion the plaintiff was the driver of a motor car which went off the road into a field hitting a concrete post on the way. The plaintiff on that occasion had three passengers in her motor car all of whom were injured and who have instituted proceedings. A significant amount of damage, amounting to €6,000, was done to her motor car.
The learned trial judge found, and in my view had ample evidence for so finding, that the plaintiff’s low back pain only became a significant problem in November, 2000 and thus attributed the bulk of the plaintiff’s injuries and career diminution to the second accident.
While the plaintiff herself attributed all her symptoms to the first accident, the trial judge attached considerable significance to the fact that the plaintiff never told her medical advisors about this second accident when she was seeking assistance for her low back pain. While the learned trial judge erroneously believed from a reply to notice for particulars that the plaintiff had altogether withheld information about the second accident from her legal advisors, that error, relied upon by Mr. Hickey to suggest that the learned trial judge’s findings on this whole issue were unreasonable, arose through a mistake on the part of the plaintiff’s legal advisors in failing to supply a correct version of the reply to particulars in the book of pleadings which was before the trial judge. Mr. Hickey argued that this unfortunate mishap coloured the trial judge’s entire approach to the question of damages, but I am satisfied, both from his judgment and indeed the entirety of the medical evidence, that the learned trial judge had ample grounds for doubt and unease as to the plaintiff’s truthfulness and candour in relation to her injuries. For example, the plaintiff never told her general practitioner about the second accident. She never told Dr. Diarmuid O’Connell, to whom she was referred for acupuncture, of the second accident. She never told Dr. Ryder, Radiologist, about the second accident. She did not tell Dr. Michael Molloy, Consultant Rheumatologist, about the second accident. While the plaintiff did make a brief reference to the second accident when consulting Mr. Michael O’Sullivan, she said it did not cause any injury. Dr. Frank Matthews, on behalf of the defendants, indicated he had never been told about the second accident, although the plaintiff appeared to be a different person after the second accident, he having examined her both before and afterwards. Equally, Mr. Ciaran Barry, Consultant Orthopaedic Surgeon, sought a history from the plaintiff and she never made any reference to her second accident.
Thus while in evidence she indicated that the second accident had no bearing on any of the injuries sustained in the first accident, the evidence predominantly is to the effect that the back became a significant feature after that second accident. She told Mr. O’Sullivan in 2001 that she had three sets of symptoms, namely pain in the neck radiating into both shoulders, pain in the right chest wall, and lastly, low back pain, which he noted had started “approximately six months after the accident”. The learned trial judge noted a considerable effort was made to dilute or alter this last observation, although it is undeniable that this is what the plaintiff told him when he first saw her.
Considerable reliance was correctly placed by the defendants on the decisions of this Court in Patrick Vesey v. Bus Eireann [2001] 4 IR 192 and Shelley-Morris v. Bus Atha Cliath [2003] 1 IR 257, both cases which underline in the clearest terms the onus which rests upon a plaintiff to give evidence in a truthful and straightforward manner.
In reaching the conclusion which he did reach, namely, that the plaintiff’s low back injuries arose from the second accident, the learned trial judge was entitled to have regard to the fact that the plaintiff had not disclosed the fact of this second accident to the defendants doctors or to most of her own medical attendants, together with her sworn evidence that it had no effect on any of her injuries. The learned trial judge was uniquely qualified to determine the plaintiff’s credibility having had the opportunity of observing the plaintiff in the course of giving evidence and I am accordingly satisfied that the learned trial judge’s findings are entirely sustainable on the evidence. Put shortly, there was ample evidence upon which the learned trial judge could make the finding which he did and his fully reasoned judgment sets out clearly the basis upon which he did so. His findings thus fall four square within the principles enunciated by this court in Hay v. O’Grady [1992] 2 I.R. 210 and I would not therefore interfere in any way with the findings of the learned trial judge in respect of quantum of damages. Indeed, on the findings which he did make, the award which included a substantial sum for loss of earnings, may be considered as generous.
I would therefore dismiss the appeal herein.
Coffey v Kavanagh
[2012] IESC 19, Judgment delivered on the 7th March, 2012 by Denham C.J.
1. This is an appeal by John Joseph Kavanagh, trading as Kavanagh Art and Graphics, defendant/appellant, referred to as “the appellant” from the ex tempore judgment of the High Court (Quirke J.) delivered on the 27th May, 2009, and the order of the same date.
2. The facts were stated by the learned High Court judge, from which I take this summary. Noeleen Coffey, the plaintiff/respondent, referred to as “the respondent”, was employed by the appellant for seven and a half years, during the final five years of which she was employed as the shop manager within the appellant’s premises which was a shop on Camden Street in Dublin. The shop was a retail outlet for the appellant who was engaged in the sale and supply of art graphics, utensils and stationery to schools, colleges, artists and the public.
3. The respondent claimed damages from the appellant to compensate her for injuries which she suffered arising out of an incident on the 4th October, 2004. On that date, in the course of her employment, she was caused or permitted to trip over a box in the office area of the appellant’s premises and suffered a fracture of her right wrist.
4. The respondent claimed that the fall and consequent injuries which she suffered were caused by reason of the negligence and breach of duty of the appellant in failing to provide her with a safe place of work and in causing or permitting the office area of the premises to become cluttered, unsafe and dangerous, with consequent risk of injury of the kind she sustained.
5. The appellant denied that he was negligent and claimed that the respondent’s injuries were caused by her own negligence in failing to have adequate regard for her own safety. He claimed that the respondent suffered her injury while she was assembling art packs and placing them in boxes on the floor of the office area, and that she failed to perform the task in a careful manner and caused or contributed to her own injury.
6. The learned trial judge found the respondent to be a careful, conscientious and truthful witness and he accepted her evidence as to the events which occurred on the 4th October, 2004. He held as follows:-
“When the [respondent] returned from lunch on the 4th October, 2004, the office area within the [appellant’s] premises was cluttered with boxes and materials which were strewn in a most untidy and unsatisfactory manner, and in some parts of the room, it was necessary to virtually climb over boxes in order to go from one part of the room to another.
The [respondent] began to tidy the office area in order to address, to some extent, complaints from the shop staff which had been made earlier by the [respondent] to the [appellant].
I am satisfied, on the evidence and on the balance of probabilities, that, whilst she was tidying the office floor, the [respondent] was caused to trip and fall. Her trip and fall was caused by some article or hazard on the floor which caused her to fall over one of the boxes on the floor.
The box over which she tripped was full of heavy materials and was, consequently, solidly fixed to the floor. In order to break her fall, the [respondent] put out her right (dominant) hand and her hand, consequently, took the principal force of her fall and she suffered the fracture which has given rise to these proceedings.
I accept the unchallenged evidence of Mr. Culleton that, in the circumstances, the office area within the [appellant’s] premises was unsafe for the purpose of packing articles into cardboard boxes and represented a hazard to staff members who were required to pass to and from and to through the office area for various purposes associated with their employment.
I also accept Mr. Culleton’s evidence that a safe traffic route should, at a minimum, have been provided for staff members for such purposes as they might require in the course of their employment. I am satisfied, on the evidence of the [respondent] and on the evidence of Ms. Giles, that no such safe traffic route was maintained in the office area in October 2004, when this incident occurred.
I am also satisfied, on the evidence of Mr. Culleton, that the system of work which was maintained by the [appellant] on the premises for the packing of materials into cardboard boxes was unsafe and represented a hazard for staff members who used the office area and were required to pass through the office.
In particular, the work station which was provided for employees to pack orders for transmission and delivery to customers was most unsatisfactory and untidy and unsuitable for the purpose for which it was required. It exposed the staff members to a variety of tripping hazards by reason of its inadequate space, its location, and the method which was adopted for packing and for storage within the defendant’s premises.
I accept Mr. Culleton’s evidence that there was a serious problem in relation to the available space for storing, packing and delivering materials from the small storage space at the back of the first floor of the defendant’s premises, and I accept the evidence of the [respondent] and of Ms. Giles, that, particularly during busy periods between July and the end of October each year, the office area was constantly cluttered with articles which comprised tripping hazards which were and remained a risk to staff members and other persons who were expected to use the office area and its environs.
Finally, I accept the evidence of Mr. Culleton that the [appellant] was negligent and in breach of his statutory and other obligations by failing to carry out a risk assessment in respect of the office area and the remainder of his premises, and by failing to put in place a safe and appropriate system of work which would have reduced or eliminated the risk of injury of the type which was sustained by the plaintiff.
It follows from what I have found that the [respondent] has established, on the evidence and on the balance of probabilities, that the [appellant’s] premises were unsafe and the system of work which was provided for the [respondent] was unsafe in the circumstances.
I am satisfied, also, that this negligence and breach of duty on the part of the [appellant] caused the [respondent’s] injury because I am satisfied, on the evidence, that she was caused to trip or fall because of the presence on the floor of article or hazard which, in turn, caused her to fall over one of the boxes on the floor. The [respondent] was acting in the course of her employment with the [appellant] when she suffered her injury and I accept her evidence that she was, in fact, trying to tidy up the premises when she tripped over the hazard which caused her injury.”
Contributory Negligence
7. On the issue of contributory negligence the learned High Court judge held:-
“It has been contended, on behalf of the [appellant], that the [respondent] was guilty of contributory negligence in failing to keep a proper lookout and that this negligence caused or contributed to her injury.
I do not accept that contention. I accept the evidence of the [respondent] and the evidence of Ms.Giles and that during busy periods, the floor of the office area within the [appellant’s] premises regularly became cluttered. I also accept the [respondent’s] evidence that she drew this to the [appellant’s] attention from time to time and that nothing was done by the [appellant] to reduce the risk of injury to the staff members by adopting a safe system.
I do not accept, on the evidence that the [respondent] failed to keep a proper lookout. I accept her evidence that a hazard on the floor, which she could not identify, but which caused her to trip, was probably either packing material or a tear in the carpet which caused her to trip and that she then fell over a box which was lying on the floor in an inappropriate place.
I cannot see how she can, in those circumstances, be found to have caused or contributed to her own injury. Accordingly, I am satisfied that the [respondent] is entitled to recover the full value of her claim.”
8. Thus, the learned trial judge did not accept the contention that the respondent was guilty of contributory negligence. He accepted the evidence of the respondent and Ms. Giles that the floor of the premises regularly became cluttered, and that she had drawn the problem to the attention of the appellant. He accepted her evidence that a hazard on the floor caused her to trip and that she fell over the box which was lying on the floor in an inappropriate place.
Damages
9. On the issue of damages, the learned trial judge described her injury as a fracture to her right wrist which resulted in crushing and some shortening of the bone, and there was an obvious deformity of the wrist. He held that the respondent suffered significant injury to her right wrist which has caused her distress, inconvenience, pain and discomfort. He awarded damages as follows:
Special damages €2,400.00
General Damages
(i) Pain and Suffering to date €27,500.00
(ii) Pain and suffering in the future €25,000.00
_________
€54,900.00
Notice of Appeal
10. The appellant filed a Notice of Appeal in the following terms:-
(i) That the learned trial judge erred in law in finding for the respondent;
(ii) That the learned trial judge erred in law in failing to find any contributory negligence on the part of the respondent;
(iii) That the learned trial judge failed to give sufficient weight to the evidence of the appellant;
(iv) That the learned trial judge failed to give sufficient weight to the evidence of Mr. Imran Khan who was in a position to observe the circumstances of the incident;
(v) That the learned trial judge failed to give sufficient weight to the evidence of Ms. Siobhan Collins and in particular to the conflicting evidence of the respondent and Ms. Collins regarding the alleged conversations that the respondent said had taken place on the morning of the incident with Ms. Collins;
(vi) That the learned trial judge failed to give sufficient weight to the role that the respondent had within the organisation as manager and also to the authority that she possessed contrary to the evidence;
(vii) That the finding of the learned trial judge was wrong in law by failing to grant due and sufficient weight to the submissions of the appellant;
(viii) That the finding of the trial judge in favour of the respondent and in not finding any element of contributory negligence was erroneous and contrary to the weight of the evidence.
Notice of Motion
11. The appellant brought a Notice of Motion seeking an order permitting him to adduce new evidence. The application was grounded on the affidavit of John Kavanagh sworn on the 13th December, 2011. However, at the hearing of the appeal counsel, very wisely, did not proceed with the motion.
Submissions
12. Written and oral submissions were presented to the Court on behalf of the appellant and the respondent, which I have considered carefully.
13. In essence, it was submitted on behalf of the appellant that insufficient weight was given to the evidence of the appellant and his witnesses. It was submitted that the uncorroborated evidence of the respondent was accepted uncritically and with an excess of weight, in contrast to the treatment of the corroborated evidence of the appellant.
14. On the issue of contributory negligence, it was submitted, inter alia, that the learned trial judge failed to give any or any adequate weight to the respondent’s role in the ongoing management of the business. It was submitted that if the finding of liability was upheld that there should be an adequate apportionment of liability to reflect the evidence of the respondent’s ongoing participation and necessary supervision of the “system of work” and control.
Decision
15. This appeal raised the issue of liability for the injury caused. Essentially there was one issue, and that was whether the respondent was guilty of contributory negligence. It was submitted that she had failed to keep a proper lookout, that there were special circumstances in that the accident occurred in her office, that she was manager and that she had a duty of care. It was further submitted that there was a strong case for a finding of contributory negligence.
16. The law as to the role of this Court in reviewing oral evidence given in the High Court was stated by McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210 at p. 217:-
“(i) 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.
(ii) 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. The truth is not the monopoly of any majority.
(iii) Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See judgment of Holmes L.J. in “ Gairloch”, The S.S., Aberdeen Glenline Steamship Co. v. Macken 2 I.R. 1, cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v. Madden I.R. 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
(iv) A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference – in a case of this kind, was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found and either on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly.
(v) These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows.”
17. This Court did not have the opportunity of seeing and hearing the witnesses in the High Court. The learned High Court judge did hear and see the witnesses and made primary findings of fact that are supported by credible evidence. Thus, this Court is bound by those findings. However, the High Court also drew inferences, and this Court may review those inferences.
18. The primary duty of care is on the employer, the appellant in this case, which has been established on the evidence. However, all the circumstances of the case have to be taken into consideration when considering the issue of contributory negligence.
19. The circumstances of this case include the following: the respondent was the manager of the shop. This role required her to work from a desk in the office. She was very familiar with the office. She had a responsibility to keep her desk and the area around it tidy. She knew of the clutter in the office; she had made a complaint previously; she knew of the potential danger; she was clearing the office when the accident occurred. She had started packing and unpacked two of the boxes and put them in the store room, and while walking, something on the floor caused her to trip and she fell. In all the circumstances I am satisfied that a degree of contributory negligence was established. I would hold that the respondent was 25% contributory negligent. Consequently, the award of damages for the respondent would be reduced to €41,175.00.
Conclusion
20. I would allow the appeal to the degree indicated in this judgment.
Price v Connors
[2012] IEHC 437,JUDGMENT of O’Neill J. delivered on the 30th day of October, 2012
1. These proceedings arise out of a tragic fatal road traffic accident which occurred in the early hours of 15th May 2010.
2. The plaintiff was a front seat passenger in a car driven by the late Mary Connors which went out of control on the N81 road close to The Embankment public house. The accident happened just after midnight. It would appear that the plaintiff and Mary Connors were returning from the Blue Gardenia public house to Tallaght where they both lived.
3. In the road traffic accident, Mary Connors was tragically killed and the plaintiff suffered serious injuries, including traumatic injury to the facial area of her head. As a result of that and the associated unconsciousness, the plaintiff has no memory of the accident itself and very little memory of the preceding day and week and the week following the road traffic accident.
4. In the trial, all of the depositions furnished for the purposes of the inquest were admitted in evidence. The first named defendant, who is the personal representative of Mary Connors (deceased), did not defend the proceedings.
5. It is clear from these depositions that the primary cause of this fatal accident was the negligent and indeed reckless driving of Mary Connors, as a result of which she lost control of the motor vehicle after it had travelled at high speed causing it to spin around so that the rear of the vehicle led, as it left the carriageway, crossed a ditch and was brought to a halt when the driver’s side of the car collided violently with a tree.
6. The impact with the tree was a severe one and the car was comprehensively destroyed in the impact.
7. It would appear that the driving of the vehicle on this occasion was not covered by any insurance policy. Hence, the Motor Insurance Bureau of Ireland (MIBI) is a party to the proceedings.
8. The MIBI resists the plaintiff’s claim on three grounds.
9. Firstly, they say that the plaintiff knew that there was no insurance on the car and, nonetheless, willingly travelled in it as a passenger.
10. Secondly, they allege contributory negligence on two grounds, namely, that the plaintiff permitted herself to be carried in the car as a passenger when she knew or ought to have known that Mary Connors (deceased) had consumed an excessive quantity of alcohol and was not fit to drive. Furthermore, they say that the plaintiff was not wearing a seatbelt when this road traffic accident happened. I will deal with each of these in the foregoing order.
11. Firstly, there is the allegation that the plaintiff knew that there was no insurance on the vehicle. In respect of this defence, the second named defendants rely on clause 5.2 of the Motor Insurance Bureau of Ireland Agreement dated 29th January 2009, which is as follows:
“5.2 Where at the time of the accident the person injured or killed or who sustained damage to property voluntarily entered the vehicle which caused the damage or injury and MIBI can prove that they knew that there was not in force an approved policy of insurance in respect of the use of the vehicle, the liability of MIBI shall not extend to any judgement or claim either in respect of injury or death of such person while the person injured or killed was by his consent in or on such vehicle or in respect of damage to property while the owner of the property was by his consent in or on the vehicle.”
12. To succeed under this provision, the onus is on the second named defendant to satisfy this Court on the balance of probabilities that the plaintiff actually knew that the deceased did not have insurance to drive the car on the occasion in question.
13. I am satisfied that the evidence establishes that the plaintiff was a good friend of the deceased, having known her for at least four years. The plaintiff frequently babysat the deceased’s four children and occasionally travelled with the deceased in her car.
14. On 14th May 2010, the day before this accident occurred, I am satisfied that the plaintiff was in the company of the deceased at various times during the day. The plaintiff has a vague memory of going with the deceased, her children and the partner of the deceased’s mother, to collect a new car for the deceased. The plaintiff’s evidence was that she sat in Mr. Billy Cauley’s car, in which they had travelled to the motor dealer, while the deceased concluded the business of purchasing the car.
15. The car acquired was the vehicle which was involved in this road traffic accident early on the morning of 15th May 2010. The plaintiff’s evidence was that she knew nothing about the deceased’s car insurance arrangements. She was aware of the fact that the deceased had a car for some time prior to this accident and drove it habitually for normal purposes. The plaintiff assumed that the deceased had insurance to drive the car. She was aware that the deceased had never been in trouble with regard to the insurance of her car.
16. I am satisfied that the plaintiff’s evidence on the car insurance question is credible. Accordingly, I am satisfied that the second named defendant has failed to discharge the onus on them of establishing, on the balance of probabilities, that the plaintiff knew that there was no policy of insurance covering the driving of this car when the plaintiff permitted herself to be carried in it as a passenger on 15th May 2010.
17. The next question that arises is whether the plaintiff was aware that the deceased had consumed an excessive quantity of alcohol on the night in question.
18. The autopsy report included in the depositions clearly establishes that the deceased had an excessive quantity of alcohol in her system when the accident happened. The vague recollection of the plaintiff and the evidence of the plaintiff’s father established that the plaintiff was in the company of the deceased at various stages during 14th May 2010.
19. The deposition of Mr. Michael McGinley, who was passing by the Blue Gardenia pub just after midnight on his way home from his work as a Chef in the Tulfarris Hotel in Blessington, proves that the deceased’s car emerged, rear first, from the Blue Gardenia pub. Mr. McGinley went round this car, but moments later, this car was right behind him, apparently tailgating him in a dangerous manner, eventually hitting Mr. McGinley’s car without causing any damage to it. Mr. McGinley slowed down and allowed the deceased’s car to overtake him.
20. As the car did overtake him, he noticed that the number plate contained the letters “OY”. Such was Mr. McGinley’s alarm at the erratic driving of this vehicle that he rang the gardaí to alert them to the dangerous nature of this driving. Very shortly after this, he noticed this car in the ditch. He continued on his journey but then turned back to the scene where, at that stage, a number of cars had gathered.
21. I am quite satisfied from Mr. McGinley’s evidence of the description of the car that he saw emerge from the Blue Gardenia and his observation of the letters “OY” in the number plate, that this car was the deceased’s car.
22. From this, it is to be inferred that the plaintiff was in the company of the deceased in the Blue Gardenia pub that evening, during which time it apparent that the deceased, and probably the plaintiff, consumed a considerable quantity of alcohol. There is no doubt that the plaintiff was in the car with the deceased when this accident happened.
23. In giving her evidence, the plaintiff impressed me as an intelligent, collected person. I think it inconceivable that she was unaware that the deceased had consumed a lot of alcohol that night before getting into the car to drive home with the plaintiff. I am quite satisfied that the plaintiff did know that the deceased had an excessive amount of alcohol in her system when she permitted herself to be carried as a passenger in this car that night. In my view, the appropriate deduction for the plaintiff’s contributory negligence in this regard is 30%.
24. The next question which arises is whether or not the plaintiff was wearing a seatbelt.
25. The plaintiff has no recollection of whether she was or was not wearing a seatbelt. Her evidence was that she always did wear a seatbelt. Therefore, she believes that she was wearing a seatbelt on this occasion.
26. The deposition of Garda Paul McCauley, who was on the scene soon after the accident happened, says that he found the deceased slumped over onto the front passenger side of the car with her legs trapped under the steering wheel. Garda McCauley said the plaintiff “was resting between the driver’s and the front passenger seats”.
27. The deposition of Aleric Collier, the fire fighter who participated in removing of the plaintiff from the car, says nothing about whether the plaintiff was restrained by a seatbelt or not. The medical report admitted in evidence of Dr. Martin Rochford, who was the consultant in the A&E Department at Tallaght Hospital, to which the plaintiff was brought by ambulance, says the following:
“According to the ambulance sheet, Ms. Price had been found unrestrained in the front seat with a reduced level of consciousness.”
That is the totality of evidence bearing directly on the question of whether the plaintiff was wearing a seatbelt.
28. The position in which the plaintiff was found by Garda McCauley and also the position of the deceased strongly suggests that the plaintiff had left the passenger seat. For that to happen, either she had not been wearing a seatbelt, or, if she had been wearing a seatbelt, she had somehow broken free from its restraint in the impact. It would seem to me that the former of these possibilities, namely, that she was not wearing a seatbelt, is more likely.
29. The plaintiff did not have any injuries suggestive of a violent engagement with a seatbelt as she was being wrenched from its restraint by the violence of the impact. Furthermore, the traumatic injuries to the facial area of the plaintiff’s head indicate that her head had come in contact with some part of the car, probably the windscreen or a side pillar, all of which tends to suggest that she was not restrained by a seatbelt.
30. The injuries in the plaintiff’s pelvic region are neutral so far as the seatbelt issue is concerned, as are the fracture of her right arm and the laceration of her liver. The violence of the impact and its direction – from the right-hand side – could have caused these injuries regardless of whether she was restrained by a seatbelt or not.
31. I am satisfied on the balance of probabilities that the plaintiff was not wearing a seatbelt. In reaching this conclusion, I have had regard to the injuries contributed to by the absence of a seatbelt, namely, the head injuries, and also to the fact that other injuries, such as the pelvic, liver and the arm injuries were not, in all probability, contributed to, by not wearing a seatbelt. It would seem to me that the fair deduction in respect of contributory negligence in not wearing a seat belt is 25%. Thus, there will be a total deduction in the damages to be assessed of 55%.
32. There is no doubt that the plaintiff suffered serious injuries in this road traffic accident. She had multiple fractures. She was initially rendered unconscious and was brought by ambulance to Tallaght Hospital. She remained in a state of near unconsciousness for a number of days after that, gradually recovering. She had serious injuries to her facial area involving multiple fractures of the bones in her face and her nose. She also suffered significant scarring around her forehead and the side of her nose. She suffered a fracture of her right ulna, and multiple fractures in her right pelvic area and an undisplaced fracture of the left a sacral ala.
33. All of these injuries were treated in the usual way. The liver injury was treated conservatively and that injury recovered, uneventfully. So far as her facial injuries are concerned, she has had two treatments to her nose, one a manipulation and the other a more invasive surgical procedure, all designed to straighten her nose back to its original condition. These procedures have not been entirely successful. Consequently, her nose is left somewhat deviated and she also continues to suffered difficulty in breathing through her right nostril.
34. The main problem, insofar as the plaintiff’s facial injuries are concerned, is that because of the slightly depressed nature of one of the fractures on the right side of her face, is that this has the effect of causing her to have a sunken eye and a dropped eye. It would appear from the medical reports of the surgeon, Professor Stassen, that no further surgery is contemplated to correct that problem. Some additional surgery is contemplated to improve the situation with regard to her nose. So far as the scarring is concerned, it would appear from Professor Eadie’s report that no further surgery is contemplated there.
35. The plaintiff’s pelvis had a number of fractures and these were dealt with Professor McElwaine and were set out in detail in his report. These were undoubtedly serious fractures, some of which required to be surgically fixed. As are result of that, she had a considerable amount of screws and metalwork in her pelvis. But the surgery has been successful. She has a symmetrical and stable pelvis, but she is left with considerable scarring, both as a result of the original injuries in that area and also as a result of the surgical scars from the various procedures carried out. That is significant scarring in a visible location should the plaintiff ever wish to wear a bikini. The plaintiff is also left with tenderness in that particular area which is described in the following terms by Professor McElwaine in his last report, who said:
“This lady sustained a horrendous injury to her pelvis, as outlined. Her pelvic fractures have healed. The symmetry of pelvis has been restored and the stability of her pelvis has been restored. She is left with considerable cosmetic deformity in the right side of her pelvis. She also has scarring on the left side. It is my opinion this lady has very significant cosmetic deformity in her pelvis. As already stated, it is above the bikini line and consequently it would be quite noticeable if she was wearing a bikini. She has some pain and discomfort over the iliac bone and this is tender. The reason for this is because the iliac bone is a superficial bone and is covered with scar tissue. This renders this particular area quite tender, particularly to touch. This is likely to persist into the future. As far as her numbness is concerned, she has a bit of numbness in the latter aspect to her anterior thigh, this is likely to be permanent but not interfere with any function.”
36. The plaintiff has also suffered psychologically as a result of this accident. This is hardly surprising as it was a horrific event resulting in the death of her friend. She has been afflicted since then by flashbacks and nightmares. Dr. Thakore says he detected Post Traumatic Stress Disorder. Dr. Sinanon doubted this. I would think the plaintiff probably has suffered Post Traumatic Stress Disorder but of a relatively mild degree. This has been associated with some degree of depression. She could benefit from psychotherapy and anti-depressive medication but she is unwilling to take that kind of medication and that is understandable. I have to disentangle from all of that her natural upset at the death of her friend for which she is not entitled to damages.
37. The plaintiff still has double vision as a result of the slight deformity in her facial bones resulting from her dropped eye and sunken eye, as I have already said, it would appear that Professor Stassen does not contemplate further surgery there. She has headaches which have been troubling her and will continue to do so. She has all of the scarring mentioned which she will have to live with, as is, from now on. Her mental state will continue to be fragile for some time to come, though I think she will fully recover in due course.
38. Bearing all of this in mind, it seems to me that the assessment of the plaintiff’s damages for pain and suffering to date should be €60,000 and her pain and suffering in the future should be €150,000.
39. There is a sum of approximately €13,500 claimed for future treatment. It would appear that a further procedure is contemplated on her nose and also some additional dental work will be required as a result of the trauma to her teeth which had the effect of driving them slightly backwards.
40. I will include that sum of €13,500 in the assessment.
41. The total assessment comes to €223,500. The plaintiff is entitled to recover 45% of that which means there will be judgment for the sum of €100,579.
CT (a Minor) v Bus Átha Cliath
[2013] IEHC 184
JUDGMENT of Mr. Justice Kevin Cross delivered the 24th day of April, 2013
1. Introduction
1.1 The plaintiff is a minor who was born on 12th March, 1996, and brings these proceedings through his father and next friend against the owner and driver of a bus which was involved in a collision with the plaintiff on 4th February, 2009, at Herbert Road, Bray, Co. Wicklow.
1.2 In the said accident the plaintiff sustained horrific injuries and by agreement between the parties, the issue before the court was that of liability. The plaintiff himself due to his injuries can give no evidence concerning what occurred.
2. The Incident
2.1 On 4th February, 2009, the plaintiff was 12 years of age and resided in Madrid, Spain, was in Ireland with a number of his classmates learning the English language at a local school in Bray.
2.2 At a time of approximately 16.50, the plaintiff and his friends having purchased sweets headed for Herbert Road, crossing a green in front of Killarney Heights estate. They proceeded a short distance in a southerly direction up Herbert Road when they reached a lamppost and the plaintiff suddenly ran across the road and the defendant’s bus which was coming behind him which collided into him.
2.3 Evidence was adduced which the court accepts from a number of the plaintiff’s fellow student to the effect that on one or two occasions prior to 4th February, 2009, when the plaintiff and his friends were making a similar journey, they had been involved in an altercation with local youths, a few years older than the plaintiff’s group, who had congregated on the green area beside Herbert Road confronting the students verbally, brandishing hurleys and on one occasion there was apparently an exchange of snowballs.
2.4 The plaintiff’s friends stated, and I accept, that they became agitated at the prospect of a confrontation with the youths and they started altering their positions in the group and that the plaintiff said words to the effect that he had done nothing wrong and he did not want to get involved and he suddenly ran out at an angle to get to the other side to the road.
2.5 A considerable amount of the time of hearing was spent in an analysis of the stills and moving pictures from three of the CCTV cameras installed in the defendant’s bus. In particular, camera 1 showed the face of the driver in his cab, camera 2 showed the downstairs portion of the bus taken from the front of the bus looking backwards and camera 8 showed the driver’s view from his cab.
2.6 At the outset, I wish to state that every witness who gave evidence was most helpful and truthful and trying as best they could, frequently “against interest” to recall the events of this tragic afternoon.
2.7 On behalf of the plaintiff, Mr. D McC, gave evidence that he had been travelling on the upper compartment of the bus, went downstairs as it approached the bus stop in Killarney Heights, was the second person preparing to alight and looked in front of him and saw on the left hand side pavement a group of young boys who he said were “boisterous” and that they were not walking in “military style” and in cross examination he added that the boy’s actions did not cause him any concern, they were “bobbing” a bit and that the driver’s driving was in no way untoward and he was slowing down to stop. Mr. D McC added that he first viewed the boys at an estimate of 50 yards before the entrance to Killarney Heights.
2.8 On behalf of the defendant, Mr. J. who was travelling in the opposite direction to the bus, stated that the bus was travelling at normal speed, he noticed some people on his right hand side and suddenly he noticed the accident.
2.9 Further, on behalf of the defendant, Mr. J. McN who was the first passenger in line to alight at the next stop, gave evidence. The nature of his interaction with the bus driver will be discussed later in this judgment, but he stated he noticed a couple of girls out of the window and had a brief exchange with the bus driver which he described as “a couple words”. He became aware of the bus swerving and the accident occurring.
2.10 Mr. O’S, the driver of the bus, gave evidence that at the junction of Herbert Road and Killarney Heights, he saw “kids” with green trousers at the corner coming up to the lamppost and that when he was approaching the junction he was concentration on the stop ahead. Mr. O’S marked on a photograph the point where he first saw the boys. This mark was where the bus just was crossing the entrance to Killarney Heights.
2.11 Subsequently, under cross examination, Mr. O’S indicated that he may have seen the boys at some earlier point when the timelines were suggested to him. I think that the truth is Mr. O’S first noticed the boys a small distance earlier than his mark on the photograph indicates. I believe and hold that Mr. O’S saw the boys, at a point as stated in his evidence when the bus was just approaching the junction.
2.12 The court also heard the evidence of a number of experts, Dr. Dennis Wood, on behalf of the plaintiff who produced a set of photographs and the map. Also Mr. Michael Hogan and Mr. Martin Duggan who were both experts in driving and testing of heavy vehicles and buses etc. On behalf of the defendant, the court had the benefit of the expertise of Mr. David Land who is an accident investigator and also Garda Tucker who is a well experienced PSV inspector who investigated the accident on behalf of the gardaí.
2.13 It should be noted that it is common case between all the experts and indeed it was accepted by counsel on behalf of the plaintiff that from the moment that the plaintiff ran out in front of the bus, that the bus driver could not have done anything more than he did. Mr. O’S applied the brakes, moved the bus out towards the centre of the road and brought the vehicle to a stop indicating a speed of approximately 40km per hour and indicating a reaction time what was probably less than one second.
2.14 The case being made on behalf of the plaintiff, who unfortunately due to his injuries was unable to give evidence himself, was that whether being distracted by engaging in conversation with Mr. J McN or otherwise that the driver did not see the boys in time, did not take note that they were acting boisterously and did not take proper evasive action in order to warn the plaintiff of his presence and/or slow down the bus further prior to the plaintiff running out in front of it and/or manoeuvring the bus out towards the centre of the road.
2.15 It is contended on behalf of the plaintiff that the defendant through its driver was negligent and that in the first instance there should be no contributory negligence against the plaintiff. It is accepted that the plaintiff (age 12/13) is capable of contributory negligence but it is submitted on behalf of the plaintiff that because of his subjective fear of the older boys and his unfamiliarity with Irish roads and driving on the left hand side that the level of contributory negligence that would normally be found against a 12 year old boy should not apply to the plaintiff and that he should be exonerated of any contributory negligence.
2.16 It is submitted on behalf of the defendant that the defendants are blameless of the accident.
3 The Liability of Drivers and the Presence of Children
3.1 There is no controversy in this case as to the state of the law, it was summarised by Budd J. speaking for the Supreme Court in McDonald v. Córas Iompair Éireann [1971] 105 ILTR 13.
3.2 The accident in the above case occurred on 7th February, 1967 and it is noteworthy that from the date of the accident to the pleadings to the High Court jury trial presided over by Butler J. and to the decision of the Supreme Court took only until 16th October, 1968.
3.3 Budd J. in directing a retrial stated the law which has been consistently followed by instinct as well as by citation since that case and which is not disputed by any of the parties here to be as follows:-
“The jury should be told that the presence or expected presence of children on or near the travelling surface of a highway casts a heavy responsibility on the driver of a vehicle approaching such children. He must alert himself to their presence and be mindful that they may act in the heedless fashion that children do. He must place himself in such a position to be in readiness to take all such precautions as he reasonably can to avoid causing injury to any one of them who acts in a heedless fashion. This will involve, inter alia, such matters as keeping a careful watch on the children possibly giving warning of his presence, keeping a reasonable distance from them, and having his vehicle under such control and travelling at such speed and otherwise acting in such a fashion as will enable him to take all such steps as are reasonably possible to avoid their heedless movements and actions. The details of what is said must of course vary with the circumstances of the case. The time, place, presence of other traffic and other relevant matters must influence what is said. It is also necessary to avoid conveying the impression to the jury that it is the duty of a driver in the presence of young children to ensure their safety in all circumstances. What is required is that he should take all such steps as can reasonably be expected of him as a prudent man, bearing in mind the heavy responsibility resting on him in the presence of young children…”
3.4 It is noteworthy that Mr. O’S under cross examination when asked what he would have done had he apprehended that a potential hazard existed by the boisterous behaviour children on the pavement echoed almost word for word the strictures at law stated by Butler J. in McDonald (above).
3.5 McMahon and Binchy Law of Torts (3rd Ed.) paras. 1507 onwards indicates that the abolition of juries in personal injury litigation has had the effect of “to encourage trial judges to define the duty (of drivers towards children) in somewhat fuller and franker terms”.
3.6 In Mulcahy v. Lynch (Unreported, Supreme Court, 25th March, 1993), Blayney J. held that where an 8 year old boy ran out from behind a school bus into the path of an oncoming car which was travelling between 5 and 10 miles per hour that the driver’s failure to sound his horn constituted negligence. Then he stated:-
“Where a driver is approaching a school bus which has stopped to let children out, one of the obvious things that must be anticipated is that where the children will want to cross the road and may be suddenly running out from behind the bus. The approaching driver should be aware of the approach of the car is obscured from view by the presence of the bus so that the only way you can give warning with approach is by blowing the horn. In such circumstances it seems to me that the heavy responsibility referred to by Budd J. in McDonald v. CIE can only be satisfied by not only driving slowly and keeping a careful lookout but also by blowing the horn…”
3.7 It should be noted that in Mulcahy, the bus was a school bus which obscured the view to the oncoming defendant and the presence of children was not visible to the defendant prior to the accident. It was held in Mulcahy that though the driver did not see any child prior to the accident, the mere presence of a school bus ought to have alerted the defendant not just to the presence of school children but to the fact that is likely that these children would dash out from behind the bus obliging the driver as he approached without seeing any children to sound his horn.
3.8 This Court will accept the law as set out by the Supreme Court in McDonald (above) as being correct without any refinement of further elaboration of the law that may have been made since the abolition of juries in personal injury actions.
4 The Issue of the Defendant’s Liability
4.1 The fact that Mr. O’S apparently did not pass the driving test to drive buses on the first attempt is of no relevance to this case. The fact that Mr. O’S apparently completed a course in advanced motoring but did not sit the exam at the end is also of no relevance. On the other hand, the fact that Mr. O’S won bus driver of the year is also of no relevance.
4.2 I have no doubt that Mr. O’S is generally a very safe, consciousness and careful driver. I have no doubt that by the time the plaintiff stepped onto the roadway, Mr. O’S was alert and demonstrated this fact by his prompt braking of the bus within one length, a time of one second.
4.3 The issue in this case whether the defendants are negligent because of the failure of Mr. O’S to keep a sufficient lookout and to be sufficiently alert to notice the presence of the Spanish boys on the road and to notice the fact that, though they were giving Mr. D McC no cause for alarm, that they were acting boisterously, and as a result should be faulted for his failure to take the steps of applying his brakes, moving towards the centre of the roadway and possibly blowing his horn.
4.4 Mr. Michael Hogan, the plaintiff’s expert stated if the defendant had been aware of a potential danger at approximately 50m back from the impact he would have had ample time to react.
4.5 Under cross examination, Mr. O’S stated that if he had seen children moving boisterously he would have blown his horn, slowed down and moved out towards the centre of the roadway.
4.6 The issue is whether had Mr. O’S noticed the presence of children acting in the manner that they stated and in which Mr. D McC observed, some 50m back from the accident ought this to have alerted Mr O’s to the possibility of an incident such as occurred. In other words was Mr. O’S insufficiently alert on the run up to the junction which caused him not to notice the children until he was approximately one second away from the point when the plaintiff ran out and had Mr. O’S been alert would he have reacted and been able to react earlier and would he have been able to alert the plaintiff as to his presence on the roadway.
4.7 As previously stated, I have had the opportunity of studying the CCTV, pictures and stills during and after the hearing. This case will not be decided in milliseconds however reference to the CCTV frames showing what Mr. O’S was doing, what he could have seen and what he possibly could have done will be relevant.
4.8 The accident occurred at 6.53:36. At 16.53:21, in camera 1 you see Mr. O’S looking ahead of him and what will transpire to be the hand of Mr. J. McN appearing over Mr. O’S’s left shoulder clearly about to move into position so he can alight from the bus. Mr. J. McN’s face appears in camera 1 at 16.53:23. We see in camera 1, Mr. O’S from time to time looking slightly to his left or right doing what he says was mainly checking in the mirrors. At some stage after 16.53:27, and clearly by 16.53:32, Mr. O’S and Mr. J. McN are engaged in some conversation or banter. It is clear by examining both the footage from camera 1 and camera 2 that Mr. J McN advanced beyond the white line to engage in this conversation with Mr. O’S and at one stage (16.53:37), Mr. O’S to emphasise a point or whatever is seen gesturing with his left hand which is not on the steering wheel.
4.9 Mr. J McN states that the conversation between himself and the driver finished at 16.53:38 and in this he is supported by Mr. O’S who contends that his manoeuvring of his head subsequent to this point is not indicative of continuation of the conversation but rather that he was checking in his mirrors as he approached the bus stop on her Herbert Road.
4.10 It is noted that 16.53:38 is some six seconds prior to the accident. In camera 2, Mr. D McC, the second passenger, who wished to alight from the bus stop is clearly in place by 16.53:32. He gave evidence that he noted the children on the pavement approximately 50 yards back from the scene which is approximately four or five seconds away from the accident i.e. 16.53:38 or 16.53:39.
4.11 Mr. J. McN, did not take note of the children until just before the accident and there was no reason why he should do so.
4.12 Mr. O’S, the driver indicated that he first saw the children when the bus was already commencing to pass the entrance to Killarney Heights.
4.13 Accepting that Mr. O’S does himself no favours by this answer or indeed by the placing of the X. where he says the bus was when he first saw the children, which was indeed confirmatory of his previous evidence and I give the benefit of the doubt to Mr. O’S and conclude that he actually saw the children before or just before rather than after he entered into the junction, it remains the case that Mr. D McC noted the children and noted that they were acting “boisterously” from about 50m. This point would place the bus at approximately 16.53:39 or 16.53:38 when Mr. O’S and Mr. J. McN state that any conversation between the two of them had finished.
4.14 The holding of a conversation with a passenger though of itself prohibited does not automatically render the driver to be negligent. What is required is that the driver be alert to the possibility of danger. Mr. J McN and Mr. O’S state and I will accept for the purpose of this judgment that conversation had ceased between them by 16.53:38, however, even if conversation had ceased, both their faces maintained smiles (which suggest that a joke had been exchanged) almost up to the accident. In the case of Mr. O’S the smiling is continued up to 16.53:41 and in the case of Mr. J McN up to 16.53:43, it seems clear that the previous if terminated conversation was of such a nature as to have distracted Mr. O’S from what was in front of him.
4.15 No other explanation can present itself for Mr. O’S not seeing the boys until he was approximately one second away from the plaintiff running out onto the road and Mr. D McC noticing them a number of seconds earlier. The boys were there to be seen at least five or six seconds back from the accident and were in fact not noticed by Mr. O’S until approximately one second from when Carlos ran out.
4.16 Mr. D McC had no reason to be concerned for any incident in the roadway and has stated that the actions of the boys on the pavement did not cause him any particular concern.
4.17 The concerns of a disinterested passenger, however, are not identical with those of an alert driver.
4.18 The film at camera 8 showing the driver’s view is, unfortunately, in this case, somewhat contaminated by the fact that at the critical point of the view there is a glare from the camera itself which obscures from the camera’s view the position of the boys.
4.19 The boys came on to Herbert Road from the green patch on the left and apparently crossed the entrance to Killarney Heights and then moved around the corner where they saw the youths who had previously caused the fight. It is suggested by Mr. Fox on behalf of the defendant that for a considerable portion of their walk they would have not been visible in front of the driver because they were walking on the green area or on the Killarney Road entrance.
4.20 This does not seem to be the case.
4.21 Camera 8, at 16.53:38, the point where Mr. J McN and Mr. O’S state their conversation had stopped and which I accept to be the case gives the picture of the road ahead and that you can see on the right hand side coming towards the driver, the lights of two cars and around the entrance to Killarney Heights. On the pavement, two figures are walking away from the camera who would later turn into Killarney Heights. The court accepts that at that point, the bus would have had to have been travelling partially in the cycle lane as its width was greater than that of the carriageway because there were cars coming against it. I also accept that the two persons who would enter Killarney Heights would have in all probability obscured the view of the driver of the boys at that point.
4.22 At 16.53:39, it is clear that as well as the two adult who moved left into Killarney Heights, you can seen the outline of what would be the group of boys in front of them. The cars coming against the plaintiff are still there.
4.23 Unfortunately the camera’s view at 16.53:40 is blurred at the point where the two individuals are turning to their left but what will become the boys including the plaintiff are visible on the pavement beyond the junction. It is approximately at this point that they would have become visible to Mr. D McC.
4.24 By 16.53:41, the boys are clearly visible and one of the two cars approaching has passed and there is a second car just beyond the junction and a third car, lights can be seen in the distance. It is probable that this is the car being driven by Mr. J.
4.25 By 16.53:42, (certainly by the second frame at that time) the second car has now passed the bus and the boys though their position is obscured by the blur of the camera are clearly there to be seen. The bus has still some way to go before it enters onto the junction.
4.26 There is a image taken by camera 8 at 16.53:42 and again Mr. J’s car is in the distance and boys are now clearly visible. Mr. O’S indicated that there was some point between the last frame of 16.53:42 and the frame of 16.53:43 that he first noticed the boys.
4.27 It is noteworthy that as far as can be deduced from the position of the boys on Herbert Road, they do not seem to have made much progress southwards down the road from where they are first clearly visible on the film. Mr. Land on behalf of the defendant stated that the apparent lack of progress of the boys may be attributable to the camera angle but I hold that the evidence of the camera supports the evidence of the Spanish boys that on seeing the older boys on the green, the Spanish boys were altering their positions in the group and also supports the evidence of Mr. D McC that the boys were “bobbing” about.
4.28 At 16.53:44, you can see the plaintiff stepping onto the roadway and in the second frame of 16.53:44, the impact has occurred.
4.29 At this stage, Mr. J’s car is still some distance away.
4.30 Mr. O’S was a very careful and safe driver. Had he noticed the boys acting boisterously, and changing position on the pavement from about 50 yards back, I would have no doubt but that he would have slowed down. The bus was being slowed as it approached the bus stop but not by application of the brakes but rather by leaving his foot off the accelerator. I have no doubt that Mr. O’S could have and should have applied his brakes from about 50 yards back. Mr. O’S said had he apprehended a possible danger, he would have moved his foot onto the brakes and I accept that. I also believe that he could have and would have and should have moved the vehicle out towards his right and in this regard after 16.53:42 it was quite safe for him to do so.
4.31 I further accept that had he seen the boys acting boisterously, as they were, he would have and should have blown his horn.
4.32 It is, of course, a matter of degree and a matter for the driver’s judgment as to how he should interpret the actions of schoolboys on a pavement. The difficulty with Mr. O’S was that because of the distraction of his conversation with Mr. J McN, or otherwise, he did not see the boys for a number of seconds after they were available to be seen and he had not the time to make the judgment that he ought to have been able to make as to the potential hazard presented by the boys earlier and to have alerted them to his presence. He had not the time to be conscious of the fact that they were indeed acting boisterously. As far as he was concerned, the boys were doing nothing amiss at all until the plaintiff stepped out onto the road.
4.33 In the circumstances, I must hold that the plaintiff has established negligence against the defendant.
5 Contributory Negligence
5.1 Contributory negligence is similar to but not identical to negligence. Negligence is a breach of duty of care owed towards others whereas contributory negligence involves the lack of reasonable care for ones own safety. It is accepted on behalf of the plaintiff that he is of an age, 12 (nearly 13) to be capable of contributory negligence. It is submitted that no contributory negligence should be found against the plaintiff essentially because the plaintiff is a stranger to this land and would have been used to traffic travelling on the other side of the road and in particular the plaintiff was agitated and distressed by the presence to his left hand side in a green area of older youths who had previously been involved in a altercation with the plaintiff and his friends. It is submitted that the plaintiff’s act of impulse in running across the road ought not to be judged to be contributory negligence at law.
5.2 When proof of contributory negligence afforded an absolute defence, the courts developed a doctrine known as “the agony of the moment” whereby a plaintiff acting reasonably in an attempt to extricate himself from a sudden emergency for which he or she was not responsible or had no reason to anticipate was held not to be guilty of contributory if he or she unintentionally aggravated the situation. McMahon and Binchy (op cite), para. 20.18 indicated that this rule was applied with more leniency towards plaintiffs before an apportionment of damages was allowed.
5.3 In this regard, I do hold that an emergency existed as far as the plaintiff was concerned and that indeed it was a real emergency because of previous threats to the plaintiff and his friends. I am not, however, of the view that the existence of this emergency was sufficient to excuse in its entirety the actions of a boy of nearly 13 years of age who runs across the road.
5.4 Similarly the fact that the plaintiff was a visitor to this country and would not have been used to traffic travelling on the left hand side of the roadway is a factor but cannot of itself exclude contributory negligence.
5.5 Accordingly, I hold that the plaintiff also must be guilty of contributory negligence.
6 The Apportionment of Damages
6.1 Section 34(1) of the Civil Liability Act 1961 provides that:-
“(1) Where, in any action brought by one person in respect of a wrong committed 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:…”
6.2 It is important to note that the apportionment is made having regard to the “degrees of fault” of the plaintiff and the defendant not to the potency of the causative factors moving from each side. In Shields v. Boyle (Unreported, High Court, 6th November, 1991), O’Hanlon J. reduced a pedestrian’s damages by 33.3% on the basis of comparison of the parties degree of blameworthiness and indicating that had he been apportioning causation he would have trended towards a different figure.
6.3 Degrees of fault must be understood in terms of the duties of care the law imposes on all parties. A worker who put his hand in an unguarded saw may be to a layman’s eye the prime cause of an accident, especially if scores of employees had safely used the same machine hundreds of times. If a court were assessing degrees of fault and excluding any considerations of breach of statutory duty, the duty of careful employer owes to his employee not to have an unsafe system of work or unsafe plant and machinery compared to the momentary inadvertence of the worker who puts his hand in the machine would be the factors the court would have to consider.
6.4 In O’Sullivan v. Dwyer [1971] I.R. 275 at 286, Walsh J. (with whose judgment Ó Dálaigh C.J. and Fitzgerald J. agreed) equated degrees of fault with “the moral blameworthiness of their respective causative contributions”. It was accepted in O’Sullivan (above) that it falls to be measured by objective rather purely subjective standards. In Carroll v. Clare County Council [1975] I.R. 221 at 226/227, Kenny J. in the Supreme Court was properly concerned as to the effects of references to “moral” blameworthiness on juries and stated:-
“I think that ‘fault’ in s. 34… means a departure from a norm by a person who, as a result of such departure, has been found to have been negligent and that ‘degrees of fault’ expresses the extent of his departure from the standard of behaviour to be expected from a reasonable man or woman in the circumstances. The extent of that departure is not to be measured by moral considerations, for to do so would introduce a subjective element while the true view is that the test is objective only. It is the blameworthiness, by reference to what a reasonable man or woman would have done in the circumstances, of the contributions of the plaintiff and defendant to the happening of the accident which is to be the basis of the apportionment. I think that the use of the word ‘moral’, when addressing a jury in connection with blameworthiness, is likely to mislead them.”
6.5 With respect I will accept the law as expressed by Kenny J. in Carroll v. Clare County Council (above).
6.6 In truth no system of morals could, I think, hold either the plaintiff or Mr. O’S to be morally culpable for what they did. The negligence of Mr. O’S was his failure to keep alert and notice what was developing in front of him. The negligence of the plaintiff was his dashing across the road in the agony of the moment.
6.7 The defendants were the owners and driver of a large bus larger than 50% of the available carriageway which required great effort to bring to a stop. The owners had an obligation through their servants or agents to ensure that the driver of the bus was at all stages alert and in the event of the presence of children would be able to comply with the requirements of the law as stated in McDonald v. CIE (above). The plaintiff was a 12 year old body who felt under threat and who dashed across the road probably not anticipating traffic would be on his side of the road coming from behind him.
6.8 Whereas the plaintiff may well have been the greater causative factor of the danger, the degrees of fault must be assessed preponderantly against the defendant.
6.9 Taking all matters into consideration, I hold that the just and equitable conclusion is that the degrees of fault ought to lie 70% of the defendant and 30% against the plaintiff and that the plaintiff’s damages accordingly should be reduced by 30%.
Bowell v Dunnes Stores
[2015] IEHC 613,JUDGEMENT of Mr. Justice Bernard J. Barton delivered the 9th day of October 2015
1. The plaintiff was born on the 26th June, 1987 and resides at 1 Triog Manor, Green Mill Lane, Portlaoise, Co. Laois. He brings these proceedings for damages for personal injuries and loss arising as a result of an accident which occurred in the course of his employment by the defendant in its supermarket premises located at Green Mill Lane, Portlaoise.
2. Save for an admission that the plaintiff was an employee and lawful visitor on the premises within the meaning of the Occupiers Liability Act 1995, a full defence has been delivered to the proceedings incorporating a plea of negligence and/or a contributory negligence on the part of the plaintiff.
3. It had initially been pleaded that the accident occurred on the 6th March, 2010, however, it was always the plaintiff’s belief and, indeed, it was his evidence, that the accident occurred on the first Friday in March, accordingly, at the commencement of the trial an amendment was sought and an order made enabling the plaintiff to plead the date of the accident as Friday the 5th of March, 2010.
4. This became significant because not only was there was a controversy between the parties as to the nature and date of the accident in respect of which the Plaintiff brings these proceedings but also because of the legal consequences which the defendant submitted flowed from any failure on the part of the plaintiff to prove the date as now pleaded.
5. The Plaintiff’s case was that the accident occurred on the evening of the 5th March when he tripped over a packet of bottles which had been left on the stock room floor whereas the Defendant’s case was that the plaintiff was mistaken about both the date and circumstances of the accident he being absent from work on the 5th and having made a report that he had hurt his back whilst lifting at work a week earlier on the 26th of February 2010.
6. At the close of the evidence it was submitted on behalf of the defendant that the plaintiff was required to establish that the accident occurred on the 5th March, 2010 and that this was one of the essential proofs which had to be satisfied by the Plaintiff if he was to succeed in the cause of action as pleaded. Even if all other proofs were satisfied it was submitted that the plaintiff could not succeed in law if an accident was proved to have occurred on some date other than the 5th of March.
7. The defendant contended that to prove that the accident had occurred on the 5th of March was a near impossible task; on the preponderance of the evidence it was submitted that the court was bound to find that an accident had occurred on a date other than the 5th and that any such finding was fatal to the plaintiff’s claim.
8. On behalf of the Plaintiff it was submitted that, in the circumstances of this case, proof that an accident occurred on the 5th of March 2010 was not material to the plaintiff’s cause of action against the defendant. On any view of the evidence the only question regarding the date on which the accident occurred was whether that was the last Friday in February or the first Friday in March; either way both dates were within the statutory period, accordingly, there could not be a limitation issue. It was further submitted that there was no substantive legal relevance attaching to the date in the sense of establishing a cause of action; it was not germane to the cause of action nor was it required to be known by the defendant in its defence of the proceedings. In the event that the court found that the plaintiff was mistaken as to the date and rejected the submissions made on his behalf, an amendment of the indorsement of claim to insert the date found to be correct was sought.
9. Given the potential consequences arising from these submissions I consider it appropriate that the court decide this matter by way of preliminary issue.
10. Turning firstly to the jurisdiction of the court to allow the amendment of pleadings Order 28, rule 1 of the Rules of the Superior Courts 1986, as amended, provides:
“The Court may, at any stage of the proceedings, allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purposes of determining the real questions in controversy between the parties.”
There is ample authority for the proposition that under this rule the Court has power to order the amendment of proceedings prior to, during, and even after trial in certain circumstances. See Wildgust v. Bank of Ireland and Norwich Union [2001] 1 ILRM 24; W(F) v. BBC High Court (Barr J.) 25th March 1999; FL v. CL [2007] 2 IR 630; Mooreview Developments Ltd v. First Active Plc [2011] 1 IR 117; and Flynn v. DPP [1986] ILRM 290.
11. Having regard to the admissions made in the defence it is not necessary for the plaintiff to prove his contract of employment with the defendant nor that he was a visitor on the premises within the meaning of the Occupier’s Liability Act 1995. Consequently, the common law and statutory duties arising and owed by the defendant to the plaintiff are not in question; however, the alleged breaches of those legal duties are very much in issue. In essence the plaintiff’s cause of action against the defendant is in respect of a wrong arising in the course of the employer-employee or what used to be referred to as the master-servant relationship.
12. The contents which are required to be set out in an indorsement of claim on a Personal Injuries Summons are provided for by Order 1A and appendix CC of the rules of the Superior Courts. These specify that full and detailed particulars comprising the claim be pleaded. In this regard Appendix CC provides a format in which the indorsement ought to be presented , namely,
(a) the description of the parties,
(b) the nature of the claim,
(c) the acts of the defendant alleged to constitute the wrong,
(d) the instances of negligence together with all other relevant circumstances in relation to the commission of the wrong and
(e) any other assertion or plea concerning the same together with particulars of the plaintiff’s injuries alleged to have been occasioned by the wrong of the defendant,
(f) the relief sought and, where appropriate, any particulars required by Order 4 Rule 3(a).
In my view it is notable in the context of the question under consideration here that the date of accident or occurrence alleged to have caused the injuries and loss is not a specified particular.
13. The core of the question which is at issue here is concerned with the material requirements necessary to constitute a cause of action in negligence and for breach of statutory duty. As to that “Cause of action” was described by Lord Esher M.R. in Read v. Brown (1888) 22 QBD 128 at 131 as “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court”. See also the decisions of our Supreme Court in Hegarty v. O’Loughran [1990] 1 IR 148 and Fletcher v. Commissioners of Public Works [2003] 1 IR 465.
14. There are four accepted elements to the tort of negligence. These have been described by McMahon and Binchy 4th Ed, on The Law of Torts as
1. “A duty of care, that is, the existence of a legally recognised obligation requiring the defendant to conform to a certain standard of behaviour for the protection of others against unreasonable risks;
2. a failure to conform to the required standard
3. actual loss or damage to recognised interests of the plaintiff; and
4. a sufficiently close causal connection between the conduct and the resulting injury to the plaintiff.”
In a negligence action for damages for personal injuries the law requires that the plaintiff must plead and prove “… the facts upon which the supposed duty is founded and the duty to the plaintiff with the breach of which the defendant is charged” See Gautret v. Egerton (1867) L.R. 2 C.P. 371 and West Rand Central Mining Co. v R [1905] 2 KB 391 at pp. 406-8. In addition the consequences of the breach of duty must be pleaded and in this regard particulars of the breach of the duty on the part of the defendant as well as particulars of the injuries and loss caused thereby must also be given. See Order 1A of the rules and also Odgers on Civil Court Actions 24th ed.p.181.
15. Not all causes of action require the pleading and proof of a date but by their nature certain causes of action do such as, for example, those for the enforcement of breach of a contract, or on any negotiable instrument, or for goods sold and delivered, or for possession of demised premises based for non payment of rent, or for misrepresentation inducing a contract, or where the defence raises a limitation statute or a defence of waiver by laches. See Odgers on Civil Court Actions 24th ed. p 172 for an informative discussion on this topic.
16. However, whilst the principal reason for the practice of pleading a date or a series of dates in a negligence action is to show in the overwhelming majority of cases that the proceedings have been brought within the limitation period, the pleading of a date is not a material constituent of nor is it necessary in order to establish or disclose a cause of action in a negligence. Indeed, under the Workman’s Compensation Acts a mistake as to the correct date of the accident was a ground on which the court was entitled to relieve a claimant of the consequences of having failed to bring an application within the time limited by the Acts. See Nolan v. Duigan S.C. (1946) 80 ILTR 49.
17. Whilst a mistake in relation to a date may be relevant in the context of the credibility of a witness or where the reliability of a witness’s recollection is in question, absent any issue on a limitations statute or in deceit, a mistaken recollection in relation to the date of an accident would not of itself entitle or warrant the court in making an order dismissing a personal injury action brought in negligence and / or for breach of statutory duty where all other proofs required by the law have been satisfied.
Decision on the cause of action issue.
18. Whether or not the paucity of case authority on the point is attributable to the practice of pleading a date or dates of an accident or circumstances or other occurrences or, in the absence of doing so, because the date or dates were furnished by way of particulars or, if the date was incorrect or otherwise mistaken, was corrected by amendment, or because the law has long since been settled, it seems to me that if a mistake as to the date of an accident was fatal to a cause of action in negligence and /or for breach of statutory duty ,other than in cases involving deceit or an issue on a limitations statute, it is a controversy which would have regularly featured in litigation long before now . Whatever the explanation maybe, for the reasons already given I cannot accept the defendant’s submissions as being sound in law on this issue. Neither deceit as to the date of the accident nor a limitation issue arises in these proceedings. Absent such questions or issues, it is the opinion of the court that if all other proofs necessary to constitute a cause of action in negligence and or /for breach of statutory duty, and I dare say other torts such as nuisance, are satisfied, a genuine mistake as to the date or dates of the occurrence of the event or circumstances giving rise to such proceedings or failure to plead such in the indorsement of claim is not in law fatal to such causes of action.
Decision on the date of accident .
19. That the Plaintiff was not recorded as being on duty at work on the 5th of March 2010 is of significance with regard to the determination of the issue as to the correct date of the accident. The Plaintiff fairly accepted that he could not be sure as to the date. However, he was certain that it occurred on a Friday evening which he thought was the 5th of March. On the other hand the defendant’s Miss Farrell recalled that the accident had occurred on the evening of 26th of February, also a Friday, though in this regard she agreed under cross examination that she was relying on her memory rather than on any contemporaneous note or record.
20. The law requires that the determination of this question is to be made on the balance of probabilities. There was no evidence of an investigation in relation to the accident circumstances having been carried out by the defendant in accordance with its own procedures. Miss Farrell did make a statement on the day following but it was not sought to introduce that into evidence nor any statutory record of the accident nor was there any evidence that the defendant wrote in response at any time dealing with the allegations contained in the plaintiff’s intimating letter of the 22nd of March 2011 nor was the plaintiff asked to make a statement in respect of the accident as part of any investigation.
21. Although the plaintiff gave evidence of attending the emergency department of Portlaoise Hospital shortly after the accident there was no hospital note of that attendance introduced in evidence. However, notes in that regard are referred to in the report of Dr. Sinead Murphy, consultant neurologist, dated the 18th December 2013. These notes were reported as showing that the plaintiff was advised that he had pulled a muscle and that he had been discharged on non steroidal anti-inflammatory drugs “after some weeks”. Dr. Robert Lawlor’s notes, the plaintiff’s GP, confirmed that the plaintiff had also attended his surgery in respect of his injuries. The accident and emergency notes of the hospital for the 19th of March 2010 refer to the plaintiff as having sustained injuries on a Friday exactly three weeks to the day before his attendance there being a date which would coincide with the 26th of February, also a Friday and being the same date on which Miss Farrell said the plaintiff was on duty and had reported having hurt himself.
22. Although Miss Farrell accepted that she was relying on her recollection rather than on any written record as to the date of the accident, the hospital record corroborates her evidence as to the date. Whilst the physicians reporting in this case on both sides had variously understood the date of the accident to be the 5th or 6th of March 2010, the plaintiff freely acknowledges uncertainty as to whether the accident occurred on the 26th of February or the 5th of March and that he would likely have referred to the accident as having occurred on the first Friday in March.
23. It seems to me in deciding this question not unreasonable to rely on a medical record made by a triage nurse at the Midland Hospital, Portlaoise, on the 19th of March, which clearly records the accident as having occurred on a date which also happens to coincide with the evidence of Miss Farrell, accordingly, I find as a matter of probability that the accident occurred on the 26th of February and not on the 5th of March 2010
Conclusion
24. Having already accepted the submissions made by senior counsel for the plaintiff, Mr. Counihan, in relation to the pleading and proof of date of the accident and the relevance or otherwise of that to the plaintiff’s cause of action, and there being no suggestion of deceit or possible limitation issue, the court will vacate the order made at the commencement of the trial and will substitute therefore an order pursuant to Order 28 rule (1) of the rules amending the date of the accident on the indorsement of claim to read the 26th of February 2010.
Background to liability.
25. The plaintiff was born in England on the 29th of June 1987 and came to Ireland to work after leaving school. He enrolled in a computing and drafting course which he undertook for two years and then commenced an architectural technician’s course in 2007/2008 at honours level.
26. To supplement his income the plaintiff started working for the defendant in 2004. He was employed as a general operative. His duties included working on checkouts and stacking products for sale on the supermarket shelves. He was a part-time employee working for 15 and 25 hours per week outside college hours which meant that he worked evenings and weekends. He identified his supervisor on the day as Ann Marie Farrell.
27. His recollection was that the accident occurred on a Friday evening which the court has found was the 26th of February 2010. The accident occurred in the defendant’s stockroom. The plaintiff was working alone; the accident was not witnessed but the plaintiff reported on the evening to his supervisor that he had hurt himself.
28. Both parties retained engineers who carried out an on site inspection, took photographs and prepared reports for the assistance of the court.
29. On the evening of the accident there was a requirement for the stacking of shelves with products in the retail section of the supermarket. The plaintiff was tasked with identifying the stock required; locate that in the storeroom, and thereafter to stack the shelves. This necessitated the identification and stacking of stock onto a pallet which was located in an aisle of the stockroom which when loaded would be brought into the retail section of the supermarket by way of a hand operated pallet truck. The plaintiff received his instructions that evening from his supervisor, Miss Farrell.
30. The engineer’s photographs introduced into evidence show the shelving on which products are stacked. It was his evidence that the quantity of product in the stockroom was such that it could not all be accommodated on the shelving. The excess product had been stacked on pallets which had been lined up along the rear wall of the stockroom and other pallets which had been placed at the end of the shelving racks. The pallet on which the plaintiff was stacking goods was located in an aisle between two rows of shelving racks at a position immediately beside a stack of pink coloured boxes shown in the plaintiff’s engineer’s photograph number 4. Whilst all the engineer’s photographs showed the stockroom to be adequately lit, the plaintiff’s evidence was that on the evening of the accident the product had been packed on the pallets located along the rear wall of the stockroom and at the end of the shelving to such a height that this interfered with and reduced the level of lighting.
31. With regard to the circulation areas where the pallets at the back wall of the stock room and at the end of the racking had been placed, it was the plaintiff’s case that this resulted in the creation of a very restricted circulation corridor or aisle within which to walk.
32. At the time when an engineering inspection carried out by the defendant’s engineer, Mr Terry, a yellow demarcation line had been painted on the floor of the stockroom and which is clearly seen in his photographs 3, 4, 5 and 6. It was common case that these lines had been painted some time after the accident. These photographs show one pallet located at the end of the shelving in an area now intended and designated as a circulation area or aisle and another pallet placed adjacent to the rear wall inside the yellow line. There was a controversy between the parties as to the location, number and stacking of pallets at the time of the accident.
33. The plaintiff’s evidence was that there were two or possibly three pallets at the end of the shelving racks best seen in photographs 4 and 6 taken by the defendant’s engineer and photographs 5, 6 and 7 taken by the plaintiff’s engineer and that these pallets were stacked with stock nearly reaching up to the ceiling. The defendant’s Miss Farrell doubted that there would have been any pallets placed at the end of the racking or that they would have been stacked to such a height as suggested by the plaintiff..
34. The plaintiff made his own list of what product was required to resupply the instore retail shelving. As can be seen from the photographs most of the product is shrink-wrapped. A pack of two litre bottles of 7up contains nine bottles weighing approximately eighteen kilograms. When the plaintiff came to that item on his list he went looking for it and walked down the aisle towards the camera shown in photograph number 4 taken by his engineer. He checked along the shelving as he walked. When he got to end of the shelving he turned to his left and walked down the other side of the racking shown in the defendant’s photographs 1 and 2. On reaching the end of that aisle he found a pack of 7up bottles which had been placed on a pallet located at the end of the shelving seen in the defendant’s photograph 3. He took up the pack and, given the proximity of the pallet onto which he was stacking product in the adjoining aisle, rather than retracing his steps, he decided to walk down the narrow passageway created by the opposing pallets located at the end of the racking and the back wall.
35. Whilst walking down the narrow passageway, the plaintiff tripped over another pack of 7up bottles which had been left on the floor. This caused the plaintiff to trip and fall. As he did so he kept hold of the pack of 7up. He fell awkwardly and in evidence demonstrated a twisting motion. In the process himself he became wedged between the stock on the opposing pallets. He eventually managed to wriggle himself free, ultimately coming in contact with the floor.
36. Although the plaintiff had been working in the stockroom for about twenty minutes before the accident he denied, when it was put to him, that he had been responsible for putting the 7up pack over which he had tripped in the narrow passageway, moreover, his evidence was that he hadn’t been in the narrow passageway before the accident.
37. There was some controversy as to whether or not the plaintiff had actually struck the floor when he tripped. His recollection was that initially he had simply become wedged between the stock and that he had had to wriggle himself free. There was also some controversy as to the level of lighting, though that had not been pleaded. It was the defendant’s contention in any event that that had really nothing to do with the accident since the lighting was more than adequate for the plaintiff to see where he was going even if the pallets were stacked in the manner as suggested by the plaintiff. When he reported the accident to his supervisor, Miss Farrell, he had not mentioned anything about an inadequacy in the lighting, nor was the plaintiff’s account of tripping over a pack of 7up mentioned by him. Her recollection was that the applicant simply said that he had hurt his back whilst lifting , an account which is also consistent with the record made by the triage nurse of the Midland Regional Hospital when the plaintiff attended there on the 19th of March 2010.
38. The plaintiff insisted that he had sustained his injuries when he tripped whilst carrying a pack of 7up bottles and not otherwise. He acknowledged the account as recorded in the notes but insisted that the evidence of the circumstances of the accident which he gave was the truth. By way of explanation for the account which he had given to his supervisor and at the hospital, he said this was because he thought there would be a full investigation by his employers into the accident in accordance with its accident reporting procedures and that he thought he would get more immediate attention at the hospital which was his main concern because he was in so much pain. His concentration was on his injuries rather than on the accident circumstances.
39. Subsequently, the plaintiff wrote a letter to the defendant on the 22nd of March 2011 in which he specifically stated that he had tripped over stock that was left on the stockroom floor that he had fallen on his side and had become wedged in between the stock. This account also appears in the medical notes of the Adelaide and Meath Hospital dated the 13th of September 2011. The notes of his GP Dr. Lawlor, which were admitted, also referred to the plaintiff “tripping”.
40. The plaintiff’s recollection was that when he reported the accident on the evening of its occurrence to his supervisor she did not make any written record of what he had said nor was he subsequently asked to make a statement in accordance with the defendant’s accident reporting procedures.
41. With regard to health and safety, his evidence was that he had attended a training course on the 17th of August 2004 and that as part of that course he had completed a questionnaire in relation to manual handling. That questionnaire sought to assess the plaintiff’s understanding in relation to a number of health and safety issues including the assessment of the work environment. In response to that question the plaintiff answered “assess the area make sure that nothing is in the way to were (sic) you need to go”.
42. It was suggested to the plaintiff that had he gone back the way he had come that that would have been a safer route. He agreed with that suggestion. The plaintiff also agreed that he had not assessed the narrow passageway before walking into it. He had not seen the pack on the floor and he accepted that he had not made a complaint about that on the evening when informing his supervisor that he had hurt himself.
43. Engineering evidence was given on behalf of the plaintiff by Mr. Vincent O’Hara, consulting engineer. His report and photographs were introduced into evidence. That report recorded an account given by the plaintiff that he had fallen to the floor sustaining injuries in the process, however, Mr. O’Hara gave evidence that that account had been an error on his part and his recollection was that the plaintiff did not actually say that but rather he had made an assumption to that effect . He had carried out an inspection of the locus in quo and recorded measurements of the racking, of the distance between the end of the racking and the back wall as well as the dimensions of the pallets and the packet of bottles. It was his evidence that depending on the positioning of the pallets and whether these had been placed lengthways or widthways relative to one another the space through which the plaintiff walked was between 300 millimetres and 500 millimetres. In either case it was his opinion that the available space was simply too restrictive, especially if carrying a nine bottle pack of 7up. In his opinion a gap of 800 millimetres would have been necessary in order to allow for the safe passage by the plaintiff whilst carrying a load of such dimensions.
44. As to the location of stacked pallets along the back wall of the store and at the end of the racking, it was his opinion that whilst there could be no objection to the pallets being located and stacked along the back wall of the storeroom, however, pallets should not have been placed at the end of the racking in what was, in effect, an aisle for circulation by employees and equipment and that that should have been kept clear.
45. Whilst here would have been some restriction of lighting caused by the level of stock in the stock room as described by the plaintiff , Mr O’ Hara accepted if the plaintiff was able to read his stock list then the lighting would have been sufficient to enable the plaintiff see the pack of bottles on the floor, however, in the circumstances of this case the plaintiff was carrying a load through a narrow passageway and was doing so having just come around a corner, accordingly, there was an increased risk that the pack would not be noticed and that in the particular circumstances it was less likely that the plaintiff would have seen the bottles on the floor.
46. Mr. O’Hara had sight of the defendant’s relevant Safety Statement. Under the section dealing with safety in the product storage and racking section of the premises, the defendant had identified a health and safety risk in relation to the aisles and had directed that the aisles between the racking were to kept free of product at all times.
47. It was Mr. O’Hara’s evidence that the plaintiff’s lack of familiarity would have been an additional risk factor and that the plaintiff’s vision of the floor or an object on the floor in the restrictive passageway would itself be further restricted depending on the height at which the load in question was being carried by him. From the plaintiff’s perspective at the time of the accident the presence of an obstruction, in this instance a pack of bottles, in the passageway would have been unexpected.
48. With regard to the controversy over the number of pallets present at the time of the accident, Mr. O’Hara confirmed that at the joint engineering inspection the plaintiff had given an account of tripping and twisting and of being wedged between stock on a number of pallets. At no point did Mr O’Hara understand there to be only one pallet against the back wall and at the end of the racking at the time of the accident.
49. Whilst Mr. O’Hara accepted that the usual width of an ordinary doorway was 700 millimetres and that in the ordinary way that would ensure a safe passage for a pedestrian, in this case the plaintiff was carrying a large pack of bottles hence the need for an 800 millimetre passageway width. Either way, it was his opinion that had the defendant’s own Safety Statement been complied with the area would have been perfectly safe and that there would not have been a problem for the plaintiff.
50. Ann Marie Farrell’s evidence was that whilst there would have been nobody in charge of the storeroom at the time of the accident she doubted that it was as congested as described by the plaintiff and in this regard she said that deliveries would have been quiet in the month of February. According to the defendant’s records there were ten members of staff on duty on the Friday and as far as she was concerned that was a normal staff compliment. She confirmed that the accident was reported to her on the same evening by the plaintiff. The reason she was surprised by the plaintiff’s evidence that there would be pallets at the end of the racking was because the cold storeroom would have had to have been accessed and that that would not have been possible if the pallets were placed where the plaintiff says that they were. However, she accepted that she did not go into the stockroom that evening so she could not give any evidence of its actual state from her own knowledge.
51. In relation to the plaintiff’s report of the accident circumstances, it was her evidence that the plaintiff told her that he had hurt his back whilst lifting. Her recollection was that the plaintiff came to her at the checkout and told her that he had hurt himself. Her recollection was that the plaintiff seemed fine but that he did say that his back was sore. She ultimately sent him home. She didn’t remember a meeting on the following day but made a note the next morning instead of that evening because she was on her own and it was late.
52. With regard to completing an accident report form, she said that an official accident report form as such was not completed, however, she wrote out a statement. Other than that she confirmed that there had been no official investigation of the accident in accordance with the defendant’s accident reporting procedures. She did not check the details of the accident with the plaintiff before making her statement. Under the defendant’s accident reporting procedures the person who should have filled out an accident report did not do so but she did not know why such a report had not been completed. She agreed that under the defendant’s accident reporting procedures there ought to have been an investigation and a report made.
53. Engineering evidence was given on behalf of the defendant by Mr. Terry. It was his evidence that the yellow lines present at the time when he took his photographs were intended to be demarcation lines between stock and circulation areas.
54. In his opinion the probability, on the plaintiff’s evidence, was that the width of the narrow passageway was approximately 500 millimetres and that at that width it would have been possible for the plaintiff to have been jammed between the stock on the opposing pallets in the passageway as described. With regard to the question as to whether 500 millimetres was a sufficiently safe width for the plaintiff to pass whilst carrying a pack of 7up bottles, it was his view that the width of the passageway would have been dependant on the way in which the pallets had been located on the floor relative to one another. The width could have been more or less depending on orientation of the pallets, however, it was also his evidence that the proper access to the pallet which the plaintiff says he was stacking was along the aisles between the racking and not the area at the end of the racking because that was not a designated passageway for use by employees.
55. In Mr. Terry’s opinion the instructions and training given to the plaintiff were sufficient and appropriate. That much was accepted by the plaintiff as was the fact that he did not follow those instructions. If the plaintiff had accessed the area in accordance with his training he should, in Mr. Terry’s view, have seen the packet on the floor. The packet was large and plainly visible. On the stacking, placing and orientation of the pallets he didn’t think lighting was an issue and no complaint had been made about it either at the time or on the day of the inspection.
56. Under cross examination Mr. Terry accepted that the area between the yellow lines and the stock room wall now painted on the floor was designated for storage so that to the left of the lines the area was designated for the movement of employees and stock pallet trucks. If there were pallets of stock located as suggested by the plaintiff then that would have resulted in restriction of access and movement. Mr. Terry also accepted that the narrow passageway between the pallets would only have been visible when looking down the passageway especially if there were stacked pallets on both sides. He accepted that if pallets were placed with stock on them in the position where indicated by the plaintiff then that would have constituted an obstruction. A person turning a corner and going into a restrictive passageway would certainly need to keep a proper lookout and an object placed on the floor in the passageway could be problematical. Mr. Terry accepted that pedestrian aisles should be kept clear and that if there was packet of 7up on the floor in the passageway then that too constituted an obstruction. It was his view, however, that carrying a packet of 7up was unlikely to have obstructed the plaintiff’s vision otherwise than the view immediately around his feet.
Decision on liability and causation.
57. I have had an opportunity in the course of the trial to observe the demeanour of the plaintiff as he gave his evidence. His credibility was called into question on a number of fronts but also with particular regard to the circumstances and facts of the accident. The answers he gave to certain questions in the course of cross examination are, in my view, telling. He accepted that he may only have said when he reported the accident that he had injured his back when lifting and that a similar account had likely been given as noted in the emergency department record of the Midland Regional Hospital, Portlaoise, of the 19th of March 2010. He also accepted that he had received induction training on commencement of his employment and that on the occasion of his accident he had been non-complicit with that.
58. The initial injuries complained of by the plaintiff involved his back and chest. The chest x ray was reported as showing a hairline fracture of the left third rib. The plaintiff made complaints of and gave evidence in relation to his chest pain. Whilst there is a causation issue between the parties in relation to the plaintiff’s current injuries and sequelae, the fact that the plaintiff was medically assessed and objectively reported upon as having sustained a chest injury, which included a fracture of the left third rib is, in my view, significant with regard to a determination in relation to the circumstances of the accident as contended for and given in the evidence by and on behalf of the plaintiff.
59. Quite apart from the difference of opinion as to causation in relation to the plaintiff’s current medical presentation in terms of causation, both Professor Molloy, who gave evidence on behalf of the plaintiff, and Professor Phillips, who gave evidence on behalf of the defendant, accepted that the plaintiff was an entirely genuine individual. They had both examined the plaintiff and gave evidence that his reactions in the course of medical examination were neither medically inconsistent nor exaggerated. Professor Molloy gave evidence that the rib injury sustained by the plaintiff would have been particularly painful and would be consistent with a significant impact to the chest. Professor Phillips understood that the circumstances of the accident involved the plaintiff being wedged as part of a twisting motion. There was no suggestion by Professor Phillips or Professor Molloy that the plaintiff’s initial injuries were in any way inconsistent with the accident as described. In fact the contrary was the case.
60. It is not in dispute that no investigation was carried out by the defendant in accordance with its own accident reporting procedures. Insofar as there was some correspondence passing between the plaintiff and the defendant commencing with the plaintiff’s letter of 22nd March 2011, no issue appears to have been taken by the defendant with the plaintiff in relation to the accident circumstances themselves. No evidence was led by the defendant as to what investigation if any was undertaken other than the evidence given by Miss Farrell. She had not gone into the stock room on the evening and could give no direct evidence as to the layout, location, and stacking of pallets.
61. On the issue as to whether the plaintiff had simply hurt his back when lifting or had injured himself when he became wedged between the stock on opposing pallets, accepting ,as I do, the medical evidence in relation to the plaintiff’s initial injuries, I find as a fact that this evidence is consistent with an accident as described by the plaintiff rather than with an accident causing a simple back injury whilst lifting a pack of bottles since on that version the chest injuries which were medically noted and radiologically confirmed at the time are neither consistent nor medically explained.
62. Returning to the plaintiff’s demeanour as observed by me in the course of the trial and having regard to the foregoing findings, I am satisfied that the plaintiff gave truthful evidence in relation to the accident and I find as a fact that it occurred in the way , manner and circumstances described by the plaintiff .
63. It follows from his account and the evidence of the plaintiff’s engineer, which I accept, that the passageway through which he was walking was too narrow and was unsafe. There is no evidence that the pack of 7up bottles over which he tripped in the passageway was put there by him or that he had any responsibility for the state of affairs with which he was confronted. He was an employee going about his employer’s business. His employer owed him a duty of care both at Common Law and under Statute, particularly pursuant to the provisions of the Safety Health and Welfare at Work Act 2005, to provide him with a safe place and system of work.
64. The defendant’s Safety Statement Risk Assessment, which was operative at the time, assessed the risks in the area and contains a direction that the store room aisles should be kept clear. I am satisfied on the evidence that the stock room was congested in the way described by the plaintiff. It follows that on the evening of the accident the defendant had failed to comply with its own Health and Safety Statement. The placing and packing of any pallet at the end of the racking in close proximity to other stacked pallets lined against the back wall of the storeroom was an obstruction on what should otherwise have been a clear circulation area for use by the plaintiff and other employees of the defendant.
65. There was no supervisor or manager on duty in charge of the store room at the time when the plaintiff was assigned his duties. The plaintiff’s supervisor never entered the storeroom on the evening and could give no evidence as to its actual condition at the time she assigned the plaintiff. The manager for the area on the occasion had gone off duty before the plaintiff went into the storeroom. That person had a responsibility to see to it that the defendant’s Health and Safety Statement was complied with. It was reasonably foreseeable that a pack of 7up bottles left in a narrow passageway constituted a danger to an employee such as the plaintiff who might well be detailed, as the plaintiff was, to obtain product from the storeroom for stacking on the supermarket shelves.
66. The fact that the plaintiff owed both a common law and statutory duty of care to himself, in particular to comply with the training and instructions which he freely accepts that he received but failed to comply with, does not absolve the defendant from complying with the common law and statutory duty of care which was placed on it for the safety of its employees, including the plaintiff.
67. I am satisfied on the evidence and find that the defendant was in breach of both its common law and statutory duty of care to provide the plaintiff with a safe place and system of work and that its failure to do so was the principle cause of the accident for which it must be held responsible.
Decision on contributory negligence.
68. The essence of the defendant’s submissions in relation to negligence but in particular in relation to negligence on the part of the plaintiff, was that the accident could never have occurred had the plaintiff followed the training and instructions which had been given to him, which he had accepted that he had received but with which he had failed to comply. Moreover, it was no part of the plaintiff’s case that he ought to have been provided with a refresher course. He had not made the case that he had forgotten the instructions and training given to him at the time of his induction. On the contrary he knew what he ought to have done, namely to assess the work environment, but freely admitted that he had failed to do that, consequently, he was the author of his own misfortune.
69. On behalf of the plaintiff it was submitted that there was a clear breach of statutory duty on its part under the Act of 2005 with particular emphasis being laid on the fact that it had failed to comply with its own safety statement and risk assessment insofar as that applied to the locus in quo. Had it done so the likelihood was that there would have been no accident at all. At worse the plaintiff was guilty of inattention or inadvertence. He had in no way contributed to the state of affairs with which he was presented and in which he found himself.
70. The many decisions of the Superior Courts reaching back to Stewart v. Killeen Paper Mills Ltd (1959) IR 436 establish that in respect of a breach of statutory duty on the part of a workman an error of judgment, heedlessness or inadvertence does not amount to contributory negligence where the injury could not have occurred but for the breach of statutory duty on the part of the employer. However,a deliberate act on the part of an employee in the knowledge of the risk of injury attendant upon it will attract liability on the part of the employee. See McSweeney v. McCarthy unreported S.C. January 28th 2000 ( Murray J.) where on the facts of that case a 40% deduction was made in respect of the employees own negligence and breach of statutory duty.
71. In respect of common law negligence the position was that an act of inadvertence, even momentary inadvertence, was capable of attracting a finding of contributory negligence if it constituted an act which a reasonably careful workman would not do.
72. These and other authorities to like affect must be viewed with caution in light of the provisions of the Safety Health and Welfare at Work Act 2005 (the Act of 2005) and the subsequent decisions made concerning them.
Section 13 of the Act of 2005 provides, inter alia,
“(1) An employee shall, while at work—
(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work…”
This provision has potentially significant legal consequences for employees constituting as it does a statutory general duty of care which they owe in the course of their employment.
73. The legislative history leading up to the Act of 2005 is usefully reviewed in the decision of O’Neill J. in the case of Smith v. The Health Service Executive [2013] IEHC 360. Referring to the case authorities decided in respect of the statutory duty of care owed by an employee and culminating in the provisions of the Safety Health and Welfare at Work Act 2005 O’Neill J. observed at para. 58 of his judgment:-
“58. The above authorities reveal that the benign treatment of contributory negligence on the part of an employee in the face of a primary breach of statutory duty by the employer was to ensure that the policy underpinning the statutory provision would not be diluted by reliance upon the doctrine of contributory negligence. If, however, the duty of an employee to take reasonable care for their own safety is elevated to the status of a statutory duty, it would seem to me that the exculpation of inadvertence and inattention from the ambit of contributory negligence must be reconsidered given that both employer and employee are now bound by statutory duties to take reasonable care..”
Commenting on the effect S.13 of the Act of 2005 and having referred to the decisions of the Supreme Court in Coffee v. Kavanagh [2012] IESC 19 and Quinn v. Bradbury and Bradbury [2012] IEHC 106 O’Neill J. stated at para. 61 of his judgment:-
“In short, therefore, it must be said that in light of the statutory duty as imposed on employees, inattention, inadvertence, heedlessness or carelessness on the part of an employee can no longer be regarded as outside the ambit of contributory negligence, in circumstances where it is established that there was a primary breach of statutory duty on the part of the employer, assuming causative links between the breach of statutory duty by the employer, in the first instance, and contributory negligence of the employee, to the injuries actually suffered.
62. It is fair to say that the duty imposed on employers under s. 8(1) of the Act is undoubtedly of a more onerous order being expressed as being “shall ensure so far as is reasonable practicable the safety, health and welfare at work of his or her employees”, whereas the statutory duty imposed on employees under s. 13(1) of the Act is to “comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety and health and welfare . . .”
74. Adopting this statement of the law as it now stands, the plaintiff cannot, on my view of the evidence, have been but aware of the congestion in the stockroom and in particular the narrowness of the passageway into which he decided to proceed especially carrying as he was a large pack of 7up bottles weighing some eighteen kilos. He fairly accepts that he did not stop to assess the situation with which he was confronted and never saw the pack of bottles which were lying in the narrow passageway and over which he tripped. It is clear from the evidence that in order to get a proper view of the passageway and anything that might have been on the floor that the plaintiff would only have been able to see that whilst directly looking along the passageway and that that was so because of the height of the stock on the opposing pallets.
75. It was suggested that having picked up his pack of 7up bottles off the first of the pallets located at the end of the rack that he had simply gone around a corner and had only taken one or two feet when he came in contact with the pack on the floor, however, on his evidence there were 2 or 3 stacked pallets located one beside the other at the end of the shelving and that having tripped he had become wedged amongst the stock between the first and the second pallets. On that evidence it seems reasonable to infer that the packet of bottles on the floor was somewhat further down the passageway than suggested.
76. Whilst the carrying of such a large packet would have obscured the plaintiff’s vision to some extent I am satisfied ,on the evidence, that any restriction would have been confined to an area just in front of his feet, there being no evidence that the plaintiff was carrying the pack of bottles otherwise than normally. On these findings had the plaintiff been keeping a proper lookout and especially if, immediately before he started to walk into the passageway, he had assessed, in the words of his training, “the environment” which confronted him, he ought to have been able to see the pack of bottles on the floor. In my view his failure to do so constitutes both contributory negligence and a breach of the statutory duty of care which he owed to himself.
Decision on the apportionment of fault.
77. As to the apportionment of fault between the parties this is not to be assessed on the basis of the causative contribution of each to the accident but rather on the respective blameworthiness of both. Whilst the court has found that the principal cause of the accident was due to the negligence and breach of statutory duty on the part of the defendant, having due regard to the principals upon which fault is to be apportioned the court considers that, in the circumstances of this case, the appropriate apportionment of liability between the parties is 70% against the defendant and 30% against the plaintiff.
The injuries
78. As a result of the accident the plaintiff described how he had become wedged between the stock on the opposing pallets in the stock room and had had to wriggle himself free. He was aware of some soreness in his back and chest after the accident and reported to his supervisor that had hurt himself. On the next day he noticed that his symptoms were getting worse and went to the local hospital where his back was x-rayed. At this time his main symptomology related to his back. The plaintiff also attended his GP Dr. Robert Lawlor. It appears from his notes that the plaintiff was complaining of pain in the thoracic spine and in the intra scapular region mainly to the left. He was prescribed some anti-inflammatory medication. The plaintiff became aware of increasing chest pain. X-rays showed a fracture involving the third rib on the left hand side. The plaintiff was referred to Mr. David Cogney orthopaedic surgeon in Tullamore Hospital. He continued to be symptomatic both in respect of his chest and his back. Due to continuing symptomology the plaintiff was prescribed Difene and Lyrica by his G.P. He also underwent a course of physiotherapy.
79. The plaintiff went on to develop other symptomology including pain and restriction of neck movement and what was described as “shooting pain” throughout his body associated with some clumsiness. His G.P. referred him to the neurology department in Tallaght Hospital as his symptoms had now become quite widespread and which suggested a neurological involvement.
80. The plaintiff subsequently came under the care of consultant neurologists Dr. Sinead Murphy and Dr. Donal Costigan. An M.R.I. scan was arranged for him. In his past medical history it was also noted that the plaintiff had a post viral myositis in the year 2006/2007.
81. As a result of investigations which were carried out under the care of Dr. Murphy in 2012, the plaintiff was diagnosed as a type 1 diabetic and consistent with that condition the plaintiff had developed a peripheral neuropathy.
82. In the course of his evidence the plaintiff described how his neck became very stiff and he felt he was unable to turn his head to any significant degree. He described altered sensations in his hands and fingertips. However, once he commenced treatment for diabetes his diabetic symptoms improved to some extent. He continued to experience symptoms of pain and stiffness in his neck and back, however, these naturally improved to a point where, in the Spring of 2013, he felt able to return to work for the defendant. Initially he was assigned light duties. He remained in employment with the defendant for about five months until December of that year. He was able to manage his work duties up until December when he was assigned duties which required him to work in the cold store of the defendant’s premises. He felt physically unable to work in a cold environment and would not accept duties that required him to do so. The defendant was unable to accommodate him, accordingly he went on sick leave.
83. With regard to his architectural technician course which he was taking at honours level, it appears that he went back to that for a number of weeks shortly after the accident but was unable to continue because he was unable to bend over a manual drawing table due to his back symptomology and as a result of which he eventually dropped out of the course. Subsequently, in or about September 2014, he commenced a FETAC level 5 IT course which he was able to manage. Between 2011 and 2013 the plaintiff occupied himself with research on computers and since January 2015 has obtained some part time IT work in a small company. His present intention is to undertake a degree in computing.
84. The plaintiff gave evidence that he has continued to suffer from pain in his shoulders, upper back, and lower back as far as he is concerned his physical symptomology is such as would prevent him from returning to any form of heavy manual work such as that undertaken by him when employed by the defendant. His case was that he was now only fit for light work such as IT and computing.
85. Although the plaintiff gave evidence that he had no knowledge of his diabetic condition prior to the accident it appears from medical notes and records, which were admitted in evidence, that he had attended Dr. Lawlor in February 2008 with concerns in this regard. Unfortunately that was not followed up at the time and it was not until 2012 that he was actually diagnosed with type 1 diabetes.
86. It also appears that Dr. Murphy had concluded that the plaintiff was suffering from fibromyalgia. Under cross examination the plaintiff denied that he had suffered from this condition prior to the accident but medical notes from 2006 show that the plaintiff was investigated for that condition and myositis at that time. Having been reminded of this, the plaintiff recalled that he was out of work for a few weeks but gave evidence that symptoms in this regard had resolved without recurrence up until the time of the accident. I accept the plaintiff’s explanation that he had actually forgotten about this particular episode and that in the subsequent years he felt fit and well and was a regular attendee at his local gym.
87. Medical evidence on behalf of the plaintiff was given by Professor Molloy whose report, prepared for the assistance of the court, was admitted. Medical evidence on behalf of the defence was given by Professor Phillips. He too prepared a report for the assistance of the court which was also admitted.
88. Professor Molloy carried out one physical examination on the 7th of April 2015. He had access to certain notes and records including a report from Dr. Murphy. He noted that an MRI scan of the plaintiff’s cervical and lumbar spine had showed some bulging at the C3/4 level but without cord involvement. An EMG was carried out subsequently by Dr. Costigan on the 5th of March 2012 which showed some neurological abnormalities consistent with the neuropathy. The plaintiff complained to Professor Molloy of cramps in his lower back and legs and sometimes in the shoulder blades. These symptoms could be quite significant at times and could lead to a feeling of the plaintiff’s legs giving way.
89. A physical examination was carried out by Professor Molloy which showed that the plaintiff’s cervical spine movements were reduced by 30 to 40% in all directions with tenderness in the neck and shoulder muscles but no neurological deficit in the upper limbs.
90. With regard to the plaintiff’s back ,Professor Molloy noted that movements were good on forward and lateral flexion and that the plaintiff’s straight leg raising was 80 degrees bilaterally, moreover, the plaintiff could heal and toe walk without difficulty and reflexes were grade two, with down going planters. There was no sensory or motor loss.
91. Professor Molloy’ opinion was that the plaintiff was suffering from chronic pain syndrome with a neuropathy most likely diabetic in nature which was contributing to the plaintiff’s symptoms.
92. Vocationally Professor Molloy thought that the plaintiff would be well able to undertake his chosen career path in IT and computing. He was satisfied that the probable cause of the plaintiff’s neuropathy was his diabetic condition and was not related to the trauma arising from the accident. In his opinion the plaintiff suffered a significant soft tissue injury which was then complicated by the effects of his untreated diabetes. The diagnosis of diabetes was a shock for the plaintiff and there were also domestic problems which resulted in his partner leaving him and which required the plaintiff to look after their two year old daughter.
93. With regard to the myositis which was diagnosed in 2006, Professor Molloy’s evidence was that that condition caused muscle weakness; however, it appeared that in the plaintiff’s case it was relatively mild and settled very quickly. Professor Molloy examined the plaintiff in connection with fibromyalgia but formed the opinion that the plaintiff did not satisfy the criteria for a diagnosis of that condition. The plaintiff’s injuries referable to the accident were of a soft tissue nature. There was no underlying pathology. He didn’t think that the diabetes would have had any significant impact on the course of the plaintiff’s physical symptomology such as slowing expected course of recovery. It did not aggravate nor was it otherwise connected to the symptoms referable to the soft tissue injury.
94. The soft tissue injuries, whilst diffuse, were typical of trauma rather than diabetes though the symptoms of peripheral neuropathy complained of by the plaintiff were solely attributed to the diabetes and not to the trauma.
95. Professor Phillips examined the plaintiff on the 11th of July 2012. At that time the plaintiff was complaining of pains in his arms, his back and his legs and that he was unable to hold a two litre bottle of milk in his hand. He described pains “all over”. He noted that the plaintiff had been advised that he had had arthritis involving both of his feet.Clinical examination of the plaintiff’s neck was satisfactory; there was mild global weakness of the upper and lower limbs of undetermined aetiology.
96. He thought that most of the plaintiff’s current symptoms were referable to neurological conditions not connected to the trauma. His expectation,insofar as the physical injuries were concerned, was that these ought to have resolved over a relatively short period of time. He didn’t accept that the plaintiff has organic symptoms at this point caused by the original injury. He thought that the explanation for the persistence of physical symptomology referable to the trauma was a failure on the part of the plaintiff to rehabilitate. He didn’t think that that was referable to the plaintiff’s diabetes. He agreed that the plaintiff was not suffering from fibromylgia. He did not agree, however, that tender points noted by Professor Molloy on physical examinations signified an ongoing pathological process involving a fall occurring some five years previously. The plaintiff’s chronic pain syndrome was subjective in nature. There was no underlying organic or pathological explanation for its continuation at such a remove from the accident. The plaintiff’s presentation was either an entirely subjective neurotic condition or it was the result of a pathological process such as diabetes. Either way it was not caused by the accident.
97. Professor Molloy was recalled to give evidence arising out of the evidence of Professor Phillips which had not been directly put to him in the course of cross examination. He expressed the opinion that the symptom complex from which the plaintiff is now complaining ,insofar as is referable to the accident, was acceptable in what he described as soft tissue criteria. He agreed with Professor Phillips that in the ordinary way one would have expected the plaintiff to recover in a relatively short period of time but in the plaintiff’s case he did not do so. He felt that there was also a psychological component present in the plaintiff’s presentation.. He agreed that there was no underlying pathology referable to the accident, however, a small percentage of a patients who sustain soft tissue injuries which one might expect to recover relatively quick go on to develop chronic symptomology and that that was medically accepted.
Decision on the injuries .
98. As a result of the accident the plaintiff sustained soft tissue injuries to his chest and a rib fracture; he also suffered soft tissue injuries effecting his shoulders and thoracic spine. The plaintiff was extensively investigated in respect of symptoms including altered sensation in his extremities, muscle weakness, and deterioration in motor power. There is no doubt but that the medical notes and records establish quite clearly that in a period of some eighteen months subsequent to the accident the plaintiff continued to complain of these symptoms as well as of symptoms of back pain including pain radiating into his neck with restricted ranges of motion of his neck. He was prescribed medication and also underwent courses of physiotherapy which were of little benefit to him. In 2012 he was diagnosed with type 1 diabetes for which he was treated and which is now under control. Apart from symptoms referable to his neck, back, shoulders and chest I am satisfied that the neurological symptoms of which the plaintiff complained were, as a matter of probability, referable to his diabetes and are not causally related to the accident. Moreover, these symptoms would not delay or otherwise interfere with the ordinary process of rehabilitation. There is no doubt, however, that the process of rehabilitation in the plaintiff’s case was slow, however, it is also clear that to the extent that the plaintiff continued to be symptomatic in relation to his back and neck, that had reached a level where the plaintiff himself felt able to return to work for the defendant in May 2013 and, indeed, the plaintiff was able for the work duties assigned to him from the time of his return to work in May until December 2013 when his own assessment was that he would be unable to work in a cold store .
99. Although the plaintiff had some restriction of neck movement when examined by Professor Molloy his neck movement was normal when examined by Professor Phillips. His bilateral leg raising test was normal, as was the MRI scan of the plaintiff’s neck and back. I accept the evidence of Professor Molloy that a psychological component is generally involved with a patient suffering from chronic pain syndrome. The plaintiff may have believed that to attempt to work in a cold store would have had an adverse affect on him, however, it appears that on treatment for his diabetes and working for the defendant as a general operative undertaking the same tasks as he had prior to the accident, that the plaintiff had reached a level of recovery which enabled him to undertake such duties. He did not, however, seek out alternative employment of a similar type after he ceased work in December but has taken an altogether different career path which, on the evidence, is also desirable having regard to the plaintiff’s diabetic condition.
100. The plaintiff is more optimistic about the future now and has returned to exercise, walking as much as he can. No doubt his neuropathy still affects him to some extent. His symptoms, insofar as they are referable to the physical injuries, whilst not having any objectively assessable organic or pathological cause referable to the accident are now, it seems to me, at a relatively low level. I accept the evidence of Professor Molloy that in a small number of individuals who have sustained trauma of the type experienced by the plaintiff that some symptomology is seen and accepted in medical practice. The consequence of his untreated type 1 diabetes was a peripheral neuropathy but for which the defendant has no responsibility in law.
Given the period of time which has elapsed since the accident and that his condition insofar as it relates to the accident is medically said to be chronic, it seems reasonable to conclude that the plaintiff is likely to experience some ongoing albeit low level of physical symptoms for sometime to come.
100. Having due regard to foregoing and the complexity arising as a result of symptomology referable to different causes, principally though not exclusively the plaintiff’s diabetes, and applying the well settled principals of law as to the assessment of compensation for personal injuries caused by reason of negligence and /or breach of statutory duty, it is the view of the court that a fair and reasonable sum for general damages on full liability is €65,000.
Decision on Special Damages.
101. The plaintiff has made a claim for loss of earnings to date of trial in the amount of €48,937.77 less deductible social welfare benefits giving a net figure of €23,967.64. Other special damages have been agreed between the parties in the sum of €3,803.
102. Having regard to the findings of the court in relation to the plaintiff’s physical disabilities referable to the injuries sustained as a result of the accident and which had resolved to a point which enabled the plaintiff to return to work for the defendant in May 2013 and to continue thereafter until December 2013, when he himself decided that he would not work in a cold store, I am satisfied ,on the balance of probabilities, that the plaintiff possessed an ability to seek , carry out and engage in similar work duties of the type undertaken by him between May and December, had he chosen so to do . Accordingly, the court finds that his claim for loss of earnings should be limited to a period from the date when, after the accident he ceased to receive income from his employment with the defendant until the date of his return to work in May 2013. I will discuss with counsel the apportionment of the sum of €23,967.64 appropriate to that period; added to which will be the agreed sum in respect of other special damages.
103. There will then be judgment for the net amount of the general and special damages having regard to the apportionment of 70/30 in the plaintiff’s favour and the court will so order.
Murphy v County Galway Motor Club Ltd
[2016] IECA 106
Judgment of Ms. Justice Irvine delivered on the 14th day of April 2016
1. This is the plaintiff’s appeal against the judgment and order of the High Court (McGovern J.) of the 6th April 2011 made in the context of a personal injuries action. The proceedings concern injuries, loss and other damage sustained by Mr Blaine Murphy on 5th February 2005 when he was struck by a motor vehicle when attending the Galway International Motor Rally at Loughrea, Co. Galway. Following a four day hearing, wherein both liability and quantum were in dispute, the trial judge awarded the following sums to the plaintiff by way of damages:-
• General damages for pain and suffering to date: €100,000
• General damages for pain and suffering into the future : €100,000
• Loss of earnings to date: € 40,000
• Loss of earnings into the future: €175,000
• Costs of anticipated prosthesis: €170,000
• Agreed special damages: € 12,498
Total: €597,498
2. As to liability, the trial judge dismissed the proceedings against the fourth named defendant, the driver of the motor vehicle that struck the plaintiff, at the conclusion of the plaintiff’s evidence. At the conclusion of the trial, he apportioned liability as to 33.33% to the first, second and third named defendants and 66.66% to the plaintiff. Accordingly, he granted judgment against the defendants for €199,166 together with costs, to be taxed in default of agreement.
3. On this appeal the plaintiff maintains:-
(i) that the finding of 66.66% contributory negligence on the part of the plaintiff was perverse having regard to the evidence;
(ii) that the sums awarded in respect of both categories of general damages were unjust and lacking in proportionality;
(iii) that the trial judge incorrectly concluded that the plaintiff’s potential net earnings from 5th February 2005 to the 8th February 2011 were €115,000 as opposed to €159,800. Accordingly, the figure which he arrived at in respect of past losses i.e. €40,000, having taken into account actual earnings, social welfare payments and other expenditure on the part of the plaintiff, was not supported by the evidence;
(iv) Insofar as the award of €229,602 in respect of future loss of earnings is concerned, the principal complaint is that the approach adopted by the trial judge was not supported by the evidence. The plaintiff submits that he ought to have calculated the claim for future loss of earnings on the basis that the plaintiff would likely have worked as a self- employed plumber but for his injuries and would have had an earning capacity of €200 per day. Instead, he had done so on the basis that he would likely have worked in paid employment 39 hours a week at the minimum hourly rate applicable to the construction industry. Had damages been calculated on that basis, prior to any deduction in respect of the considerations advised in Reddy v. Bates, the sum awarded would have been €307,000 as opposed to €229,602 in respect of this category of loss.
Background facts
4. The plaintiff was born on 23rd June 1985 and was nineteen years of age at the date of the unfortunate and tragic events that form the subject matter of these proceedings.
5. On 5th February 2005 the plaintiff and three of his friends decided to attend the Galway International Motor Rally. The rally was organised and managed by the first named defendant under the auspices of the second named defendant and the third named defendant provided the safety services for the rally.
6. Having parked their car, the plaintiff and his friends walked in excess of three kilometres over boggy ground to get to a good viewing area. The plaintiff had a video camera with him and wanted to shoot some footage and take some still photographs of the cars as they were put through their paces.
7. Having stopped for approximately 20 minutes to take some footage at a location where there was a bend in the road (“location 1”), the plaintiff and his friends moved further down the same roadway to an area where the road travelled over the crest of a hill. This was a point at which the wheels of cars were seen to leave the road as they went over the crest, or alternatively were seen to lighten up on their suspension while remaining in contact with the road.
8. The plaintiff and his colleagues took up a viewing position, somewhat beyond this crest (“location 2”). The trial judge found as a fact that location 2 was 52 metres or so beyond the crest of the hill. There was some dispute as to whether the plaintiff sat down on a rock to the left of the roadway from the oncoming driver’s perspective or whether he was, as he maintained, a couple of metres further away from the crest sitting on a tuft of grass at a slightly more elevated level. However, because of the proximity of the two positions, the trial judge said it made no difference to his findings.
9. As the plaintiff and his friends wandered from location 1, where a significant number of people including a marshal were gathered, neither the marshal nor anyone else attempted to stop them moving down towards location 2 beyond the crest of the hill. Further, there was no warning or indication of any type that they should not locate themselves in this area.
10. For the purposes of this appeal the court viewed the video footage taken by the plaintiff at location 1 following their arrival, and also the video footage taken after the group had settled at location 2. This latter segment was very short indeed. It showed no more than six cars coming over the crest of the hill before it was cut short by reason of the collision between a car that left the roadway at this point and the plaintiff. The sound track however continued, and to say that the same is harrowing is perhaps an understatement. The plaintiff is to be heard screaming in pain as a result of the horrendous injuries which he sustained. His terror and pain are palpable.
11. It is common case that the plaintiff sustained a severe compound fracture to his left lower tibia with disruption of the tibiofibular joint, a dislocation of the left knee with rupture of all of the ligaments around the joint and severe skin loss of the lower left leg. He also sustained a number of small lacerations to his left upper forearm and left hand. Because of the severity of the injury to his leg the plaintiff required an amputation initially at knee level and then later above the knee. He was wheelchair bound for a significant period prior to being fitted with a prosthesis.
12. The trial judge, having heard and considered all of the evidence, concluded that the plaintiff would suffer a lifelong disability associated with the amputation of his leg. He accepted that after ten or fifteen minutes of walking that the stump often became sore and at times broke down to the point that it oozed blood. He accepted that the plaintiff could not stand for long periods, that he had difficulties managing any steep incline or walking over uneven ground, that he had difficulty with steps and stairs and could no longer play any sport that involved running. The trial judge accepted the medical evidence that the plaintiff was at significant risk of developing arthritis. The medical evidence in this regard anticipated that the plaintiff would develop arthritis on the non amputated side in his remaining knee and in his spine.
13. I will deal with the trial judge’s findings in respect of the plaintiff’s special damage claim later in the course of this judgment.
General damages
14. An appellate court enjoys jurisdiction to overturn an award of damages if it is satisfied that no reasonable proportion exists between the sum awarded by the trial judge and what the appellate court itself considers appropriate in respect of the injuries sustained. In Foley v. Thermos Cement Products Limited [1954] 90 ILGR 92 Lavery J. stated that the task of the judge in an appellate court was:-
“To make its own estimate of the damages he would award and then compare this with the verdict and say whether there is any reasonable proportion between the sums or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable. In making its estimate the judge must adopt all points most favourable to the plaintiff and must keep in mind that the jury had the advantage, which he has not had, of hearing the evidence and of seeing the witness and in particular hearing and seeing the plaintiff.
No one will deny that this is a most difficult task. It is especially difficult in a case where personal injuries are the subject of the claim. There is no standard by which pain and suffering, facial disfigurement or indeed any continuing disability can be measured in terms of money. All that can be said is that the estimate must be reasonable and different minds will inevitably arrive at wildly differing conclusions as to what is reasonable. The task must, however, be undertaken.”
15. This approach has been adopted in many subsequent cases. In Rossiter v. Dun Laoghaire Rathdown County Council [2001] 3 I.R. 547, Fennelly J. described the role of the appellate court in the following manner:-
“The more or less unvarying test has been, therefore, whether there is any “reasonable proportion” between the actual award of damages and what the court, sitting on appeal, “would be inclined to give” (per Palles C.B. in McGrath v. Bourne).”
16. It is generally accepted that an appellate court should not engage in what might be considered to be petty interference with an award of damages and should only interfere when it considers that there is an error in the award which is so serious as to render it unjust or lacking in proportionality. The test of proportionality seems to me to be an appropriate one, regardless of whether the complaint be one of excessive generosity or undue parsimony.
17. It is certainly the case that an appellate court does not enjoy the opportunity of seeing and hearing witnesses in the same manner as a judge at first instance and, as was advised by McCarthy J in Hay v. O’Grady [1992] ILRM, the “arid pages of a transcript seldom reflect the atmosphere of a trial”. For this reason an appellate court should be slow to interfere with or second guess a trial judge’s determination as to what constitutes appropriate damages in any given case.
18. Principle and authority require that awards of damages should be:-
(i) fair to the plaintiff and the defendant;
(ii) objectively reasonable in light of the common good and social conditions in the State; and
(iii) proportionate within the scheme of awards for personal injuries generally.
(See MacMenamin J. in Kearney v. McQuillan and North Eastern Health Board [2012] IESC 43 and Denham J. in M.N. v. S.M. [2005] IESC 17).
19. To achieve proportionality the judge ought to have regard to the entire spectrum of personal injury claims which includes everything from the most modest type of injury, such as soft tissue injuries, to those which can only be described as extreme or catastrophic and which tend to attract damages of in or about €450,000. It is helpful for a trial judge to endeavour to locate where, within that spectrum, the injuries of any particular plaintiff would appear to lie: see, e.g., Nolan .v. Wirenski, judgment of Irvine J. 25th February 2015. After all, damages are only fair and just if they are proportionate, not only to the injury sustained by an individual plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. There must be a rational relationship between awards in personal injury cases. That said each case must turn on its own facts.
20. Applying these principles to the present case, it is undoubtedly the case that the plaintiff’s injury must be viewed as a very serious and significant one when considered in the context of the overall spectrum of personal injuries claims. Any amputation, and particularly the amputation of a leg at a young age, will have permanent and irremediable consequences for the victim. It is an injury destined to adversely influence every area of his life.
21. The trial judge awarded the plaintiff €100,000 in respect of pain and suffering for the five year period between the date of the injury and the date of trial. Having considered the evidence as to the plaintiff’s injuries and what he suffered over that period, I am satisfied that, while the award was certainly not on the generous side, it was within the range that may be considered proportionate and fair. Where I disagree with the trial judge is in his assessment of the general damages for pain and suffering into the future.
22. One of the factors which to my mind should sound heavily in damages is the age at which a plaintiff sustains a devastating injury. This plaintiff was only nineteen and was entering what ought to have been the most dynamic and thrilling period of his life in terms of work, leisure and social activity. The evidence demonstrated that in respect of each of these areas, the plaintiff’s life would likely be permanently and irreparably changed by reason of his injuries. He was not in a position to continue with his chosen trade i.e. that of a plumber. He is unable to participate in most sporting activities. He suffers ongoing discomfort and disability and will do so for the rest of his life. He will have decades of embarrassment and upset because of the disfigurement of his body. Further, he runs the risk of future complications in terms of his mobility due to the natural ageing process. In addition, he is at risk of developing significant arthritis in a number of joints as a result of his amputation.
23. As to the type of activities which a young man of nineteen years of age might expect to enjoy, the plaintiff cannot cycle, play soccer or engage in any activity which requires mobility. He is grossly affected in his social and leisure activities, although he drives a modified car. He will not be in a position to enjoy many or the activities, holidays and leisure pursuits that able bodied people take for granted because he is unable to deal with uneven ground or rough terrain. I cannot but think of those fathers I see kicking a ball with their young children or teaching them to swim or perhaps strolling with toddlers on their shoulders. The plaintiff will likely be denied all of this and so much more.
24. Of even greater significance is the fact that he plaintiff will start every day of his life with the task of attaching a prosthetic limb and will end each day with the reverse process. Regardless of the plaintiff’s optimism as to the future, this will be an enormous burden to bear for the rest of his life.
25. When I think of the entries that might be made by this plaintiff in a diary to be kept by him over the next 50 years or so concerning his pain, distress, disadvantage, embarrassment and upset deriving from his injuries, I am quite satisfied that the sum awarded by the trial judge in respect of future pain and suffering was wholly inadequate by way of compensation and that it must be set aside. It does not fall within what I consider to be the acceptable parameters for future pain and suffering for this particularly significant injury. I would propose a sum of €175,000 be substituted to replace the sum awarded in respect of this category of loss.
Loss of earnings to date
26. Mr. McGovern S.C. on behalf of the defendant does not contest that the trial judge, in his judgment, incorrectly concluded that the evidence given by the plaintiff’s actuary, Mr. John Byrne, was to the effect the plaintiff’s total net loss of earnings from February 2005 to February 2011 amounted to €159,800 as opposed to the €115,000. However, he was not in a position to agree that the court should rectify this error by simply adding the difference between those two figures namely €44,800 to the award which the trial judge made under this heading i.e. €40,000.
27. Mr. McGovern submitted that the trial judge intended to reduce the net loss of earnings claim by reference to the plaintiff’s actual earnings up to the date of trial and any deductible social welfare benefits received between 5th February 2005 and 5th February 2010, subject to some adjustment to allow for the fact that the plaintiff had bought into a taxi business in 2008 at an approximate cost of €50,000. However, other than the plaintiff’s actual earnings, which amounted to €44,000 over the said period, it was not clear how the judge had arrived at the additional figure of €31,000 to make up the €75,000 which he deducted from what he mistakenly believed were the plaintiff’s potential net earnings of €115,000. He submitted that the trial judge was entitled to deduct five years social welfare payments and that he probably had not done so.
28. I am quite satisfied, and the parties agree, that the starting figure adopted by the trial judge in respect of his past loss of earnings calculation was incorrect. It ought to have been €159,800 as opposed to €115,000. It is also clear that he intended to deduct €75,000 in respect of the plaintiff’s actual earnings over the relevant period as well as deductible social welfare payments. It would further appear that he had intended adjusting the claim for past loss of earnings to take into account some part of the losses sustained by the plaintiff in investing in a taxi driving business which proved unsuccessful.
29. Of the sum deducted i.e. €75,000, €44,000 is accounted for in actual earnings. The balance of €31,000 was deducted, as the trial judge stated, on a somewhat “unscientific” basis to take into account deductible social welfare payments under the Social Welfare (Consolidation) Act 1993. The only evidence as to deductible social welfare payments related to the plaintiff’s receipt of disability benefit which he received for a period of one year. There was no evidence that he received any other deductible social welfare payments.
30. Based upon the evidence, it would appear that the defendant got a very favourable result when the trial judge decided to deduct €75,000 from this aspect of the plaintiff’s claim. A deduction of that size is hard to justify in circumstances where the trial judge seemed sympathetic to the fact that the plaintiff had spent substantial money trying to gain entry into the taxi business. If he had intended to compensate the plaintiff for any of the €50,000 which he maintained he had spent in that regard, that sum should have been added to the sum award. That expenditure could never have operated to the defendant’s benefit by way of deduction.
31. In these circumstances, there is no basis upon which this court should interfere with the trial judge’s calculation as to the amount to be deducted from the plaintiff’s anticipated earnings up to the date of trial. However, given that it was his clear intention to start his calculations based on expected earnings of €159,800 as opposed to €115,000 it would be unjust not to substitute the correct figure into the trial judge’s calculations. That done, taking the correct staring figure of €159,800 and deducting the sum of €75,000, the appropriate award in respect of past loss of earnings is €84,800.
Future loss of earnings
32. At the time of his accident the plaintiff had completed his leaving certificate and in 2004 had commenced working with his father in his plumbing business. He was still an apprentice as of the date of his accident.
33. The evidence established that while the plaintiff obtained a modest leaving certificate his I.Q was within the top 10% of the population and when measured against students of university level he was within average range. He had hoped eventually to take over his father’s business but this obviously was denied him insofar as a career in plumbing became impossible due to his mobility restrictions.
34. In assessing the plaintiff’s claim for future loss of earnings, the High Court judge had evidence from Ms Ann Doherty, employment consultant, that a self employed plumber would expect to earn a minimum of €200 gross per day or a net weekly sum of €620. Assuming that the plaintiff could retrain within three years from the date of the trial and would then be capable of earning €27,000 gross per annum or €440 net per week, his net loss from that point on would be €180 net per week. Allowing the plaintiff full losses (€620 net) for the three years of retraining and the €180 net differential thereafter placed a capital value €307,380 on the plaintiff’s future loss of earnings.
35. The court was also given figures to demonstrate what the plaintiff’s loss would have been if he had worked as a plumber in paid employment working a 39 hour week and receiving what was then the minimum rate of pay for a qualified construction craftsman, namely €18.60 per hour gross.
36. The trial judge found as a fact that were it not for his injuries, the plaintiff would have continued to work as a plumber. That finding was based upon credible evidence. However, it is difficult to see how the trial judge decided, having regard to the evidence, to calculate the plaintiff’s future loss on the basis that he would have continued, for life in paid employment working 39 hours a week on minimum wage. Adopting that scenario, allowing the plaintiff full losses at the rate of €562 net per week for the first three years and thereafter a differential of €122 net per week, the trial judge concluded that the plaintiff’s future loss of earnings, before any consideration of the contingencies provided for in Reddy v. Bates was €229,602.
37. Counsel on behalf of Mr. Murphy submits that the trial judge was perverse in adopting the latter of the two models advised by Mr Byrne as the basis for calculating the plaintiff’s future loss of earnings. He submits that all of the evidence favoured the judge concluding that the plaintiff, were it not for his accident, would have been a self employed plumber and would have continued to work as such for the rest of his working life.
38. I have carefully re-read the transcript of the plaintiff’s evidence and that of his employment consultant, Ms. Ann Doherty. Having done so, I cannot conclude that the trial judge was perverse in his failure to adopt in its entirety the self- employed model urged upon by the court by Mr. Kiely. It is clear that the plaintiff would have had a preference for self employment, that he was highly industrious and extremely smart. Nevertheless, there was some evidence to suggest that, depending upon the state of the economy in this country, he might have had to go abroad to obtain work and in this regard Ms. Doherty gave evidence concerning the availability of work in Australia, London and Canada.
39. However, I am equally satisfied that it was perverse for the High Court judge to calculate the loss of earnings into the future on the basis which he did. There was no dispute but that the plaintiff would have qualified as a plumber. The conclusion of the trial judge that the plaintiff would have been confined to the minimum wage in the construction industry and would only have worked a 39 hour week was not supported by the evidence. The evidence was that the plaintiff was in the top ten per cent of the population in terms of his I.Q.. He had demonstrated, by reference to the work he had undertaken since the date of his accident, that he was a seriously industrious and capable young man. For the judge to have cast him into the lowest category of construction worker and consigned him to that role for life was in the teeth of the evidence. Why would the plaintiff not have moved up beyond minimum wage with experience and future training? Would he never have worked beyond 39 hours a week?
40. As to how to rectify the trial judge’s error, it cannot be done in the manner proposed by Mr Kiely as the judge rejected the evidence that favoured self-employment. The trial judge was entitled, in my view, to adopt a paid employment model for the purposes of calculating the plaintiff’s losses. Further, having adopted that approach, it is difficult to criticise the trial judge for adopting the minimum wage in the construction industry for the purpose of calculating the plaintiff’s first three years loss of earnings as at that time the plaintiff would have been quite in-experienced. Thus the figure of €84,300 in respect of that period should stand. Insofar as his calculation of the plaintiff’s losses commencing three years post accident, I would propose uplifting the differential of €122 per week which was selected by the trial judge and would replace it with €165 net to allow for the fact that the plaintiff would as his career advanced move somewhat beyond the minimum wage in the construction industry. Using this differential and applying it to the multiplier used by the trial judge i.e. €1191 gives a value of €196,515 to the plaintiff’s claim for future loss of earnings commencing three years post trial. Thus, I would propose an award of €280,815 (€84,300 + € 195,515) to replace the sum of €229,602 awarded by the trial judge.
41. The trial judge applied a discount of close to 25% to allow for the factors in Reddy v. Bates and that would appear to be appropriate. Accordingly, applying a 25% reduction to the figure of €280,815 the plaintiff’s total future loss of earnings would come to €210,611. Accordingly, I would propose that this sum is substituted for the sum of €170,000 which was allowed by the High Court judge.
42. Having regard to the aforementioned findings the total award before any consideration of contributory negligence should be as follows:-
• General damages to date: €100,000
• General damages into the future : €175,000
• Loss of earnings to date: € 84,800
• Loss of earnings into the future: €210,611
• Future costs associated with the prosthesis: €170,000
• Other agreed special damages: € 12,498
€752,909
Liability/contributory negligence
43. Mr. Kiely, submits that the trial judge, in apportioning 66.66% of liability to the plaintiff erred in his application of the relevant principles having regard to the evidence. In particular he submitted that fault, in the context of contributory negligence, has to be equated to blameworthiness and not to the potency of the causative factors moving from the respective parties. He relied in particular on the decision of Walsh J. in O’Sullivan v. Dwyer [1971] IR 275 where at p. 286 he stated as follows:-
“Degrees of fault between the parties are not to be apportioned on the basis of relative causative potency of their respective causative contributions to the damages …. Fault or blame is to be managed against the standard of conduct required of the ordinary reasonable man in the class or category to which the party whose part is to be measured belongs.”
44. Relying upon this statement, Mr. Kiely submits that the trial judge’s finding that the defendants were blameworthy to a lesser degree than the plaintiff was perverse.
45. In order to assess the validity of that submission it is necessary to rehearse the findings of fact made by the trial judge insofar as the same bind this court in line with the principles advised in Hay v. O’Grady. These are well known and I do not intend to repeat them in the course of this judgment.
46. The following findings were made by the trial judge:-
(i) The plaintiff probably had seen and considered the programme for the Galway International Rally for February 2005. The location of the plaintiff’s accident was not mentioned in the safety plan nor designated an area of special risk.
(ii) The programme contained a ‘spectator safety’ warning sheet which included drawings of acute bends, a fork in the road, junctions and other features which might pose a hazard to spectators. These diagrams included, at the bottom right hand corner an image of a “crest jump”.
(iii) The plaintiff had attended a number of motor rallies with his father as a child. The event in question was the third he had attended as an adult. He was somewhat familiar with the procedures at a motor rally and would have had a general appreciation of the risks and dangers associated with such an event.
(iv) The plaintiff and his friends spent approximately 20 minutes at location 1. There was a marshal at this location.
(v) As the plaintiff and his friends made their way to location 2, where the accident took place, they would have been temporarily out of the view of the marshal for part of the journey, because of the contour of the land, but otherwise would have been visible to him as they made their way to the crest.
(vi) When they reached their ultimate destination the plaintiff sat down on a rock in a drain approximately 50 metres beyond the crest. The plaintiff was 2.5 metres from the edge of the road.
(vii) There was no tape, markers, barriers or any other warning signs at location 2 to advise spectators that they should not be there or needed to take any particular care for their safety.
(viii) The plaintiff and his friends were not alerted in any way to the fact that they should not have been viewing the event from location 2.
(ix) The area should have been cordoned off or marked as it was an obvious place of danger, as per Mr. O’Keeffe’s evidence.
(x) The plaintiff, when seated, would not have been visible to the marshal at location 1.
(xi) The plaintiff’s reaction time was impaired by the fact that he was sitting down.
47. In terms of the negligence on the part of the organisers of this rally, the trial judge in apportioning liability found them negligent in:-
(i) failing to identify location 2 as a hazard,
(ii) in failing to identify location 2 as a prohibited area,
(iii) in failing to give any warnings to persons attending the event to stay away from location 2, and
(iv) in failing to properly supervise this dangerous area.
48. When it came to his consideration of the plaintiff’s own culpability, three factors were emphasised by the trial judge. First, he concluded that common sense would suggest to anyone attending an event such as this that they should not position themselves close to the road just beyond a “blind crest”. The crest constituted a danger that should have been obvious to the plaintiff in circumstances where he had earlier seen cars going over that crest with all four wheels in the air. Thus, regardless of the conclusions he had reached in respect of the defendants’ negligence, when dealing with the issue of contributory negligence he concluded that the plaintiff should not have needed a warning from a marshal or any other official to warn him of the potential danger of locating himself where he did. Second, he had the benefit of the programme for the event which contained the safety statement. Third, by sitting down, the trial judge concluded that the plaintiff had allowed himself less time to react in an emergency than he would have had had he remained standing.
49. For my part, I agree wholeheartedly with the trial judge in his conclusion that those who attend motor rallies must take reasonable care for their own safety. Spectators ought to know that competitors will be driving at speeds on narrow country roads negotiating junctions, bends and crests of hills where the skill of the driver will be severely tested. They must, I believe, be vigilant and must comply with all such guidance and instructions as they may receive or encounter concerning their own safety. I also agree with the trial judge that those who are responsible for organising events of this nature know that spectators are likely to gather in places where drivers will be tested to their full capability and that they need to have an effective safety plan in place to ensure that spectators will be safe lest drivers lose control of their vehicles under such conditions.
50. It is not disputed that contributory negligence should be assessed in the manner advised by Walsh J. in O’Sullivan v. Dwyer and that an appellate court should only interfere with an apportionment of fault where it is satisfied that the trial judge has made a gross error in making that apportionment.
Conclusions
51. In reviewing the conclusions of the High Court judge it is necessary to firstly consider the class or category to which the plaintiff and the first, second and third named defendants belong. Simply stated, the plaintiff was a young amateur and a relatively new motocross enthusiast. He was not, however, a complete novice. The defendants, on the other hand, were experienced professionals involved in motocross on a national and international basis. They are well versed in the management of events such as that which was taking place on the date of the plaintiff’s injuries. They are the parties with the expertise to know where spectators are likely to be at risk. This, after all, is why the third named defendant was involved with the rally. While the promoters and organisers of sporting events ought not to be considered to be the insurers of the welfare of spectators, they must seek to protect them from dangers of which they are aware, or ought to be aware.
52. In this regard, the trial judge was satisfied that the area in question (location 2) was one which was dangerous, needed to be identified and spectators kept at a distance. To default from these obligations in circumstances where it was foreseeable that a car might leave the roadway with the result that a spectator might be badly injured or even killed, is to act in an manner which is blameworthy indeed. This, of course, was not their intention and it was very clear from the evidence that the defendants each took their obligations in terms of health and safety very seriously. They would appear to have planned this event carefully.
53. When compared to the knowledge, experience and expertise of the defendants, the plaintiff’s knowledge and experience of the risks to which he was exposed pale significantly. Yes, he had attended a couple of car rallies as a child with his father and as an adult had previously attended two other motor rallies. Thus, while it has to be accepted that he had some experience of what happens at a motor rally and how he might potentially put himself at risk, he can hardly be described as somebody who did not need to be warned about areas which the court concluded were hazardous and which ought to have been identified and supervised.
54. It is reasonable nonetheless to conclude that in circumstances where the plaintiff had noted the tyres of cars leaving the roadway at the crest of the hill, he should probably have anticipated the possibility of danger regardless of any warning and should have positioned himself further back from the road to take sure that he would not be within striking distance of a car, should it lose control. However, his blameworthiness for failing to do so cannot be equated to the failure of the defendants to identify this hazardous area for the purposes of ensuring that spectators did not gather at that point. In addition, there was no evidence to suggest that the plaintiff was somebody who would have failed to heed any warning that he might have been given either by a marshal or by way of signage indicating that he should not stand at any particular location.
55. Insofar as the plaintiff was to be assessed as being blameworthy by reference to the fact that he had purchased a programme which contained a safety sheet outlining the risks of standing near the crest of a hill, I would observe the following concerning the programme. First, it runs to approximately one hundred pages. Second, inclusion of a safety sheet is not obvious. It is to be found approximately twenty pages into the programme amidst pages of advertising and motor related articles. Third, while the safety sheet does indeed advise those attending the event that motor sport is dangerous this, however, is what it says at para 2:-
“However, we take our task responsibly, and have put in place a team of training marshals and their assistants to guide you in relation to places where it is considered unsafe for you to be.”
As we know, the plaintiff was not guided or warned not to stand at ‘location 2’, an area which the trial judge concluded was hazardous. Fourth, while there is a diagram which depicts a flat image of a crest or jump it gives no guidance to the reader as to how far away from the roadway or the crest they would have to stay to avoid any potential risk.
56. It is true to say that on a thorough reading of the programme, the plaintiff would have seen the safety statement. If he did, having regard to what is referred to in the last preceding paragraph; it would not have been blindingly obvious to him that he shouldn’t have been standing where he was when he was struck. He might have considered that it was safe to be there because he hadn’t been advised to the contrary by the trained marshals and assistants who, according to the safety sheet were to be deployed to advise spectators where it was considered unsafe to go. Of course it is possible that he might, if he had studied the diagram, have taken the view that location 2 was an unsafe place to be. However, there was no evidence to the effect that it was obvious from the diagram that for the plaintiff to have positioned himself more than 50 metres from the crest of the hill was likely to put him at risk.
57. Regardless of what is contained in this safety statement, I am quite satisfied that by far the greater degree of responsibility in terms of the plaintiff’s safety rested with the experts i.e. the first second and third named defendants, and the inclusion of this one sheet in the brochure which contains information that was lacking in clarity and was contradictory in respect to the safety of the location which the plaintiff adopted cannot afford the defendant much comfort in terms of it’s blameworthiness for what occurred on the day of the plaintiff’s accident.
58. The final matter which weighed against the plaintiff in terms of the trial judge’s assessment of contributory negligence was his finding that the plaintiff, by sitting on the rock in question, had put himself at particular risk insofar as he had given himself less time to react to an emergency than if he had been standing up.
59. In relation to his finding I accept the submissions made on the plaintiff’s behalf that this was a finding which the trial judge was not entitled to take into account when it came to the apportionment of liability. The uncontested evidence from Mr. O’Keeffe was that regardless of whether the plaintiff had been standing up or sitting down he would not have been in a position to get out of the way of the oncoming car travelling at the speed and the manner in which it did. Average reaction time was one second and a car travelling at 60 miles per hour would travel the relevant distance in 2 seconds and at 75 miles per hour in 1.6 seconds. The plaintiff would not “have had a hope” of getting out of the position in the timeframe concerned.
60. For the aforementioned reasons I believe that the apportionment of liability by the trial judge was indeed perverse. Of course I use that word in the legal sense only. For the reasons I have earlier outlined, I would apportion liability as to 75% against the first, second and third named defendants and 25% as against the plaintiff.
61. Accordingly, I would set aside the order of the High Court and in its place I would make an award of €564,682 (€752,909- €188,227).
ine” and did not appear drunk to her. She maintained that if she had thought he was drunk she would not have gone in the car with him. She maintained she had not seen Eugene Courtney drink any alcohol during the evening. Despite the fact that Mary Twomey was her friend, she also maintained that she had never met Mr. Courtney prior to that particular occasion.
There were two backseat passengers in the Ford Fiesta motor car which Eugene Courtney drove that night. In cross-examination, the plaintiff accepted that the route taken by the driver was not one which would lead by the shortest route to her friend’s home. Apparently Eugene Courtney and one other occupant in the car wanted to visit a chipper. Asked if there was not one closer to their destination, the plaintiff replied that “the boys just preferred that chipper”. When asked in cross-examination if that knowledge was indicative of the fact that she knew Eugene Courtney better than she was admitting in evidence, the plaintiff again maintained she had not met him before the night in question and was not aware for how long he had been in the public house on the night in question, other than in respect of the period she spent in his company.
It is perhaps of some importance to record also that when the gardai arrived at the accident scene at 12.20 a.m., the accident having occurred some ten minutes after the party left the licensed premises, the vehicle in which the accident had occurred had been abandoned by its occupants. Eugene Courtney had gone to the home of Mary Twomey and the plaintiff had walked to the Mercy Hospital to seek medical treatment. Detective Garda Liam Ruttle gave evidence of arriving at the scene of the accident and finding the abandoned vehicle. He found out that the car was registered to the first named defendant and her address. He went to that address and knocked on the door until he got an answer. The person who came to the door was Eugene Courtney. Garda Ruttle noted he had a bruise on his forehead and had a dishevelled appearance. He noted the following:-
“His eyes were blurred. His speech was slurred. He was holding the door with one hand and the jam of the door with the other and he was being supported by the door and the jam. I was outside the door at this time. It was quite obvious to me that he was in a drunk state and had been in a drunk state. … He was very drunk. He was certainly incapable of having proper control of a mechanically propelled vehicle. … Any adult person would know that he was drunk to look at him. I actually remember linking him to the garda car, not in an arrested fashion, but to support him in walking, and the same at the Mercy Hospital, I brought him in supporting him all the way. He was very drunk and he needed support into the Mercy Hospital. I explained to the staff there the circumstances and they saw to his injuries – they were superficial cuts – and then we proceeded to Mayfield Garda Station where he was processed.”
In cross-examination Garda Ruttle stated that he had been a member of the Garda Siochana for eleven years and had dealt with “a fair few drivers and drunken drivers and people that are intoxicated at night on the streets”. He had noted a strong smell of alcohol from Eugene Courtney. He stated that, based on his experience, the smell of alcohol tended to get stronger the more alcohol a person had consumed. There was no suggestion in evidence that Mr. Courtney had consumed further alcohol in the aftermath of the accident.
THE HIGH COURT JUDGMENT
The learned trial judge commenced his analysis by referring to the terms of s.34 (1) of the Civil Liability Act, 1961 which provides as follows:-
“Where, in any action brought by one person in respect of a wrong committed 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 or of one for whose acts he is responsible (in this Part called contributory negligence) 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”.
In interpreting this sub-section, the learned trial judge decided that the legislature had thereby provided a mechanism whereby a plaintiff can be adjudged guilty of contributory negligence even if the conduct on his part falls short of a “wrong” in the sense of negligence which contributes to the accident, but yet amounts to a “want of care” for one’s own safety.
He cited in support the following passage at para. 20.14 of “Law of Torts” (McMahon & Binchy)(3rd Ed) at pp.559-60:-
“Contributory negligence essentially involves a lack of reasonable care for one’s own safety or the safety of one’s property in contrast to negligence which involves a breach of duty towards others. An act may of course constitute both contributory negligence and negligence at the same time – a foolhardy lack of caution for one’s own safety, such as climbing a mountain without proper equipment, may induce a rescue attempt, resulting in injury to the rescuer.”
Peart J. adopted the concept of “want of care” as being “ideally suited” to the facts of the present case, where any reasonable adult person would know that it was unwise to the point of carelessness, or even recklessness as to one’s own safety, to get into a car about to be driven by a person who either had, or might reasonably be suspected to have taken more alcoholic drink than was legally permitted or was safe, while at the same time that person was not guilty of negligence in the sense of being in breach of a duty of care to another person causing them an injury.
The learned trial judge emphasised that he was not stating that in all cases in which a person accepts an offer of a lift in another’s car, he or she must initially establish the sobriety of the driver before accepting an offer. He was however clearly of the view that part of the duty to take reasonable care for one’s own safety so as to avoid the “want of care” referred to in s.34(1) of the Act involves making inquiry and desisting from travel where there are reasonable grounds for suspecting that the driver may have consumed alcohol such as might impair his driving, and that situation should be assessed by an objective test of reasonableness. The learned trial judge did not state, nor should he or this Court be taken as stating, that the taking of a single alcoholic drink by the intending driver to the knowledge of an intending passenger should be construed as contributory negligence given that the law expressly so permits. It may however, depending on the circumstances, prompt an inquiry to ensure that any consumption has been within the limits of what the law permits.
Having decided that these were the appropriate legal principles to apply to the issue of contributory negligence, the learned trial judge made the following findings of fact:-
“Given this evidence, I am of the view the plaintiff ought reasonably to have at the least suspected that he (i.e. Eugene Courtney) may have had drink taken during the evening and have been upon enquiry as to that situation before entering the car he was going to drive, particularly on the basis of an objective test of reasonableness.
But given the evidence of Garda Ruttle and the other evidence as to the time he was in the pub, I do not accept that the plaintiff is being truthful when she says she had no idea he had been drinking. On the balance of probability, it must have been obvious to any adult such as the plaintiff, if she had been concerned about the possibility, and certainly sufficiently obvious for her to make enquiry of him, which she says she did not, if she was in any doubt about it. In my view her evidence has lacked candour in this regard.
I am satisfied that in the present case there is sufficient evidence on a balance of probability that the plaintiff was lacking in care within the concept of “a want of care” for the purpose of contributory negligence. I am also of the view that in the present case it is a significant want of care given the reasonableness in present times of attaching to a normal and indeed intelligent person, such as the plaintiff, full knowledge of the dangers to herself, as well as others, of a drunken driver, and that to make merely a nominal finding of contributory negligence would to in part condone, or at least forgive/understand that lack of care in a way which would fail to underline the seriousness and obviousness of the dangers of drink driving. If the court sees fit to substantially reduce damages for not wearing a seatbelt, it should do so all the more in respect of a person who voluntarily, or carelessly, or even recklessly places herself in danger at the hands of someone such as the second named defendant in this case.
In the circumstances, there will be a reduction of damages in the amount of forty percent in respect of contributory negligence.”
SUBMISSIONS
It was submitted by Mr. Henry Hickey, senior counsel for the plaintiff, that the evidence upon which the trial judge had reached his conclusions was not the “best evidence” which was available as to the plaintiff’s state of mind and such evidence was necessary before such a finding could have been made. He argued that the best evidence on the issue of contributory negligence in this case was the evidence which might have been given by the first and second named defendants. However, neither of these parties had been called by the defendants. Furthermore, none of the medical staff at the Mercy Hospital, where the second named defendant attended following his meeting with Garda Ruttle, had been called. Presumably such witnesses could have given evidence with a view to determining the sobriety or otherwise of Mr. Courtney. The medical records of the hospital had not been produced. Furthermore, there was evidence of a head injury sustained by Mr. Courtney which might have explained wholly or in part his appearance and speech in the aftermath of the accident. He cited in support the decision in Malone v. Rowan [1984] 3 All E.R. 402. Mr. Hickey further submitted that the apportionment of 40% contributory negligence was, in all the circumstances, excessive and unreasonable.
In response, Mr. Michael Gleeson, senior counsel on behalf of the defendants, submitted that there was no “best evidence” rule or any other rule which precluded the defendants from making out their case on contributory negligence by means of whatever evidence they cared to adduce, including cross-examination of the plaintiff herself. He submitted that the trial judge was perfectly entitled to prefer the evidence of Garda Ruttle as to the state of intoxication of the second named defendant, particularly as he formed the view that the plaintiff was a witness who was lacking in candour. A strong case for intoxication had been made out on the evidence of Garda Ruttle and no evidence in rebuttal had been led by or on behalf of the plaintiff. There was a clear contrast between the evidence of the plaintiff that she had no knowledge of the second named defendant having consumed any alcohol as compared with the evidence of Garda Ruttle, an experienced garda officer, that there was both a strong smell of alcohol from the second named defendant, that his eyes were blurred and his speech slurred.
The plaintiff herself had accepted that the driving of the second named defendant was the sole cause of the accident and there was no suggestion of any third party involvement.
With regard to the extent of contributory negligence, Mr. Gleeson drew a distinction between contributory negligence cases involving the failure to wear a seatbelt and cases such as the present. While a seatbelt may ameliorate the damage once an accident has occurred, the decision not to travel with an intoxicated driver may lead to the avoidance of injury altogether. That would suggest, he argued, that a greater degree of contributory negligence should attach to a person who voluntarily elects to travel as a passenger in a car driven by a motorist whom that person knows, or has reasonable grounds to believe, has consumed alcohol.
While not arguing that a greater measure of contributory negligence should have attached in this case to the plaintiff, he submitted that the apportionment of 40% was in no way unreasonable. He further submitted that this Court should only interfere with an apportionment of blame where, in the opinion of the Court, gross error on the part of the trial judge had been demonstrated. He cited in support the decision of this court in Snell v. Haughton [1971] 1 IR 305, a case in which the plaintiff had been found to be guilty of contributory negligence to a degree of 75% having been knocked down while walking on the left hand side of an unlit road. In that case Walsh J. had stated (at p.309):-
“It has been established by a series of decisions of this Court that this Court will not disturb the jury’s findings on the apportionment of fault unless the apportionment is shown to be grossly disproportionate on the evidence.”
Mr. Gleeson submitted that, on the evidence before the trial judge, his findings could in no way be characterised as disproportionate and submitted that they should not be disturbed or interfered with.
DISCUSSION
I think it fair to say that the society’s understanding of the role of alcohol in driving cases has undergone radical change in the space of the last forty years. The contrast between societal attitudes to drink driving in the 1960’s and in the present decade is nowhere better illustrated than in the Irish case of Judge v. Reape [1968] I.R. 226. The facts of that case would nowadays cause national outrage. On the day of the accident, the driver picked up his passenger in Ballina at about midday with the intention of driving to Dublin. However, at midnight on the same day a collision occurred on the Dublin side of Kinnegad. In the intervening period, the driver and passenger had made seven stops on the journey and at six of these seven places the plaintiff and the defendant consumed intoxicating liquor so that by the time of the accident the defendant’s total consumption of intoxicating liquor was a gallon and three pints of beer and a small whiskey, and the plaintiff’s consumption was just short of that. Even allowing for the time factor and the fact that some food had been consumed during this period, the quantities consumed were quite mind-boggling. Remarkably, the jury acquitted the plaintiff of contributory negligence. That particular outcome may partly be explained by the oratorical skills before a jury of the late Patrick Lindsay who was senior counsel for the plaintiff or it may also perhaps be reflective of a wider societal view at that time as to what might be tolerated where drink and driving were concerned. It should perhaps be mentioned that this Court directed a retrial on the issue of contributory negligence in that case.
There has been undoubtedly an enormous sea change in society’s attitude to drink driving since then, influenced no doubt by the extent of carnage on our roads and the effectiveness of multiple campaigns which inform the public of the hazards of driving whilst under the influence of even small quantities of alcohol. It is thus now commonplace, if not yet a universal practice, for groups of people on a night out to appoint one of the group as a designated driver who will drink no alcohol or alternatively to make arrangements whereby no member of the party will be driving under any circumstances. Thus, I think it can fairly be said that any measure of tolerance towards intoxicated drivers and their passengers, if indeed it formerly existed to any appreciable degree, is very much a thing of the past.
Seen in this light, most of the decisions opened to the Court in the course of the appeal must be seen as carrying a ‘health warning’ to the extent that they reflect attitudes from a different time as to the role and responsibilities of an intended passenger in a motor car about to be driven by a driver who has consumed alcohol. In Malone v. Rowan [1984] 3 All E.R. 402 the defendant driver had with him five passengers, including the deceased. Evidence given at trial included that of the defendant driver and the four passengers who survived. The party had retired to a public house shortly after midday and the defendant admitted to consuming four pints of lager before setting off on a return journey from Rhyl to Liverpool. Some ten minutes before the accident the party visited another public house where the defendant consumed three further half-pints of lager. The accident occurred at about 8.15 p.m. and resulted in fatal injuries to one of the passengers giving rise to a fatal claim by the widow of the deceased. In evidence all the passengers confirmed that they knew the defendant had been drinking during the course of the day and evening but none thought he was in any way unfit to drive and had noticed nothing unusual in his driving until the accident happened. In refusing to make a reduction for contributory negligence Russell J. concluded:-
“In this case I have no direct evidence of the deceased’s knowledge of what the defendant had consumed. They were not … the only two on the scene. Nor have I any evidence of the state of mind of the deceased and whether he ever appreciated, or was reckless, as to any risk that was being run. The burden of proof lies on the defendant. In my judgement, on the facts of this case, he does not discharge, or come any where near discharging, that burden, and I decline to make any reduction in the damages on the ground of contributory negligence.”
That finding was made notwithstanding there was medical evidence before the court indicating that at the time of the accident the concentration of alcohol in the blood of the driver would have been at least 148 mg. per 100 ml., something which plainly indicated that the driver was substantially in excess of the permitted maximum. The fact that the passenger had died seems to have altogether prevented Russell J. from considering whether, on the evidence that was before him, the deceased must have known, or should reasonably have known, that, to use the words of the learned judge, that a “risk was being run”. Russell J. appears to have approached the case on the basis that there was no need to do so as none of the witnesses gave evidence as to the deceased’s state of mind. Given that such evidence would in any event have been speculative and therefore inadmissible, I believe the reasoning in this judgment is clearly defective. The case of Owens v. Brimmell [1977] 1 QB 859, another important decision on this topic, was referred to by Russell J. in the course of his judgment. In that case the plaintiff and defendant were friends and the plaintiff had often travelled as a passenger in the defendant’s car. On the night on the occasion of the accident they visited a number of public houses and a club. During the course of the evening each party consumed eight or nine pints of beer. In the early hours of the morning the defendant who was driving the plaintiff home from the club lost control of the car with the result that the car collided with a lamp post. Watkins J. held that although the defendant had to take the greater responsibility, the plaintiff had been guilty of contributory negligence and the amount of damages would be reduced by 20%. In the course of his judgment, Watkins J. declined to apply the doctrine of volenti non fit injuria, although noting it had been much discussed in a number of Canadian cases, and contented himself, as did Peart J., by applying the principles of contributory negligence as elaborated by Lord Denning MR in Frume v. Butcher (insert ref) where he said at p.291:-
“Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself …”
Watkins J. concluded:-
“I think this is a clear case on the facts of contributory negligence, either upon the basis that the minds of the plaintiff and the defendant, behaving recklessly, were equally befuddled by drink so as to rid them of clear thought and perception, or, as seems less likely, the plaintiff remained able to, and should have if he actually did not, foresee the risk of being hurt by riding with the defendant as passenger. In such a case as this the degree of blameworthiness is not, in my opinion, equal. The driver, who alone controls the car and has it in him, therefore, to do, whilst in drink, great damage, must bear by far the greater responsibility. I, therefore, adjudge the plaintiff’s fault to be of the degree of twenty percent.”
In another case opened to the court by Mr. Hickey, albeit in relation to the measure of an apportionment, the Supreme Court of Canada in Hall v. Herbert [1993] 2 R.C.S. 159 made clear its preference for deciding issues of this nature by reference to modern principles of contributory negligence rather than the doctrine of volenti non fit inuria. At p. 207 of the judgment Cory J. stated:-
“No matter how the maxim or principle is characterised, volenti non fit injuria, like the common law defence of contributory negligence, constituted an absolute bar to recovery. While apportionment legislation such as the various negligence acts has reduced or removed entirely the draconian effects of the contributory negligence defence, volenti remains as a complete defence. Yet it has in recent years been severely restricted in its application.
In order for the doctrine of volenti to apply, there must be either an express or implied assumption of the risk of the activity which caused the damage. That is to say, both parties to the activity must have agreed that they would participate in it regardless of the risk of injury and give up their right to sue should injury occur as a result of the agreed upon activity. It must be observed that the consent goes to the legal as opposed to the physical risk of harm.”
I can see the attraction of an argument that a passenger who elects to travel with a driver whom he knows to be unfit through alcohol from driving safely should in consequence be seen as thereby surrendering his autonomy and accepting whatever risks ensue thereafter. This fits well with the doctrine of volenti non fit inuria because in a sense it can be said that a passenger who elects to travel with a drunken driver is in much the same position as a person who elects to walk blindfold across an eight lane highway. However, the approach of the courts in common law jurisdictions, at least in the latter part of the last century, was to regard such an outcome whereby a claimant failed in toto as being unduly harsh, not least for the reasons mentioned by Watkins J. in Owens v. Brimmell. Section 34(1)(b) of the Civil Liability Act 1961 expressly abolishes the defence of volenti (save to the limited extent provided by the subsection) and provides that such issues be resolved by reference to standards of contributory negligence only. I am satisfied that the mechanism provided by s.34(1) of the Civil Liability Act, 1961 is sufficiently flexible to allow Irish courts calibrate an apportionment for contributory negligence in a manner which does justice in cases of this nature
CONCLUSION On issue of contributory negligence
Both sides to this appeal accepted that the following principles apply in cases such as this:-
1. The court may, where a passenger voluntarily elects to travel in a motor vehicle in circumstances where he knows, or should reasonably be aware, that the driver has consumed alcohol, be penalised in contributory negligence
2. In determining the issue of contributory negligence, the court must approach the issue on an objective basis, though the test cannot itself be absolutely objective in that the personal characteristics of any given plaintiff and the circumstances in which that plaintiff elects to travel as a passenger must be taken into account. A passenger in a given case may be under a disability by reason of age or infirmity, or may be relieved of any responsibility to make enquiry in the particular circumstances, such as in the case of a passenger travelling in a taxi.
3. An intending passenger who has consumed alcohol can not rely on self- intoxication for the purpose of avoiding a finding of contributory negligence and in particular can not rely on self- intoxication in an effort to avoid the consequences of facts which would otherwise have been reasonably discernible to him.
While the onus rests on the defendant to establish the case in contributory negligence, I am quite satisfied that there is no “best evidence” rule which destroys the case in contributory negligence if certain immediate witnesses to the events are not called. There may be many reasons why such witnesses are not called, and where, indeed, it might be highly imprudent on the part of a defendant to attempt to rely on such witnesses. In the instant case the first named defendant was a friend of the plaintiff. The second named defendant was the boyfriend of the first named defendant. These facts suggest, as a matter of practical common sense, that if either side proposed calling these witnesses then it fell to the plaintiff, rather than the Motor Insurers Bureau, to do so. Phipson on Evidence (13th Ed.) (pp.69/73) makes clear that the maxim that “the best evidence must be given of which the nature of the case permits”, is a maxim which no longer enjoys favour. Phipson also notes that the divisional court as far back as Kajala v. Noble The Times (March 13, 1982) described it as having “gone by the board long ago”. At para. 5-04 Phipson states:-
“In the present day, then, it is not true that the best evidence must, or even may, always be given, though its non-production may be a matter for comment or affect the weight of that which is produced. All admissible evidence is in general equally accepted.”
I am thus satisfied it is open to a defendant to make out a case to the required standard either through cross-examination of a plaintiff, circumstantial evidence or indeed any other form of admissible evidence.
Nor in my view is there any basis for arguing that the learned trial judge drew incorrect inferences from the primary facts. His findings are amply supported and grounded in the evidence which was actually given at the trial. In particular, he was entitled to prefer the evidence of Garda Ruttle to that of the plaintiff, bearing in mind that he found the plaintiff to be a witness who in many respects, some referred to in the later part of this judgment, was lacking in candour. Garda Ruttle is an experienced garda officer with particular experience in dealing with cases of this nature. Having regard to the plaintiff’s evidence that she had no reason whatsoever to think the defendant driver had consumed alcohol, this was certainly not a case in which the judge could adopt some middle ground and he was thus clearly entitled to resolve the issue in the manner in which he did.
Finally, in relation to the extent of the apportionment, the same must be seen as one made against the backdrop of changed societal perceptions as to how issues of this sort are to be regarded. In this respect the apportionment of contributory negligence in respect of travelling with an intoxicated motorist is quite different from the type of contributory negligence which arises from the failure to wear a seatbelt. In the latter instance the causative effect of the omission may be evident from the fact that a particular passenger may have suffered severe facial injuries from windscreen glass as a result of failing to secure his seatbelt. In the context of a passenger travelling with an intoxicated driver the fault lies in the decision to travel with such a driver in the first instance. The more the passenger should have realised, or did realise, the risk being undertaken, the greater the degree of contributory negligence. There is thus scope for a much higher finding of contributory negligence in this context than in the case of a failure to wear a seatbelt.
It is inescapable in my opinion to think other than that the plaintiff was well aware of the defendant driver’s inebriated condition, having spent an hour in his immediate company and having also had plenty of opportunities of seeing the defendant driver during the time spent in these licensed premises. On her own evidence she made no effort to ascertain whether he was fit to drive. I am satisfied, as was the trial judge, that she must have been aware his driving was likely to be impaired and the circumstances were clearly such as to put her on inquiry.
In all of the circumstances I believe the apportionment of 40% for contributory negligence should not be disturbed.
DAMAGES
The second part of the plaintiff’s appeal relates to the award made by the learned trial judge in respect of general damages. In that regard the trial judge awarded €35,000 for past pain and suffering with a further €15,000 for future pain and suffering. He allowed her €22,500 for 18 months loss of employment opportunity and special damages of €10,809, making a total of €83,309 which, following the reduction of 40% for contributory negligence, resulted in an award of just under €50,000.
A brief review of the facts shows that as a result of the impact on the night of the accident, a rear seat passenger in the car was thrown against the rear of the front seat in which the plaintiff was seated and that the driver was thrown over to her side of the car. While her seat and the door of the car were jammed, she eventually managed to get out the driver’s side of the car. She had been wearing a seatbelt. She walked from the scene of the accident to the Mercy Hospital but because of a delay in being seen there, her parents brought her to the University Hospital where she complained of neck pain, back pain and chest wall pain. On examination she was found to be alert and wakeful with some tenderness over the upper back between the shoulder blades and in the neck posteriorly. She also had bruising over her right shin. X-rays were taken of her cervical and thoracic spine and right shin, but no bony injury was revealed. Significantly, no x-rays were deemed necessary for her low back. The diagnosis at the time was of soft tissue injury for which analgesics and anti-inflammatory medication was prescribed.
On any view of the medical evidence, which is set out in considerable detail in the judgment of the learned trial judge, the plaintiff suffered no more than relatively minor injuries in this accident. However, a CT scan later undertaken of the plaintiff’s lumber spine in January, 2001 revealed a large right postero/lateral disc protrusion at L5/S1. This was significant for a person of the plaintiff’s age and although the plaintiff was given a care programme for her back and had an epidural injection, neither form of treatment had any positive effect. In July, 2001 an MRI scan showed marked signal change at L4/5 and L5/S1 discs with moderate right disc prolapse. Accordingly, in February, 2002 the plaintiff underwent a discectomy as a result of which the plaintiff obtained considerable relief. Mr. Michael O’Sullivan, Consultant Neuro-Surgeon, who examined the plaintiff in March, 2002, noted that while the plaintiff was more comfortable, she could no longer engage in her hobby of pool and snooker, could not bend down, was unable to sit for long periods or lift and had to take constant analgesia.
The plaintiff became pregnant in July, 2003 and gave birth to a daughter in March, 2004.
The complicating factor which the trial judge had to resolve was whether these injuries were attributable to the accident the subject matter of the present proceedings or to a second accident involving the plaintiff which occurred on 24th June, 2000. On that occasion the plaintiff was the driver of a motor car which went off the road into a field hitting a concrete post on the way. The plaintiff on that occasion had three passengers in her motor car all of whom were injured and who have instituted proceedings. A significant amount of damage, amounting to €6,000, was done to her motor car.
The learned trial judge found, and in my view had ample evidence for so finding, that the plaintiff’s low back pain only became a significant problem in November, 2000 and thus attributed the bulk of the plaintiff’s injuries and career diminution to the second accident.
While the plaintiff herself attributed all her symptoms to the first accident, the trial judge attached considerable significance to the fact that the plaintiff never told her medical advisors about this second accident when she was seeking assistance for her low back pain. While the learned trial judge erroneously believed from a reply to notice for particulars that the plaintiff had altogether withheld information about the second accident from her legal advisors, that error, relied upon by Mr. Hickey to suggest that the learned trial judge’s findings on this whole issue were unreasonable, arose through a mistake on the part of the plaintiff’s legal advisors in failing to supply a correct version of the reply to particulars in the book of pleadings which was before the trial judge. Mr. Hickey argued that this unfortunate mishap coloured the trial judge’s entire approach to the question of damages, but I am satisfied, both from his judgment and indeed the entirety of the medical evidence, that the learned trial judge had ample grounds for doubt and unease as to the plaintiff’s truthfulness and candour in relation to her injuries. For example, the plaintiff never told her general practitioner about the second accident. She never told Dr. Diarmuid O’Connell, to whom she was referred for acupuncture, of the second accident. She never told Dr. Ryder, Radiologist, about the second accident. She did not tell Dr. Michael Molloy, Consultant Rheumatologist, about the second accident. While the plaintiff did make a brief reference to the second accident when consulting Mr. Michael O’Sullivan, she said it did not cause any injury. Dr. Frank Matthews, on behalf of the defendants, indicated he had never been told about the second accident, although the plaintiff appeared to be a different person after the second accident, he having examined her both before and afterwards. Equally, Mr. Ciaran Barry, Consultant Orthopaedic Surgeon, sought a history from the plaintiff and she never made any reference to her second accident.
Thus while in evidence she indicated that the second accident had no bearing on any of the injuries sustained in the first accident, the evidence predominantly is to the effect that the back became a significant feature after that second accident. She told Mr. O’Sullivan in 2001 that she had three sets of symptoms, namely pain in the neck radiating into both shoulders, pain in the right chest wall, and lastly, low back pain, which he noted had started “approximately six months after the accident”. The learned trial judge noted a considerable effort was made to dilute or alter this last observation, although it is undeniable that this is what the plaintiff told him when he first saw her.
Considerable reliance was correctly placed by the defendants on the decisions of this Court in Patrick Vesey v. Bus Eireann [2001] 4 IR 192 and Shelley-Morris v. Bus Atha Cliath [2003] 1 IR 257, both cases which underline in the clearest terms the onus which rests upon a plaintiff to give evidence in a truthful and straightforward manner.
In reaching the conclusion which he did reach, namely, that the plaintiff’s low back injuries arose from the second accident, the learned trial judge was entitled to have regard to the fact that the plaintiff had not disclosed the fact of this second accident to the defendants doctors or to most of her own medical attendants, together with her sworn evidence that it had no effect on any of her injuries. The learned trial judge was uniquely qualified to determine the plaintiff’s credibility having had the opportunity of observing the plaintiff in the course of giving evidence and I am accordingly satisfied that the learned trial judge’s findings are entirely sustainable on the evidence. Put shortly, there was ample evidence upon which the learned trial judge could make the finding which he did and his fully reasoned judgment sets out clearly the basis upon which he did so. His findings thus fall four square within the principles enunciated by this court in Hay v. O’Grady [1992] 2 I.R. 210 and I would not therefore interfere in any way with the findings of the learned trial judge in respect of quantum of damages. Indeed, on the findings which he did make, the award which included a substantial sum for loss of earnings, may be considered as generous.
I would therefore dismiss the appeal herein.
Lewis -v- Bus Eireann – Irish Bus
[2006] IEHC 429
Composition of Court: Peart J.
Judgment by: Peart J.
Status of Judgment: Approved
Judgment of Mr Justice Michael Peart delivered on the 6th day of December 2006:
The plaintiff’s background:
The plaintiff is now aged thirty six and has a history of heroine addiction which goes back many years. It would appear that he has been living with his present partner, Lisa Rochford for about ten years – give or take – and they have two young children. He has also two other children from a previous relationship, according to a history contained in a medical report from Dr. Whately.
The plaintiff says that during the nine years or so since the eldest of his children was born, he has been for the most part clean of drugs, although in his own evidence he admitted to what he referred to as a ‘slip’. I suspect that there has been more than the one slip. He appears to be on a methodone programme, part of the requirement of which is that he gives urine samples twice a week. These, he says, have been clean.
The defendant’s medical report from Dr Whately contains a history – presumably on the basis of what he was told by the plaintiff and his partner when he was examined by Dr. Whately for the defendant company. That report states that in 1999 the plaintiff was diagnosed with Hepatitis C associated with liver failure, and that he ceased his employment from that time and draws Disability Benefit. However that report also states that, the plaintiff had last used heroine on the day before this incident, but that the reason that he was travelling on the defendant’s bus on the 15th May 2003 was in order to attend a Dr. Oliver Lynn who was starting him on a methodone programme that very day.
I do not know whether that is true or not, considering that there is evidence that while on the bus on this day he was drinking beer – he says that he had one can of beer on the bus, but I am satisfied that there were other cans found on the bus after the plaintiff alighted at Drogheda Bus depot. It is not clear however how many were empty and how many were still full. He seems to have told Dr Whately that before getting onto the bus he had also consumed one pint of beer. Perhaps there is nothing inconsistent between travelling to commence a methodone programme with Dr Lynn, and consuming alcohol on the way. I do not know whether that would be contradictory. At the end of the day it does not matter to this case.
Dr Whately has also stated in his report that he has looked at the plaintiff’s hospital notes, and amongst these is one noted as being for “08/05/05” to the effect that the plaintiff while in the hospital went missing and security had to be called. When he returned stating that he had been in the car-park he was found to have dilated pupils, and Dr Whately states that this would indicate the use of drugs. He reports also that these records note that “he was to be discharged on Saturday 17th but because of his heroine problem he was detained in hospital until the 19th because he would not have been able to get methodone over the week-end”. The injury sustained on the bus was on the 15th May 2003 and not May 2005, so I am not clear whether the date is incorrect in Dr Whately’s report or whether the plaintiff was in hospital on that occasion in May 2005 for some other reason. The latter may well be true because of the reference to his going missing on “08/05/05” since if it is a mistake as to the year, it would be a week before the incident which this case is all about.
One could speculate and conclude that the aggressive behaviour of the plaintiff while on the bus was the action of a man who had by then consumed much more than a pint of beer and a can of beer, but that behaviour may for all I know be the result of his use of heroine on the previous day, if that is true. I have no medical evidence as such in this regard, and neither have I any evidence except some from John Hetherington the bus driver, which assists in establishing in any clear way whether the plaintiff was what is confusingly yet generally termed ‘drunk’. Accuracy in this regard is not crucial to the Court’s decision, since I am satisfied from the evidence, which I shall come to, that the plaintiff’s behaviour on the bus was aggressive and unacceptable towards the bus driver, John Hetherington. I have no doubt that Mr Hetherington was justified in making arrangements with Drogheda bus depot to have the Gardai present when the bus arrived in Drogheda.
The plaintiff is quite clearly now a very ill man as a result of his liver disease and Hepatitis C. This has nothing to do with the injury to his knee. He is visibly pale, frail, weak and unbalanced on his feet. Dr Whately’s has stated in his report that when the plaintiff attended his surgery for examination for the purpose of his medical report for the defendant the plaintiff was “very pale and very sleepy and nodded off a few times during the consultation”. He also states that the plaintiff has poor recall of events and that much of the history was given by his partner who attended with him. That description of the plaintiff is entirely consistent with how the plaintiff was in Court before me, though he did not as far as I know “nod off” during the case. But he was visibly weak, unclear in his recollection of some events, unclear in his speech, and was generally speaking a witness who had difficulty answering questions clearly, even those asked by his own Counsel.
Some of his evidence was unclear and confused. Some of his evidence was shown to be incorrect, such as in relation to his previous conviction record. Some of his recollection of events is self-serving in as much as, at times, he downplays his own part in what happened on this occasion, and in my view exaggerates the involvement of others. He is a witness who comes to Court with many disadvantages as a witness. His recollection is poor, he is ill in the way I have described, his speech is weak and slurred making it difficult to understand all that he says. But the Court must make allowances for these features in assessing his credibility, since credibility is important in this case, given the conflict of evidence in important matters.
The facts:
On the bus:
This story starts on a bus going from Dundalk to Drogheda in the middle of the day on the 15th May 2003. The plaintiff, his partner and young daughter are on the bus, which appears to have been quite full. The plaintiff says that he was on his way to commence a methodone programme that day with Dr Oliver Lynne.
The plaintiff has stated that as the bus was on its way to Drogheda the driver would stop from time to time to let off passengers near to where they wished to get to rather than at actual bus-stops. The plaintiff states that such passengers would go to the driver and ask if they could get out at that point.
John Hetherington, the driver denies that he stopped other than at official stops. One way or another the plaintiff seems to have got it into his head that this was what was happening, and decided to ask the driver to do the same for him. He went up the bus to the driver and an altercation took place. That altercation seems to have been triggered by the fact that the plaintiff was carrying at that time a can of beer. The driver says that he saw the plaintiff coming up towards him on the bus, and that he was shouting that he wanted to get off the bus. He goes on to state that he told the plaintiff that there was a stop 400-500 yards further on and that he would let him out there, and that he also asked the plaintiff to give him the can of beer. The plaintiff refused, and started to be verbally abusive to the driver, including that he would smash the driver’s glasses with the can. The plaintiff denies saying this on the basis that since he was at that time expert in the art of karate and some other martial arts he would not need a can of beer in order to break the driver’s glasses – hardly a meritorious defence to the allegation made against him.
Mr Hetherington described how the plaintiff then emptied the remaining contents of the beer can around the back of the driver’s seat and on the floor of the bus. The plaintiff’s partner says that only drips of beer were spilt around the bus. The plaintiff’s own evidence about this was not clear.
I am satisfied that the driver’s evidence is to be relied upon in this regard. I am satisfied that at this point the plaintiff’s behaviour was completely unacceptable on the bus. I have not been told whether the driver stopped the bus while this altercation was taking place or whether it happened while the bus was moving. But one way or another, a danger was created for the travelling public by the plaintiff’s behaviour, and I can fully understand why the driver would have felt it appropriate to arrange to have the Gardai present when the bus arrived, so that they could interview the plaintiff about his behaviour on the bus.
He told the plaintiff that he was calling the Gardai to meet the bus at Drogheda. The plaintiff says that he told Mr Hetherington to go ahead and call the Gardai of he wished. The plaintiff, according to Mr Hetherington, resumed his seat on the bus. The plaintiff’s partner also said that the plaintiff sat down after this altercation.
Arrival at the depot:
The plaintiff states that when the bus arrived at the depot he started to get off the bus, and that as he did so the driver grabbed hold of his jacket, that when off the bus he was jumped on from behind by the driver, that he carried this man on his back into the depot, that as he was doing this a second man also jumped on his back and that thereafter because of the weight he fell heavily to the ground thereby injuring his right knee. His right knee cap was badly fractured. In cross-examination the plaintiff denied that he had been ordered off the bus by the bus inspector, Mr Begley who came to the door of the bus when it arrived at the depot. He also denied that as soon as he got off the bus he ran off in order to avoid meeting the Gardai who he saw were about to arrive at the depot. It was put to him by Mr Gleeson for the defendant that he simply fell as he was running away from the bus, but the plaintiff denied that and reiterated that he fell because there were tow men on his back.
The plaintiff’s partner, Ms. Rochford says that she saw the plaintiff’s jacket being pulled by the driver at the depot, and that the driver was trying to keep the plaintiff on the bus until the Gardai arrived. She says that the plaintiff went off the bus and that as he was going into the depot Mr Hetherington jumped on his back, and that another man also was at the plaintiff’s back. She says that she did not know if the second man was just trying to get the driver off the plaintiff. She described the second man as being tall with blond hair, but that she could not see this man in the courtroom. She was asked if it might have been the inspector Mr Begley, but she said it was not. She did not actually witness the first man jumping up on the plaintiff’s back, presumably as she was getting the child’s buggy out from the hold of the bus immediately after she alighted from the bus.
Mr Hetherington’s evidence has been that when he arrived at the depot, the station inspector, Mr Begley was there since he had rung ahead about the incident on the bus. He says that he opened the door of the bus, that people got off, and that the plaintiff got off and headed over to the entrance of the depot. He denies touching the plaintiff at all when they were on the bus. He says that the plaintiff began to run into the depot, and that he ran after him, and that the plaintiff fell on the floor of the depot cutting his knee very badly. When asked whether the plaintiff had carried him on his back into the depot, Mr Hetherington said that did not happen, and that he had simply pursued the plaintiff into the depot and that he fell on the floor. He recalled that Mr Begley, the inspector was behind him and that he lifted the plaintiff onto a chair and phoned an ambulance. The Gardai also arrived into the depot. He thinks that the plaintiff’s partner arrived into the depot a few minutes after the plaintiff had fallen.
When cross-examined by Mr Moylan, Mr Hetherington stated that he had pursued the plaintiff because he thought that he would run away, and he wanted to stop him running away before the gardai arrived. He accepted that he had been somewhat annoyed about the beer can incident on the bus, but stated also that the reason for his concerns in that regard were because he did not want the plaintiff to cause injury either to himself or to others on the bus. He said that the plaintiff “seemed to be under the influence of alcohol”. He was pressed as to whether he was saying that the plaintiff was “drunk” but he did not go that far. Mr Moylan suggested to him that somebody who had consumed alcohol, and certainly somebody addicted to heroine as the plaintiff was at the time, could not have run as fast as somebody sober. Mr Hetherington also stated that the plaintiff’s speech was slurred and that there was a smell of drink from the plaintiff.
Mr Moylan asked him also about what had happened after the plaintiff had got off the bus. He stated that when the door of the bus was opened on arrival, Mr Begley was there and told the plaintiff to get ff the bus. He says that Mr Begley did not do anything to the plaintiff at that time, that the plaintiff went past Mr Begley towards the depot, and that he (Hetherington) went after the plaintiff. He was pressed as to the manner in which he went after the plaintiff. He denies that he jumped onto his back, and says that he just started to run as he got to the doors of the depot and would not have been too far behind the plaintiff at that point. He would not accept that he was actually running after the plaintiff – simply that he was starting to run or trot after him. I am not entirely clear what is meant by that, but I presume that it is intended to convey that at no time was Mr Hetherington running at full tilt so to speak.
He denied jumping on the plaintiff’s back, and reiterates that the plaintiff simply fell on the floor, and that Mr Begley, who was behind him, went to the assistance of the plaintiff and lifted him into a chair to await the ambulance. Mr Moylan suggested that the reason why Mr Hetherington had not given any assistance to the plaintiff was that he felt guilty for having caused the injury, but he denied that this was so.
Mr Hetherington stated that when the Gardai arrived he showed them the beer spilt on the floor of the bus, as well as the other cans on the bus.
Mr Paddy Begley, the station inspector, also gave evidence. He said that he had received a call from Mr Hetherington, and that he had called the Gardai on account of the incident on the bus. He awaited the arrival of the bus to the depot and the arrival of the gardai. He saw passengers get off the bus, and Mr Hetherington identified the plaintiff as being the man who was involved in the incident. He says that he told the plaintiff to get off the bus and that the gardai were arriving. In fact the gardai were only about one hundred yards away at that time. He recalled seeing the plaintiff running away from the bus in the direction of the depot, with Mr Hetherington in pursuit. There are apparently two sets of double swinging doors into the depot and he saw the two men heading through the first set of doors. He then went into the depot himself and saw the plaintiff on the ground. He did not see any contact occur between the plaintiff and Mr Hetherington, and did not see the plaintiff fall.
Garda Hanlon gave evidence of attending at the depot on this occasion in answer to a call. He did not see the plaintiff fall either. The first time he saw the plaintiff was while he was seated in a chair in the depot. He also inspected the bus and saw three or four cans of beer on the bus, and saw that the floor of the bus was wet.
Liability:
The Court has to determine what happened on this occasion on the basis of probabilities. There is a conflict of evidence as to whether the reason why the plaintiff fell to the ground was because one or even two men jumped on his back while in hot pursuit of him, or whether he simply fell as he ran away from Mr Hetherington in the depot so as to avoid contact with the gardai. The plaintiff is an unreliable historian, as is sometimes referred to. Because of his drug addiction and his other serious health problems his recall of events is not good, and I am certain that he has been inclined to recall exactly what happened in a way which minimises his own culpability in these events, and maximises the involvement of others.
The plaintiff was a sick man even in May 2003. He was a weak man through his abuse of drugs and it is beyond doubt that he was under the influence of alcohol on this date to add to his difficulties. There can never have been any prospect of his escaping from the gardai for any length of time. I am sure they would have been well able to locate him quickly after he got off the bus, especially because they were so near the depot when the bus arrived. Nevertheless, Mr Hetherington decided to pursue him rather then run the risk that he might get away before the gardai arrived. He need not have done that. He is a bus driver, and while I fully accept that he acted in the public interest and so that the gardai would be able to interview him arising out of the behaviour on the bus, it must be remembered that the incident on the bus was relatively minor. Nobody was hurt. I am not for one moment condoning the plaintiff’s behaviour on the bus. I am sure that it was a most unpleasant and threatening experience for Mr Hetherington who was driving the bus and was responsible for the safety of all his passengers. But there was no obligation upon him to pursue the plaintiff into the depot, especially since the gardai were almost at the depot themselves. I doubt if it is part of his terms of employment that he should act in that way, or that he has any training in that regard.
One issue to be determined on the basis of a probability is whether the plaintiff was jumped on in the manner he states, either by one man or two. He says that he was, whereas Mr Hetherington says that he was not. Nobody else witnessed the events once the two men got inside the first set of double doors. Mr Begley says that he saw the plaintiff running towards the depot with the driver running behind him, but he never stated that he saw the driver jump onto the plaintiff’s back. The plaintiff on the other hand says that as soon as he got off the bus, the driver jumped onto his back and that he carried the man into the depot in this way. I regard that as improbable. First of all Mr Hetherington says that this did not happen at all, and Mr Begley has stated definitely that he saw Mr Hetherington running towards the plaintiff into the depot. He did not see the plaintiff carrying Mr Hetherington on his back. Secondly, the plaintiff was not in good health at this time. He was about to commence recovery from an addiction to heroine, had Hepatitis C and liver damage, but had also been drinking before and while on the bus. It is improbable in my view that he would have made it as far as beyond the second set of swinging doors in the depot with one man on his back, let alone two. That just seems unlikely to me.
However, an important feature of this case is that the plaintiff sustained a very serious and heavy impact to his right knee when he hit the ground. He either stumbled and fell, or he was driven to the ground with some force. That could have happened by Mr Hetherington catching up with the plaintiff and bringing him to the ground, but without him being actually on the plaintiff’s back at the time. Mr Hetherington on the other hand says that the plaintiff simply fell himself as he ran away. That is also possible. The report of Mr Reidy, Orthopaedic Surgeon states there was “significant crushing damage to the articular surface of the patella”. This is certainly capable of being consistent with what the plaintiff says happened, but might be accounted for by some weakening of the plaintiff’s bones generally, caused by his drug habit and associated conditions.
I have not had the benefit of any live evidence from an orthopaedic surgeon who might have been able to express a view on what degree of force would be required to sustain the type of injury suffered by this plaintiff to his right knee-cap. That evidence might have suggested that a simple trip and fall while running would be unlikely to cause a fall of such severity that a knee cap would fracture, particularly a light man such as the plaintiff. Such a doctor may have been able to say that as a matter of probability the injury is consistent with a man being upon the plaintiff’s back when he fell to the ground, the extra weight causing the force necessary for such an injury to occur. Such a doctor may have been able to say as a matter of probability that even without the added weight of a man on his back, this plaintiff’s medical condition and his history of drug abuse rendered his bones more prone to fracture, making it possible for the fracture to happen when he fell. As I say, either party might have called such evidence to assist in establishing what they each say happened, but have not. The Court is left unaided in that regard.
The Court cannot resolve the conflict of evidence as to whether Mr Hetherington was on the plaintiff’s back or not. But whether he was or not, he was undoubtedly in hot pursuit of the plaintiff when he need not have been. I do not overlook also the fact that the plaintiff was essentially fleeing not from Mr Hetherington but from the gardai who he had every reason to believe would be upon him very quickly. So, to that extent he may have tripped and fallen in any event, even if Mr Hetherington was not in pursuit. But he was and need not have been in such pursuit, and in my view ought not to have been. I am prepared to find that this needless pursuit contributed significantly to the fall of the plaintiff, even though it is likely in my view that the plaintiff is inaccurate in his recollection of the events or may even be exaggerating what occurred. I prefer to rely on faulty recollection, combined with some imaginative reconstruction of the events in his mind over the intervening years. I have not formed the view that he is deliberately telling lies to the Court. I am bearing in mind his poor state of health also.
I therefore find that the defendant, its servant or agent was negligent on this occasion, even if from a public spirit point of view he can be commended for unnecessarily pursuing the plaintiff so that he would be available to the arriving gardai. He exposed even himself to some risks in these events.
However, It is necessary also to find that the plaintiff has placed himself in the position he found himself in when he alighted from the bus. I have no doubt that his behaviour on the bus was far worse than the rather benign account which he has given himself. I am also satisfied that when he got off the bus he made a run for it, not waiting for his partner and child before running away into the depot in order to escape the attention of the gardai. While it was unnecessary in my view, it was understandable that Mr Hetherington would give chase. But the defendant must be found to have significantly contributed to his own injury whether or not there was somebody on his back, as he claims. I find him liable to the extent of 50%. This would not have happened at all if he had not been acting aggressively and inappropriately on the bus.
The injury:
The plaintiff suffered a comminuted stellate fracture of his right patella. He was placed in plaster and admitted to hospital. On the following day he was taken to theatre where the fracture was reduced and fixed with tow K wires and a tension band wire. Mr Declan Reidy, Consultant Orthopaedic Surgeon reports that this fracture was “highly comminuted i.e.multi-fragmentary and that there was significant crushing damage to the articular surface of the patella.” Following removal of the cast, physiotherapy was recommended, but the report states that he attended only once for physiotherapy. The plaintiff stated in evidence that he had been told by doctors not to attend for physiotherapy on account of his liver problems. I do not accept that evidence in the absence of corroboration from any doctor who may have said it.
The plaintiff has a 13cm scar on his knee. The fracture has completely healed. He has full extension and full flexion of the knee. There is no swelling remaining and the knee is for all practical purposes the same as his left knee. There is no evidence of arthritis, but according to Mr Reidy’s report there is a “high possibility” (which I equate to a probability) that he will develop degenerative changes in the patellofemural part of his knee joint in the future. I have not been told at what stage in the future this will occur, except that in his latest report in August 2006 Mr Reidy has stated that recent x-rays have shown some irregularity in the articular surface of the knee cap, which he says is indicative of post-traumatic arthritis. Dr Whately for the defendant does not disagree with this arthritis probability.
Other symptoms which the plaintiff complains of are linked to his other medical conditions and not to the injury to his knee.
He has been recommended physiotherapy to improve this prospect but has not attended for this.
Damages:
I assess the sum of €35,000 for past pain and suffering. For future pain and suffering related to arthritic changes into the future which are probable, I assess a sum of €25,000. In that regard I take some account of the fact that the plaintiff is not acting on the advice that he should attend for physiotherapy which might ease the ongoing arthritis situation.
Allowing for the 50% deduction in respect of contributory negligence, I give judgment in the sum of €30,000, in addition to any special damages which may have been agreed between the parties.
Keegan v Sligo County Council
[2019] IECA 245
Page 1 ⇓THE COURT OF APPEALCIVILNeutral Citation Number: [2019] IECA 245Record No. 2018/9Peart J.McGovern J.Baker J.BETWEENTHOMAS KEEGANPLAINTIFF/RESPONDENT- AND–SLIGO COUNTY COUNCILDEFENDANT/APPELLANTJUDGMENT of Mr. Justice McGovern delivered on the 10th day of October 20191. This is an appeal from a decision of Barr J. delivered on the 30th November, 2017 in apersonal injury action where liability and quantum were both in issue.2. The claim arose from a slip and fall accident that occurred on the 18th November, 2013while the respondent was returning to his home at Cranmore, Sligo. He was a tenant ofthe house which was let by the appellant, the housing authority for the relevant area. Therespondent had resided at the premises for approximately nine years prior to theaccident.3. The accident occurred at around 5 p.m. as the respondent was about to enter his halldoor. He had been at a funeral during the afternoon and between 1 p.m. – 5 p.m. admitsto having consumed approximately four or five pints of Guinness having visited threedifferent pubs in that period. As he went to open the hall door, he claims that his left footslipped on the tiles which were wet as a result of the weather conditions on that day. Theporch faced in a south-westerly direction and was therefore open to the prevailing wind inthe area. The respondent gave evidence that the tiled surface of the porch wouldfrequently get wet.4. In the High Court the trial judge heard evidence from consulting engineers that the tilesprovided good slip resistance when dry but presented a moderate risk when wet. Itappears from the evidence in the High Court that the tiles were of a standard type thatwas provided in such locations at the time when they were laid.5. The plaintiff suffered a pilon fracture to his left ankle which required surgical fixation. Hewas unemployed at the time of the accident and the special damages were agreed in asum of €650.6. Having heard the evidence, the trial judge determined the liability issue in favour of therespondent and awarded general damages of €50,000 to date and €55,000 into the futureand the agreed special damages making in all a total of €105,650. He declined to makeany finding of contributory negligence.Page 2 ⇓7. Although the appeal in this case was in respect of liability and quantum, the issue ofquantum was not pursued with any great vigour. The thrust of the oral submissions madeat the hearing of the appeal by both parties concerned the issue of liability.Liability and related issues8. The appellant sets out its principal grounds of appeal in the following terms:-(i) Whether the respondent’s house is unfit for human habitation so as to triggerliability under Siney v. Dublin Corporation [1980] I.R. 400 and Burke v. DublinCorporation [1991] 1 IR 341?(ii) Whether the trial judge took the correct approach in deciding to impose liabilityunder the Occupiers Liability Act 1996?(iii) Whether the trial judge erred in law in his approach to the evidence of themechanism of the accident as described by the respondent and erred in fact in hisfinding as to that evidence?(iv) Whether the trial judge erred in law in declining to make a finding as to priorcomplaints?(v) Whether the trial judge erred in law in his treatment of the effect of alcohol on theability of the respondent to take reasonable care for his own safety?(vi) Whether the trial judge erred in law and in fact in not finding the respondent guiltyof contributory negligence?Unfit for human habitation9. The trial judge held that the use of the particular ceramic tiles in the porch of therespondent’s house rendered that house “unfit for human habitation”. In respect of thisfinding the appellant has concerns on a number of grounds. In the first place, it claimsthat this point was not pleaded as part of the respondent’s claim. Secondly, it says thatsuch a finding has significant and serious implications for the appellant in a way whichtranscends this particular case. The respondent argues that when the case came on forhearing the point was raised in submissions and was not objected to by the appellant.10. It seems to me that this is an issue which gives rise to a number of legal questions ofsome complexity, including the legal relationship between the respondent and appellantFor example, is the respondent to be considered a “visitor” in the usual sense or is thiscase one where there is more than one “occupier” of the premises as understood underthe Occupiers Liability Act 1995 having regard to the fact that the respondent had residedin the house for approximately nine years prior to the accident? What is the meaning of“unfit for human habitation” within the meaning of the Housing Act 1966?11. In my view, it is not at all satisfactory that a finding of the trial judge on an issue of suchimportance should be made where it has not been pleaded by the respondent and arosein circumstances which required the appellant to deal with it on an ad hoc basis in thecourse of the trial. I do not think it matters whether or not the appellant engaged with thePage 3 ⇓issue at the trial. While the particulars of negligence in the personal injuries summonsincluded a plea of “failing to comply with the provisions of the Occupiers Liability Act 1995and the Housing Acts 1966” the respondent did not furnish further particulars of samealthough asked to do so in a notice for particulars dated the 26th August, 2016. Both theSiney and Burke cases involve claims regarding the interior condition of dwellings. Thisappeal however concerns an external surface on the porch where one enters the dwelling.Under the Housing Act 1966 a housing authority has a duty to inspect houses in theirfunctional area and ascertain the extent to which they are in any respect unfit orunsuitable for human habitation. The second schedule of the Act sets out matters towhich a housing authority ought to have regard in considering whether a house is unfit forhuman habitation and the list of matters is stated to include “safety of stair cases andcommon passages including the state of paving in any yard or open space pertinent to thehouse”. That schedule has, below its heading, a reference to “Section 66”. That sectiondeals with the power of a housing authority to serve a notice on the owner of the houseor any other person having an interest in the house whether as mortgagee, tenant orotherwise a notice under the act requiring certain works to be done where the authoritiesis of the opinion that the house is unfit for human habitation. While it may well be thatthis also applies to the housing authority itself this is not something that was canvassedin either Siney or Burke or in this case when the matter was before the High Court.Though it is not for this court to express any view on these issues, I have concluded thatit was unsatisfactory for the trial judge to make a finding that the house was unfit forhuman habitation having regard to the fact that the matter was not specifically pleadedand therefore had to be dealt with in an ad hoc way at the trial and in circumstanceswhere the legal issue could be properly argued and considered.The Occupiers Liability Act 199612. Section 3(2) of the Act of 1996 states:-“In this section “the common duty of care” means a duty to take such care as isreasonable in all the circumstances (having regard to the care which a visitor mayreasonably be expected to take for his or her own safety and, if the visitor is on thepremises in the company of another person, the extent of the supervision andcontrol the latter person may reasonably be expected to extend over the visitor’sactivities) to ensure that a visitor to the premises does not suffer injury or damageby reason of any danger existing thereon.”13. In Allen v. Trabolgan Holiday Centre Limited [2010] IEHC 129, Charleton J. stated:-“As to that duty, it is clear that merely establishing that an accident occurred onpremises is not enough. The plaintiff must show that a danger existed by reason ofthe static condition of the premises; that in consequence of it he/she suffered injuryor danger; that the occupier did not take such care as is reasonable in thecircumstances to avoid the occurrence.”Page 4 ⇓14. In this case, the trial judge held that the mosaic ceramic tiles in the porch of the premisesheld by the respondent as a local authority tenant were “inappropriate” and “unsuitable”.The appellant argues that the test was whether or not they constitute a “danger”.15. I think it is fair to say that the judgment of the trial judge makes it clear that he regardedthe tiles as being a danger on account of the fact that, when they were wet, theypresented a moderate risk of slipping. It seems to me the question which has to beconsidered is whether or not on the facts of this case the respondent took reasonable carefor his own safety. This may also include a consideration of the question as to whether hewas a “visitor” or “occupier”. The evidence established that the respondent was awarethat in wet conditions the porch tiles could become somewhat slippy and to prevent thatdanger he placed a rubber backed mat on the tiles. He gave evidence that on the morningof the accident the mat was extremely wet so he lifted it out and hung it over his sidegate before proceeding into town to attend a funeral. On his return, he said the mat wasgone and on entering the porch he slipped and met with his accident. He described howhe proceeded down the garden path and came to the tiled porch area in front of the halldoor and that the tiles were wet as it had been raining all day. It is clear therefore thatthe respondent, in those circumstances, must have anticipated that the tiles would besomewhat slippy as (a) he could see they were wet, and (b) the mat which he normallyused to prevent anyone slipping on the tiles was not available to put down on the tiles.16. The trial judge does not appear to have considered that evidence and whether or not, inthose circumstances, the respondent had exercised reasonable care for his own safety.Nor does he appear to have given any consideration as to whether he was a “visitor” inthe normal sense or whether, having regard to his occupancy of the house forapproximately nine years, he should in some way be considered differently, and indeedwhether he could be considered an “occupier”. Some of these matters are relevant to theissue of contributory negligence. It seems to me that the trial judge did not sufficientlyengage with these issues before concluding that there was no contributory negligence.17. Another issue which falls to be considered under the question of whether the respondenttook reasonable care for his own safety concerns the amount of alcohol he consumedbetween approximately 1 p.m. and 5 p.m. on the day of the accident. This will beconsidered in more detail later.Mechanism of the accident18. The issue which attracted the greatest deal of attention during the appeal was themanner in which the judge addressed the way in which the accident occurred and inparticular what the appellant described as conflicting and improbable accounts of whathappened. The transcript shows that the respondent gave a number of accounts of hisaccident not all of which were consistent. At one point he stated that, as the door opened,he fell forward and inserted the key into the lock before he started to slip. At anotherpoint he stated that he was slipping before the key went into the lock. Then he said “As Iapproached, I stood in with my right foot, then my left foot, key in. As I got the key in Iput the handle down at the same time, it happened together at the same time”. On thatversion of events he had the key in the door and his hand on the handle yet he managedPage 5 ⇓to slip and fall forward into the hall. But then the following question and answer emergedfrom the transcript:-“Q. And it is applying pressure to the handle to open the door. It is only then that youstarted to slip. Isn’t that right?A: No, I had already slipped.”Then a few moments later he said that he slipped as he entered the porch and he put thekey in and opened the door and that is when he went forward. He agreed that this meantthat he managed to get the key into the lock while he was slipping. He agreed that thisaccount sounded “a bit strange”. At an earlier point in his evidence he accepted that anaccount he had given did not make sense and at another point he admitted that he couldnot explain how he had fallen while getting the key into the keyhole and his hand on thehandle.19. In the course of his judgment the trial judge described the accident in the followingterms;-“When he arrived at his house, he noted that the mat had been removed from hisside gate. He did not know who had removed it, or to where it had been taken. Heproceeded down the garden path and came to the tiled porch area in front of hishall door. He stated that it had been raining that day and the tiles were wet. Heplaced the key into the lock of the front door with his left hand and depressed thehandle with his right hand. While moving forward his left foot slipped on the tilesand he fell forward, through the partially opened hall door landing in his hall…”(para. 10 judgment).20. While the trial judge noted that the respondent was questioned at length in relation to theexact mechanisms of the slip and fall and that it would not have been possible for him tohave been moving at the time when he inserted the key into the keyhole with the lefthand while depressing the handle with his right hand, he remarked that the respondentsaid that it had happened in that way.21. Later at para. 62, the trial judge referred to the submission of the appellant that therespondent’s account as to how the accident occurred was totally implausible and that itwas not possible to put the key into the lock, turn the key and depress the handle and slipand fall through the door.22. When it came to the trial judge’s conclusions on causation at para. 71 he stated:-“…I do not think that it is possible to break down the mechanics of a slip and fallinto neat sequences which lawyers, or others, may think convenient, at aconsiderable remove from the time of the accident. It would have been different ifthere had been medical evidence to the effect that such an injury could not havehappened from the circumstances of the accident as described by the plaintiff.However, there was no such evidence.”Page 6 ⇓23. There was no serious attempt by the trial judge to analyse the various and somewhatconflicting accounts of the accident given by the respondent. Furthermore, it was not forthe appellant to call medical evidence to show that such an injury could not havehappened in the manner as described by the respondent. The burden of proof at all timesremained on the respondent. In my view the trial judge was in error in failing to properlyapply the burden of proof and in neglecting to analyse in any meaningful way thediscrepancies in the evidence given by the respondent. This is especially in light of thefact that the respondent admitted in cross-examination that it was “extraordinary” and“strange” but “a fair summary” that he commenced slipping, managed to insert his keyinto the lock of the hall door, turn the key, open the door with his other hand, push thedoor open and then fall inside, see transcript, day 1, pp. 49-51.24. Furthermore, the engineer called on behalf of the respondent gave evidence that theaccount of the accident given by the respondent to him was that he had slipped and fallenon his porch and outside his door and not that he had slipped, opened the door and fellinside.25. Effectively, the outcome of the case turned on the account giving by the respondent as tohow the accident occurred. If the account had been deemed implausible or unreliable bythe trial judge than it is likely that the action would have been dismissed. In thosecircumstances the trial judge ought to have conducted an analysis of the evidence andstated why he accepted a particular version of the accident as given by the respondentand rejected the thesis postulated by the appellant that the account was entirelyimplausible.26. To reach such a conclusion is not to call into question the law as well established in Hay vO’Grady [1992] I.R. 210. While an appellate court cannot substitute its view of theevidence for that of the trial judge this does not absolve the trial judge from carrying outa proper analysis of the evidence where there are issues in controversy so that it ispossible to see why he preferred or accepted one account or one piece of evidence overthe other.Evidence of prior complaints27. There was conflicting evidence as to whether the respondent had made complaints aboutthe tiles prior to the accident. It is important to note that this was not pleaded in thepersonal injuries summons. The respondent gave evidence that he had complained to theappellant’s regeneration office on several occasions and asked that the tiles be taken upand the area replaced with concrete. He also stated that he regularly complained to staffon the street and he referred to a conversation with Mr. Noel Mehigan, the estatemanager, about replacing the tiles and enclosing the porch when works were done on thehouse. A reading of the transcript shows that any such discussion of that nature with Mr.Mehigan involving an alteration to the porch was not a complaint, as such, about thecondition of the tiles but rather a request for an enclosed porch. It was explained to therespondent that this could not be done because of the existence of a services meteroutside the hall door which had to be available for inspection. The appellant had recordsof extensive complaints made by the respondent in respect of various matters but none inPage 7 ⇓respect of the porch tiles. The trial judge decided that it was not necessary to resolve thisissue but referred to the evidence called by the appellant as “reasonably strong” andsuggested that the appellant did not submit records in evidence to establish that therewere no complaints.28. At para. 70 of his judgment, the trial judge incorrectly characterised the evidenceconcerning the records as given by Ms. Marissa Moran. She was not challenged in herevidence as to what was in the records and what (if anything) was missing.29. The appellant submits that the evidence which was described by the trial judge as“reasonably strong” raised credibility issues for the respondent and that the trial judge didnot give any reason for declining to take that into account. It seems to me that theappellant is entitled to feel that a credibility issue which might have had an impact on thedetermination of liability was ignored by the trial judge in circumstances where he hadaccepted the evidence of the appellant on this issue was “reasonably strong”. In doing sohe fell into error. While the issue of prior complaint had not been pleaded the trial judgeallowed the issue to be canvassed in evidence and, having done so, ought to haveexplained why he decided to ignore evidence from the appellant which he described as“reasonably strong” when it could have had a bearing on the respondent’s credibility.The issue of alcohol30. The respondent admitted that he had attended a funeral on the afternoon of the accidentand that between 1 p.m. and 5 p.m. he had consumed four or five pints of Guinness. Thetrial judge dismissed this as a factor to be considered either in terms of the issue ofnegligence or contributory negligence. On the first day of the trial, the judge remarked“[b]ut also five pints for a man who has done physical work all his life, unless you aregoing to allege that he in fact had considerably more, I wouldn’t take five pints as being aparticularly large amount over a number of hours”. At para. 73 of his judgment hestated:-“…Having regard to the fact that this is a man who has worked in manual labouringjobs all his life, I decline to make any adverse finding against him having regard tothe level of alcohol consumed by him that day.”31. It has to be said that there was no specific plea in the personal injury defence that therespondent’s actions on the day of the accident were impaired by alcohol. However, theissue was clearly canvassed in the exchange of particulars before trial and therefore therespondent was aware that it might become a feature in the case. It seems that anobjection was taken to the matter being raised in cross-examination and the issue wasnot pursued. But the pleadings did encompass an allegation that the respondent failed totake reasonable care for his own safety. Since the matter had been canvassed in theexchange of particulars prior to trial and since the issue was raised before the judge inthe course of the trial, it seems to me that it was a factor which he ought to have takeninto consideration having regard to the duty of the respondent to take reasonable care forhis own safety and given the conflicting accounts given as to how the accident thatoccurred. Furthermore, the judge’s remarks as to how alcohol would affect “a man whoPage 8 ⇓has worked in manual labouring jobs all his life” was unsupported by any evidence givenat the trial and was no more than the expression of his opinion. Such an opinion shouldnot play a part in the trial judge’s decision to rule out alcohol as relevant.Contributory negligence32. The issue of alcohol was a relevant matter for the judge to take into account indetermining whether there was any contributory negligence on the part of therespondent. But he declined to make any adverse finding having regard to the level ofalcohol consumed by him that day. There was no evidence as to what effect four or fivepints of Guinness might have on the respondent in the period between 1 p.m. and 5 p.m.In O’Flynn v. Cherry Hill Inns Limited [2017] IECA 211 Irvine J. stated “adult members ofsociety are obliged to take care for their own safety and cannot divest themselves ofresponsibilities for their actions”. That was in the context of a claim made under theOccupiers Liability Act 1996. In Lavin v. DAA [2016] IECA 268 Peart J. referred to s. 3 ofthe 1996 Act and stated at 56:-“…Under s. 3 that question is part and parcel of the consideration of whether theoccupier complied with its statutory duty or common duty of care imposed upon itby s. 3. The occupier must take such care as is reasonable in all the circumstancesto protect the visitor, but having regard also to the duty of care upon the visitorherself.”33. The respondent met with his accident after consuming four or five pints of Guinness thatafternoon in circumstances where he knew the tiles were wet and that a mat which hehad used to prevent slipping had been removed by him earlier in the day. He had hungthat mat over a gate and it had been removed by some person unknown. In my view thetrial judge did not give proper consideration to the issue of contributory negligence. Hediscounted alcohol as a factor purely on the basis of his own opinion and not on the basisof evidence and did not consider the question of the respondent’s own knowledge of thetiles on his porch in premises where he had lived for nine years and which he knew couldbe slippy when wet.34. Furthermore, the trial judge did not properly apply the provisions of s.3 of the OccupiersLiability Act 1996 by considering whether he had taken reasonable steps for his ownsafety.Quantum35. The trial judge pointed out that the appellant did not call any medical evidence although ithad retained the services of Mr. Brendan Healy, orthopaedic surgeon, who had examinedthe respondent. The judge accepted the evidence of Mr. William Gaine, the orthopaedicsurgeon called on behalf of the respondent, that he has developed mild to moderateosteoarthritis in the ankle joint with evidence of osteopenia (a weakening of the bones).The medical evidence was to the effect that the respondent would only be capable of lightwork. He was forty-nine years of age when the judgment was delivered and the trialjudge held that should be taken into account. He had also been unemployed for sometime prior to the accident and the trial judge had regard to that fact. The trial judge alsoPage 9 ⇓took into account the fact that he had a limited capacity for work in the future and tookthe view that this could be taken into account in the assessment of general damages. In abrief submission on quantum counsel for the appellant pointed out that the Book ofQuantum provides a range of damages of €79,900 to €89,300 in respect of a moderatelysevere ankle injury being one which involves ongoing pain and stiffness which impacts onmovement of the ankle. Although the trial judge was obliged to have regard to the Bookof Quantum he did not make any reference to it in his judgment. In neglecting to do so hewas in error. While he was entitled to take into account the factors that are referred to inhis judgment, it is not clear to me how he related the figure of €105,000 for generaldamages to the ranges provided for in the Book of Quantum.36. The Book of Quantum puts an upper limit of €89,300 for a moderately severe ankleinjury. The judge built into his award for general damages the respondent’s limitedcapacity for work in the future. In all the circumstances it seems to me that the differencebetween the higher figure provided in the Book of Quantum and the damages determinedby the trial judge (being just over €15,000) is not so significant as to warrant this Courtinterfering with it.Conclusions37. This court is not entitled to substitute its view on the facts for that of the trial judge andHay v. O’Grady still remains the law. But in my view there are a number of matters whichhave been referred to in this judgment which make the trial unsatisfactory and which canonly be put right by a re-trial on the liability issue. In particular, the failure of the trialjudge to engage in a meaningful way with the conflicting accounts of the accident givenby the respondent before reaching his conclusions on liability fell short of what wasrequired. There was no proper analysis of the conflicting evidence which would point tothe reason why he was satisfied, on the balance of probability, that the incident happenedin the manner as described in para. 10 of the judgment.38. The trial judge was also in error in failing to properly examine and analyse the evidencebefore ruling out contributory negligence by failing to address the question as to whetherthe respondent had taken reasonable care for his own safety as required under theOccupiers Liability Act 1996. He also erred in law in holding, at para. 71 of his judgment,that the onus was on the appellant to call medical evidence to show that the accidentcould not have occurred in the manner claimed by the respondent.39. The trial judge’s finding that the respondent’s house was not reasonably fit for habitationis one which could have far reaching consequences for the appellant. The trial judge erredin making such a finding in circumstances where it had not been pleaded thereby givingrise to a situation where the appellant had to deal with the matter on an ad hoc basisduring the course of the trial. This gave rise to an entirely unsatisfactory situation. It isnot for this court to express its view on the issue in circumstances where it should nothave been dealt with by the trial judge.40. The trial of the liability issue was unsatisfactory and I would allow the appeal. I woulddirect that the issue of liability be remitted back to the High Court for a re-hearing.
Result: Appeal allowed
O’Shaughnessy -v- Dublin City Council & ors
[2017] IEHC 774
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.
Davis -v- Jordan
[2008] IEHC 200
JUDGMENT delivered by Mr. Justice Herbert on the 27th day of June 2008
The first question requiring an answer in this case is, was the defendant guilty of negligence as alleged. In my judgment he was. There was no evidence that the defendant was driving at an excessive speed. However, he told the court that as he approached the location where the collision occurred, three motors cars were coming in the opposite direction. The first in line of these cars he said, had, or appeared to him to have, its headlights on full beam, but the other two, he was quite satisfied, were being driven with dipped headlights. He was dazzled by the oncoming headlights. He said that he found it very hard to see and started to slow down. He was travelling at about 45mph. Suddenly, there was a bang on the left side of his Ford Fiesta Van and, the wing mirror seemed to fly off. What appeared to him to be hay went across the windscreen and from there up on to the roof. He said that it gave him a bad fright and, he assumed that he had struck a bale of hay with the wing mirror of the van. At the time of this incident, the defendant had been driving for one year and held a provisional driving licence only. He stated that he had purchased the van some six to seven months prior to the incident. He is a mechanic by occupation and, I find no reason to doubt his evidence, which was not contradicted, that the lights, brakes and steering of the van were fully operational on the occasion.
This incident occurred on the public roadway between Ballinalee and Drumlish in the County of Longford at approximately 22.40 hours on the night of 2nd July, 2004. Both the plaintiff and the defendant, in statements made soon after the event to Garda Bohan, now retired, but at that time stationed at Drumlish Garda Station, agreed that it was fully dark at the time of the incident. I am unable to accept the present recollection of the plaintiff that it was only dusk. I find on the evidence that just before the incident occurred a very light and fine drizzling rain had started.
The road at, before, and beyond the point where the impact took place is and was, by reference to the evidence of Mr. Frank Abbott, Consulting Engineer and retired Garda Bohan, both of whom gave evidence in the case for the plaintiff, to the evidence of the plaintiff and the defendant and, to photographs taken by Mr. Abbott on the 6th June, 2006, during daylight hours, lined in the defendant’s direction of travel by a high and dense hedgerow containing a number of mature trees overhanging the carriageway. On the opposite side of the road, there were a number of mature trees and a low wall and bank. The tarmac surfaced carriageway is and was 17ft wide, divided in the centre by a continuous white line. On the left side of the road, regarded from the defendant’s direction of travel, there was no margin at all, only a rising vegetation covered bank, initially at least, at a relatively shallow angle. However, on the opposite side of the road there was a rough grass margin, 5ft in width. On the 2nd July, the plants, shrubs and, trees lining this road would have been in full and dense leaf.
The uncontradicted evidence of Mr. Abbott and retired Garda Bohan established that this road is straight and rising gently for more than a mile before the point of impact and, continues straight beyond that point until it crests a low hill a few hundred metres further on. Both were agreed and, their evidence was not challenged or contradicted, that there are and were in 2004, a number of shallow undulations in the surface of the road, though these do not in any way obstruct a driver’s view of the road ahead. Mr. Fergal Geoghegan, a Consulting Civil Engineer was called in evidence on behalf of the defendant but I declined to hear his evidence on the objection of counsel for the plaintiff by reason of a breach of the provisions of
O. 39, r. 46(2) of the Rules of the Superior Courts with regard to the exchange of expert reports. The defendant accepted that he was very familiar with the road, having driven along it at least once a day, sometimes during the hours of daylight and sometimes during the hours of darkness. He was aware, he said, that the road carries a good deal of vehicular traffic and, he had often come upon persons walking on the road during daylight hours. He stated that he had never met a pedestrian on this part of the road after dark.
I accept the evidence of the plaintiff, that from his perspective the drizzling rain was not, as he described it, “enough to wet a handkerchief” and, that the road surface was dry. Equally from the defendant’s perspective it would have probably been sufficient to wet the windscreen of his van which was moving forwards at about 45mph and, it is therefore probable that the defendant, as he contended, had engaged the windscreen wipers at this time. By the time Garda Bohan arrived on the scene, it had turned into what he described as a heavy drizzle and the road surface was then wet.
Unfortunately, the wing mirror of the defendants van had not struck a bale of hay. It had struck the plaintiff in the area of his right buttock, throwing him onto the roadside bank from where he rolled onto the surface of the carriageway. From there he somehow got himself off the carriageway and back up onto the bank where he remained sitting.
What next occurred on the occasion led to a profound disagreement between the plaintiff and the defendant in the course of evidence, with an exchange of unflattering epithets. The plaintiff said that the defendant had stopped his car a little further on after the impact and, had then sped away over the brow of the hill. After about 10 or 12 minutes the defendant had returned driving slowly on the opposite side of the road to where the plaintiff was now sitting on the roadside bank. The plaintiff said that the defendant drove past him and turned further down the road and drove back up again beyond where he was sitting and stopped the car. After another 4 or 5 minutes the defendant got out of the car and walked back down to him. The defendant told the court that after the impact he had driven on a few metres where he used an area in front of a house – it was in fact the plaintiff’s house, but the defendant did not know that then – to turn and, he then drove slowly back down the road looking for the body of the wing mirror which had become detached from the van. When he saw a man sitting on the bank he became alarmed. He turned his van again at the first available place and drove back up the road to where the man was sitting on the bank. The defendant considered that no more than 4 or 5 minutes in total had elapsed since he had heard the bang. The defendant denied that he had stopped his van briefly at the plaintiff’s house and, had then “taken off like a bat out of hell”, with tyres screeching and slipping on the gravel outside the plaintiff’s house.
The defendant was not charged with leaving the scene of an accident and, neither party was charged with any other road traffic offence.
It was put to the plaintiff in cross examination, that in a statement he had made to Garda Bohan, he said that the defendant had come back after about 4 minutes. The plaintiff told the court that the defendant had asked him what had happened to him and, he had replied that he had been struck by a car. To this the defendant had replied that he was very sorry and he had not seen the plaintiff. The plaintiff gave evidence that he said to the defendant, “so it was you then”, to which the defendant had replied in the affirmative. The defendant in his evidence gave essentially the same account of the conversation, but said that he had also added that he was surprised that it was a person. He said that he asked the plaintiff if he was alright to which he replied that he was, but that his leg was sore. Both parties agreed that the defendant had then helped the plaintiff into the passenger seat of his van and had driven him the few metres up the road, to his house, where they both sat together and waited for the garda to arrive.
I am satisfied that the plaintiff’s present recollection of events has become distorted and inaccurate. If the plaintiff considered on the occasion of the incident that the defendant had fled from the scene, leaving him in pain on the side of the road, I cannot imagine that they would have sat peacefully together in the plaintiff’s house until Garda Bohan arrived. The present bitter recrimination of the plaintiff’s evidence to the Court, is not at all reflected in Garda Bohan’s recollection of what took place in the plaintiff’s house. It was not until the plaintiff made a written statement to Garda Bohan on the 15th July, 2004, almost two weeks after the incident, that these allegations are made. Clearly, neither Garda Bohan nor his superior officers in Longford considered on the occasion that the defendant had left the scene of the accident.
It is incumbent upon the driver of a motor car on a public roadway to drive within the range of his or her lights and, to proceed only when he or she can see that the roadway ahead is clear. This is reflected in the Rules of the Road which state that if dazzled by the headlights of an oncoming vehicle a driver should slow down and stop if necessary and, should always watch for pedestrians or cyclists on his or her side of the road. In the instant case, on this relatively narrow and heavily shaded road, with no roadside margin on his inside, the defendant, on the evidence, when dazzled by the lights of the first of the oncoming motor cars, slowed down but only to something less than 45mph. He then pressed forward at this speed even though he very obviously could not possibly see in the circumstances that the road ahead was clear. It is hardly surprising therefore that he was entirely unaware that there was something ahead on his side of the road until he heard a bang, the passenger side wing mirror of the van shattered and, “hay” came across the windscreen and went up over the roof of the van. Even after the impact he still had no idea what he had hit, but assumed that it was a hay bale simply because he saw “hay” on the windscreen. In my judgment the defendant should have stopped his van as soon as he was dazzled and he was negligent in not so doing and, in continuing to drive when he was temporarily blinded by the lights of the oncoming car so that he had no or no sufficient view of the road ahead.
In his defence the defendant, in the alternative, pleads that the plaintiff was guilty of contributory negligence, in, inter alia, walking on the incorrect side of the roadway, having no illumination and carrying a bale of hay which acted as a camouflage in the circumstances, so that the defendant could not see him in sufficient time to avoid colliding with him.
The evidence established that the plaintiff was not walking on the side of the road facing the oncoming traffic, on which side, there was the rough grass margin which Garda Bohan measured and found to be 5ft in width. The plaintiff was walking in the dark close by the side of the high and, in places overhanging, roadside hedgerow, with his back to the defendant’s approaching van. The evidence established that he was wearing on the occasion, green Wellington boots, dark trousers, a dark blue-green jacket, a white shirt and a grey jumper. I accept the evidence of the plaintiff that he was carrying a portion of haylage on a four pronged fork resting on his left shoulder. I do not however accept his evidence that this portion of haylage was no greater than the size of a football. The size of the fork, the purpose for which the burden was being carried – as extra food for a horse grazing near his house, – and the defendant’s description, even allowing for some hyperbole, of the quantity of the “hay” which struck the windscreen of the van and flowed up over the roof, I am satisfied that the portion of haylage being carried by the plaintiff on the occasion was very considerably larger. I am satisfied that it was sufficiently large to mask the white of the plaintiff’s shirt collar and his neck and, the outline of his head. In short, in the conditions prevailing at the time, the plaintiff had unintentionally but nonetheless effectively contrived a most efficient camouflage, which I am satisfied, would have made his presence on the roadway particularly difficult for motorists to detect.
The Rules of the Road state that where there is no footpath, pedestrians must walk as near as possible to the side of the road facing oncoming traffic and should always wear reflective clothing at night and should always carry a torch when walking outside built-up areas at night. I do not accept the suggestion by Mr. Abbott that it would have been more dangerous for the plaintiff to have crossed the road twice in order to walk facing the oncoming traffic, which was also the side of the road which had the grass margin 5ft in width. The evidence established that the plaintiff had for a number of years worked for Longford County Council as a machine driver. He accepted that he was fully familiar with the use and purpose of high visibility vests. He accepted that he possessed such reflectorised clothing but was not wearing it on the occasion. He explained that on the evening in question stud yard duties had detained him in the yard later than he had anticipated. From the evidence of Mr. Abbott I conclude that the distance between the entrance to the yard of the plaintiff’s stud farm and the entrance to his dwelling house is 75m. The two are separated by a disused premises and lands of which the plaintiff is neither the owner nor occupier. To reach his dwelling house from the stud farm yard it was his custom to walk along the public roadway.
A failure to abide by the Rules of the Road does not necessarily amount to negligence. However, in the circumstances of the instant case, the failure of the plaintiff to walk on the side of the road facing the oncoming traffic and, his failure to carry a lamp or to wear any form of reflectorised clothing, – even a simple armband which could be kept constantly and easily in a coat or trousers pocket, – in my judgment amounted to a very high degree of contributory negligence. Even dazzled by the lights of the oncoming car and, even driving at a speed of somewhat less that 45mph with dipped headlights, it is probable that the defendant would have seen the plaintiff in time to have avoided colliding with him even with three motor cars passing in succession on the other side of this 17ft wide carriageway, had the defendant been carrying a lamp or wearing some form of reflectorised clothing.. The plaintiff told the court that he noted only one car coming towards him on the road prior to the impact. Though it does not really matter to the outcome of the case, as the defendant makes no complaint regarding the manner in which the two other cars were being driven, I think it entirely unlikely that he would have invented the presence of these two cars for no discernable advantage to himself.
In my judgment the plaintiff was more at fault and must therefore bear a higher degree of responsibility for this incident than the defendant. I consider that the plaintiff was 60 per centum at fault and the plaintiff 40 per centum at fault.
I accept the evidence of the plaintiff that he suffered an immediate onset of severe pain in his right leg with subsequent swelling and deformity in the area of the lower third of his right tibia. I am satisfied on the evidence of the plaintiff and from the medical reports, the contents of which were admitted into evidence, that the injuries sustained by the plaintiff were caused by the impact. I consider it unnecessary to determine whether the injuries were caused by the rear inside wheel of the van passing over the plaintiff’s lower right leg as he alleges, or by the manner in which he fell after being struck by the wing mirror of the van.
Dr. Patrick Breslin, the plaintiff’s customary general medical practitioner, in a report dated 18th July, 2004, made sixteen days after the incident, states that the plaintiff suffered a fracture of the right tibia and the right fibula. These injuries were repaired at Tullamore Hospital. The plaintiff was discharged on the 13th July, 2004, with a below knee plaster of Paris cast. He had limited mobility and was prescribed analgesics as required. Dr. Breslin stated that the plaintiff would be unlikely to return to full duties for some time. He considered that the plaintiff would make a full recovery but that a full prognosis at that time was difficult.
In his report, dated 24th January, 2005, Mr. David Cogley, Consultant Orthopaedic Surgeon, confirmed that the plaintiff had suffered a comminuted fracture of the intra-articular portion of this his right tibia. In the operating theatre an external fixator was placed across the ankle joint realigning the joint surfaces and maintaining reduction. The plaintiff’s leg was then elevated to reduce swelling. On the 5th July, 2004, under general anaesthetic, the plaintiff underwent open reduction and internal fixation of the ankle fracture. It was found that there was a loss of some of the articular cartilage on the medial aspect of the joint. X-rays taken on 21st July, 2004, showed the fracture was healing. The plaintiff was advised to continue non-weight bearing. This continued until the 8th September, 2004. The plaster cast was removed on 25th August, 2004. On 8th September, 2004, the plaintiff was permitted to become partially weight bearing, though his foot at that time remained swollen. On 6th October, 2004, he was advised to continue weight bearing with the aid of two crutches. The range of movements in his right ankle was limited and there was persistent swelling. He had no pain at this time. On 22nd December, 2004, Mr. Cogley noted that the fracture was well healed. The plaintiff then walked with a limp and his ankle still remained swollen. He was advised to continue with an exercise programme for a further three months.
On 23rd March, 2005, it was noted that the plaintiff had a good range of movement in his right ankle and had little pain or discomfort. Unfortunately some degenerative changes were noted in the ankle joint. On review on 28th September, 2005, the plaintiff continued to have a reasonable range of movements in his right ankle and was experiencing no pain. However, x-rays showed the onset of early degenerative arthritis in the ankle joint. Mr. Cogley considered that the plaintiff would probably require an ankle arthrodesis, though this was then a matter of conjecture as the important consideration was the amount of pain being suffered by the plaintiff as opposed to the X-ray appearance of the ankle. Mr. Cogley considered that this was likely to come about within a two to ten year period from the 11th November, 2005.
In a report dated 15th January, 2007, Dr. Breslin stated that the plaintiff had done well since the 5th July, 2005. He had a good range of mobility but his walk was slow and deliberate. Dr. Breslin noted that the plaintiff still suffered pain in his right ankle. He referred him to Mr. Cogley for a follow-up report. That report is dated 2nd April, 2008, and is based upon reviews, including x-rays carried out on the 1st October, 2007, and 1st April, 2008.
Mr. Cogley records that on 1st October, 2007. The plaintiff told him that he was getting on well with his work as a farmer. However, he had recently done too much walking and had developed a pain in the medial aspect of his right ankle which prevented him doing all his work. He was using a single crutch. On clinical examination there was a 13cm surgical scar over the lateral aspect of the plaintiff’s right ankle together with some healed “stab incisions”. X-rays taken at the time showed that the fracture had united but moderate degenerative arthritic changes were already evident. The plaintiff had a diminished range of movements in all directions with a 50 per centum loss of subtalar joint movement. Further x-rays were taken on 1st April, 2008, which confirmed this position. The plaintiff was then complaining of pain, primarily posteriorly and anteriorly over his right ankle if he had to walk on uneven ground or stood on a surface which suddenly gave way or if he walked for more than twenty minutes. He had no pain at night in his right ankle and was not taking analgesics for pain.
Mr. Cogley considered that the plaintiff would require a right ankle arthrodesis in the not too distant future. This would require hospitalisation for two to five days, followed by a period of three months recuperation in a plaster of Paris cast, of which the first two months would be non-weight bearing. Mr. Cogley noted also that the plaintiff has some stiffness in his right subtalar joint and considered that degenerative arthritis might occur in the subtalar and talonavicular joints in the long term which might require to be addressed.
Dr. Breslin examined the plaintiff on 7th May, 2008. He found that the plaintiff had limited movement in his right ankle, particularly flexion and extension. The plaintiff complained of suffering pain and discomfort in his right ankle. Dr. Breslin noted that the plaintiff remained quite active, but was satisfied that he would require further surgical treatment to his right ankle in the future.
The plaintiff was examined at the behest of the defendant, by Mr. Martin G. Walsh, Consultant Orthopaedic Surgeon, on 20th December, 2007. Mr. Walsh concluded the plaintiff had suffered a serious injury. He considered that in the none too distant future the plaintiff would be a candidate for a fusion of his right ankle joint because of his then current level of disability in his right ankle. Mr. Walsh was in general agreement with Mr. Cogley as regards the period of hospitalisation involved and the duration and circumstances of the recovery period. Mr. Walsh expressed the opinion that following a successful fusion there would be no contra-indication to the plaintiff returning to work as a stud farmer and sheep breeder, if he so wished. Fusion, he stated, was designed to relieve pain and thereby enable persons to walk with some degree of comfort. Mr. Walsh stated that 92 per centum of patients experienced very satisfactory results from this operation.
The plaintiff claimed that as a result of the increasing pain and limitation of movement in his right ankle and, with the prospect of an arthrodesis in the short term, he was unable to continue with his pedigree Belclare sheep breeding herd project and was unable to continue with his stud farm enterprise. Mr Walsh records that on the 20th December, 2007, the plaintiff told him this and, stated that he had changed over to forestry. It was the plaintiff’s evidence that following the accident he was unable to properly attend to the sheep, including to the proper tagging and registration of the progeny and the carrying out of blood testing of this progeny so that Genotype Certificates could issue enabling them to be sold as purebred pedigree Belclare sheep.
Having regard to the evidence of Mr. Martin G. Walsh, which was not in any manner gainsaid by Mr. Cogley, I am satisfied that there was nothing to prevent the plaintiff in continuing with these enterprises had he so wished. The plaintiff had informed Mr. Frank Hanley, a Certified Public Accountant, who gave evidence in the case for the plaintiff, that he had decided to abandon the pedigree sheep project and the stud farm business because they required hands on attention from himself which because of his injuries he was no longer able to provide. I am satisfied on the evidence, that this was a decision which the plaintiff took himself and, was not based on any medical advice.
It was perfectly plain from the evidence of Mr. Andy Egan, an Agricultural Consultant, who gave evidence in the case for the plaintiff, that the horses did not require the same amount of attention as the sheep and, there was very little handling involved in the sort of stud farm business which was being carried on by the plaintiff. Mr. Egan considered that the plaintiff might require some part time assistance in managing the sheep during the winter period as the flock expanded. One person for a few hours every day would, he considered be sufficient. If no family member was available to help, – the plaintiff is married with four remaining children, the son who usually assisted him having most tragically been killed in a road traffic accident in July 2005, – Mr. Egan considered that it would be possible to employ a person on a part time basis for about €12 per hour. I do not accept the suggestion made by Mr. Egan that this part time assistance would be necessary to such an extent that it, “would gobble up completely the profits of the enterprise”.
The plaintiff’s total land holding is only 25 acres without any modern or purpose built facilities. The plaintiff was fifty two years of age at the date of the incident and, was in receipt of €244 per week Farmers Allowance. In my judgment, as the initial nineteen Belclare ewes and rams were only purchased by the plaintiff on 5th August, 2003, and 26th September, 2003, it is impossible to state, as a matter of probability, that he would ever achieve a thirty ewe breeding herd, producing twenty to twenty five purebred Belclare ewes and rams for sale annually. According to the evidence of Mr. Egan, allowing for culling but otherwise assuming no problems, it would take a minimum of three or four years to build up such a herd by breeding. The only alternative Mr. Egan said would be for the plaintiff to buy in a breeding stock of forty Belclare purebred ewes and, this would require a great deal of money. The only receipt produced in court during the hearing of the case for the purchase of sheep was for eight purebred Belclare sheep, purchased by the plaintiff at Kilkenny Co-Operative Mart on 5th August, 2003 for €3,208 inclusive of VAT (€2,075 net of VAT). There was some evidence that three more Belclare sheep had been purchased by the plaintiff on unspecified dates from a Mr. B. (name given) in Carlow and, that others, the number seemed to be uncertain, were purchased at Athenry Mart on 26th September, 2003. The plaintiff gave evidence that he had seven rams and three ewes left. He had sold all the rest as purebred sheep but without a Genotype Certificate at between €200 and €150 for rams and €100 or less for ewes. The plaintiff stated that he had suffered a minimum loss of around €200 per animal. It is significant that the figures which he supplied to Mr. Egan were different. The plaintiff said in evidence that all these sales were made from his own house and to persons in the general area. He said he was paid in cash or by cheques. No receipts, cheques, statements or documents of any sort were produced in court nor were any witnesses called to confirm these purchases or sales.
Even if I was satisfied that the plaintiff was unable to continue with this purebred sheep project as a result of the injuries sustained in the collisions, which for the reasons stated, I am not, on this evidence I should have not option but to hold that the plaintiff had failed to prove any loss.
Similarly, in the case of the stud farm business, the plaintiff said that he advertised in “The Journal” and, a (largely illegible) photocopy document was produced but not identified in court. The plaintiff stated in evidence that he had given all his books to Mr. Egan. Mr. Egan in cross examination stated that the plaintiff had informed him that the fee income from the stud farm in the year 2003 was €15,200 and in the year 2004, was €16,200. This did not take any account of the fixed and variable costs that obviously were involved. Mr. Egan accepted that no receipts for stud fees had been produced to him. Mr. Egan and Mr. Hanley had both produced their projections of alleged future loss solely on the basis of these statements made to them by the plaintiff. Mr. Hanley accepted in cross examination that he had no documents whatsoever to support these figures. The plaintiff stated in evidence that he had disclosed these gross earnings, as well as the purebred sheep breeding project, to a social welfare officer in Longford whose name he gave. The plaintiff stated that this official was prepared to accept these enterprises and his earnings from them as a Back to Work Scheme so that the Farmers Allowance would continue to be paid to the plaintiff at the rate of €240 per week for two years and then at €120 per week for a further year and would thereafter stop. This officer was not called in evidence.
The plaintiff stated in evidence that he had an Irish Draught horse stallion and a Thoroughbred horse stallion at stud since 1999, an Irish Cob stallion since 1996 and a Connemara Pony stallion since 1985. The Connemara pony stallion had died. He had returned the Irish Draught stallion to its British owner who was a leading breeder of these horses and who had not made any charge for the use of the stallion. Mr, Egan gave evidence that the plaintiff so far as he was aware had only one stallion left but he did not know which one that was.
Again, if I had been satisfied that the plaintiff had to abandon this stud farm business because of the injuries which he had sustained in the road traffic accident, – which, for the reasons stated above I am not. – on this evidence, or rather lack of evidence, I could not possibly find that the plaintiff had suffered a loss in the year 2005 and in any of the years since that date or will continue to suffer a loss in the future. It is for the plaintiff to establish any alleged loss by credible and admissible evidence. Unlike Mr. Egan and Mr. Hanley the court cannot simply accept figures and propositions put forward by the plaintiff entirely unsupported by any acceptable, oral or documentary evidence.
For these reasons the court will disallow the plaintiff’s claim for loss of income to date and into the future. The other items of special damage were agreed between the parties in the total sum of €10,909.
The plaintiff undoubtedly suffered a serious injury. As result of that injury he now walks with a slight limp to the right. He has a 13cm medial scar over the
antero-medial aspect of his right ankle. He has a loss of 20 degrees of dorsi-flexion and 25 degrees of plantar-flexion in his right ankle joint. He has gross restriction of movement in the subtalar joint. On 20th December, 2007, Mr. Martin G. Walsh was satisfied on clinical examination that the plaintiff had significant disability in his right ankle as a consequence of the trauma suffered in the collision. I accept the evidence of the plaintiff that his right ankle is frequently swollen and that he suffers constant pain in that ankle. This is progressively becoming more troublesome. Walking on uneven or rough ground causes the plaintiff pain as does walking on even ground for more than thirty minutes. The plaintiff experiences pain at the end of the day and if he sits for any length of time with his foot in a dependant position. On the medical evidence I find on the balance of probabilities that the plaintiff will require a surgical fusion of his right ankle joint in the near future. While this procedure will, on the medical evidence, relieve the increasing pain and discomfort being suffered by the plaintiff it will result in his having a rigid inflexible right ankle, which will be an impediment to some and will entirely prevent other ordinary day to day activities. The plaintiff will be fifty six years of age on the 18th August next, so this must constitute a moderate continuing disability which the plaintiff will have to endure for many years to come, following upon a further significant surgical procedure.
I have had regard to the Personal Injuries Assessment Board book of quantum at pp. 24 and 25. For pain, suffering, discomfort and inconvenience to date I consider that the appropriate sum to be awarded to the plaintiff by way of general damages is €48,000. For pain, discomfort and inconvenience into the future I consider the appropriate sum to be €40,000. The total sum of damages is therefore €98,909. The plaintiff is entitled to judgment for 40 per centum of this amount. The court will therefore give judgment in favour of the plaintiff in the sum of €39,563.60.
Connell v. McGing
[2000] IEHC 208 (8th December, 2000)
Judgment delivered by Mr. Justice Lavan on the 8th day of December, 2000.
1. I tried this case on Thursday the 30th of November, 2000 and Thursday the 7th of December, 2000. Due to listing commitments I had other duties to perform in the intervening days. The case opened before me, with the Plaintiff claiming damages for negligence on foot of an extensive list of breaches of statutory duty. This is of some significance in relation to the submissions which were made to me by the Defence at the end of this trial.
2. The Plaintiff’s claim is for damages for that on the 22nd day of March, 1995 the Plaintiff, in the course of his employment with the Defendant on board the Defendant’s fishing boat, then situated off the County Donegal coast, was engaged in hauling in a fishing net on board the said vessel when, due to the negligence of the Defendant, his servants or agents, in and about the construction, layout, supervision, training, control and employment of competent employees, the Plaintiff was dragged along the deck of the said vessel, whereby he sustained personal injury, loss and damage.
3. The Plaintiff furnished particulars of negligence and breach of duty and they are fully set out in the statement of claim. Suffice to say that having read the pleadings before the action commenced, I was fully aware that the Plaintiff’s cause of action
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was framed in terms of a breach of duty, at common law and a breach of statutory duty, as therein set out.
4. The Plaintiff’s case was opened by Mr. Gordon S.C. in a reserved but robust fashion. At the conclusion, Mr. Nugent, Counsel for the Defendant, indicated to the Court that he would not be strenuously challenging a finding of negligence against the Defendant, his client. He would nonetheless be seeking to make a substantial case of contributory negligence against the Plaintiff having regard to his age, experience and skill.
5. I accepted that admission as constituting an admission of breach of statutory duty as well as breach of common law duty of care, and the case so proceeded.
6. Having regard to that submission a Court would have little difficulty in concluding that the Plaintiff would and does succeed on the issue of negligence. I therefore have no difficulty in concluding that the Defendant is liable to the Plaintiff on both a statutory and common law basis.
7. What occurred was as follows which account I accept as fact. The Plaintiff was on duty at the stern of the said boat when the Defendant crew commenced the difficult and hazardous operation of hauling in the net then full of the catch. To the knowledge of the Defendant (for at least six months prior to the accident the subject matter of this case) the crew man operating the haulage machinery was unable to see the net as it was being hauled out the stern of the boat. Any hitch in the retrieving process could be dangerous to the safety of the boat and crew.
8. The Plaintiff was close to the stern rail and as the hauling operation was taking place a hitch arose whereby the net was about to snarl. The Defendant’s attention was drawn to this and appreciating the necessity of guiding the net rope onto the
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machinery he sprang to the net rope to guide it in. In the course of this, his ankle was caught in the heavy netting whereby he sustained his injury.
9. Having heard the evidence and submissions over two days I am, upon the evidence, left with one issue, on liability, to decide, namely the degree of contributory negligence (if any) of which the Plaintiff may be guilty.
10. I especially note that, notwithstanding the trenchant cross-examination of Mr. James Sheehan – the remainder of the medical evidence is agreed between the parties.
11. In respect of the issue of contributory negligence, I have the following opinion to express.
12. The matters pleaded by the Defendant in his defence, delivered on the 12th of October, 1998 are as follows:-
a. Failing to take reasonable care for his own safety;
b. Failing to keep any or any adequate lookout for his safety;
c. Failing to act in accordance with his established experience as a fisherman;
d. Causing or permitting his foot to become entangled in the netting;
e. Failing to alert and/or warn the Defendant, its servants and agents that his foot had become caught in the netting;
f. Exposing himself to the risk of injury;
g. Causing himself to suffer personal injuries, loss and damage.
13. The Defendant further reserved the right to raise particulars of negligence and/or contributory negligence at the trial of the action.
14. The issue as to whether a breach of statutory duty was established is of importance in this case for the following reasons.
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15. The object of the particular statutory obligations relied upon by the Plaintiff in this case is, to my mind, to compel the employers of a trawler such as this, to take certain precautionary and preventative measure designed to reduce the possibility of accident. It is my view that the particular section imposes an absolute obligation in the event of the precautionary and preventative measures not achieving their ultimate object.
16. The Defendant made the case that because the Plaintiff had engaged, along with other crew members, in a discussion with the Defendant as to the safety alterations which ought to be taken in regard to the fishing vessel in question, he should therefore be made liable. It has, however, long been accepted that there is no defence of delegation of a statutory duty whereby a person subjected to a statutory duty can relieve himself fully of liability by claiming that he has delegated the duty or its performance to another. The general principle received statutory recognition in section 57(2) of the Civil Liability Act, 1961 which provided:
“It shall not be a defence in an action for breach of statutory duty merely to show that the defendant delegated the performing of the duty to the plaintiff”.
17. The defendant cannot escape liability for breach of his statutory duty by arguing that he diluted his obligation to provide a safe workplace by discussing the matter with his employees.
18. However, while delegation of a statutory duty is not a special defence this does not mean that the defendant will always be fully liable in every case where there is apparent delegation. The principles of contributory negligence still apply. In Ginty v. Belmont Building Supplies Ltd. [1959] 1 All ER 414 at 423-424 Pearson J. captured the principle:
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“In my view, the important and fundamental question in a case like this is not whether there was delegation, but simply the usual question: Whose fault was it?…”
19. In an action for breach of statutory duty, contributory negligence has a different meaning from that for an action for common law negligence. There is an essential difference in the nature of the acts and the quality of the acts which would amount to contributory negligence in the one vis-a-vis the other. It seems to me that the essential difference is that in relation to statutory duty an error of judgment, heedlessness or inadvertence, will not constitute contributory negligence, because the statutory protection was passed for the express purpose of saving workers such as the Plaintiff from their own carelessness and inattention. While in relation to contributory negligence and a common law duty, an act of inadvertence, if it is an act which a reasonably careful workman would not do, will constitute contributory negligence. See Higgins v. South of Ireland Asphalt Co. Ltd. (1961) 101 ILTR 168 (SC).
20. The principles in relation to breach of statutory duty and contributory negligence were enunciated by the Supreme Court in Stewart v. Killeen Paper Mills Ltd. [1959] IR 436 and Kennedy v. East Cork Foods [1973] IR 244. In Kennedy a jury had found contributory negligence against the plaintiff in relation to his claim for common law negligence but had exonerated him of contributory negligence in his claim for breach of statutory duty. In the Supreme Court O’Dálaigh C.J. quoted with approval Henchy J.’s direction to the jury in the High Court where the learned judge had stated in relation to contributory negligence and breach of statutory duty:
“[The plaintiff] must enter into the realm of downright carelessness, because the Factory Act was passed for the express purpose of saving factory workers from their own carelessness, and their own inattention. The plaintiff would not be guilty of
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contributory negligence unless you are satisfied that what he did was not simply inadvertence, normal forgetfulness, normal inattention, but he was in fact negligent and careless in a more positive and definite way.”
21. O’Dálaigh C.J. further adopted Lord Wright’s statement in Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] AC 152 that
“The policy of the statutory duty protection would be nullified if a workman in a factory were held debarred from recovering because he was guilty of some carelessness or inattention to his own safety, which though trivial in itself threw him into danger consequent on the breach by his employer of the statutory duty”.
22. The Court must take into account, as Lawrence J. stated in Flower v Ebbw Vale Steel, Iron & Coal Co. [1934] 2 KB 132, that “it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence”.
23. These principles have been implemented in practice by Barron J. in Dunne v. Honeywell Control Systems Ltd. and Virginia Milk Products Ltd. [1991] ILRM 595 and in Kelly v. McNamara High Court (Budd J) 5th June, 1996, unreported.
In Dunne v. Honeywell Control Systems Ltd. Barron J. held that the plaintiff was not guilty of contributory negligence in relation to his claim for breach of statutory duty. He reasoned
“The plaintiff was not taking sufficient care for his own safety, not through any positive act on his part, but because the danger did not occur to him.”
24. The threshold of negligence in a “more positive and definite way” was not reached.
25. On the other side of the line, in Kelly v. McNamara Budd J. stated that he did “not think that the plaintiff as an experienced carpenter and an obviously responsible and competent tradesman can escape all liability for succumbing to the taking of an obvious risk”. He held that “a small portion of the fault must be ascribed to the Plaintiff for putting himself in peril…”
26. Turning to the case in question, I accept that the Plaintiff was an experienced seaman/fisherman. I nonetheless find it difficult to accept that because an employee is
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engaged in discussing with his employer matters that might be rectified in relation to the day to day work of a particular vessel that the employer in some way is permitted to delegate his, the employer’s duties, or to raise it as s defence as against the Plaintiff in this case.
27. My view of the evidence is that what was in operation on the day of the accident was a dangerous operation to the knowledge of the Defendant. He may not delegate his duties under the statutory code in this regard.
28. On the evidence the Plaintiff acted in a moment of crisis. The transcript contains a detailed account of how this occurred. He, the Plaintiff, ought not to have been required to so act. Therefore, on the evidence, I accept the Plaintiff’s account, it is uncontradicted, the very complaint that the Plaintiff has is that no other person could have foreseen the actual events which led to his injury.
29. I have considered the Defendant’s allegation of contributory negligence and, on the evidence, I am unable to conclude that there should be a finding of contributory negligence. I now turn to an assessment of damages.
30. As to special damages this is an agreed figure in the sum of £7,500.00.
31. As to damages to date and damages in the future I rely on the agreed evidence with the evidence of Mr. James Sheehan. I will allow a figure of £30,000.00 damages to date and a figure of £30,000.00 damages in the future.
32. As to the claim that the Plaintiff may be unable, due to the onset of arthritis, to role as a skipper of the trawler, when he attains the age of 50 or thereafter, I have the following view.
33. I accept the evidence of Mr. James Sheehan on this crucial issue and I clearly accept the agreed medical evidence submitted to me by both parties.
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34. I conclude that on the balance of probabilities there is a problem that may arise at some state in the future, when the Plaintiff is between the age of 50 and 55 years. The Plaintiff on the balance of probabilities may be unable to continue his duties as a skipper.
35. I therefore conclude, doing the best that I can on the evidence laid before me, and accepting the medical evidence, that the plaintiff may lose 2 to 3 years of his livelihood as a skipper. Therefore, in the circumstances I would allow for future loss of wages, a full two years loss of the equivalent of the Plaintiff’s net yearly loss of £37,250.00 (which is agreed between the parties). Therefore, there will be a finding for future loss in the sum of £74,500.00.
36. There will be judgment for the plaintiff in the sum of £142,500.00 together with his costs.
Hession (A Minor) v. Hession
[2005] IEHC 142 (22 April 2005)
JUDGMENT of Mr. Justice Diarmuid B. O’Donovan delivered on the 22nd day of April, 2005
The plaintiff in this case, Claire Hession, is a fifteen and a half year old school girl who was born on 26th day of August, 1989 and she resides with her parents at Laraghmore, Ballyglunin, Tuam, Co. Galway.
Claire Hession comes to court seeking damages for injuries which she suffered on 7th day of August, 2003; at a time when she was nearly fourteen years of age as a result of an incident in which she was involved while playing in the yard adjoining her home aforesaid. On that occasion, her father’s car was parked in a hay shed in the said yard and, while she was playing with her puppy, the plaintiff noticed that her father’s car began to move despite the fact that there was no one in or near it. Apparently, the brake had been left off. Without thinking, the plaintiff rushed forward to try and stop the car and, inevitably, failed to do so and was crushed between the car and an adjoining wall. While there is no doubt but that it was very foolish for the plaintiff to attempt to stop the car, as she did, I am quite satisfied that her reaction, when she saw the car moving was an instinctive one arrived at on the spur of the moment which, in my view, is easy enough to understand, notwithstanding the risk involved. In particular, I am satisfied that the plaintiff did not deliberately expose herself to a risk of injury; that what happened was more or less involuntary. Accordingly, as the plaintiff was only fourteen years of age at the time, I am not persuaded that, as alleged on behalf of the defence, her conduct on the occasion amounted to negligence on her part. Accordingly, as liability has been conceded on behalf of the defence, the only issue that I have to decide is the amount of compensation to which Claire Hession is entitled.
As a result of the said occurrence, both of the plaintiff’s legs were crushed against a wall. However, she succeeded in extricating herself and, when help arrived, she was taken to University College Hospital, Galway and, ultimately, came under the care of Mr. Jack McCann F.R.C.S.I., a consultant plastic surgeon. While x-ray examination excluded any bony injury, she was found to have sustained severe soft tissue injuries to both legs. In particular, there was grazing of her right shin and bruising below her left knee. Initially, her treatment comprised dressings for the wounds and tubigrip support bandages for both legs. In addition, she was prescribed pain killing and anti-inflammatory medication and advised to elevate her legs when resting. She was then discharged from hospital. However, within a matter of days, she developed swelling of her right calf, bruising at the base of her right foot and sloughing of the tissue of the wound on her right foot. As a result, she was unable to bear weight on her right leg and neither could she extend her left knee fully. Her left leg was then encased in a pressure bandage and, sometime later, the wound on her right leg became infected and necessitated excision. It is unnecessary, I think, for the purpose of this judgment that I review in detail how the plaintiff’s injuries progressed during the weeks immediately following her accident or the treatment to which she had to submit on account of them because these matters are well documented in the several reports on her which have been submitted by Mr. John O’Donnell, a consultant in A&E medicine at University College Hospital, Galway, and Mr. Jack McCann aforesaid. It is sufficient to note that, as a result of her injuries, the plaintiff spent ten weeks in hospital during which she was subjected to two surgical operations under general anaesthetic involving debridement of a degloving injury to her right leg and the application of a split skin graft to that leg; the graft being harvested from her right upper thigh. In this regard, I have no doubt but that her stay in hospital was a very distressing and painful experience for the plaintiff. She was discharged home on 12th September, 2003 on crutches and it was another four weeks before she was able to mobilise without the assistance of crutches and, indeed, she told me and I accept that, after her discharge from hospital, she had to learn how to walk again. However, while she was reviewed in hospital from time to time, her recovery from the effects of her injuries appears to have been relatively straight forward. She did experience pain in her left leg on walking and her left knee clicked a little. However, with the passage of time these symptoms abated. Nevertheless, she still has to wear a support on her left knee when playing football. She also tells me and I accept that she experiences weakness in her left leg after standing for long periods of time and, indeed, when playing games. Nevertheless, having only missed three weeks of schooling, she was able to resume playing basketball and football and, indeed, participating in Irish dancing shortly after her return to school. In this regard, she told me that she had to resume Irish dancing or else she was going to loose her place in the class. She also tells me and I accept that she experiences pain in both legs in cold or frosty weather. Moreover, she has been left with a residual indentation of her right leg, which is very obvious and a source of considerable embarrassment to the plaintiff; so much so that she wears tights all the time so that people will not see her leg. She also has residual scarring on her right thigh and irregulatory in the appearance of her left leg below the knee. Having viewed both of the plaintiff’s legs, I can well understand why she is embarrassed by the appearance of her right leg because I accept that it is quite disfiguring. However, I do not consider that the residual irregulatory in the appearance of her left leg is of any great significance. In this regard, it is clear from Mr. McCann’s report that nothing can be done to improve the appearance of the plaintiff’s right leg and that, as a result of the lack of underlying fat on that leg, there is an area of diminished sensation and the leg is more sensitive to injury. Accordingly, Mr. McCann advises that the plaintiff wear protection when playing games. It is also clear from Mr. McCann’s report that the appearance of the plaintiff’s left leg cannot be improved.
Given the nature and extent of the plaintiff’s injuries and the treatment to which she had to submit on account of them, it is, in my view, to her credit that she only lost three weeks schooling and, on her return to school, was able to resume most, if not all, of her pre-
accident activities. I have little doubt, however, but that, if she did, she had to break some pain barriers on the way. In my view, this young lady makes very little of her on-going problems with the exception of the appearance of her right leg and, to a lesser extent, that of the left leg. She is clearly very embarrassed by the appearance; in particular, of her right leg and is anxious to hide it from public gaze. I sympathise with her in that regard.
It is now nearly two years since the plaintiff’s accident and for all that she has had to put with on account of the injuries which she suffered during that period I will award her a sum of €35,000. As for the future, allowing that she is not yet sixteen years of age and that, for the rest of her life, the appearance of her right leg, in particular, will be a constant reminder of an accident in which she was involved through no fault of her own and that it is probable that she will spend a lot of time trying to hide the appearance of that leg from public gaze, for future general damages, I will award her a sum of €50,000.
Having regard to the foregoing and allowing that special damages have been agreed in the sum of €10,250, I will award the plaintiff damages amounting €95,250 and costs.
Approved: O’Donovan J.
Quinn v. Duffy & Anor [2005] IEHC 34 (16 February 2005)
URL: http://www.bailii.org/ie/cases/IEHC/2005/H34.html
Cite as: [2005] IEHC 34
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Neutral Citation No: [2005] IEHC 34
THE HIGH COURT
Record Number: 2002 No. 15091P
Between:
Nuala Quinn
Plaintiff
And
Des Duffy and Maxol Limited
Defendant
Judgment of Mr Justice Michael Peart delivered the 16th February 2005:
I do not propose to detail all the evidence which I have heard, but rather to make certain findings of fact based on the evidence which I have heard and I do so, as required, on the basis of a balance of probability. Mathematical certainty is neither possible nor required. At this remove in time from the date of this accident, it is inevitable that memories will have faded at least to some extent, but it is possible for the Court to find the probable causes of this accident from what has been stated.
The fact that the Court appears to favour one version of what happened rather than another, or indeed a mix of both accounts, does not mean that the Court believes that either the plaintiff or the defendant is being deliberately untruthful. Far from it – in fact I am of the view that all witnesses have given their evidence honestly and truthfully as far as their recollections allow. But inevitably the way in which the accident happened appears different depending on whether one is plaintiff or defendant.
First of all I am satisfied that on this bright and clear morning the defendant was driving at a reasonable speed as he travelled behind the truck before overtaking. I am also satisfied that the plaintiff cannot be correct in her estimate of what speed he was doing as he overtook it. It could not be so on the evidence which has been given that he was doing anything like 80mph or more even. Without going into the minutiae of the evidence which I have heard about time, speed and distance travelled in certain times dependent on speed and so on, I am satisfied in a general way that in order to overtake this truck, assuming that it was doing something like 40mph, the defendant would need to have accelerated to about 60mph. Indeed one’s own experience of driving would confirm that he must have done this at least. He may well have exceeded that speed to some extent in order to complete his manoeuvre.
The defendant was travelling along a national primary road which was 19 feet wide in total excluding grass margins. Each carriageway was 9.5 feet in width. But there was ahead of him a junction with a minor road joining this main road at both sides – in other words a crossroads. That was a potential danger for anybody passing a truck at the point the defendant decided to pass and required some extra care. Because of that fact, the Co. Council had placed a warning sign, back from this junction by about 126 yards, plenty of time under normal circumstances for a driver passing it to take necessary care as he/she approached the crossroads, in case there was any vehicle waiting to exit onto or across the main road.
I do not consider that there is any evidence of excessive speeding on the part of the defendant, but I am satisfied that he did not see the warning sign and therefore took no particular care coming to the junction, for the simple fact that he was unaware of its existence. By not seeing the sign he had deprived himself of that opportunity to take extra care. It matters not whether his view of the sign was or was not obscured by the truck in front of him. He ought to have been in a position to see it at a distance of 126 yards back from the junction, and it is in this way that I believe that the defendant must bear a considerable share of the blame for the accident. I am of the view that had he seen the sign, he either would not have overtaken at this point, or ought not to have done so, and at the very least would have been on the look-out for somebody such as the plaintiff. The evidence is that he did not sound a horn, and this indicates to me not only that he was not aware of the plaintiff’s presence at the junction, but was in all probability not even aware of the junction at all.
As far as the plaintiff is concerned, I am satisfied that she is being completely truthful when she says that she did not remain at the stop line but went up to the yellow line to get a better view. She is well familiar with this road junction and knows that she is unable to get an adequate view of the road if she wishes to turn left. However, I am satisfied on the balance of probability that she must have come a little beyond the yellow line, either by moving forward from her original stopping position or by actually stopping a few feet beyond the yellow line. That is the only reasonable explanation for the nature of the damage caused to the front of her car. If she was stopped at or just behind that line the defendant’s car would have had to be much further over to her side than the evidence shows. I am satisfied that at the point of impact the defendant must have been close to the centre of the road because the left front wing of his car hit slightly the right side of the truck and there is no evidence that the truck was over the white line at any point.
I cannot decide whether the plaintiff’s car was stationary or moving at the point of impact but one way or the other I feel she must have been further out than she recalls, or ought to have been, especially given her knowledge of this junction. I feel that she probably looked to her right, as one does in these circumstances, and probably moved forwards either just before she ensured that her way was clear to her left, or without checking to her left at all – otherwise she would have seen the defendant’s car sooner.
However the defendant had the primary duty in my view to take care as he overtook the truck, and for that reason I find him to be liable to the extent of 80%, and the plaintiff to be 20% liable on the basis of contributory negligence.
Injuries:
The plaintiff suffered neck shoulder and back pain in this accident. She would also have been shocked greatly by the impact. That would be natural. I am not satisfied on the basis of probability that she can reasonably attribute her low back symptomology or her Carpal Tunnel Syndrome to the accident. She has had back difficulties in that area in the past before this accident, and had undergone a number of x-rays for that.
Mr Walshe has given evidence that the causes of Carpal Tunnel Syndrome can be various, such as rarely from a Collis fracture of the wrist, sometimes from rheumatic disease, and also from an under active thyroid. The plaintiff has been diagnosed as suffering from an under-active thyroid. He has described it as extremely unlikely that it has resulted from the trauma of the accident.
However there can be no doubt but that she sustained a nasty neck and shoulder injury. She may have had some low back symptoms in the immediate aftermath of the impact but nothing which could be termed long-term. For that there have been other more likely causes.
I am also satisfied that there have been other reasons for her depression, which while perfectly understandable and for which she is entitled to the Court’s sympathy, nevertheless cannot be placed at the door of the defendant.
I award the sum of €40,000 for general damages for the past pain and suffering, and in view of the good prognosis I award the sum of €8000 for the future, to which I add the sum of €4000 agreed special damages. That gives a gross figure of €52,000.
Allowing for a deduction of €20% for contributory negligence, I give judgment in the sum of €41,600 and costs.
Turner v The Curragh Racecourse & Ors
[2020] IEHC 76 (21 February 2020)
JUDGMENT of Mr Justice David Keane delivered on the 21st February 2020Introduction1. Shortly after 9 a.m. on the morning of Saturday, 6 September 2014, an unusual, if notunprecedented, accident occurred at the Maddenstown Gallops (‘the gallops’) on theCurragh plain in Kildare, when the plaintiff, Gary Turner, who was out for a run, collidedwith a galloping racehorse that was being ridden by a jockey there.2. The first and second defendants, The Curragh Racecourse and Curragh RacecourseHospitality Limited respectively, are the corporate entities that manage the variousgallops on the Curragh and operate the nearby Curragh Racecourse. In this judgment, Iwill refer to those two companies collectively as ‘Curragh Racecourse’. It is commoncase that Curragh Racecourse has assumed the rights, interests and obligations of thetrustees of the Turf Club under an indenture with the Minister for Defence (‘the Minister’)of 10 September 1968 (‘the licence of 1968’), whereby the Minister licensed the trusteesto use certain lands on the Curragh as grass gallops. In turn, Curragh Racecourse nowlicences racehorse trainers to use those gallops for training purposes.3. By s. 2 of the Curragh of Kildare Act 1961 (‘the Act of 1961’), the lands of the Curraghplain were vested in the Minister, subject to any existing interests in those lands and tothe existing rights of way, rights to pasture for sheep (as rights of commonage) and otherrights affecting them specified in the Curragh of Kildare Act 1870 (‘the Act of 1870’).4. The Minister’s control of the Curragh lands is the result of the presence there of theCurragh Military Camp, which, together with the military camp at Aldershot in Hampshire,England, was first established in response to the outbreak of the Crimean War in 1854.Over 30,000 Irishmen served in the British army during that war. Concern about theeffect of the establishment of a permanent military camp on the continued enjoyment ofexisting rights and interests in the use of the Curragh lands led to the establishment of acommission of inquiry in 1866 and to the subsequent passage of the Curragh of KildareAct 1868 (‘the Act of 1868’). Among the purposes of that Act, as explained in one of itsrecitals, was ‘preserving the Use of the Curragh for the Purpose of Horse Racing and theTraining of Race Horses.’ According to the entry on the Curragh in the 1911 edition of theEncyclopaedia Britannica: ‘The word cuirrech, cognate with the Latin cursus, signifies arace-course, and chariot-races are spoken of as taking place on the Curragh as early asthe 1st century A.D.’ It is thus evident that from time immemorial the Curragh has beenPage 2 ⇓recognised as a centre, if not the centre, of horseracing activity on this island and that itsstatus as such has been the subject of express statutory recognition for over 150 years.5. The third defendant Tracey Collins is a racehorse trainer. The fourth defendant SheenaCollins is a sister of Tracey Collins. At the material time, Tracey Collins was the trainer ofthe three horses that were involved in the accident that is the subject of theseproceedings and Sheena Collins was her employee.The Curragh Acts6. The Act of 1868 gave statutory recognition to the already extant, common law office ofRanger of the Curragh, and created the additional office of Deputy Ranger. As the title ofthe office implies, the Ranger’s role was the preservation and management of the Curraghplain. The Ranger was given the power to appoint two bailiffs to assist the Deputy Ranger.Separately, the Act of 1868 created three Curragh Commissioners to inquire into,amongst other matters: first, what rights to pasture sheep (by way of commonage),rights of way or other rights existed over the Curragh; second, what persons were thebeneficiaries of any such rights, for what period and over what lands; and third, whatcompensation should be given to any party whose rights were, or may be, injuriouslyaffected by the Act’s stipulation that the Minister for War was to have exclusive use of theCurragh Camp, use and control of the Curragh rifle range, and use of the remainingCurragh lands whenever necessary for military purposes. Subject to that stipulation, allrights to pasture sheep, rights of way and other existing rights over the Curragh landswere to continue, as though the Act of 1868 had not been passed. In a series ofprovisions that remain unrepealed, The Curragh of Kildare Act 1870 (‘the Act of 1870’)gave statutory recognition to the relevant awards and findings of the CurraghCommissioners and introduced a further stipulation that no animals other than sheep maybe pastured on the Curragh lands.7. The office of the Ranger was effectively abolished when the Act of 1961 repealed the Actof 1868 in its entirety. However, the Curragh Bye-Laws 1964 (‘the Bye-laws’), made bythe Minister in exercise of the powers conferred on him by s. 16 of the Act of 1961,created the roles of ‘Head Bailiff’ and ‘Under Bailiff’ as employees of the Minister to carryout various duties in relation to the preservation and management of the Curragh plain.To that end, the Head Bailiff was given certain express powers under the Bye-laws.Subsequently, under s. 1 of the Curragh of Kildare Act 1969 (‘the Act of 1969’), theperson conferred with the powers, and charged with the duties, of the Head Bailiffbecame known as the Maor and the Under Bailiff became known as the Fomhair. Thefunctions of those persons under the Act of 1969 and the 1964 Bye-laws, as amended,principally involve the regulation of the exercise of sheep-grazing rights and theenforcement of the restriction on keeping or grazing other animals on the Curragh lands.The licence8. Under the licence of 1968, the Minister granted the trustees (for present purposes,Curragh Racecourse) licence and authority to use certain identified Curragh lands,including the gallops, as grass gallops for horse training purposes, with the right to passand repass at all times over the remainder of the Curragh lands (apart from the militaryPage 3 ⇓camp and rifle range) in order to do so, but excepting and reserving all existing rights topasture sheep (by way of commonage), rights of way and other rights, including therights of the Minister, over all of those lands. In return, Curragh Racecourse covenantedwith the Minister, in relevant part:‘…(iii) Not to enclose [the lands the subject of the licence, including the gallops] or anyportion thereof.(iv) Not to erect any building or permanent structure of any type on [the lands thesubject of the licence, including the gallops] or any portion thereof.(v) Not to erect any fences hurdles starting gates or other structures on [the premisesthe subject of the licence, including the gallops] or in any other part of the Curraghother than [the racecourse and surrounding lands, which do not include the gallops]without the prior written consent of the Minister….(ix) To indemnify and keep indemnified the Minister his successors and assigns againstall claims expenses demands or proceeding whatsoever in respect of accident orinjury to persons or animals or damage to property arising out of the exercise ofthe Licence hereby granted or out of rights of common pasture or otherwisehowsoever….’The pleadings9. In the personal injuries summons that issued on his behalf on 2 March 2016, Mr Turnerclaims that his collision with a racehorse was caused by the negligence and breach of dutyof the defendants, so that they are liable to compensate him in damages to for theinjuries to him that resulted.10. Mr Turner pleads that Curragh Racecourse was negligent or in breach of its duty to himin: permitting racehorses to gallop on that part of the Curragh lands; failing to protecthim from galloping horses at that place; failing to warn him of the presence of gallopinghorses there; failing to provide a barrier to his entry onto the gallops; and breaching itsobligations to him under the Occupiers’ Liability Act 1995 and the Safety, Health andWelfare at Work Act 2005.11. Mr Turner pleads that, as racehorse trainers, the Collins sisters were negligent or inbreach of their duty to him in: permitting racehorses to gallop at the gallops; failing tokeep an adequate lookout for persons such as Mr Tuner coming on to the gallops whileracehorses were exercising there; failing to have the galloping racehorses take evasiveaction; failing to warn Mr Turner of the galloping horses’ approach; and breaching theirobligations to Mr Turner under the Safety, Health and Welfare at Work Acts.Page 4 ⇓12. In its defence, delivered on 24 August 2016, Curragh Racecourse admits that the accidentoccurred but denies negligence. Further, or in the alternative, Curragh Racecourse pleadsthat the accident was caused in whole or in part by Mr Turner’s own negligence in:running into the path of the galloping racehorses; failing to keep a proper lookout; failingto stop or change course; failing to heed shouted warnings; and playing music onheadphones that prevented him from hearing either the sound of the approaching horsesor the shouted warnings of their approach.13. In their defence, delivered on 16 December 2016, the Collins sisters place Mr Turner onstrict proof of every aspect of his claim, before pleading that Mr Turner’s accident wascaused, or contributed to, by his own negligence in; disobeying warnings or prohibitorynotices against going on to the gallops at that time; trespassing on the gallops; failing todraw on the local knowledge that he had or ought to have had of the use of the gallops byracehorses; failing to keep a proper lookout; causing the collision by running into the pathof the galloping racehorses; wearing headphones and playing music on them whilerunning across the gallops in a manner that prevented him from hearing the approach ofthe racehorses or the shouted warnings of their approach; continuing to run whileunsighted by the low level of the sun in the sky or failing to take the appropriate steps toavoid being unsighted in that way while running; causing an emergency by running intothe path of the galloping horses; and failing to stop before colliding with them. TheCollins sisters also expressly plead that Sheena Collins was an employee of Tracey Collinsand not a racehorse trainer in her own right, so that she can have no possible liability inrespect of Mr Turner’s claims.Background14. Mr Turner, a transport manager with his own company, was 46 years old when theaccident happened. At all material times, he has lived in Newbridge, just half a mile – byhis estimate – from the townland of Athgarvan at the eastern edge of the Curragh. Heruns to keep fit and has participated in organised 10km events. For approximately eightyears prior to the accident, he had been running on the Curragh three or four times aweek. He invariably took one of two routes; a long and a short run. Only the long runtook him over the gallops.15. On the Saturday morning when the accident occurred, Mr Turner was not working andhad decided to go for a run. He drove from his home in Newbridge to the carpark ofAthgarvan National School and set off on his run from there. It was a sunny morning. Heran westwards initially, along a route south of the M7 motorway and north of the CurraghCamp. He was wearing earphones, through which he was listening to music. Beforereaching the western edge of the Curragh, he turned left and continued in a southwesterly direction parallel with the metal palisade fence on the north west side of Camp.That palisade fence surrounds the Camp Armoury.16. Mr Turner continued straight ahead in a south westerly direction past the corner of thepalisade fence, where it turns ninety degrees to run south east. Just before he reached apoint level with the corner of the palisade fence on his left, he passed on his right a set ofmobile practice starting stalls for racehorses. Although Mr Turner professes not to havePage 5 ⇓known it, once he passed that point, running in that direction, he began to cross thegallops.17. As must be common knowledge and as Pat Culleton – the independent expert engineerwho gave evidence on Mr Turner’s behalf – accepted, a jogger running at an average paceshould be able to come to a stop within, at most, a couple of seconds or a distance of nomore than a few metres.18. The gallops comprise one part of the disparate Curragh lands, collectively known as theCurragh Training Grounds, that the Minister has licensed Curragh Racecourse to use forthe purpose of training racehorses. Those rolled and groomed grass gallops are locatedsouth of the Curragh Camp Armoury, starting at a point to the east of it, continuingparallel to the palisade fence on its south west side, and finishing beyond it to the west.They run in a straight line on an upward gradient in a north westerly direction forapproximately seven furlongs or 1.4 kilometres. There is another gradient across thewidth of the gallops sloping downward away from the Army Camp. Throughout the flatracing season from approximately March to November, the gallops are open to racehorsetrainers each Wednesday and Saturday, during the hours between daybreak and 1 p.m.19. In order to ensure that racehorses and their riders take a single designated line along thegallops on any given day, cross-rails laterally intersect the gallops at three points alongtheir length. Those cross-rails are constructed of lengths of white plastic piping supportedat intervals by metal rods as stanchions. Each rod is looped around the plastic pipe andits sharpened ends are stuck in the turf below. The line that the horses must take isdesignated by opening a 6.6 metre gap at a corresponding point in each of the threecross-rails. As the season progresses, the location of the gap in each of the cross-rails ismoved down the gradient away from the Curragh Camp, so that the designated line shiftsconstantly to protect the turf from damage through overuse. According to the evidence ofMr Turner and as shown in various photographs of the location taken by his partner thefollowing day, the cross-rails were in poor condition at the time of the accident in thatsome of the metal rods had fallen over, with the result that certain sections of whiteplastic pipe were partly or wholly on the ground. Patrick Kelly, the Curragh Racecoursetraining grounds manager, explained during his evidence that it is quite a job to maintainthe cross-rails because the sheep like to rub or scratch against them, frequently knockingthem down.20. The designated line is also demarcated by seven pairs of small white circular markers,6.6m apart, placed at regular intervals from the start of the gallops to the finish. Tofacilitate military patrols around the perimeter of the Curragh Camp, there is a 20-metregap between the northwest side of the gallops and the palisade fence on the southwestside of the Camp Armoury.21. To the south of the gallops, running parallel to them, is a separate all-weather racehorsetrack.Page 6 ⇓22. Despite running on the Curragh for eight years and frequently taking a route across thegallops, Mr Turner testified that he had never seen a single horse there. Further heattributed no significance to the presence of mobile starting stalls, cross-rails and markersat that location. He thought that the stalls had been abandoned and that the cross-railswere of no use to anyone because of their poor condition. He did not notice the markersor the all-weather track that runs parallel to the gallops to the south, which he thought(wrongly, the aerial photographs would suggest) might have been obstructed from hisview by trees.23. Not far beyond the all-weather track is the southern edge of the Curragh, fringed bytrainers’ yards, amongst which is that of Tracey Collins.24. On the Saturday morning of the accident, Ms Collins was working as usual from her yardat Conyngham Lodge Stables, a short distance from the gallops. Her grandfather begantraining racehorses there in 1926, and her father took over the operation in 1958. MsCollins was a work rider for her father for 25 or 26 years and an amateur jockey for 10years. She took out her trainer’s licence in 2007, the year that her father died. Thus, forapproaching a century, her family has been continuously engaged in racehorse training atthe Curragh.25. Ms Collins works her horses on the gallops when they are open on Wednesday andSaturday mornings. On those mornings, she begins her day by checking on theircondition and then feeding them. Next, Ms Collins assigns a jockey to each mount. Whilethe jockeys are tacking out, she drives out to inspect the condition of the ground on thegallops. That inspection usually takes place between 5.45 a.m. and 6.00 a.m. After that,Ms Collins returns to the yard to attend to various tasks; horses might be put on themechanical walker or given a rub down. Then, the horses that are to be worked arebrought down to a wooded area just to the south of the all-weather track beside thegallops, where they are trotted out for 10 minutes or so. When that has been done, MsCollins proceeds in her jeep along the Camp Armoury side of the gallops, conducting asafety inspection to satisfy herself of the absence of any evident risk to her staff or horsesfrom potential hazards such as vehicles, joggers or grazing sheep. She then parks herjeep at a point on the gallops beside the designated line approximately 50 metres to thewest of the corner of the palisade fence. From there, Ms Collins can watch throughbinoculars as her horses carry out ‘fast work’ on the gallops and the jockeys can takedirection from her as they approach her position. Ms Collins uses a circular motion of herleft hand to signal the jockeys to urge on their horses and holds up the palm of her lefthand in a static posture to signal the jockeys to ease them up.26. John Watson, the independent equestrian expert who was called as a witness on behalf ofMr Turner, explained in his evidence that the training of racehorses usually entails seriouswork – that is, work done at a gallop – twice a week. This galloping work may be done athalf speed, three-quarter speed or full speed. Generally, the last quarter of any gallop isdone at full speed. The trainer adopts a vantage point that the horses will pass whenthey are at full exertion. As they approach the end of the gallops, the horses are pulledPage 7 ⇓up over a further 100 or 200 metres, still travelling a straight line. In Mr Watson’s words,it is important to pull a racehorse up gradually because its legs are ‘a fragile bit of kit’,compared to its overall body mass, and because it is perhaps most prone to injury whenphysically tired towards the end of its exertion. When they have been pulled up, thehorses are brought back around so that the trainer can observe their post-exertioncondition and breathing.27. According to the evidence of Mr Kelly, the training grounds manager, on a typical daywhen the gallops are open, 6 to 8 trainers would use them, working upwards of 100horses in total.28. At the time of the accident, Ms Collins was working a group (known as ‘a lot’) comprisingsix horses, divided into two batches of three. The horses jump off in batches andfrequently ride just inches apart to simulate race conditions. It was the first batch thatwere involved in the accident the subject of these proceedings. Of that group, HazelWallace was the jockey on Daisy Bell, the horse to the right; Philip Donovan was onMajestic Queen, in the middle; and Yoshi Takamora was on Chiclet, on the left. HazelWallace has worked for Ms Collins for over 20 years and Ms Collins considers her to be anexceptional rider.The accident29. Mr Turner’s evidence concerning the accident and its aftermath was broadly as follows.When he passed the corner of the palisade fence on his left, he continued running straightahead across what he now knows to be the gallops. He was running in line with the thirdset of cross-rails, which were immediately to his left. He was not looking to his right orhis left. Although it was a sunny morning and the sun would have been above and in linewith the approaching racehorses that were below him and to his left, Mr Turner did notclaim to have been unsighted in that direction; rather, his evidence was that he did notlook to his right or left, as he had no reason to do so. Thus, he did not see Tracey Collinsor her jeep to his right.30. Although Mr Turner had earphones on, he stated that he first became aware of the horseswhen he heard them. He was insistent that he did not hear any shouting before theaccident. On hearing the horses’ approach, he looked to the left and saw them twenty orthirty feet away from him. They went straight over him, veering neither right nor left.Two of them may have hit him. He fell to the ground. He saw the next batch of horsescoming up behind him, so he scrambled away from their line of approach before droppingto the ground again. A woman, who was probably Tracey Collins, approached him. Shetold him that an ambulance had been called and advised him not to move. At the time,he thought he was dying.31. In cross-examination, it was put to Mr Turner that the account of the accident he hadgiven in evidence was inconsistent with the case he had pleaded and the account of theaccident that he had given to his own independent experts. In the personal injuriessummons that issued on his behalf on 2 March 2016, the contents of which he hadverified in an affidavit sworn on 7 March 2016, Mr Turner pleaded, in material part:Page 8 ⇓‘While jogging along, [Mr Turner] became aware that someone was calling to him.[Mr Turner] looked around and became aware that three horses with jockeys werebearing down upon him.’Mr Turner had no explanation to offer for that discrepancy.32. Similarly, according to the report of Mr Culleton, Mr Turner’s engineer, during aninspection of the location of the accident on 9 October 2014, Mr Turner told him that hecould recall ‘suddenly feeling vibration in the ground, hearing shouting and then seeingthree charging horses bearing down on him from his left.’ When counsel drew thataccount to Mr Turner’s attention, he responded that he had been on a lot of medication atthat time.33. Further, according to the report of Mr Watson, the independent equestrian expert whogave evidence on behalf of Mr Turner, during an inspection of the location over two yearsafter the accident on 1 April 2017:‘3.8. [Mr Turner] recalled looking up because he heard somebody calling to him. He wasnot aware what they were calling about. At the inspection, he believed the voiceappeared to come from a vehicle parked about 50 metres or more away to hisright.3.9. The “next thing” he saw was “three horses running at me with jockeys on them”.They came at him, straight through a gap in the railings, from his left.’34. Mr Turner could not explain why, if these were errors, he had taken no steps to correctthem, merely repeating several times in evidence that he had heard ‘noises’, but not‘shouting’, just prior to the accident.35. In her evidence, Tracey Collins gave the following account of the accident. She haddriven up the gallops to inspect them for a second time at 9.10 a.m. when she hadobserved no joggers, sheep or vehicles present there and, thus, no risk of collision. Shehad parked her jeep and had alighted from it. She was observing the first batch of threehorses on the gallops through her binoculars. They were gradually quickening their paceand had just come through the second set of cross-rails when the jockeys beganshouting. Ms Collins put down her binoculars to look around. She saw Mr Turner runningalong the third set of a cross-rails on a collision course with the approaching horses. MsCollins began running as fast as she could towards Mr Turner, while shouting and waving.The jockeys also were shouting at Mr Turner and were trying to pull up their mounts. Thehorses were by then going very fast. Two of them were fillies with a handicap rating ofover 100. Mr Turner just kept running. Mr Turner arrived at the gap in the cross-rails,just as the horses did. He collided with the neck or shoulder of Daisy Bell, the mount ofHazel Wallace, and was knocked down. The filly stumbled, and Ms Wallace was thrown tothe ground.Page 9 ⇓36. In Ms Collins view, there was nothing that the horses or their riders could have done toavoid the collision. The horses only had the 6.6-metre-wide gap to go through. At thespeed they were travelling, if they had attempted to veer sharply left or right they wouldhave fallen, creating a risk of serious injury to horse and rider. If they had veered lesssharply left or right they would have gone through the cross-rails at an even greater riskof serious injury and with the additional danger that horse or rider might have beenimpaled on the sharpened ends of one of the metal rods supporting the plastic rails.37. Ms Collins ran to attend to Mr Turner. She rang the army hospital at the Curragh Campto call an ambulance. She rang Mr Kelly, the training grounds manager. Having trainedin first aid, she told Mr Turner not to move. Ms Wallace was sitting up and appearedphysically fine, although she seemed to Ms Collins to be in shock. Ms Collins noted loudmusic coming from Mr Turner’s earphones, which were on the ground.38. Hazel Wallace, who was called as a witness on behalf of the third and fourth defendants,provided the following account of the accident. She and her fellow jockeys trotted theirmounts through the first marker at the commencement of the gallops because the groundthere wasn’t great. They started to canter and then gallop when approaching the first setof cross-rails, after which they got the horses into a tempo and went through the secondset of cross-rails. They were riding together, nicely balanced and in sync. Ms Wallacewas focussed on the horses beside her and on Ms Collins, who was at a vantage pointabout 100 yards or so beyond the third set of cross-rails. As they approached the markerbetween the second and third fence, Ms Wallace saw Mr Turner. He was approximatelyhalf way across the length of the cross-rails. The markers are about 150 yards from thecross rails, so she was about 150 yards from Mr Turner when she first saw him, ahead ofher and to her right. She began shouting as loud as she could to warn him. The othertwo jockeys began shouting as well. Ms Wallace felt that he didn’t hear or see thembecause he didn’t look at them or stop.39. Ms Wallace testified that she could not turn her horse away from the gap at that pointbecause the turn would have been too sharp. She knew that the metal rods supportingthe plastic rails have sharp spikes at each end. Their horses were trained for flat racing;they had never been taught how to jump an obstacle. It takes a furlong and a half to pullup a horse once it is moving flat out and hers was. The average racehorse weighs half atonne. She was concerned, not only about Mr Turner’s safety, but also about her ownsafety and that of her fellow jockeys. She was trying to pull her horse back.Unfortunately, shouting tends to have the effect of spurring a horse on, rather thanslowing it down. They met at the gap at the same time. As she was going through thegap, Mr Turner came across it, colliding with her horse’s shoulder. Mr Turner appeared tolook up only at the last split second.40. Ms Wallace was thrown by the force of the impact and finished up about 10 or 12 metresaway, once she had stopped rolling. She saw the next batch of horses coming andscrambled away before dropping to the ground again. When the ambulance arrived, themedical staff had a quick look over her. She did not feel she required a doctor. ShePage 10 ⇓spent the rest of the weekend at home and was back riding on the following Monday orTuesday. She has been riding for 20 years and nothing like this has ever happened in herexperience, either before or since.The injuries41. Mr Turner was brought by ambulance to the Accident and Emergency Department of NaasGeneral Hospital, where his right shoulder was found to be dislocated. It was reduced(that is to say, put back in place) successfully, while Mr Turner was under sedative.Although he went to work the following Monday, the pain in that shoulder was verysevere for six weeks after the accident and he still suffers pain and a range of physicaland psychological problems that he attributes to the accident. In late 2014, Mr Turnerbegan to develop left-sided back pain, radiating to the left side of his chest, andsignificant pain in the left-side of his cervical spine, radiating towards his left leg. He hasundergone extensive physiotherapy. He has had injections and rhizotomy (i.e. nerve-cauterising or severing) procedures carried out four times, against the background ofconfirmed degenerative disc disease in his lumbar spine and degenerative arthritis in thefacet joints there. The accident may have exacerbated an existing osteoarthritic conditionin his left knee. He has been diagnosed with post-traumatic stress disorder.Disputed facts42. Although there is some level of agreement between the parties concerning the broadcircumstances of the accident, three significant points of conflict emerged at trial: first,the distance beyond the corner of the palisade fence that Mr Turner had run beforecolliding with the racehorses on the gallops; second, whether there was any shoutedwarning to Mr Turner prior to the collision; and third, whether Ms Collins and her jeep hadbeen present to Mr Turner’s right on the gallops prior to the collision.43. During his cross-examination at trial, Mr Turner stated that he believes the accidentoccurred when he had proceeded only 30 or 40 metres beyond the corner of the palisadefence. It was then put to him that in the report of Mr Culleton, the independent expertengineer instructed on his behalf, Mr Turner is recorded at the inspection on 9 October2014 as estimating that he was 100 metres beyond the corner of that fence when thecollision happened. Mr Turner responded that it would have been 100 feet (i.e.approximately 30 metres) and not 100 metres. Mr Turner estimated that he had been hitabout eight seconds after he passed the corner and that, at the pace he was running, hewould have covered 100 feet in that time. It was put to Mr Turner that it was thedefendant’s case that the collision had occurred 139 metres from the corner of thepalisade fence. He did not accept that.44. In the report of Tony O’Keefe, the independent expert engineer who was called as awitness on behalf of the Collins sisters, Tracey Collins is recorded as having informed himthat, on the morning in question, the gap in the cross-rails (and hence the location of theaccident) was at a point on the gallops that Mr O’Keefe then measured as 139 metresfrom the corner of the palisade fence. Mr O’Keefe confirmed his instructions and hismeasurements in evidence and it was not put to him that he was mistaken in either. Norwas it suggested to Ms Collins that her recollection in that regard had been incorrect. MsPage 11 ⇓Wallace, the jockey, confirmed that the designated line that morning was the one that MsCollins had identified to Mr O’Keefe (i.e. with the gap in the third-set of cross rails at apoint which Mr O’Keefe measured at 139 metres from the corner of the palisade fence).Ms Wallace was not cross-examined on that aspect of her evidence. Mr Kelly, the traininggrounds manager, who was directly called to the scene of the accident by Ms Collins, gaveevidence that the location at which it occurred (the gap in the third set of cross-rails) wasabout 120 metres from the palisade fence.45. Bearing in mind the uncontroverted evidence that the season commences in March orApril and that the accident occurred in September, the defendants’ evidence on the pointis consistent with the unchallenged assertion that, as the season progresses, thedesignated line on the gallops is moved down the gradient, ever further from the palisadefence at the Camp Armoury.46. I have already described the conflict between Mr Turner’s evidence at trial – that therehad been noises, but no shouts, prior to the collision – and not only the defendants’evidence on that point but also both the relevant part of Mr Turner’s claim as pleaded andthe description of events that he gave to his own independent experts as recorded bythem.47. In evidence at trial, Mr Turner claimed never to have looked left or right while running onthe Curragh because, in his view, there was no reason to do so. Nonetheless, he did notaccept that Ms Collins’ jeep was parked on the gallops to his right when the accidentoccurred. Instead, he expressed the view that the jeep had driven up after the accident.48. As noted earlier, the evidence of Ms Collins is that she had parked her jeep at a vantagepoint on the gallops that would have been to Mr Turner’s right as he proceeded beyondthe corner of the palisade fence and was standing beside it, watching through herbinoculars the horses proceeding towards her. That is also the evidence of Ms Wallace,the jockey. Once again, Mr Turner’s own independent equestrian expert, Mr Watson,records Mr Turner describing a voice calling to him prior to the collision that ‘appeared tocome from a vehicle parked about 50 metres or more away to his right.’49. Having considered the evidence as carefully as I am able, on the balance of probabilities Iam conclude that:(a) the accident occurred between 120 and 139 metres from the corner of the palisadefence,(b) for several seconds prior to the accident, the jockeys of the three approachinghorses to Mr Turner’s left were shouting warnings at him and Ms Collins to his rightwas running towards him, while waving her arms and shouting a warning to him,andPage 12 ⇓(c) as the preceding finding implies, Ms Collins jeep was parked at a position on thegallops where it would have been plainly visible to Mr Turner’s right, as would MsCollins.Analysisi. negligence50. Mr Watson, the equestrian expert instructed on behalf of Mr Turner, expressed the viewthat the Curragh Racecourse could, and should, have averted the accident by erecting atemporary sign when the gallops were in use, somewhere in the vicinity of the corner ofthe palisade fence at the Camp Armoury or, better still, at the top of the third set ofcross-rails, orientated to be read by persons approaching the gallops at that point fromthe north east, reading ‘LOOK LEFT FOR GALLOPING HORSES’ or words to that effect. MrCulleton, Mr Turner’s expert engineer, also expressed, albeit in more general terms, theview that a sign of some sort should have been erected. As that was not done, Mr Turnersubmits that Curragh Racecourse breached the duty of care that it owed him.51. I cannot accept that submission for several reasons.52. The first reason is that I cannot reconcile it with the particular facts of this case. Fromthe moment that Mr Turner passed the corner of the palisade fence around the CampArmoury, the entire unobstructed vista of the gallops opened out before him. TomRowan, the independent expert engineer called as a witness by Curragh Racecourse, gaveunchallenged evidence that, at a running speed of 3.05 m/s (a good average speed for ajogger), it would take between 32 and 45 seconds to run a distance of between 100 and139m. On his own evidence, Mr Turner proceeded for that long over that distance acrossan open plain without ever seeing, to his left, the six galloping racehorses and theirjockeys, whose course was converging orthogonally with his own, or seeing, to his right,Ms Collins, who was initially standing beside her parked jeep, which he also failed to see,and who then ran towards him, shouting and waving her arms. As already noted, MrTurner’s explanation for this remarkable turn of events is that he did not look to his rightor his left when jogging on the Curragh Plain because as far as he was concerned therewas no reason to. That being so, I cannot be satisfied that Mr Turner would have seen atemporary sign erected at either the corner of the palisade fence or the beginning of thethird set of cross-rails to either the left or right of the route along which he had chosen tojog. Hence, even if the duty of care on Curragh Racecourse required it to erect atemporary warning sign, I could not be satisfied that its failure to do so was the cause ofMr Turner’s accident.53. The second reason is that I cannot accept the existence of a duty of care as wide as thatwhich Mr Turner’s submission implies. In his report on behalf of Mr Turner, Mr Watsonacknowledges that it is a corollary of the view he has expressed that equivalent signagewould be required at other (unspecified) locations on the Curragh Plain. While someattempt was made in evidence by, and on behalf of, Mr Turner to suggest that there are alimited number of points at which recreational walkers or joggers are likely to commencetraversing the gallops, I accept the evidence of Mr Kelly, the training grounds manager,Page 13 ⇓that the gallops are an open plain, accessible at any point around the three hundred andsixty degrees of their circumference and that recreational users cross them in alldirections. That proposition is borne out by the photographic evidence. While it is truethat a number of faint tracks, which Mr Kelly identified (correctly, to my mind) as sheeptracks and which Mr Turner referred to as jogger’s paths, are evident in various aerial andother photographs, those tracks traverse the gallops at a range of different angles andthere is nothing to compel walkers, joggers or, for that matter, sheep to use, or stay on,any of them.54. Where, then, would a duty to erect signs to warn persons traversing the open gallops ofthe possible presence of galloping horses begin and end? The Supreme Court addresseda similar question in Weir-Rodgers v S.F. Trust Ltd. [2005] 1 I.R. 47. A woman admiringa sunset with some friends from a vantage point at Coolmore, beside the beautifulRossnowlagh Beach in County Donegal, lost her footing and slipped down a deceptivelysteep gradient into the sea, sustaining significant physical injuries. She sued thedefendant company, formed by the Franciscan religious order, which was the occupier ofthe land on which she had been standing. Her claim was that the company had been inbreach of its duty to her under the Occupiers’ Liability Act 1995 (‘the Act of 1995’) infailing to erect a sign or notice warning of the danger. In giving judgment for the Court,Geoghegan J (Murray CJ and Denham J concurring) commented (at 53):‘At one point in the cross-examination of Mr McMullan [the plaintiff’s independentexpert engineer], counsel for the defendant asked him if you were to put up anotice everywhere there was a ridge or a cliff how many notices would have to beerected. His answer was that the place would be littered with notices. One doesnot have to be an engineer to agree with that answer and one does not have to beblessed with a high degree of common sense to opine that it is highly unlikely theOireachtas ever intended any such thing. Mr McMullan’s evidence was extreme but,in my view, it logically had to be given to support the case for the plaintiff. Forinstance, in re-examination counsel for the plaintiff referred to a question counselfor the defendant had asked Mr. McMullan as to whether he was suggesting thatevery stretch of the coast line should be fenced. I rather suspect that counsel forthe plaintiff was hoping for a different kind of answer than he got. Mr. McMullansaid that any area that is heavily pedestrianised should certainly have somewarning signs and that there should also be a fence there as well. I must confessthat this conjures up in my mind huge areas of coastline right around Irelandfenced against the public and littered with warning notices. An intention of theOireachtas to that effect would seem unlikely but if a statute required it, the courtswould be bound to uphold it. That is the question which I have to address when Ideal with the law.’55. In dealing with the law, Geoghegan J concluded (at 56) that, even if the duty of theoccupier in that case was the ordinary Donoghue v Stevenson [1932] AC 562neighbourly duty of care and not the lower duty not to cause intentional injury to, or actPage 14 ⇓with reckless disregard for, a recreational user or trespasser under s. 4(1) of the Act of1995, the plaintiff would not be entitled to succeed. Geoghegan J explained (at 57):‘14 …The whole area of reasonableness in an outdoor land situation has been quiterecently considered by the House of Lords in Tomlinson v. Congleton BoroughCouncil [2003] UKHL 47, [2004] AC 46. That case involved potential liabilityunder the English Occupiers Liability Act 1957 and there were some viewsexpressed in the speeches of the Law Lords relating also to the Occupiers LiabilityAct 1984 which was the Act dealing with duty to trespassers. While there is someoverlap, the wording of the English Acts is sufficiently different to render it oflimited assistance in interpreting the Irish legislation. But at least one aspect of thatcase is relevant to this case. The Law Lords in their speeches referred to thecommon sense expectations of persons engaged in outdoor activities such as, forinstance, mountain climbing or walking or swimming in dangerous areas. The otherside of that coin is that the occupier is entitled to assume that knowledge of suchdangers and risks would exist and safety measures would be taken. For thispurpose, I find it sufficient to refer only to some passages from the speech of LordHutton. At para. 57 he cited with approval a Scottish case Stevenson v. Corporationof Glasgow 1908, SC 1034 at p. 1039 where Lord M’Laren stated: -“in a town, as well as in the country, there are physical features which maybe productive of injury to careless persons or to young children against whichit is impossible to guard by protective measures. The situation of a town onthe banks of a river is a familiar feature; and whether the stream be sluggishlike the Clyde at Glasgow, or swift and variable like the Ness at Inverness, orthe Tay at Perth, there is always danger to the individual who may be sounfortunate as to fall into the stream. But in none of these places has it beenfound necessary to fence the river to prevent children or careless personsfrom falling into the water. Now, as the common law is just the formalstatement of the results and conclusions of the common sense of mankind, Icome without difficulty to the conclusion that precautions which have beenrejected by common sense as unnecessary and inconvenient are not requiredby the law.”15 That passage would seem to be apposite to this case also and would seem to applyto any suggestion that a warning notice should have been put up. Lord Hutton alsocites Glasgow Corporation v. Taylor [1922] 1 AC 44, where at p. 61 Lord Shaw ofDunfermline stated: -“Grounds thrown open by a municipality to the public may contain objects ofnatural beauty, say precipitous cliffs or the banks of streams, the dangers ofthe resort to which are plain.”16 In support of these propositions, Lord Hutton cited yet another Scottish caseHastie v. Magistrates of Edinburgh 1907, SC 1102 where the Lord President (LordDunedin) at p. 1106 said that there are certain risks against which the law inPage 15 ⇓accordance with the dictates of common sense, does not give protection – suchrisks are “just one of the results of the world as we find it.”17 I would heartily endorse the sentiments expressed in these passages. The personsitting down near a cliff must be prepared for oddities in the cliff’s structure or inthe structure of the ground adjacent to the cliff and he or she assumes the inherentrisks associated therewith. There could, of course, be something quite exceptionallyunusual and dangerous in the state of a particular piece of ground which wouldimpose a duty on the occupier the effect of which would be that if he did not put upa warning notice he would be treated as having reckless disregard. But this iscertainly not such a case. While obviously sympathetic to the plaintiff in her seriousinjuries, I am quite satisfied that there was no liability on the part of the defendantin this case and I would set aside the judgment of the High Court and dismiss theaction.’56. In my view, the dangers inherent in crossing wide open gallops are directly comparable tothose of visiting precipitous cliffs or the banks of rivers and streams. I fully accept thatthere could be something quite exceptionally unusual and dangerous in the state of thegallops that would impose the duty to erect a warning sign. In the course of argument, Ioffered as an example the hypothetical that if the gallops extended up to the side of thepalisade fence of the Camp Armoury and if the designated line was then too close to thatfence, creating a blind corner for persons emerging onto the gallops from the north westside of the camp, then such an exceptional or unusual danger could well exist and a dutyto erect a warning sign or to take some comparable preventative measure at that specificplace could then arise. But this was not such a case. There was nothing deceptive aboutthe presence of the galloping racehorses nor about their progress up the gallops. It wasthe unchallenged evidence of Mr O’Keefe, Ms Collins’ independent expert engineer, that,when Mr Turner passed the corner of the palisade fence, the racehorses would have beenplainly visible below him on the open plain of the gallops from an initial distance greaterthan 750 metres away to the point of the collision between them over thirty secondslater. I draw support for that conclusion from the evidence of Mr Kelly, the traininggrounds manager, that, in his 21 years in that role, no other such incident has occurred,either before or since Mr Turner’s accident, and from that of Ms Wallace, the jockey, thatnothing like it had ever happened in the twenty years she had been riding on the gallopsfor Ms Collins.57. Hence, Mr Turner has failed to satisfy me that Curragh Racecourse was under a duty ofcare to erect a warning sign at, or near, the point on the Curragh Plain at which hecommenced jogging across the gallops.58. In light of that conclusion, it is unnecessary to consider Mr Turner’s additional argument,which assumed the existence of such a duty, that Curragh Racecourse was not preventedfrom erecting a warning sign by the express term of its covenant with the Minister underthe licence of 1968 not to erect any ‘structure’ on the gallops without the Minister’sPage 16 ⇓written permission, since a warning sign should not be considered a structure within themeaning of that term of the agreement, properly construed.59. I reject the view put forward by Mr Culleton, Mr Turner’s engineer, that the CurraghRacecourse was in breach of duty in failing to cordon off either the entire gallops or thedesignated line on the gallops in circumstances where: first, there was no evidence that itwas practicable; and second, there was uncontroverted evidence that Curragh Racecoursehad no lawful entitlement to do so.60. Finally, on the question of breach of duty, I also reject Mr Culleton’s view that the Collinssisters were negligent in failing to ensure that the horses Tracey Collins was training onthe gallops were pulled up before Mr Turner could collide with them. Mr Culleton is not anequestrian expert. Mr Watson, Mr Turner’s equestrian expert, expressed no such viewand I accept the evidence of Ms Collins and Ms Wallace on that point.61. Hence, I conclude that there was no breach by any of the defendants of any duty of careowed to Mr Turner in the circumstances of the accident.ii. was Mr Turner negligent?62. Mr Turner jogged over 120 metres across an open plain for over thirty seconds beforerunning into the shoulder or neck of one of three galloping racehorses with which he hadbeen on an orthogonal collision course for all of that distance and time. Had he beenkeeping a proper – or any – lookout, he would have been able to stop within a second ortwo or within a distance of less than six metres and the collision could have been avoided.63. Mr Turner candidly admitted in evidence that he did not look to his left or right at anytime prior to the collision because, in his view, he had no reason to do so. He did not seein his peripheral vision the racehorses that he was converging with, nor did he hear thethunderous sound of those horses’ hooves, until it was too late.64. Mr Turner testified that he considered running on the Curragh Plains directly comparableto running across a field, before offering the view that, since there is no necessity to lookleft or right when crossing a field, there was no necessity for him to look left or right (orotherwise keep any proper lookout) when crossing the gallops prior to this accident. Icannot agree with that view for three reasons.65. First, given the potential presence in any field of livestock, wild animals, agriculturalvehicles and machinery, farmers, agricultural workers and visitors, it seems to mesensible and, thus, reasonable to keep a proper lookout when crossing one. Second, theCurragh Plains are more than just a very large field. On the Curragh, there will also bemilitary patrols; the management and conservation activities of the Maor and his (or her)staff; and the racehorse training activities that have been going on there for centuries.Third, the whole purpose of keeping a proper lookout is to afford an opportunity tobecome aware of, and take appropriate measures to deal with, the unexpected, as well asthe predictable. It is for that reason that I do not think anything very much turns on MrPage 17 ⇓Turner’s claim to have been ignorant of the nature and purpose of the gallops when hebegan crossing them.66. In his evidence, Mr Turner contrasted the proper lookout he keeps when crossing a publicroadway with, to borrow a horse racing expression, the blinkers that he asserts he isentitled to wear, figuratively speaking, when running on the Curragh. Once again, I amafraid that I cannot agree. The existence of a legal requirement to keep a proper lookoutwhen crossing a public road does not imply the absence of any common-senserequirement to do so in other public places.67. While listening to music through headphones as a pedestrian or jogger in a public placedoes not amount to negligent conduct in and of itself and has to be considered in context,I am satisfied that it did contribute to the accident in this case. In addition to failing tokeep a proper visual lookout, Mr Turner did not hear the sound of the warning shouts ofMs Collins, the trainer, and of the jockeys of the three galloping racehorses. Nor did hehear the sound of the galloping hooves of the approaching horses.68. In arguing that listening to music on earphones cannot be classified as negligent on hispart, Mr Turner relies on the decision of the Supreme Court of the Australian CapitalTerritory in Pangallo v Smith [2015] ACTSC 313. While I have found the decision ofAssociate Justice Mossop in that case lucid and persuasive on the relevant point, it doesnot assist Mr Turner. The case concerned a collision on a suburban street between amotor vehicle and a pedestrian wearing earphones and listening to music. In contrast tothe present case, the breach of duty of the defendant in that case (the motorist) wasadmitted, and the relevant issue was whether there had been contributory negligence onthe part of the plaintiff pedestrian in ‘wearing earphones and listening to music whilstwalking on the road … thus impacting upon his ability to hear approaching traffic.’69. Mossop AsJ stated (at para. 20):‘A pedestrian crossing a road at night even in a relatively low traffic suburban areais obliged to take care for the person’s own safety. That obligation extends tolooking and listening for vehicles on the road that have the potential to cause harmto the pedestrian. It extends to cars approaching from both in front of and behindthe pedestrian. It extends to circumstances in which the road is reasonably lit. It isclear that the plaintiff neither saw nor heard the first defendant’s vehicle prior tothe accident. In my view had the plaintiff been taking reasonable care either bypaying greater visual attention to his surroundings or by ensuring that his hearingwas not impeded by headphones and the sounds of the radio then it is likely that hewould have become aware of the presence of the first defendant’s vehicle and itsapproach as it turned into Jandamarra Street. It is more likely than not that havingregard to his proximity to the edge of the road that he would have been able totake some evasive measure in order to avoid the accident.’70. I conclude that the proximate cause of the accident was Mr Turner’s failure to keep aproper lookout, together with his use of earphones to listen to music, impeding – if notPage 18 ⇓eliminating – his ability to hear the approach of the racehorses or the shouted warnings oftheir approach. It is more than likely that, had he been taking reasonable care either bykeeping a proper lookout or by ensuring that he was in a position to hear the sound of theapproaching racehorses or the shouted warnings of their approach, he could have avoidedthe accident by the simple and straightforward expedient of stopping or slowing down.iii. occupiers’ liability71. Mr Turner pleads that Curragh Racecourse was in breach of its duty of care towards himunder the Act of 1995. However, in view of the finding I have already made that none ofthe defendants were in breach of any duty of care that they owed to Mr Turner, there isnothing in the Act of 1995 that can avail him. Even assuming, without deciding, thatCurragh Racecourse was an ‘occupier’ of the gallops, as defined under s. 1 of that Act,then Mr Turner would be no more than ‘a recreational user’ there, as defined under thesame section. Thus, under s. 4 of the same Act, Curragh Racecourse would have owedMr Turner only the lesser duty not to injure him intentionally or act in reckless disregardof his interests. In those circumstances, Mr Turner might have been expected to arguethat the ‘danger’ concerned (that of a collision with a racehorse on the gallops) was not a‘danger due to the state of the premises’, thus taking his claim outside the scope of theAct of 1995 and back within the rubric of normal negligence rules; see Allen v TrabolganHoliday Centre Ltd (Unreported, High Court (Charleton J), 30 April 2010), [2010] IEHC 129(at para. 1). Yet, as I have already concluded, even under normal negligenceprinciples, his claim cannot succeed.iv. a claim in public and private nuisance that was not pleaded72. In the written legal submissions filed on his behalf at the end of the trial, Mr Turnersought to introduce a new claim of occupiers’ liability against the Collins sisters and newclaims of private or public nuisance against each of the defendants. I have alreadyexplained why an occupiers’ liability claim could not succeed. A public nuisance claimcould not succeed either because, on the facts I have found, none of the defendantsunreasonably interfered with the exercise by Mr Turner, as a member of the public, of anyright associated with the use of the Curragh Plain. Whether Mr Turner unreasonablyinterfered with the defendants’ exercise of such rights is a matter that – perhapsfortunately for him – does not arise. The proposed claim in private nuisance is untenable;it depends on the faintly surreal proposition that the right to jog on the Curragh is a localcustomary right i.e. one confined to members of the local community and not available tothe public at large.73. However, an antecedent difficulty for Mr Turner is that he did not plead any of the claimsjust described; did not formally apply to amend his pleadings to include them; and did notoffer any explanation for his failure to adopt either course. Instead, he argued in closingsubmissions, when first raising those claims, that their informal introduction at that pointwould not prejudice the defendants because, if they weren’t prepared to deal with themon the hoof (to borrow another equine expression), they could apply for an adjournment.While it is clear that Order 28, rule 1 of the Rules of the Superior Courts – the rulePage 19 ⇓governing the exercise of the power to permit the amendment of pleadings – is intendedto be a liberal one (i.e. to allow any amendment necessary for the purpose of determiningthe real questions in controversy between the parties), in my judgment the exercise ofthat power in the manner and circumstances just described would facilitate an abuse ofprocess and would amount to a breach of the defendants’ fair trial rights. Hence, I do notpropose to do so.Conclusion74. While Mr Turner is entitled to every sympathy for the injuries he has sustained and thepain and suffering he has endured, I can find no responsibility and, hence, no liability forthose injuries on the part of any of the defendants.75. Mr Turner’s action is dismissed.
Result: Claim in negligence and occupier’s liability dismissed.
Mc Neilis(a minor) v Armstrong & Anor
[2006] IEHC 269
Judgment of Mr Justice Michael Peart delivered on the 31st day of July 2006:
I heard these three plaintiffs’ actions together since they arise out of the same tragic event on a road from Ardara to Letterkenny on the 13th August 1999 in which two vehicles collided leaving all four occupants of one car dead. In the other car one child lost his life, four other children, including the present plaintiffs, were seriously injured (the rere seat passengers), and injuries were sustained also by two adult ladies seated in the front. One lady, Grainne McNeilis, is the second named defendant and driver of the car, and she is the mother of three of the children, namely the plaintiff Sean McNeilis, the plaintiff, Eamonn McNeilis, and another son Michael who died in the accident. The other lady, who was seated in the front passenger seat is Margaret McGill, the mother of the plaintiff, Martha McGill, and also of another daughter, Briana McGill whose action has already been disposed of.
Ages of the children in the rear:
As one faces towards the front of the vehicle (which I shall hereafter refer to as “the Passat”) in which the plaintiffs were travelling, the five children were positioned from left to right as follows across the rear seat:
Martha – then aged 14 years
Briana – then aged …(slightly older than Martha – ?15)
Sean – then aged 12 (almost 13)
Eamonn – then aged 8
Michael (deceased) – then aged 10
The second named defendant:
There is no suggestion, and nor could there be on the evidence, that the second named defendant was in any way responsible for the impact which occurred. The first named defendant accepts that the accident happened as a result of the negligence of the driver of her vehicle. The fact that the second named defendant is a party to the proceedings is explained by the fact that after proceedings were commenced by these plaintiffs against the first named defendant only, she delivered a Defence, and thereafter sought to join the second named defendant as a Third Party on the basis that the latter had been negligent in not ensuring, as the driver of the Passat in which the plaintiffs were travelling, that the plaintiffs were wearing seatbelts, and that she was in breach of Article 7 the Road Traffic (Construction, Equipment and Use of Vehicles) (Amendment)(No.3) Regulations, 1991.
Counsel for the plaintiffs, Garret Cooney S.C., (with him Gerald Tynan SC) during the course of opening these cases, informed the Court that on that application, the plaintiffs, as a matter of prudence only, made the decision to join the proposed Third Party as a co-defendant in the proceedings, and an order was made to that effect. The first named defendant has in each case filed and served a Notice Claiming Contribution and/or Indemnity against the second named defendant.
Plea of Contributory negligence:
It is a fact also that the Defences delivered on each defendant’s behalf included a plea of contributory negligence against each of the plaintiffs, on the basis that they failed to wear the seatbelts which were provided in the rear of the vehicle. However at the trial before me the second named defendant has withdrawn that plea against each of the plaintiffs. But the first named defendant maintains her plea of contributory negligence against the plaintiffs.
How the accident happened:
The accident happened in the early afternoon of the 13th August 1999. The plaintiffs, along with their siblings and cousins, all being seated across the rear seat of the Passat were on their way to the cinema during holiday time, being brought by their respective mothers who were seated in the front of the car.
The Passat was hit head-on by another vehicle (hereafter referred to as “the Nova”) owned by the first named defendant. It was travelling towards the Passat but at such speed that it went out of control at a bend in the road. The second named defendant had no chance of avoiding the impact. She brought her vehicle almost to a standstill before the impact but the Nova was out of control.
The passenger or near side of the Nova hit the front of the Passat, and such was the force of the impact that the Nova rose up over the bonnet of the Passat, and having passed over that car landed in an adjoining field. As I have stated already, very sadly all four occupants of the Nova perished.
All the occupants of that car were wearing seatbelts but nevertheless lost their lives. This has been explained in evidence as being a result of the side-on angle at which the Nova presented to the Passat at the time of impact. That angle had the effect of rendering the seatbelts ineffective, as these are effective principally in a head-on impact, and have no effect on passenger safety when the impact is to the side of the vehicle.
The seat-belts:
It is not in dispute that in the rear of the Passat there were two three-point seatbelts fitted to the outboard positions, and that in the centre position there was what is called a lap-belt available, which is of the kind found on an aircraft seat and which restrains its user across the pelvis only and not, additionally, across the chest and shoulder area. Another undisputed fact is that these five young children were seated in the rear of the Passat at the time of the collision and in the positions described. Quite clearly, even if any three of the children had availed of these seatbelts, two other children would have to remain unrestrained, or not travel in the vehicle.
There is also no dispute about the fact that the impact to the plaintiffs’ vehicle was a high velocity impact and therefore one of great severity. I will deal with some of the scientific evidence which has been adduced in that regard, but it suffices for the moment to describe the impact as very severe.
The first named defendant submits that as a matter of probability none of the plaintiffs would have suffered the injuries which they suffered if they had been wearing a seatbelt, and that any injury which they may have suffered even if restrained would have to be of a more minor nature than the injuries actually sustained. Her seatbelt expert, Mr Parkin, supports that view.
The plaintiffs on the other hand submit that because of the high velocity nature of the impact, it cannot as a matter of probability be said that if the plaintiffs had been restrained by seatbelts they would not have suffered any injury, or that the injuries would have been less severe than they each sustained. In fact they go further and submit that if these three children had been wearing the seatbelts provided, they would have more probably sustained even worse injury or been killed. This view is supported both by orthopaedic specialists and by a seatbelt expert, Mr Jordan, called on behalf of the plaintiffs.
There has been both medical and engineering evidence in relation to the issues raised in relation to the non-wearing of seatbelts. I will come to that in due course.
The issues arising in relation to liability:
Two separate issues arise in each case for determination apart from the question of quantum.
The first issue is that of contributory negligence against each plaintiff which is maintained by the first named defendant.
The second issue is the extent if any to which the second named defendant should be held through negligence to have contributed to the injuries sustained by each of the plaintiffs herein by virtue of not ensuring that the available seatbelts in the rear of the vehicle were being worn.
Since each issue will essentially depend on the same factual determinations, I will first deal with the evidence which I have heard in relation to the injuries to the each plaintiff, and then consider the evidence related to the impact speed (which is distinct from the speed at which the vehicles were travelling at up to the point of impact), the efficacy of seatbelts as a restraint for rear seated children, particularly in a high velocity impact, and their capacity, if any, to reduce the level of injury in such circumstances.
Having made any necessary findings of fact, I can then address the legal issues as they relate to plaintiffs’ contributory negligence, and contribution by the second named defendant.
The injuries to each plaintiff:
Eamonn :
On the 13th August 1999, the date of this tragic accident, Eamonn was eight years old. He was seated in the back of the car behind the driver’s seat, and between his brother, Michael who was seated at the window, and his brother Sean who was in the centre of the back seat. He was not restrained at the time of the impact by either a three point belt or a lap belt. He is now aged 15 years.
He probably did not lose consciousness in the accident but had bruising to his right cheek. On admission to hospital he had no abdominal injury but had acute discomfort in both legs. There was bilateral swelling of both thighs with deformity, and x-rays revealed mid-shaft fractures to the femur in both legs. Because of the severity of his injuries, Eamonn remained in hospital from the 13th August 1999 until the 9th October 1999.
Pins were inserted to unite the fractures, after which both legs were treated on balance skeletal traction until the pins were removed under general anaesthetic on the 4th October 1999. He was then discharged home in a wheelchair. He remained immobilised in a wheelchair until mid- November 1999, and when he was seen by Mr O’Rourke, Orthopaedic Surgeon on the 20th December 1999 he was mobilising satisfactorily and both fractures appeared to have healed satisfactorily. By March 2000 he was discharged from medical care completely.
Mr O’Rourke’s medical report dated 15th May 2000 (9 months after accident) notes that Eamonn becomes emotional about the loss of his brother, Michael, in the accident, and notes also that while he has had a number of psychological assessments already, he will require further psychological treatment. Mr O’Rourke was unable to state in that report whether the emotional effects of the accident had deteriorated Eamonn’s existing psychological problems. But as far as the physical injuries were concerned he stated that there should be no long-term problems. In his report dated February 2002 (two and a half years post accident) Mr O’Rourke notes that Eamonn walked without a limp and without pain, and that his activities are not limited in any way, and that there is no leg length discrepancy.
Psychological impact:
Eamonn is a child with a diagnosis of Asperger’s Syndrome, which is a condition at the high functioning end of the autism spectrum. In early childhood he had speech and language difficulties as well as some behavioural issues, but it would appear that with appropriate therapy he was able to progress academically quite well, but there are nevertheless some deficits consistent with the diagnosis. I mention this matter by way of background only, since there is no suggestion that the accident in which he suffered so severely caused or in any way exacerbated this condition.
Without detailing the contents of the reports under this heading it is clear that for a long time after this accident Eamonn was very upset at the loss of his brother, and experienced flashbacks, nightmares and so on. He has also become very anxious as a passenger in a car. He has been and even remains to an extent preoccupied by the death of his brother, and becomes tearful when discussing it. It appears that Eamonn was particularly close to his older brother Michael, depending upon him for emotional and social support. While there has been improvement in this regard there is still a great void in his life. He has attended a bereavement group which has helped him. Dr McDwyer has stated that Eamonn suffered Post Traumatic Stress symptoms following the accident and that his underlying Aspergers Syndrome has made his recovery more difficult.
Mr Patrick Scallan expressed his view about Eamonn’s ability to cope with the loss of his brother, and stated that because of the condition with which he suffers, it is likely that he will continue to be affected by the trauma of the accident, and the loss of his brother for the rest of his life, since one of the characteristics of Aspergers is that the person has what he described as “quite advanced memory mechanisms”. But given the enormous amount of devoted and caring family support, the outlook for Eamonn is regarded optimistically despite the appalling nature of the accident itself, the injuries suffered by him and the loss of his brother.
A report dated 17th January 2002 from Mr Paul McQuaid, Consultant Psychiatrist, on behalf of the defendant, states in conclusion that “the prognosis, given his particular and special personality type, should be excellent.” That is not inconsistent with anything stated by any of Eamonn’s own consultants. Eamonn is described as well adjusted and coping well with the loss of his brother, Michael, and the sadness within the family.
The Court had the benefit of evidence from Eamonn himself and from his mother, Grainne McNeilis. She stated that Eamonn had begun to improve as far as his Aspergers Syndrome was concerned about a year before the accident, and that for the first time they had been able to take a family holiday together. He was having language comprehension difficulties, but speech therapy assisted him. She stated that for Eamonn the prolonged stay in hospital was particularly difficult because of his condition. It was difficult also apparently for the nursing staff, who may not have been familiar with the behaviours associated with Aspergers. Mrs McNeilis was in another part of the hospital after this accident, because she herself was badly injured and the nurses would tell her often about these difficulties and that Eamonn was very upset. She would go to his bedside to talk to him and sing him to sleep for example. She described how when Eamonn came home from hospital at first he cried a lot. While she accepts that the fractured legs healed, but is of the view that the loss of his brother left an enormous gap in his life which, particularly for Eamonn given his condition, was particularly hard to bear. She stated that even to this day he will cry when discussing the loss of Michael.
Damages:
I do not propose to award a figure for future pain and suffering given the recovery achieved as reported.
I award the sum of €100,000 for general damages to cover the fractures to both femurs and associated treatment over the lengthy period in question, as well as the psychological effects of the accident, including by reference to the loss of his brother, Michael to whom he was very close, and which I regard as significant. Special damages for Eamonn have been agreed in the sum of €65,252.74.
Sean:
Sean was born on the 16th September 1986 and was therefore almost thirteen at the date of this accident. He was seated unrestrained in the centre of the back seat, with his two brothers, Eamonn and Michael to his right and his two young cousins Martha and Briana to his left. He is now aged nineteen years.
Sean suffered a serious fracture to his right femur, as well as bruising to his right knee. He was conscious throughout and after the accident and was able in his evidence to recall the immediate aftermath of this terrible accident and how his brothers and cousins, as well as his mother and aunt were. He described how in the immediate aftermath of the accident he knew that his leg was broken because it was visibly out of shape and he was in a lot of pain. He also saw that his younger brother Eamonn had sustained two broken legs and that his other brother Michael was unconscious and had a head injury.
He recalls clearly the journey to hospital in the ambulance. He was required to lie on the floor of the ambulance due to the fact that the bunks were needed for those more seriously injured than himself. He endured a great deal of pain both before the ambulance arrived and during the journey to hospital.
At any rate was brought to hospital. He recalls coming out of the general anaesthetic after surgery to his leg and seeing that a pin had been inserted through his shin-bone and that there were weights attached to that and to a frame attached to the bed. He remained on traction for a period of about eight weeks until the end of October 1999. While in bed for that length of time he had a lot of discomfort and pain, as well as boredom. His ability to turn in the bed was very restricted.
He was discharged home at the end of October 1999 on crutches, and his leg was in a cast until about April 2000. Unfortunately he had a fall at school in November 1999 causing a fracture to the same leg and in the same position. It necessitated another five days in hospital, and delayed his recovery.
As he was unable to mount the stairs on crutches he had to sleep in his brother Eamonn’s room downstairs. By January 2000 he was back at school.
However, about a year to a year and a half later it became apparent that there was a discrepancy between the length of his two legs. This discrepancy was measured at 3cms. Following advice from Mr Damien McCormack, Consultant Surgeon at Cappagh Hospital, Dublin, a decision was made that Sean would undergo an operation to lengthen his right leg. This operation was carried out in January 2000, when, following fracturing the leg, an external fixator was applied to the leg by the use of pins. This naturally involved Sean in further pain and discomfort, and of course interrupting his schooling. This fixator was removed after some ten months. However the operation was largely successful in eliminating the discrepancy for all practical purposes. Sean completed his secondary education and is now attending third level education where he studies construction management. In my summary of Sean’s treatment in this somewhat cursory fashion I do not wish to be taken as overlooking or minimising the degree of pain and discomfort endured by Sean over the entire period of his treatment and recuperation. I have heard the evidence and read the reports and I am fully cognizant of the appalling discomfort he will have endured over a lengthy period.
Psychiatric sequelae:
In addition to his physical injuries, Sean also suffered the loss of his brother Michael in this accident, and there are reports which suggest that his method of dealing with his grief has been to bury it and not discuss how he feels in this regard in any open way. In evidence he stated that he was close to Michael, since he was only a year and a half older than Michael. Mr Patrick Scallan, Consultant Psychologist is of the view that Sean has coped very well with the loss of his brother, Michael.
Sport:
Sean was a keen sportsman before this accident, taking part in boxing and Gaelic football. He has had to discontinue these pursuits which he enjoyed very much.
Damages:
As shown, Sean suffered a bad leg fracture, and having been left with a significant shortening of his leg, inspite of three months’ traction, he had to undergo further surgery to lengthen the limb. He experienced a very great deal of pain and discomfort over a long period. He also suffered the loss of his brother Michael in this accident. He had to give up his hobbies of boxing and Gaelic football, and no doubt the normal enjoyment of his teenage years was diminished in many ways as would be expected.
To his credit he has not sought in any way to exaggerate his injuries or their effect on his life, and it is remarkable how he has succeeded in getting on with his life.
Taking into account therefore the serious leg fracture, the recovery time involved, as well as the second operation to lengthen his right leg, and recovery from that, the psychological effects of the accident, and its effect upon his social life and general enjoyment of the teenage years during recovery, and the loss of his brother Michael, I assess general damages in the sum of €120,000. I have not considered it necessary to make any award for damages for the future.
Special damages have been agreed in the sum of €84,165.96
Martha:
Of these three plaintiffs Martha was by far the most seriously injured. Martha sustained a fracture dislocation of her left hip, as well as a fracture of the mid shaft of her right femur, and a fracture of the surgical neck of her right humerus. She underwent a general anaesthetic in order to reduce the fracture dislocation of the hip, and while thereafter it was thought that this had been achieved, in fact it was necessary to undergo further surgery three days later as it was discovered by x-ray that she had a subcapital fracture of the femural neck, and a screw was inserted to deal with this. She was then put on traction for about three months until November 1999, so as to achieve the reduction of the hip. This traction involved the insertion of a skeletal traction pin in both her upper tibia. These pins were removed prior to her discharge home in about October 1999.
She spent the next couple of years undergoing intensive physiotherapy, and she had great difficulty dealing with the normal activities of daily living during this period. In January 2000 she was noted to have mobilised well, but that there was some shortening (2 cms.) in the right leg which was not then considered to be a problem.
By June 2000 Mr Peter O’Rourke, Consultant Orthopaedic Surgeon was able to report that while she has no pain in her right leg, there is shortening and she has a limp. He noted that she had difficulties bending and therefore doing things which required bending such a tying a shoe lace, but he also noted that she still had discomfort in the left hip. His opinion at that date was that in the long term there was “a very high risk” of a vascular necrosis developing in the head of the femur” which would result in osteoarthritis developing, and that more than likely this would develop in the short term.
Dr M.J.Cooke, General Practitioner in Glenties, in his report states that by August 2001 she had made poor progress, having severe difficulty moving and a severe limp. These problems with her left hip were exacerbated in due course by the development of avascular necrosis in the femural head, and in addition the hip joint was showing signs of arthritis.
In August 2001, Dr Dominick Cooke, Consultant Physician and Rheumatologist reported that she would require a total hip replacement but that he understood at that time that the orthopaedic surgeons were reluctant to do a hip replacement at such a young age. He opined therefore that was likely to remain in considerable pain and disability. But he also noted that she was suffering from “significant post-traumatic anxiety and stress disorder.”
In November 2001 she was admitted to Cappagh Hospital so that a group of orthopaedic consultants might discuss her condition and decide on the best course of action. One must continue to bear in mind that Martha in November 2001 was just sixteen years of age.
In February 2002, Mr O’Rourke reported that a hip replacement was the only hope Martha had of having a pain-free and normally functioning hip. But he was also of the view that it might not be possible to give her legs of equal length even with a total hip replacement. He was sure at that time that she would never have a normal level of physical activity, and that she would not be able to partake in high impact sports or work activities.
Eventually in July 2002 it was agreed by all, including Martha’s parents that a total hip replacement was the best option to adopt, and this operation was duly carried out. But from 1999 to that time Martha was extremely disabled and moved about with great difficulty and discomfort.
Following this operation she improved as far as her mobility is concerned, but she is still left with leg shortening, and a limp. She is however, as reported by Mr O’Rourke in his report of 1st April 2003 still left with a leg shortening of 2.5cms.
She had extensive physiotherapy over all these years since the accident. It goes without saying that this accident and its sequelae over the years since same have blighted her life in many ways, including her schooling and her social life.
She is in addition left with significant scarring in the area of the left hip following the hip replacement, and these are a source of embarrassment to her in the context of swimwear, as would be understandable. The scar on her left hip is twelve inches in length and runs from her left buttock to halfway down her thigh. It is described by Mr McHugh as being a broad stretched scar, and as being noticeable and visible. I have seen this scar and it is certainly significant and clearly visible. It is completely understandable that Martha would be upset and concerned about this scarring. She has also scarring of a lesser order related to the insertion of the traction pins.
Further hip replacements will be required throughout the remainder of her life. Mr O’Rourke is of the view that she will require further hip replacements every 15-20 years, and that “each of these procedures will be more difficult and the outcome less predictable.” In a later report, Mr O’Rourke has stated that this type of revision surgery is more difficult in the case of Martha on account of the fact that “she is of short stature with very small bones.”. Mr McManus, called by the first named defendant also was of the view that further hip replacements would be needed every fifteen to twenty years.
Psychological sequelae:
In addition to these physical injuries, Martha had also to deal with the psychological sequelae having regard to the effect of these injuries on her teenage life and life generally, as well as the effect on her of the bereavement following the death of her cousin Michael in the same accident. As reported by Dr Cooke she had to deal with the change in her physical Appearance, her limp, her inability to take part in sport and the normal activities of a teenage girl. She had sleep disturbance, nightmares, headaches and these lasted for two years. She had to give up her hobby of dancing also. Dr Cooke describes her social life as “shattered”.
Dr Mary McGuire, Consultant Psychiatrist, saw Martha in March 2005 and described her as having become depressed after the accident, as well as self-conscious on account of having to wear a shoe-lift prior to her hip replacement, but that following that surgery she remains very self-conscious about her scars and her general gait. She is of the view also that Martha developed post-traumatic stress syndrome following the accident. However she notes Martha as being a positive young girl, and that as her physical injuries abated so did her psychological symptoms. But she regards as very significant the effect of these injuries on Martha’s self image, and on her social life, including into the future. The scarring in the hip area is also something which from a psychological point of view will affect her into the future, according to Dr McGuire. She has concerns also about Martha not having yet come to terms with and discussed the impact on her social and emotional development. She feels that Martha would benefit from some form of therapy to assist in dealing with these issues for the future.
Dr John Cooney, Psychiatrist describes Martha as having suffered from “adjustment disorder” arising from the accident, and that while she has shown improvement, the outlook is “somewhat guarded”. But he does note that her mother has confirmed that Martha has been able to apply herself to her studies, even though her concentration is “somewhat defective”. She is also reluctant to go swimming as she did pre-accident and this is on account of the scarring to her hip.
Mr Patrick Scallan, Consultant Psychologist has given evidence that Martha has not yet dealt with the anger she feels about the injuries caused to her in this accident. He feels that if these feelings of anger are to dissipate she will need therapeutic input, so as to deal with self-confidence and self esteem. He is of the view that she has great difficulty keeping up with her peers socially and interacting with them. She has in a sense been left behind by them and cannot keep up. He was also of the view that it will be difficult in the future for Martha in this regard because of the need for ongoing surgery in relation to further hip replacement and the scarring related to that. This will have difficulties for her in the future, including in relation to how she will relate to men in the future.
Leo Finnegan, Consultant Clinical Psychologist/Psychotherapist was asked to give a report on Martha’s educational potential and the effects of this accident on her education and results. He assessed her in September 2003 i.e some four years post accident and when Martha was just over eighteen years of age. He tested her intellectual functioning across a range of areas – verbal, non-verbal, written language, mathematics and so on, and without going into the results of these tests in detail, it is fair to conclude that Mr Finnegan is of the opinion that her current level of intellectual functioning reflects her pre-accident level, and that therefore it is unlikely that the accident adversely affected her in this respect. He believes that the results which she achieved are in line with her general level of intellectual ability. On the other hand he expresses the view that her level of social functioning has been adversely affected and that she has a more restricted lifestyle and more negative self-image than might otherwise have been expected.
Job prospects:
I am not satisfied that Martha’s employment prospects have been affected in any way which should be taken account of in damages. This is encouraging.
Damages:
I will not attempt a summary of her injuries both physical and psychological. They are adequately detailed already, and in so far as I may have failed to detail particular aspects of her injuries and sequelae, I have considered all the evidence given and all the reports. Suffice to say that Martha has suffered a very serious injury indeed which will leave her seriously disabled for the rest of her life, and such that she will on the balance of probability need up to four further hip replacements over the remainder of her expected life.
These injuries and the scarring associated with them have devastated her life into the future, not to mention the terrible amount of pain and suffering which she has had to endure to date. She must be entitled to very substantial damages. The scarring is very significant and permanent, and for a young girl of Martha’s age, it is reasonable that they should be a source of great distress, and that she will be self-conscious about them.
In my view, I should award in respect of past pain and suffering a sum of €200,000 to take account of all the orthopaedic injuries, the physical scarring associated therewith, and the psychological effect these have had on her life to date in the ways described. This sum will not replace the good health which she previously enjoyed, it is a proportionate award bearing in mind the guidance which the Supreme Court has given in relation to the top end of awards for general damages. For the future, and leaving aside the need for future hip replacements, I believe that a sum for future pain and suffering, including psychological sequelae in the sum of €100,000 is appropriate in relation to the injuries already suffered. But I award, in addition, a sum of €75,000 in respect of the pain and discomfort associated with the hip replacement surgery she will have to endure into the future. The total of general damages for Martha then amounts to €375,000.
Special damages have been agreed in the sum of €70,632.31
The issue between the first and second defendants on the Notice Claiming Contribution and/or Indemnity:
While that issue is different in nature to a claim against a plaintiff of contributory negligence, since the latter is an allegation that a plaintiff was in breach of a duty of care towards himself, I am satisfied that essentially the same considerations are relevant in deciding whether the second named defendant has been guilty of negligence in failing to ensure either that three of the five children availed of the seat belts provided, or in driving with more than three of the children in the rear so as to avoid any child being driven unrestrained, and therefore should contribute to the award of damages to the plaintiffs or any of them. The fact that this issue is being dealt with on foot of a Notice Claiming Contribution or Indemnity rather than on foot of a Third Party Notice does not seem to alter the nature of the issue in any way. I have heard some very interesting evidence from engineers called by the both defendants.
Mr Steven Parkin:
Qualifications/expertise:
Mr Parkin was called on behalf of the first named defendant, and he holds an Honours Degree in Mechanical Engineering, is a Chartered Engineer and a member of the Institute of Traffic Accident Investigators, and the Association for the Advancement of Automotive Medicine, all in the United Kingdom. He carried out research for about ten years for the Accident Research Centre at University of Birmingham, and from about 1988 until 1996 was Deputy Director of that centre. He describes himself as being an expert witness in accident reconstruction for road traffic accidents and seat belt effectiveness. His studies and research have examined how occupants are injured in car accidents, and this involves examining vehicles to see, if seatbelts had been worn, how the occupants interacted with the vehicle interior, as well as measuring what he called “the depth of the damage” so as to calculate what was the “impact speed”. He would also consult the medical records of the occupants, and by reference to those injuries and the contact points within the vehicle, predict the cause of the injury. He stated that relevant to this task were factors such as the age, sex, seating position, seat-belt use or otherwise, impact direction, impact severity and so on.
In addition to that crash investigation work, he has done work also in the area of seatbelt effectiveness generally, while at the Accident Research Centre at the University of Birmingham.
The damage to the vehicles:
Mr Parkin examined the Passat and the Nova involved in the collision in these cases. He did so one week after the date of the accident. There is no need to set out the basis on which he arrived at his conclusions as to how the accident itself happened, but he was able to say that it was the near side of the Nova which came into contact with the front of the Passat, hitting the ‘A’ pillar on the near-side (passenger side), which is the pillar at the side of the windscreen. He said that it was a very severe impact. He described how he had found that the front of the Passat had been driven back by 68cms – just over two feet. The engine had been driven back into the bulkhead and there was some intrusion by the engine into the footwell and the facia in front of the passenger, which would then have caused the bulkhead and the facia to move from the front backwards towards the person seated in the front passenger seat. He stated that on impact the Nova in fact rode up over the Passat and landed in an adjoining field.
Calculation of ‘speed change’:
He then calculated what is termed the “speed change” of the Passat resulting from this impact. He did this by measuring the frontal damage to the vehicle, i.e. the 68cms referred to, and with the assistance of a computer programme he could calculate from the damage what the speed change was on impact, and in this case this was measured at 38mph. This speed change figure is referred to as the “Delta V”. He stated that the severity of accidents is rated in terms of their ‘Delta V’.
I should clarify at this stage that the Delta V or speed change does not refer in any way to the speed either vehicle was travelling at prior to the collision, although obviously those speeds will be one of the factors which will determine what the Delta V will be – the others being the absorption capacity of the front of the vehicle and, if seatbelts are worn, the ride-down capability of the belt in question. The Delta V is the residual speed change which the body of the passenger in the vehicle must absorb when interacting with the interior of the vehicle, after the initial speed has been absorbed by the front of the car and the seat-belt if worn.
It is the scale of that Delta V and the extent to which the tolerance of the body of the occupant to injury is exceeded at that point of interaction, which determines the extent of the injury that will be sustained. Relevant also would be the nature of the surface within the vehicle which the passenger interacts with – i.e. whether it is a hard surface such as a pillar or windscreen, or perhaps the back of one of the front seats which would be softer.
Mr Parkin stated in fact that the Passat had absorbed the severe impact amazingly well given that severity, since there was actually very little intrusion of the front structures of the vehicle towards the front passenger seat.
The seat-belts:
He confirmed that in the rear of the Passat there were three seat-belts available none of which had been worn by any of the children. There was a three point belt at each outboard position and in the centre there was a lap-belt. He was able to confirm from his examination of the seat-belts in the front of the Passat that both the driver and the front passenger had been wearing their seat-bets at the time of the impact. Indeed that examination was able to confirm that in this collision there had been very heavy loading on the seat-belts, and this indicates a very severe impact, as well as additional heavy loading caused by the unrestrained rear seat passengers being thrown against the backs of the front seats. He was able to see also very marked distortion and damage to the front seats where they had been, in his words, “overwhelmed by the load from the rear”. This would indicate the force with which rear passengers were thrown into contact with the front seats. All of these matters confirm what is not in doubt, namely that whatever the mathematics involved, this can only be described as a very severe impact collision.
Injury:
Mr Parkin stated that as far as unrestrained rear seat passengers are concerned, it was difficult to predict what injuries would be sustained in any particular impact since it depends on which part of the car interior the occupant strikes and with which part of the body and this is difficult to predict. But he was of the view that legs would go through the backs of the front seats, which would have the effect of decelerating the lower part of the body but not the upper part, and this has the effect of tipping over the body so that the occupant is moving head-first towards the front of the vehicle and will inevitably come into contact with a hard surface at the front at whatever residual speed the body is travelling at after the initial absorption of some of the impact speed by the crushing of the front of the vehicle. He stated that if it is the head which impacts against a surface such as the windscreen at a high Delta V there will be some ‘give’ or deformation of that windscreen by 15 to 20 cms (six to eight inches) but nevertheless it is a hard surface, and the deformation will be significantly less than the 70 to 80 centimetres of the seatbelt. Alternatively the head could impact with a head rail where there would be very little deceleration capability, and more severe and certainly fatal injury would be sustained. He concluded that the exposure to injury in such an impact if unrestrained is significantly different over different parts of the body and dependant on what part of the vehicle is hit by the occupant.
He stated that the unrestrained rear passenger is likely to first come into contact with the rear of one of the front seats. He described those seats in the Passat as “pretty flimsy affairs made of tubular steel or aluminium”. They are not designed to withstand heavy loading, and they will accordingly start to deform at low levels of load, and will not withstand people hitting them. They are designed according to Mr Parkin to support people sitting in them. He did not consider that they provide great protection to the rear passengers and that usually the front seats will splay outwards at impact, as happened in the case of the Passat in this case, and that permits a rear seat passenger to pass between the seats from the back of the car to the front area causing the occupant to hit a hard surface in the front.
Predictability of injuries?:
Mr Parkin spoke of the difficulty in trying to predict what injury would be suffered by an unrestrained person in any collision since people vary as to their tolerance of injury, with factors such as age, size, sex to be taken into account, as well as what object within the vehicle the occupant contacts. But he was able to say that from the research which he had carried out, the prevailing view is that “seat belts will save about 50% of all serious and fatal injuries, but that doesn’t take into account accidents where seatbelts will do no good whatsoever” – and he instanced in that regard a side impact with a tree, which would render the seatbelt irrelevant. He stated that the purpose of a seatbelt was for frontal impacts and to prevent ejection from the vehicle. A seat belt would insure against what he described as the “lottery of decelerations by hitting stiff structures in front of you where they are not going to be as forgiving as 70 to 80 centimetres [absorption capability of the seatbelt]”.
Describing the sort of injuries which could result from a person wearing a seat-belt, he stated that he would expect to see bruising and abrasions at all points of contact with the belt, such as the hip, chest and shoulder area, and that the legs would tend to flail forward and hit the front seat bases and that this could lead to ankle fractures or ankle dislocations. It was possible but unlikely that there could be lower leg fractures also, as well as injury to parts such as the clavicle, sternum and acetabulum, though the latter would be unusual. Mr Parkin was in no doubt that the chances of sustaining significant injury is much greater if the person is unrestrained in the rear of the car. He was of this view inter alia because in his opinion three point belts perform very well for rear seat passengers because, unlike for a front passenger, there will be no intrusion in a frontal accident into the rear passenger area.
He disagrees that in the present case these plaintiffs would have suffered greater injury if they had been wearing a seatbelt. Specifically he stated that the femural injuries would not have been sustained because these occur when there is heavy loading through the knee, and furthermore if that loading is even greater, then the head of the femur will be driven out of the back of the acetabulum, i.e. a fracture of the acetabulum initiated by contact at the knee driving the forces backwards.
It will be recalled that all three plaintiffs suffered femural fractures. Sean suffered one to his right leg, Eamonn had femural fractures to both legs, and Martha suffered such a fracture to her right leg as well as a dislocation and fracture of her left hip. Mr Parkin is satisfied that if restrained these passengers would not have hit the front seats with sufficient force to cause these fractures.
Dr Mark Jordan – Engineer
Dr Jordan was called to give evidence on behalf of the second named defendant, and his qualifications include a Ph.D in 1990 from University College Dublin on impact dynamics. He is amongst other things a Fellow of the Royal Academy of Medicine of Ireland for “biomechanical engineering and research”.
He had worked in Sweden in 1983 with the Volvo motor company, who he described as the world leader at that time in crash worthiness investigation. When he returned from Sweden he undertook six years of full-time research in that area of study. He considers that he has built up a lot of experience and knowledge, both academic and practical, in relation to vehicular safety in general and in seat-belts. For some years now he has practised in the west of Ireland as a crash consultant. He was called to give evidence on behalf of the second named defendant.
He made it clear that in conducting his investigations and reaching his views he had taken into account each plaintiff’s age, injuries sustained, and where each was actually seated in the rear of the Passat. This is a matter which the Court is urged by the second defendant to take into account in order to favour Mr Jordan’s evidence and conclusions, rather than those of Mr Parkin, who had not done so. Dr Jordan expressed the view that these details were very important since the potential for injury was dependant on where each person was seated, as was the physical stature of each plaintiff and their position on the seat.
The solicitors instructing him had requested his opinion as to the likelihood of the plaintiffs being injured whether or not they wore a seatbelt, and also what those injuries would probably have consisted of. In his summary report and in his evidence, he stated that it is highly unlikely that the children would have escaped injury in this impact because of its severity, even if they had been wearing a seatbelt.
In relation to predicting what injuries they would have suffered he stated that it was not possible to predict accurately what their injuries would have been had each been wearing a seatbelt. He stated that it was not likely that they would have suffered the precise injuries which each of them actually suffered, and that the injuries would have been of a different nature. He did go on however to express the view that the severity of injury would have been worse for each plaintiff if a seatbelt had been worn, than those each plaintiff suffered unrestrained.
He agreed that from a public policy perspective it was clearly better that in general a seatbelt be worn than not, but that people should be aware that seatbelts do not in all collision scenarios provide protection from injury. He stated also that his researches showed that in the case of a severe frontal impact where a seat belt is worn, some of the injuries sustained would be accounted for by the seatbelt itself
Dr Jordan went on to deal with the “Delta V” – in other words the speed change that a vehicle goes through in an impact, and the energy or force which this generates on a passenger. He explained that the potential damage depends on the energy generated, and he described this damage potential as being proportional to the velocity squared, and not simply to the velocity.
In this respect he opined that Mr Parkin was simply in error when he stated that the difference between a Delta V of 30mph and a Delta V of 38 mph was only 20%. That comment was in the context of Mr Parkin stating in one of his reports that the impact speed was 38mph, and through an error in another report stating it as 30mph, and to him making the comment that there was only a 20% difference between the two figures in any event and that the error was not of any significance to the overall picture. In Dr Jordan’s opinion this was incorrect since it was not simply the impact speed but that speed squared which gave the degree of force or Delta V, and therefore the Delta V of a 38mph impact speed was over 60% greater than one of 30mph, and not the 20% stated by Mr Parkin. Conversely the 30mph impact speed is only 60% as damaging as the 38mph impact speed.
He went on to explain further that the Delta V is the speed change through which the impacted vehicle passes after initial impact, and that this so-called speed change is absorbed over what he called the “deformation distance of the car”. A number of factors affect the speed at which the impacted vehicle will decelerate and the impact of that deceleration speed on a passenger, such as the absorption capacity of the vehicle and the wearing or not of a seatbelt. In other words some makes of car will be designed so as to crumple at the front on impact less than another. The former vehicle can be said to better absorb the force of the impact. This in turn has the effect of slowing down the vehicle in the very short space of time before the body of a passenger interacts with the structure of the car, reducing the amount of injury to the person.
Where the front of a car does not as effectively absorb the force generated by the impact, the car then interacts with the unrestrained passenger at a faster speed, thereby causing greater injury when the passenger comes into contact with some part of the vehicle. He explained that if it were possible to have some technology which allowed the passenger’s body to be fully attached to the car for the entire period of “deformation” of the car, then both the car and the person would decelerate at the same speed, causing no injury. But that is not possible. But if a seatbelt is worn, this is a means of allowing the wearer avail also of what he called the “ride-down characteristics of the belt”. In other words, in addition to the absorption capability of the car as a means of deceleration, there is the restraining and absorption capability of the seatbelt itself to slow down the speed at which the passenger interacts with the interior of the vehicle itself. In an ideal world the combination of these factors would bring the deceleration speed down to within the tolerance level of the human body to withstand injury. But he explained that the greater the deceleration speed the greater the chances of the human injury tolerance level being exceeded.
He concluded therefore that there comes a point at which the Delta V is such that even though the impacted vehicle will have absorbed some of the force of the impact, and even though added to that feature a person is wearing a seatbelt and has the benefit of the ride-down capabilities of the seatbelt, injury will still be sustained since the residual Delta V exceeds the human body’s capacity to absorb it without injury. The extent of the resulting injuries will then depend of course on the extent to which the body’s tolerance was exceeded and on what part of the car the body comes into contact with – a soft surface such as the back of a front seat, or a hard surface such as a windscreen or metal door pillar, for example, in addition to what part of the body is involved.
In this respect, different bodies will have greater or less tolerance depending on factors such as age and size, and the effectiveness of a seatbelt will depend on the stature of the wearer. He stated that while seatbelts are designed so as to fit the majority of the population, and can be of different configurations, they will never restrain a person so that they are fully attached to the car in the way mentioned above so as to ensure that the deceleration speed of both car and person coincide, thereby avoiding any injury. He stated that in a head-on impact the normal seatbelt will be activated and the wearer will be propelled forwards against the seat belt straps which he called “webbing”. The entire load of the impact force is transferred and concentrated into this webbing, and these straps in turn interact and interfere with soft tissue, and that soft tissue is in effect being supported across soft tissue areas, even with a perfectly fitting seatbelt. But if the normal three point belt when worn by a passenger is not for some reason fitting perfectly, and has for example some slack in it, the body of the wearer comes to a more sudden stop when coming into contact with the webbing, and increased deceleration speeds are experienced, with greater injury the result.
In view of this factor, his evidence was that a young person, who is smaller than the person regarded as average for the purpose of seatbelt design, will find that the belt is not ideally positioned on the body. For example, he stated, in relation to the three point belt, such a young person would find that the lap portion of the belt would not remain properly at the iliac crest – the upper part of the pelvis – but rather would ride up on the abdomen. Similarly, the diagonal strap across the chest could conflict with the young person’s neck. He stated that factors such as these expose such a person to risk of injury simply on account of the nature of the belt and its interaction with the smaller body.
He was of the view, unlike Mr Parkin, that if Martha was seated on the far left of the car in question and had been wearing a three point belt, she would first of all have had the four other children seated to her right, that she would have been squashed up against the left side of the car and that in such a position the diagonal strap of the seatbelt would have been conflicting with her neck at the high point, especially since she is a small framed girl and at the date of this accident was aged fourteen years. He stated that in the impact her entire trunk would have passed under the shoulder part of the belt, and the belt would have caught her neck and fractured it. He is of the view that a child or small framed person, even if seated properly, will not fit the belt properly, and that there would be slack in the belt causing the body to “submarine” under the belt and that this has the potential to cause injury to the neck. In addition if the body submarines, so to speak, beneath the belt, this can cause the body to move forwards causing the legs to come into contact with some unyielding part of the vehicle.
Dr Jordan also referred extensively to a report by the U.S. Bureau of Accident Investigation of the National Transportation Safety Board. This is a report which looked at the performance of lap-belts and lap/shoulder belts in relation to injury sustained, compared to passengers who are unrestrained, in relation to high velocity impacts. He summarised the conclusions of that report as far as matters relevant to the present case is concerned, by stating that it shows that in an impact as severe as the present case, restrained occupants, whether wearing a lap-belt or a lap/shoulder belt, are no better off in the back seat than unrestrained occupants as far as potential for injury is concerned. Put slightly differently, he stated that it showed that a restrained occupant is as liable to injury as an unrestrained occupant. He was also of the view that high speed impacts render seatbelts “practically irrelevant”. It will be recalled that some of the medical experts stated that at speeds in excess of 40mph “all bets are off” as far as what injury will be suffered whether or not seatbelts are worn.
Specifically in relation to whatever plaintiff or passenger may have been able to wear the centre lap belt, Dr Jordan was of the view that this belt would not have properly fitted any of the children and if worn, the child’s body would have engaged with the belt in a way which would have caused the belt to ride up into the gut, causing a hemicorpectomy – a slicing in two of the body. He stated in particular that if Sean (aged 12 at the time) as was suggested by Denis McCullough S.C. on behalf of the first named defendant, had been wearing the lap belt he may well not have received the exact injury which he in fact received, but that he would certainly have been seriously injured, since in his view lap belts cause injury to children, and this particular lap belt was after the accident found to have been a poorly fitting belt and could not have maintained the injury thresholds below what his body could have sustained. He was of the view that it did not require engineering knowledge to appreciate how such a lap belt would cause injury to the abdomen of a child, and that the abdomen would be exposed to far greater forces than if the child was unrestrained completely. In the event of being unrestrained he would probably come into contact with one of the back seats of the car, and that the force is thereby spread across a much larger contact area. If Sean had been restrained by the lap belt as Mr McCullough suggested he should have been, Dr Jordan referred to the fact that Sean would have been reliant entirely on that belt to dissipate the speed change of 38mph/ high Delta V. He described such energy levels as “phenomenal forces”. Dr Jordan is of the view that the American study to which he referred already demonstrated clearly that had Sean been wearing the centre lap belt he would have fared much worse than being unrestrained completely. He described this opinion as being a matter of scientific probability, and not simply conjecture or speculation. He is firmly of the view that while the injury would be different, the injury would be as serious or more serious than the injury actually sustained while unrestrained. This view differs from that of Mr Parkin who, as already stated, was of the view that if the plaintiffs had been restrained, there would at worst have been fractures to ribs and sternum with bruising and abrasions to the chest area, but any injuries above that were the result of failure to wear a seatbelt. Dr Jordan completely disagrees, and states that fractured ribs can in such a situation rupture the aorta and that this would be catastrophic.
Dr Jordan stated that as far as the plaintiff Eamonn was concerned there was no seatbelt available since he was between Sean (seated in the centre) and Michael (who died) who was next to the window on his right. The only possibility suggested in relation to Eamonn is that perhaps both he and Sean might have been able to avail of the lap belt. In so far as that may be suggested Dr Jordan stated that it would have been catastrophic, certainly as far as one of them is concerned, that being the boy who would be seated in front of the other. In the event that each could have availed of the lap-belt while being seated side by side, he was of the view that each would probably have slipped through the lap-belt and the outcome would have been just as bad as what actually occurred i.e. very severe injury.
Looking at the situation of having five children and two adults travelling in the car on this occasion ands what was the safest way of dealing with the fact that in the rear of the car there were only three available seatbelts, Dr Jordan stated that one option would have been for one child to have travelled in the front passenger on the lap of the passenger adult, leaving four children to sit in the rear, one of whom would not have worn a seatbelt. But in that event the child in the front would have suffered catastrophic injury, and have been ejected from the vehicle, and that the safest course to adopt was that which occurred, namely that all five children were seated unrestrained in the back He went on to express the opinion that seatbelt or no seatbelt the data which he has studied shows clearly that these children would have had the same severity of outcome given the nature of this crash – high speed head-on collision with a significant Delta V (38 mph or even more possibly), as explained above.
When cross-examined by Mr McCullough he expressed that his engineering expertise in this area of seatbelt safety and biomechanics is the appropriate expertise from which to express opinions in relation to these matters, rather than a medical specialist, although he did go on to say that some medical specialists may also have some expertise in the area of biomechanics, and that there can be an element of crossover between the two areas of expertise. But he described biomechanics as an engineering discipline, and that it was engineers who discovered body tolerance levels and so on.
While he accepted that Mr Parkin had the same type qualifications as his, he nevertheless felt that Mr Parkin had relied upon his own personal experience and data drawn from that experience, rather than, as he had done, drawn not only upon his own personal experience of crash investigation and data drawn therefrom, but had also drawn upon worldwide data for the purpose of reporting on and giving evidence in relation to this particular accident, which was an unusual one. This was because in his own personal experience, he would have come across only a few such accidents involving high speed frontal impact with five rear seated children. He feels that Mr Parkin’s evidence suffers from the limitation that his data is confined to his own experience and data drawn from that. He felt that Mr Parkin’s personal experience and his own was similar in size, and that while 20% of accidents are frontal impacts, one has to look for a subset within that 20% which would come within the kind of collision involved in this case, and that a very small percentage of such accidents would have occurred. That is why he felt it preferable to draw on a wider statistical database than his own.
Dr Jordan, in answer to Mr McCullough, made it clear that he would agree with the general public policy that it was better to wear a seatbelt than not to, but as an engineer and if it was possible to predict before setting out on a journey that he would be involved as a rear seat passenger in a high speed frontal impact, he would have a preference to being seated in the rear behind a front seat passenger and not to wear his seatbelt. From an engineering point of view and in view of all the data he has read and research which he has carried out, he would consider this to be the optimal way of minimising injury. He of course accepts that it is not possible to predict the nature of any collision which might occur, and that informs his view, which he expressed, that the wearing of a seatbelt is a prudent and safe thing to do, and he advises people to do that. He would also advise that children should wear a seatbelt or, when appropriate, sit in what he called a booster seat. It depends on the age and size of the child in question as to the nature of the appropriate restraint in any given situation.
In cross-examination, Dr Jordan also conceded or accepted that it was a matter of common sense for a driver adult to ensure that a child travelling in the car has available a properly fitting and appropriate seatbelt, and that it is worn.
In relation to the situation in the present case where there were only three belts available for five children, Dr Jordan stated that in general it would be better to use the available seatbelts in some way, although in the present case his view is that the wearing of the belts would not have resulted in a better outcome for the plaintiffs given the nature and severity of the impact. He agreed, when asked, that a reasonably prudent adult would ensure before setting off on a car journey that as many of the children as possible being carried was wearing a seatbelt.
He also agreed that none of the plaintiffs would have suffered the particular injuries which they suffered in this accident if they had been wearing a seatbelt. He agreed also with something which Mr Parkin had stated namely that research had shown that the wearing of even a lap belt was 18% safer than wearing no belt at all. He did not think that 18% was a significant improvement, but he accepted that the research of a Leonard Evans had shown this to be so in his study. There was further questioning of Dr Jordan about how that percentage of safety improvement would move upwards when irrelevant collisions were removed from the data from which the conclusion was drawn – in other words collisions such as side-impact collisions, in which the lap belt would have no effectiveness whatsoever. Dr Jordan stated that for any meaningful distillation of the data all data relating to collisions other than high velocity frontal impacts would have to be taken out, and he opined that when that exercise is undertaken, the result on the 18% safety improvement figure is to bring the results into line with the report by the U.S. Bureau of Accident Investigation of the National Transportation Safety Board to which I have already referred, but without looking at that report in detail he was unable to say what the percentage shown actually was.
In relation to the difference in effectiveness between a lap belt and a three point belt, Dr Jordan was in agreement that generally speaking the three point belt is better in safety terms than a lapbelt, and that studies have shown that the wearing of a three point belt by front seat and rear seat passengers in frontal impacts will reduce fatality levels, but that for children the wearing of the three point belt does not show the same level of reduction. On the other hand the research shows that while fatalities have been reduced, there is what he called a “concomitant increase in certain types of injuries… [and] some of these can be fatal.”
Dr Jordan was asked also about at what age it would be appropriate for a child to not sit in a booster seat, but rather be restrained by means of an adult belt. He responded by referring to size rather than age. He stated that seatbelts are designed to fit females in the 25th percentile, and that this means in effect a person of about five feet in height, and that the cut-off point would be four feet and eleven inches. He agreed with Mr McCullough that at some point during the teenage years an adult seatbelt became appropriate. Reference was made to an Australian paper on the subject: “Adult seatbelts, how safe are they for children” by Michael Henderson. That paper has stated that for maximum protection a child should be restrained in a child seat or an adult belt supplemented by a booster seat “unless they are of a size appropriate to the use of adult belts.” That paper went on to state, as referred to by Mr McCullough:
“However, field data from investigating crashes involving 121 children, aged 1 to 14 years in adult lap/shoulder belts [i.e a three point belt] show they were generally well protected even in severe frontal crashes. None sustained belt induced inertia neck injury. Change of velocity was related to injury risk but age was not……….
Lap belted children sustained a higher proportion of abdominal injuries and a similar proportion of head injuries despite almost all being seated in central positions away from the side of the car.”
Dr Jordan had some reservations about accepting this material since the paper according to him did not give any breakdown of what particular injuries were sustained at particular Delta V speeds. He also stated that the term “frontal impact” could be anywhere in an arc of 120 degrees, and not just 20 degrees which was the angle of impact in the present case, so he was hesitant to draw any definite conclusion from the paper itself for the purpose of this particular case. He also felt that the paper suffered from the fact that in the sample used there was a very small cohort of unrestrained occupants.
Mr McCullough cross-examined Dr Jordan also in relation to certain of the findings in the report of the National Transportation Safety Board. There is no disagreement about the greater efficacy of the three point belt over the lap belt, even for young children, and the potential hazards deriving from the use of a lap-belt especially by young children, although there is some evidence that the use of a lap-belt in some crashes is better than using no belt at all. Dr Jordan felt that while the report showed that the use of the three point belt reduced fatalities in cases of a Delta V of up to 40mph, it also showed that significant non-fatal injuries were sustained. He agreed that it was not possible to say with any accuracy what particular injury these plaintiffs would have suffered had they been wearing a belt of any kind, since there would be a wide range of possible injuries. But he maintained his opinion that each plaintiff, if restrained, would have suffered at least as severe an injury as occurred, and probably worse.
Doctors – re: effect of seat-belt to reduce injury:
A number of medical experts gave evidence as to their opinion as to the efficacy of seat-belts to reduce or eliminate the likelihood of injury in a motor accidents. All agree that as a general principle persons travelling in cars should wear seatbelts. However, it is true also that each of these orthopaedic consultants was of the view that when the impact speed exceeded about 40 mph, a person was likely to suffer significant injuries even if a seatbelt was worn, although, as Mr Damian McCormack, Consultant Orthopaedic Surgeon puts it in his evidence, “the pattern of injury would be different”. He described an impact speed of greater than 40mph as a “lethal impact” and that the injury pattern will just depend on the mechanism of the injury”. He went on to say that “the seatbelt might itself crack your clavicle, but the impact deceleration will rip your aorta and kill you.” Mr McCullough, while allowing for the fact that the greater the impact the greater the likelihood of injury, nevertheless asked Mr McCormack did it still not remain the case that a person is better off wearing a belt than not wearing a belt. He replied:
“Yes is the answer until the impact speed exceeds say 40 miles an hour – then unfortunately all these things are irrelevant.”
He was asked also was it not a fact, where persons were involved even in a high speed impact accident and were wearing a seatbelt, that their injuries would tend to be to the upper body, the chest, sternum, and ribs. Mr McCormack stated in response that it was very difficult to generalise, and that it would depend on the mechanical circumstances of the accident. He said for example that Sean McNeilis (unbelted) had received in this accident sufficient kinetic energy to crack his femur, and that had he been belted his body would have still received the same kinetic energy and had he been wearing the lap belt, for example, this energy “probably would have broken his lower spine rather than his femur”, and added: “there is no escaping the impact velocity and the kinetic energy imparted to his body – something was going to be broken or injured.” At a later point in his cross-examination Mr McCormack stated that that the majority of people who came under his care following accidents in which they have received lower limb fractures state that they had been wearing seatbelts, and that in his experience lower limb fractures do occur in passengers who are restrained by seatbelts. He stated in this regard that it really does depend on the impact forces, and their direction. Again he was of the view that at high impact speeds “all bets are off” as far as the effectiveness of belts to reduce injury is concerned.
He was however sure that if he had worn a seatbelt his femur would not have been broken, but he would have suffered another injury such as a dislocation of his lower thoracic lumbar spine. He was of the view that the pattern of injury would have been different but the severity would have been worse. Mr McCullough was at pains to get Mr McCormack to agree that as a matter of probability the injuries, if seatbelts had been worn, would not have been the same injury as in fact was suffered. To that specific question, Mr McCormack was in agreement, although he retained his opinion that given the impact speeds involved the injury would have been significant and possibly greater. He accepted that this was a matter of some speculation as to exactly what injury would have been suffered if a belt was worn.
Another Orthopaedic Consultant, Mr William Quinlan stated, in relation to Martha’s injuries, that at a mild to moderate speed a seatbelt would have erstrained Martha and that she would not have been thrown around the car, but that even people who are wearing seatbelts receive what he called “ferocious injuries”, and that he would regularly see such people with fractured femurs and hips. But he stated that at high speeds, as in this case, he felt that no seatbelt would restrain an occupant. He agreed that this was his “opinion” gained from seeing the aftermath of road traffic accidents, rather being based on any studies.
Specifically in relation to Martha’s injuries he could not agree that if she was wearing a seatbelt she would not have received the type of injury which she received. He felt that in a highs peed impact she would have been very susceptible to similar type injuries. When asked whether as a purely general principle, people who wear a seat-belt suffer less injury, he agreed, but remained of the view that the position was not clear in this respect in cases of high speed impact, such as the present case.
The issue of contributory negligence against the plaintiffs:
I have come to the conclusion that these plaintiffs cannot be found to be guilty of contributory negligence in the particular circumstances of this accident. This conclusion is reached by me without reference to the question as to whether the plaintiffs would or would not have suffered different, worse or reduced injuries had they been restrained, but rather on account of other matters such as their respective ages, and/or maturity, and the nature of the somewhat unusual and complex situation which presented itself to them in relation to the number of seat belts relative to the number of rear seat passengers.
First of all there is no evidence that any of these plaintiffs was asked by the first named defendant ( or indeed by the front seat passenger Mrs McGill) to wear a seat-belt. Sean was almost 13 years of age. He could not recall if he would normally have worn a seat-belt in the back of a car at that time, but he agreed that if he had been told to wear one, he would have done so. He was asked whether at that age he would have known that wearing a seatbelt was safer than not doing so, and answered in reply: “I don’t know, maybe not.”
Martha was about fourteen years old at the date of the accident, and she was asked by Mr McCullough why she had not worn the three-point seat-belt that was available at the position she was seated in the rear of the car against the door. She replied by saying that it was impossible since there were five children in the back of the car. She went on to explain that they were all crammed on top of one another. It was put to her that she would have been able to put on the belt in her position even if the others were unable to do so, and she agreed when pressed. She also agreed that she would have known at her age that as a general rule it was safer to wear a belt than not to do so. She agreed that she was saying that the only reason why she did not wear a belt was that there were five children in the back. She stated that nobody in the front of the car (i.e. her mother or her aunt) told her to wear a belt.
Eamonn was not questioned about not wearing a belt, but being even younger than the others, and suffering from the condition referred to, there could be no question of a finding against him of contributory negligence.
These admissions by both Sean and Martha must be seen in the light of their age and immaturity Martha has agreed that she knew that it is safer to wear a belt than not, but Sean was not sure. Martha stated this in cross-examination, and when pressed. I had the important opportunity of seeing these plaintiffs giving their evidence. I am not prepared to take these answers to questions put to them in cross-examination by Mr McCullough as sufficient evidence in order to fix them with the sort of realisation as to the desirability of wearing seatbelts in the circumstances of this case, so as to determine that they were each so in breach of their duty of safety to themselves that I should find them guilty of contributory negligence. These are immature children. Needless to say I do not use that term in any critical or pejorative way, but simply to describe a certain innocence and lack of what I might call ‘street-wisdom’. They are not to be judged by reference to standards perhaps to be expected of the more sophisticated and street-wise teenagers who sometimes come before the Court. I have no doubt whatsoever that these particular children still depended as of the date of this accident, on guidance and direction from their respective mothers when in her company. They were each in this car with their mother, and in an unusual situation where there were five in the back and three belts fitted. In spite of any knowledge or awareness which Sean and Martha may have had regarding the desirability of wearing a belt if available, I do not find it fair and reasonable that they should be found to be negligent in that regard given their particular age and characteristics, especially where there is no evidence that they were asked or told by either the second named defendant or Mrs McGill (the front seat passenger) to wear the belts as best they could.
The Road Traffic (Construction, Equipment and Use of Vehicles)(Amendment)(No.3) Regulations, 1991 – S.I. No. 359/1991 (“the regulations”):
As part of the issue in this case as between the first named defendant and the second named defendant (the driver of the vehicle), it is alleged that the latter was in breach of article 7 of these regulations, which provides as follows:
“7. (1) This article applies to every passenger vehicle having passenger accommodation for not more than eight persons exclusive of the driver, when used in a public place.
(2) Subject to the provisions of article 8 of these regulations, a person occupying a forward facing seat, not being a front seat, of a vehicle, to which this article applies shall, as and from the 1st day of January 1993, wear a safety-belt or an appropriate child restraint.
(3) Subject to the provisions of article 8 of these regulations, the driver of a vehicle to which this article applies shall not, as and from the 1st day of January 1993, permit a person who is under seventeen years of age to occupy a forward facing seat, not being a front seat, unless that person is —
(a) 4 years of age or upwards and is wearing a safety belt, or
(b) restrained by an appropriate child restraint.”
Article 8 of these regulations contains a number of exclusions from the application of the regulations, and relevant to the present case is that appearing at article 8(3) which states as follows:
“8. (3) If and so long as three or more children under the age of 15 are being carried on a vehicle the provisions of sub-articles 7(2) and (3) of these regulations shall apply only in so far as is reasonably practicable.” (my emphasis)
The second named defendant submits that in a situation where she was the driver of a vehicle in which in the back seat were five children under the age of fifteen years and where there wear only two three point belts and a centre lap-belt, it was not reasonably practicable for the purpose of these regulations to comply with article 7 thereof, and that therefore she was not in breach of the regulations. The first named defendant on the other hand submits that the second named defendant could have easily ensured that some three of these children could have been wearing the available belts, and that if she had so done it would have been a reasonable compliance with the regulations, even though a situation would have remained where two children would have remained unrestrained.
I am of the view that the second named defendant on balance was not in breach of the regulations, given the existence of three belts for five children, and in view of some of the evidence which I have heard, namely that it would not have been feasible for the outer three point belts to be properly and safely worn by the two children who occupied the outboard seats, when there were three other children in the middle. There would inevitably in such a situation have been a bunching of the children across the back seat which would have precluded a proper application of these belts, and it would have been impossible for one of the children in the centre to have applied the lap belt. I do not feel that it was reasonably practicable in these circumstances to comply with the regulation, and that the situation is covered by article 8(3) accordingly.
The seat belt issue as between the defendants:
From the evidence of Mr Parkin and Dr Jordan, the Court can be completely satisfied that this was a high speed impact, and that the Delta V as discussed above was very significant. There is no real dispute between these two experts in this regard. These experts do however disagree over the question of what injury would have been received by these plaintiffs if they had worn a seat-belt.
Mr Parkin is of the view, as I have already set forth, that if they had been restrained the injuries would have been confined to bruising and abrasions at all points of contact with the belt, such as the hip, chest and shoulder area, and that the legs would tend to flail forward and hit the front seat bases and that this could lead to ankle fractures or ankle dislocations. He stated that it was possible but unlikely that there could be lower leg fractures also, as well as injury to parts such as the clavicle, sternum and acetabulum, though the latter would be unusual. It is a fair summary of this evidence that Mr Parkin is of the view that not only would these plaintiffs not have suffered the injuries which they in fact suffered but that the injuries which would have been sustained would have been less severe.
Dr Jordan disagrees, as do Mr Quinlan and Mr McCormack, the orthopaedic consultants, although they come to these matters from different specialties. I have considered the competing views carefully, and in arriving at a conclusion for the purpose of these proceedings, I can do so only on the basis of probability. However, it is first necessary to decide what is the question which the court is required to determine. Mr McCullough on behalf of the first named defendant submits that the question to be decided is simply whether the first named defendant has discharged the onus which is upon her of showing as a matter of probability that if these plaintiffs had been wearing any of the belts available in this vehicle, they would have suffered the injury which each suffered. He submits that this is the only issue arising, and that it is not a question of determining whether the second defendant is correct in saying that if they had been wearing a seat-belt they would have suffered injuries which were either as severe though different, or perhaps even worse, including causing death. If that is the correct question, then the evidence is clear, and it is inconceivable that in any case whatsoever, that precisely the same injury would have been sustained whether or not a seat-belt is worn. It is hard to see how such could ever be the case. Certainly in the present case, there can be little room for doubt that each of these plaintiffs would have received precisely the same injury whether or not they were restrained, leaving aside completely the speculation involved as to whether those injuries would be more severe than those actually occurring.
In making that submission, Mr McCullough relies on the decision of the Supreme Court in Hamill v. Oliver [1977] I.R. 73. In that case it was held that the plaintiff’s failure to wear a safety belt amounted to negligence on her part if her injuries would have been prevented or reduced had she been wearing the safety-belt at the time of the collision. Mr Parkin’s evidence would support the first named defendant’s reliance on this decision. But Mr McCullough refers specifically to a particular passage in the judgment of Griffin J. (with whom the then Chief Justice and Henchy J. agreed) where at page 76 of the judgment he states as follows:
“In the accident, the plaintiff, as she described it, was ‘thrown onto the gear handle’ of the car and received injuries to her chest and ribs. She fractured the fifth, sixth and seventh ribs on the right side, and she suffered a right pneumothorax with collapse of the lung on that side. The nature of the accident, coupled with these injuries, shows that the primary cause of her injuries was an impact with the gear lever, which would have been situated to her right. She was obviously thrown forward and to the right. This was a type of accident which could not have happened if she had been wearing a seat-belt.
Prima facie, therefore, there was contributory negligence on her part. As it was held in Froom v. Butcher, any person who travels in the front seat of a motor car, be he passenger or driver, without wearing an available seat-belt must normally be held guilty of contributory negligence if the injuries in respect of which he sues were caused wholly or in part as a result of his failure to wear a seat-belt. There may be excusing circumstances for not wearing the seat-belt, such as obesity, pregnancy, post-operative convalescence, and the like; but it is for the plaintiff who has not worn it to raise and prove such excusing circumstances.
In this case, the trial judge ruled out contributory negligence on the ground that there was no evidence that the wearing of a seat-belt would have prevented the accident. However, as was decided in Froom v. Butcher, that is not the correct test. The question is whether the wearing of a seat-belt would have prevented or reduced the injuries. Here, as in most cases, no special evidence was required on that point. The jury could not but have come to the conclusion that the impact injuries the plaintiff received when the right chest and ribs struck the gear-lever would not have happened if she had been wearing a seat-belt. Therefore the issue of contributory negligence was incorrectly ruled out.”
Mr McCullough refers to the approval in that judgment of the judgment in Froom v. Butcher [1976] QB 286, a case in which the Court of Appeal that in determining whether a plaintiff was guilty of contributory negligence the question was not what was the cause of the accident but what was the cause of the damage, and he homes in as it were on the reference to the question being whether the injuries sustained would have been prevented or reduced by wearing of the seat-belt. He refers to the evidence that if a seat-belt had been worn the injury sustained by these plaintiffs would not have been sustained – ergo, he submits, there is contributory negligence, and it is irrelevant to that consideration whether the injuries instead would have been as severe, more severe or even fatal.
Edward Walshe S.C. on behalf of the second named defendant on the other hand submits that the issue as Mr McCullough would put it above, and that it is not sufficient to simply establish that the precise injury sustained would not have been sustained, and he submits that Hamill v. Oliver is not authority for that.
In considering Hamill v. Oliver, one must, I feel, have some regard to the nature of the injury involved, and from which one can reasonably infer that the impact in that case, while sufficient to cause the plaintiff in that case to be “thrown onto the gear lever” was of an entirely lower degree of force that that we are dealing with in the present proceedings. There can be no doubt about that, particularly when one considers that the plaintiff, Hamill, was an unrestrained front seat passenger. The Supreme Court was dealing in that case with a situation where it was reasonable to conclude that the only reason that the plaintiff suffered any injury was the fact that she was not wearing a seat-belt. That is the context in which Griffin J. stated that “this was a type of accident which could not have happened if she had been wearing a seat-belt”, and also, when referring to Froom v. Butcher, the learned judge stated that “any person who travels in the front seat of a motor car, be he passenger or driver, without wearing an available seat-belt must normally be held guilty of contributory negligence if the injuries in respect of which he sues were caused wholly or in part as a result of his failure to wear a seat-belt.” (my emphasis)
Context is important, and if taken out of the appropriate context, it is easy to see where Mr McCullough seeks to gain support for what appears to be a somewhat illogical and unfair conclusion – namely that even if the plaintiff succeeded in establishing as a matter of probability that the wearing of a seat-belt would have caused either the same degree of injury, or a greater degree of injury, including fatal, it still follows that such plaintiff is guilty of contributory negligence if the precise injury sustained and sued for would not have occurred. I cannot be satisfied that this is a reasonable interpretation of, and conclusion to be reached on the basis of, the judgment of the Supreme Court in Hamill v. Oliver – a decision which is of course binding upon me. A more reasonable interpretation in my view, and one which can take account of the different nature and severity of individual accidents, would be that the question arising is whether the wearing of a seat-belt would have prevented injury altogether, or reduced same. It is not simply whether it would have prevented “the injuries”.
It does not seem to me to be correct that a person can be held to have negligently contributed to his own injury where it can be established by him that in any event the wearing of a seat-belt would not have availed him. It seems to me that the causative link between the negligent act alleged, namely the failure to wear the seat-belt, and the damnum suffered, would be missing. I do not believe that Hamill v. Oliver is authority for the latter. This is supported in my view by the reference by Griffin J. in the extract from his judgment quoted above, namely that: “the jury could not but have come to the conclusion that the impact injuries the plaintiff received when the right chest and ribs struck the gear-lever would not have happened if she had been wearing a seat-belt”, and to his earlier statement that “she was obviously thrown forward and to the right. This was a type of accident which could not have happened if she had been wearing a seat-belt”. It seems clear that in that case the plaintiff, if she had been seat-belted, would have been restrained so that she would have received no injury whatsoever. That is a significant distinction from the present case, where given the very high impact nature of the collision, these plaintiffs were always going to be injured even if belts were worn.
Having thus concluded as to the correct question to be addressed it remains to consider the question as to whether the second named defendant has been guilty of negligence so that she should contribute to the damages awarded in this case.
That question involves firstly a consideration of the duty of care owed by her towards these plaintiffs as the driver of the car. In my view there can be no doubt but that the driver of a car is under a duty of care towards his/her passengers to ensure that they are transported in the car as safely as is reasonably practicable. This extends to ensuring that seat-belts are provided, and in the case of young children especially, ensuring that such children are belted appropriately to their ages, including where necessary by the use of a booster seat for very young children.
There are regulations in place and to which I have already referred. That indicates a legislative intention as regards ensuring as far as practicable passenger safety. But the fact that I have concluded that the second named defendant may not have been in breach of these regulations, does not lead also to the conclusion that she was not in breach of her common law duty of care. In the present case the second named defendant, as the driver of the car, owed a duty of care to these plaintiffs and the other children. The requirement of proximity is clearly present between her and these plaintiffs. I am completely satisfied that it was foreseeable that in any collision which might occur the plaintiffs would be exposed to injury. I do not have to decide whether the particular type of impact or the particular injuries which were sustained were themselves foreseeable. Neither is there any room for any suggestion that there might be any public policy consideration which might mandate that she not be under this type of duty of care, and it is fair and reasonable that such a duty of care be upon her. In this way all the requirements for the existence of a duty of care exist in this case in relation to the second named defendant towards the plaintiffs herein.
I make no finding in relation to whether in respect of Martha, Martha’s mother who was seated in the front passenger seat shared with the second named defendant (her sister as it happens) the duty of ensuring the safety of her own daughter by ensuring that she wore a seat-belt. It is outside the issues arising for determination in the present case, and must await an appropriate case in which the issue is raised.
Having so concluded, the next question is whether there was a breach of that duty in the particular circumstances of this case by failing to ensure that the plaintiffs wore the seat-belts provided. As we know, there were five children being placed in the back of this car. There were only three belts in total. It follows that even if three children wore the available belts, two were going to remain unrestrained. The Court cannot speculate as to whether or not two of these particular three plaintiffs would have been those who would not have been belted. I have heard no evidence from the second named defendant as to what if any consideration was given by her to the question of how to use the available belts between the five children in the back. She gave some evidence in her capacity as the mother of the plaintiff, Eamonn, but she was not cross-examined as to the seat-belt issue, which is understandable since she gave no direct evidence in that regard. But the fact is that no evidence was lead by her in relation to that matter. There is therefore no evidence as to whether any consideration at all was given to this question, and I must conclude therefore that she did not give consideration to the problem of having five children in the back, and that there were only three belts. She must be taken to not having even decided that in the circumstances where there were five children and only three belts available, that it was safer to leave all children unrestrained. I must conclude, and do so, that she gave no consideration to the matter at all, and that the children were simply put into the back, and they were left to their own devices as to the seat-belts.
In those circumstances, I must conclude that there was a breach of the duty of care upon her since she failed to give any consideration to the safety of the plaintiffs. Had she at least considered the problem, and made a reasoned decision in the light of the circumstances prevailing, I might have been able to conclude that she had not breached her duty of care, even if I might also form the view that the decision taken by her was wrong. But in the absence of any evidence from her, I must conclude that she was in breach of the duty of care upon her.
Lastly it is necessary to consider whether the breach of the duty of care has a causative link to the injuries sustained by the plaintiffs and in respect of which they seek compensation. The second named defendant has sought to adduce evidence that even if these plaintiffs had been wearing a seat-belt, they would have been injured at least as badly as they were, and potentially more seriously. The first named defendant submits the contrary, namely, firstly, that it is safer to wear seat-belts than not to, and secondly that as a matter of probability, if they had been wearing a seat-belt they would not have suffered these particular injuries, and further, that any injury which they would have suffered would as a matter of probability have been of a lesser degree than what was actually suffered.
Mr Parkin’s engineering evidence for the first defendant is to the effect that the injuries would have been less, and that certainly the femural injuries would not have been sustained if belts had been worn, and that the injuries would have been more to the upper body. No orthopaedic surgeon was called to give evidence in this regard by the first named defendant, and I am asked by the second named defendant to infer from that fact that no such evidence would have been forthcoming to back up Mr Parkin’s evidence in this respect, which of course is given from an engineering perspective and from Mr Parkin’s professional experience and his studying of data and research into the question of injuries related to the wearing or otherwise of seat-belts. The orthopaedic surgeons who gave evidence on behalf of the second named defendants are of the view that while in low impact crashes a seat-belt will in all probability be effective in reducing the extent of injury which will otherwise be sustained, in a high or severe impact crash “all bets are off”, and the extent of the injury sustained even if belted is completely unpredictable given the high energies involved, and which are transferred to the bodies within the car. Dr Jordan’s engineering evidence on behalf of the second named defendant is also to that effect, and he has produced some very interesting research evidence which he says supports his opinion. He believes that this research shows that the injuries likely to have been suffered by these plaintiffs, if belted, would have been more severe and possibly fatal.
I have considered all this evidence carefully. I am of the view that the severity of the impact in this particular case is crucial and central to this question. This is an impact at the higher end of the scale. There is no controversy as to the severity of the impact. I am impressed by the evidence of the orthopaedic consultant’s view that in such an impact “all bets are off”. Each consultant expressed this view, albeit in differing terms. There experience on the ground as it were treating persons who have been involved in high impact crashes is that even where persons have been wearing seat-belts they often receive very serious injuries, including injury to the femur. I accept of course that neither of these consultants has carried out research as such, and therefore it is not possible to take their evidence other than anecdotal and as a general proposition. They have not sought, for example, to distinguish between injured persons who might have been front seat passengers, drivers, children of various ages and so on. But nevertheless it is helpful for the Court to hear their overall view in order to arrive at a view on the basis of a probability. Dr Jordan’s research also points to the probability that it is unpredictable as to what injury will be sustained in a high impact collision. Even with the benefit of Mr Parkin’s evidence, which was most helpful, informed and interesting, I am left in some considerable doubt, I have to say, that these plaintiff’s would have suffered significantly less serious injury had they been belted. There is too much speculation involved in determining whether the injury which would be sustained would be less than was suffered if belts had been worn, in order to reach a conclusion in that regard in favour of the first named defendant.
If the question to be determined was simply, as posed by Mr McCullough, whether the plaintiffs would have suffered “the injuries” which they suffered, if they had worn a belt, I would have no doubt that the answer would be different. But it is not so simple a question, as I have already found. I am satisfied as a matter of probability that even if these plaintiffs had been wearing a seat-belt, they would have suffered significant and serious injury of some kind. The first named defendant had not discharged the onus upon him to show that the injury would have been less.
In arriving at my conclusion in this regard, I believe that I am entitled to have regard also to the available evidence as to how this accident happened in the first place. The second named defendant was in no way responsible for the occurrence of this accident. The blame lies fairly and squarely on the driver of the other vehicle. That is in no doubt whatsoever, and no contrary suggestion is even put forward. But even without that particular feature, I am satisfied in any event that the injury would in all probability be significant and severe, though different possibly in nature, or even worse. In these circumstances, I conclude that the necessary causative link between the breach of the duty of care owed by the second named defendant to these plaintiffs, and the injuries sustained by them is absent, and that in this respect she cannot be found liable to contribute to the first named defendant’s liability to the plaintiffs on foot of the Notice of Contribution/Indemnity filed and served herein.
I would like to conclude by suggesting that there is another issue which arises in cases such as the present one. While in the light of my findings as to causation the issue does not arise in the present case, it is an important issue which could arise in other cases. This is whether in circumstances where a driver knew, or ought to have known, that there were only three available seat-belts, it is negligent to carry more than three children in the back at all, regardless of whether three can use the available belts. This would be in spite of the exclusion contained in article 8(3) of the regulations referred to. Where an adult driver is carrying more children in the back of the car that there are belts available, it seems to me to be highly arguable that even if three of those children wear the available belts, it is negligent to carry the remaining children where they must inevitably remain unrestrained. It seems to me arguable that the necessary ‘proximity of relationship’ exists, that the likelihood of injury is ‘foreseeable’, that there can be no possible countervailing public policy consideration, and that, given the prevalence of motor accidents and the obvious desirability of reducing the incidence of injury, that it would have to be ‘fair and reasonable’ that a duty of care of that scope should be imposed on such a driver. As I say, in the present case that issue itself can be left aside, since causation of injury has been decided in a particular way. But I leave it for another case to decide whether it is negligent to carry in the back of a vehicle more persons, especially children, than there are available belts, even where the available belts are used. In the present case, if it had been necessary to do so, I would have concluded that it was no excuse for the second named defendant to plead that given that she had five children in the back, and only three available belts, it was impossible to decide which child should wear a belt.
The final matter which I should like to address is the disturbing evidence which I heard during this case as to the dangers for young children who wear the lap-belt in the centre of the back seat. The evidence has been that the lap-belt is singularly inappropriate for young children to wear. The reason for this has been stated to be that such belts are designed so as to fit across the iliac crest, which is the strongest part of the pelvic area. When a normal adult applies the lap-belt, it crosses across the iliac crest, and this has the effect that in an impact where the person is thrown forwards, it is the iliac crest which impacts against the belt, and that part of the body is particularly well-suited to withstand the force generated. However, where a small child, or even a lightly built young teenager is wearing a lap-belt, the belt will not, in an impact, remain over the iliac crest, but will ride up the abdomen somewhat. This has two effects at least. The first is that the person will ‘submarine’, as it is called. In other words, the young person will be thrown forward and under the belt with all the obvious risks of not being restrained appropriately. In addition, there is a clear and known risk that when the young person is thrown against the lap-belt, it will be positioned at the abdominal area, and the force generated into the body will cause massive internal organ damage, including catastrophic damage to the aorta and fracture of the spine, or even worse, hemicorpectomy. I do not believe that parents and others in charge of young children in vehicles are aware of the fact that in all probability the wearing of a lap-belt by a child will in relatively severe impacts render the child more likely to suffer serious injury or even death, than if they were unrestrained altogether. That is the content of some of the expert evidence which I have heard, and I believe it is appropriate that I should say so, even if the precise issue did not as it happens need to be the subject of a determination in relation to the particular plaintiffs with which the proceedings are concerned. It is perhaps a matter for legislation.
I therefore give judgment in favour of Eamonn McNeilis in the sum of €165,252.74; in favour of Sean McNeilis in the sum of €204,165.96; and in favour of Martha McGill in the sum of €445,632.31.
Hussey -v- Twomey & ors
[2009] IESC 1 (21 January 2009)
JUDGMENT of Mr. Justice Kearns delivered on the 21st day of January, 2009
These proceedings arise out of a road traffic accident which occurred on 20th July, 1999 in the City of Cork. They give rise to an important issue as to how contributory negligence is to be assessed in the case of a person who elects to travel as a passenger in a motor car when the driver has consumed alcohol.
Shortly after midnight on the date in question, the plaintiff who was then a twenty-one year old commerce student, was travelling as a front seat passenger in a motor vehicle owned by the first named defendant which at the time was being driven by the second named defendant. The second named defendant was the boyfriend of the first named defendant who in turn was a friend of the plaintiff. As the driving of the second named defendant was not covered by a valid policy of insurance the third named defendant was joined as a second co-defendant. Liability for the accident was admitted, but the defendants raised a plea of contributory negligence against the plaintiff for allowing herself to be driven in a motor vehicle when she knew or ought to have known that the driver was incapable of driving, or had reduced capability for so doing, by reason of the consumption of alcohol.
The action was heard in the High Court in Cork (Peart J.) in January, 2005 and the learned trial judge delivered a comprehensive written judgment within a week of the conclusion of the hearing. He held that the plaintiff was guilty of contributory negligence and reduced the plaintiff’s damages by 40%. The plaintiff has appealed that finding.
The plaintiff has also appealed the finding by the learned trial judge that the plaintiff did not sustain a low back injury as a result of the accident the subject matter of these proceedings. It was the defendants’ case that the plaintiff’s injury to the lower back arose as a result of her involvement in a further road traffic accident which occurred in the month of June, 2000.
BACKGROUND
The plaintiff was born on the 6th October, 1977. Having obtained her Leaving Certificate with four honours and three passes in 1996, she initially pursued a two year course in business studies in Tralee. However, due to a medical complication, she did not complete her second year and commenced a further course in financial services in the College of Commerce in Cork in the autumn of 1998. She completed her summer examinations in 1999 and went to work in a hotel in St. Helier in Jersey. She returned to Cork shortly before the accident to repeat a number of subjects which she had failed in her summer examination and was on a night out with her friend, Mary Twomey, the first named defendant, when the accident occurred. Both she and Mary Twomey had gone to a bar known as “Chevies” in Blarney Street in Cork. They arrived at about 7 p.m. in the evening. She was unsure what time Mary Twomey’s boyfriend, Eugene Courtney, arrived in the bar. The plaintiff admitted to having had maybe six or eight alcoholic drinks during the evening. It was common case that the bar in question was quite a small premises and while the plaintiff maintained she spent a great deal of the evening at the pool table and not in the immediate vicinity of Eugene Courtney, she also accepted that there was no obstruction of her view of him or of her friend’s group whilst they were all present on the premises. She accepted she had sat at the same table as Eugene Courtney for between half an hour and an hour towards the end of the evening when some sort of row occurred between Eugene Courtney and Mary Twomey as a result of which Mary Twomey went home on her own. Shortly before midnight Eugene Courtney said he would drive the plaintiff down to Ms. Twomey’s house on Dominic Street in Cork City.
Both in direct examination and cross-examination, the plaintiff was adamant that Eugene Courtney appeared to be “fine” and did not appear drunk to her. She maintained that if she had thought he was drunk she would not have gone in the car with him. She maintained she had not seen Eugene Courtney drink any alcohol during the evening. Despite the fact that Mary Twomey was her friend, she also maintained that she had never met Mr. Courtney prior to that particular occasion.
There were two backseat passengers in the Ford Fiesta motor car which Eugene Courtney drove that night. In cross-examination, the plaintiff accepted that the route taken by the driver was not one which would lead by the shortest route to her friend’s home. Apparently Eugene Courtney and one other occupant in the car wanted to visit a chipper. Asked if there was not one closer to their destination, the plaintiff replied that “the boys just preferred that chipper”. When asked in cross-examination if that knowledge was indicative of the fact that she knew Eugene Courtney better than she was admitting in evidence, the plaintiff again maintained she had not met him before the night in question and was not aware for how long he had been in the public house on the night in question, other than in respect of the period she spent in his company.
It is perhaps of some importance to record also that when the gardai arrived at the accident scene at 12.20 a.m., the accident having occurred some ten minutes after the party left the licensed premises, the vehicle in which the accident had occurred had been abandoned by its occupants. Eugene Courtney had gone to the home of Mary Twomey and the plaintiff had walked to the Mercy Hospital to seek medical treatment. Detective Garda Liam Ruttle gave evidence of arriving at the scene of the accident and finding the abandoned vehicle. He found out that the car was registered to the first named defendant and her address. He went to that address and knocked on the door until he got an answer. The person who came to the door was Eugene Courtney. Garda Ruttle noted he had a bruise on his forehead and had a dishevelled appearance. He noted the following:-
“His eyes were blurred. His speech was slurred. He was holding the door with one hand and the jam of the door with the other and he was being supported by the door and the jam. I was outside the door at this time. It was quite obvious to me that he was in a drunk state and had been in a drunk state. … He was very drunk. He was certainly incapable of having proper control of a mechanically propelled vehicle. … Any adult person would know that he was drunk to look at him. I actually remember linking him to the garda car, not in an arrested fashion, but to support him in walking, and the same at the Mercy Hospital, I brought him in supporting him all the way. He was very drunk and he needed support into the Mercy Hospital. I explained to the staff there the circumstances and they saw to his injuries – they were superficial cuts – and then we proceeded to Mayfield Garda Station where he was processed.”
In cross-examination Garda Ruttle stated that he had been a member of the Garda Siochana for eleven years and had dealt with “a fair few drivers and drunken drivers and people that are intoxicated at night on the streets”. He had noted a strong smell of alcohol from Eugene Courtney. He stated that, based on his experience, the smell of alcohol tended to get stronger the more alcohol a person had consumed. There was no suggestion in evidence that Mr. Courtney had consumed further alcohol in the aftermath of the accident.
THE HIGH COURT JUDGMENT
The learned trial judge commenced his analysis by referring to the terms of s.34 (1) of the Civil Liability Act, 1961 which provides as follows:-
“Where, in any action brought by one person in respect of a wrong committed 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 or of one for whose acts he is responsible (in this Part called contributory negligence) 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”.
In interpreting this sub-section, the learned trial judge decided that the legislature had thereby provided a mechanism whereby a plaintiff can be adjudged guilty of contributory negligence even if the conduct on his part falls short of a “wrong” in the sense of negligence which contributes to the accident, but yet amounts to a “want of care” for one’s own safety.
He cited in support the following passage at para. 20.14 of “Law of Torts” (McMahon & Binchy)(3rd Ed) at pp.559-60:-
“Contributory negligence essentially involves a lack of reasonable care for one’s own safety or the safety of one’s property in contrast to negligence which involves a breach of duty towards others. An act may of course constitute both contributory negligence and negligence at the same time – a foolhardy lack of caution for one’s own safety, such as climbing a mountain without proper equipment, may induce a rescue attempt, resulting in injury to the rescuer.”
Peart J. adopted the concept of “want of care” as being “ideally suited” to the facts of the present case, where any reasonable adult person would know that it was unwise to the point of carelessness, or even recklessness as to one’s own safety, to get into a car about to be driven by a person who either had, or might reasonably be suspected to have taken more alcoholic drink than was legally permitted or was safe, while at the same time that person was not guilty of negligence in the sense of being in breach of a duty of care to another person causing them an injury.
The learned trial judge emphasised that he was not stating that in all cases in which a person accepts an offer of a lift in another’s car, he or she must initially establish the sobriety of the driver before accepting an offer. He was however clearly of the view that part of the duty to take reasonable care for one’s own safety so as to avoid the “want of care” referred to in s.34(1) of the Act involves making inquiry and desisting from travel where there are reasonable grounds for suspecting that the driver may have consumed alcohol such as might impair his driving, and that situation should be assessed by an objective test of reasonableness. The learned trial judge did not state, nor should he or this Court be taken as stating, that the taking of a single alcoholic drink by the intending driver to the knowledge of an intending passenger should be construed as contributory negligence given that the law expressly so permits. It may however, depending on the circumstances, prompt an inquiry to ensure that any consumption has been within the limits of what the law permits.
Having decided that these were the appropriate legal principles to apply to the issue of contributory negligence, the learned trial judge made the following findings of fact:-
“Given this evidence, I am of the view the plaintiff ought reasonably to have at the least suspected that he (i.e. Eugene Courtney) may have had drink taken during the evening and have been upon enquiry as to that situation before entering the car he was going to drive, particularly on the basis of an objective test of reasonableness.
But given the evidence of Garda Ruttle and the other evidence as to the time he was in the pub, I do not accept that the plaintiff is being truthful when she says she had no idea he had been drinking. On the balance of probability, it must have been obvious to any adult such as the plaintiff, if she had been concerned about the possibility, and certainly sufficiently obvious for her to make enquiry of him, which she says she did not, if she was in any doubt about it. In my view her evidence has lacked candour in this regard.
I am satisfied that in the present case there is sufficient evidence on a balance of probability that the plaintiff was lacking in care within the concept of “a want of care” for the purpose of contributory negligence. I am also of the view that in the present case it is a significant want of care given the reasonableness in present times of attaching to a normal and indeed intelligent person, such as the plaintiff, full knowledge of the dangers to herself, as well as others, of a drunken driver, and that to make merely a nominal finding of contributory negligence would to in part condone, or at least forgive/understand that lack of care in a way which would fail to underline the seriousness and obviousness of the dangers of drink driving. If the court sees fit to substantially reduce damages for not wearing a seatbelt, it should do so all the more in respect of a person who voluntarily, or carelessly, or even recklessly places herself in danger at the hands of someone such as the second named defendant in this case.
In the circumstances, there will be a reduction of damages in the amount of forty percent in respect of contributory negligence.”
SUBMISSIONS
It was submitted by Mr. Henry Hickey, senior counsel for the plaintiff, that the evidence upon which the trial judge had reached his conclusions was not the “best evidence” which was available as to the plaintiff’s state of mind and such evidence was necessary before such a finding could have been made. He argued that the best evidence on the issue of contributory negligence in this case was the evidence which might have been given by the first and second named defendants. However, neither of these parties had been called by the defendants. Furthermore, none of the medical staff at the Mercy Hospital, where the second named defendant attended following his meeting with Garda Ruttle, had been called. Presumably such witnesses could have given evidence with a view to determining the sobriety or otherwise of Mr. Courtney. The medical records of the hospital had not been produced. Furthermore, there was evidence of a head injury sustained by Mr. Courtney which might have explained wholly or in part his appearance and speech in the aftermath of the accident. He cited in support the decision in Malone v. Rowan [1984] 3 All E.R. 402. Mr. Hickey further submitted that the apportionment of 40% contributory negligence was, in all the circumstances, excessive and unreasonable.
In response, Mr. Michael Gleeson, senior counsel on behalf of the defendants, submitted that there was no “best evidence” rule or any other rule which precluded the defendants from making out their case on contributory negligence by means of whatever evidence they cared to adduce, including cross-examination of the plaintiff herself. He submitted that the trial judge was perfectly entitled to prefer the evidence of Garda Ruttle as to the state of intoxication of the second named defendant, particularly as he formed the view that the plaintiff was a witness who was lacking in candour. A strong case for intoxication had been made out on the evidence of Garda Ruttle and no evidence in rebuttal had been led by or on behalf of the plaintiff. There was a clear contrast between the evidence of the plaintiff that she had no knowledge of the second named defendant having consumed any alcohol as compared with the evidence of Garda Ruttle, an experienced garda officer, that there was both a strong smell of alcohol from the second named defendant, that his eyes were blurred and his speech slurred.
The plaintiff herself had accepted that the driving of the second named defendant was the sole cause of the accident and there was no suggestion of any third party involvement.
With regard to the extent of contributory negligence, Mr. Gleeson drew a distinction between contributory negligence cases involving the failure to wear a seatbelt and cases such as the present. While a seatbelt may ameliorate the damage once an accident has occurred, the decision not to travel with an intoxicated driver may lead to the avoidance of injury altogether. That would suggest, he argued, that a greater degree of contributory negligence should attach to a person who voluntarily elects to travel as a passenger in a car driven by a motorist whom that person knows, or has reasonable grounds to believe, has consumed alcohol.
While not arguing that a greater measure of contributory negligence should have attached in this case to the plaintiff, he submitted that the apportionment of 40% was in no way unreasonable. He further submitted that this Court should only interfere with an apportionment of blame where, in the opinion of the Court, gross error on the part of the trial judge had been demonstrated. He cited in support the decision of this court in Snell v. Haughton [1971] 1 IR 305, a case in which the plaintiff had been found to be guilty of contributory negligence to a degree of 75% having been knocked down while walking on the left hand side of an unlit road. In that case Walsh J. had stated (at p.309):-
“It has been established by a series of decisions of this Court that this Court will not disturb the jury’s findings on the apportionment of fault unless the apportionment is shown to be grossly disproportionate on the evidence.”
Mr. Gleeson submitted that, on the evidence before the trial judge, his findings could in no way be characterised as disproportionate and submitted that they should not be disturbed or interfered with.
DISCUSSION
I think it fair to say that the society’s understanding of the role of alcohol in driving cases has undergone radical change in the space of the last forty years. The contrast between societal attitudes to drink driving in the 1960’s and in the present decade is nowhere better illustrated than in the Irish case of Judge v. Reape [1968] I.R. 226. The facts of that case would nowadays cause national outrage. On the day of the accident, the driver picked up his passenger in Ballina at about midday with the intention of driving to Dublin. However, at midnight on the same day a collision occurred on the Dublin side of Kinnegad. In the intervening period, the driver and passenger had made seven stops on the journey and at six of these seven places the plaintiff and the defendant consumed intoxicating liquor so that by the time of the accident the defendant’s total consumption of intoxicating liquor was a gallon and three pints of beer and a small whiskey, and the plaintiff’s consumption was just short of that. Even allowing for the time factor and the fact that some food had been consumed during this period, the quantities consumed were quite mind-boggling. Remarkably, the jury acquitted the plaintiff of contributory negligence. That particular outcome may partly be explained by the oratorical skills before a jury of the late Patrick Lindsay who was senior counsel for the plaintiff or it may also perhaps be reflective of a wider societal view at that time as to what might be tolerated where drink and driving were concerned. It should perhaps be mentioned that this Court directed a retrial on the issue of contributory negligence in that case.
There has been undoubtedly an enormous sea change in society’s attitude to drink driving since then, influenced no doubt by the extent of carnage on our roads and the effectiveness of multiple campaigns which inform the public of the hazards of driving whilst under the influence of even small quantities of alcohol. It is thus now commonplace, if not yet a universal practice, for groups of people on a night out to appoint one of the group as a designated driver who will drink no alcohol or alternatively to make arrangements whereby no member of the party will be driving under any circumstances. Thus, I think it can fairly be said that any measure of tolerance towards intoxicated drivers and their passengers, if indeed it formerly existed to any appreciable degree, is very much a thing of the past.
Seen in this light, most of the decisions opened to the Court in the course of the appeal must be seen as carrying a ‘health warning’ to the extent that they reflect attitudes from a different time as to the role and responsibilities of an intended passenger in a motor car about to be driven by a driver who has consumed alcohol. In Malone v. Rowan [1984] 3 All E.R. 402 the defendant driver had with him five passengers, including the deceased. Evidence given at trial included that of the defendant driver and the four passengers who survived. The party had retired to a public house shortly after midday and the defendant admitted to consuming four pints of lager before setting off on a return journey from Rhyl to Liverpool. Some ten minutes before the accident the party visited another public house where the defendant consumed three further half-pints of lager. The accident occurred at about 8.15 p.m. and resulted in fatal injuries to one of the passengers giving rise to a fatal claim by the widow of the deceased. In evidence all the passengers confirmed that they knew the defendant had been drinking during the course of the day and evening but none thought he was in any way unfit to drive and had noticed nothing unusual in his driving until the accident happened. In refusing to make a reduction for contributory negligence Russell J. concluded:-
“In this case I have no direct evidence of the deceased’s knowledge of what the defendant had consumed. They were not … the only two on the scene. Nor have I any evidence of the state of mind of the deceased and whether he ever appreciated, or was reckless, as to any risk that was being run. The burden of proof lies on the defendant. In my judgement, on the facts of this case, he does not discharge, or come any where near discharging, that burden, and I decline to make any reduction in the damages on the ground of contributory negligence.”
That finding was made notwithstanding there was medical evidence before the court indicating that at the time of the accident the concentration of alcohol in the blood of the driver would have been at least 148 mg. per 100 ml., something which plainly indicated that the driver was substantially in excess of the permitted maximum. The fact that the passenger had died seems to have altogether prevented Russell J. from considering whether, on the evidence that was before him, the deceased must have known, or should reasonably have known, that, to use the words of the learned judge, that a “risk was being run”. Russell J. appears to have approached the case on the basis that there was no need to do so as none of the witnesses gave evidence as to the deceased’s state of mind. Given that such evidence would in any event have been speculative and therefore inadmissible, I believe the reasoning in this judgment is clearly defective. The case of Owens v. Brimmell [1977] 1 QB 859, another important decision on this topic, was referred to by Russell J. in the course of his judgment. In that case the plaintiff and defendant were friends and the plaintiff had often travelled as a passenger in the defendant’s car. On the night on the occasion of the accident they visited a number of public houses and a club. During the course of the evening each party consumed eight or nine pints of beer. In the early hours of the morning the defendant who was driving the plaintiff home from the club lost control of the car with the result that the car collided with a lamp post. Watkins J. held that although the defendant had to take the greater responsibility, the plaintiff had been guilty of contributory negligence and the amount of damages would be reduced by 20%. In the course of his judgment, Watkins J. declined to apply the doctrine of volenti non fit injuria, although noting it had been much discussed in a number of Canadian cases, and contented himself, as did Peart J., by applying the principles of contributory negligence as elaborated by Lord Denning MR in Frume v. Butcher (insert ref) where he said at p.291:-
“Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself …”
Watkins J. concluded:-
“I think this is a clear case on the facts of contributory negligence, either upon the basis that the minds of the plaintiff and the defendant, behaving recklessly, were equally befuddled by drink so as to rid them of clear thought and perception, or, as seems less likely, the plaintiff remained able to, and should have if he actually did not, foresee the risk of being hurt by riding with the defendant as passenger. In such a case as this the degree of blameworthiness is not, in my opinion, equal. The driver, who alone controls the car and has it in him, therefore, to do, whilst in drink, great damage, must bear by far the greater responsibility. I, therefore, adjudge the plaintiff’s fault to be of the degree of twenty percent.”
In another case opened to the court by Mr. Hickey, albeit in relation to the measure of an apportionment, the Supreme Court of Canada in Hall v. Herbert [1993] 2 R.C.S. 159 made clear its preference for deciding issues of this nature by reference to modern principles of contributory negligence rather than the doctrine of volenti non fit inuria. At p. 207 of the judgment Cory J. stated:-
“No matter how the maxim or principle is characterised, volenti non fit injuria, like the common law defence of contributory negligence, constituted an absolute bar to recovery. While apportionment legislation such as the various negligence acts has reduced or removed entirely the draconian effects of the contributory negligence defence, volenti remains as a complete defence. Yet it has in recent years been severely restricted in its application.
In order for the doctrine of volenti to apply, there must be either an express or implied assumption of the risk of the activity which caused the damage. That is to say, both parties to the activity must have agreed that they would participate in it regardless of the risk of injury and give up their right to sue should injury occur as a result of the agreed upon activity. It must be observed that the consent goes to the legal as opposed to the physical risk of harm.”
I can see the attraction of an argument that a passenger who elects to travel with a driver whom he knows to be unfit through alcohol from driving safely should in consequence be seen as thereby surrendering his autonomy and accepting whatever risks ensue thereafter. This fits well with the doctrine of volenti non fit inuria because in a sense it can be said that a passenger who elects to travel with a drunken driver is in much the same position as a person who elects to walk blindfold across an eight lane highway. However, the approach of the courts in common law jurisdictions, at least in the latter part of the last century, was to regard such an outcome whereby a claimant failed in toto as being unduly harsh, not least for the reasons mentioned by Watkins J. in Owens v. Brimmell. Section 34(1)(b) of the Civil Liability Act 1961 expressly abolishes the defence of volenti (save to the limited extent provided by the subsection) and provides that such issues be resolved by reference to standards of contributory negligence only. I am satisfied that the mechanism provided by s.34(1) of the Civil Liability Act, 1961 is sufficiently flexible to allow Irish courts calibrate an apportionment for contributory negligence in a manner which does justice in cases of this nature
CONCLUSION On issue of contributory negligence
Both sides to this appeal accepted that the following principles apply in cases such as this:-
1. The court may, where a passenger voluntarily elects to travel in a motor vehicle in circumstances where he knows, or should reasonably be aware, that the driver has consumed alcohol, be penalised in contributory negligence
2. In determining the issue of contributory negligence, the court must approach the issue on an objective basis, though the test cannot itself be absolutely objective in that the personal characteristics of any given plaintiff and the circumstances in which that plaintiff elects to travel as a passenger must be taken into account. A passenger in a given case may be under a disability by reason of age or infirmity, or may be relieved of any responsibility to make enquiry in the particular circumstances, such as in the case of a passenger travelling in a taxi.
3. An intending passenger who has consumed alcohol can not rely on self- intoxication for the purpose of avoiding a finding of contributory negligence and in particular can not rely on self- intoxication in an effort to avoid the consequences of facts which would otherwise have been reasonably discernible to him.
While the onus rests on the defendant to establish the case in contributory negligence, I am quite satisfied that there is no “best evidence” rule which destroys the case in contributory negligence if certain immediate witnesses to the events are not called. There may be many reasons why such witnesses are not called, and where, indeed, it might be highly imprudent on the part of a defendant to attempt to rely on such witnesses. In the instant case the first named defendant was a friend of the plaintiff. The second named defendant was the boyfriend of the first named defendant. These facts suggest, as a matter of practical common sense, that if either side proposed calling these witnesses then it fell to the plaintiff, rather than the Motor Insurers Bureau, to do so. Phipson on Evidence (13th Ed.) (pp.69/73) makes clear that the maxim that “the best evidence must be given of which the nature of the case permits”, is a maxim which no longer enjoys favour. Phipson also notes that the divisional court as far back as Kajala v. Noble The Times (March 13, 1982) described it as having “gone by the board long ago”. At para. 5-04 Phipson states:-
“In the present day, then, it is not true that the best evidence must, or even may, always be given, though its non-production may be a matter for comment or affect the weight of that which is produced. All admissible evidence is in general equally accepted.”
I am thus satisfied it is open to a defendant to make out a case to the required standard either through cross-examination of a plaintiff, circumstantial evidence or indeed any other form of admissible evidence.
Nor in my view is there any basis for arguing that the learned trial judge drew incorrect inferences from the primary facts. His findings are amply supported and grounded in the evidence which was actually given at the trial. In particular, he was entitled to prefer the evidence of Garda Ruttle to that of the plaintiff, bearing in mind that he found the plaintiff to be a witness who in many respects, some referred to in the later part of this judgment, was lacking in candour. Garda Ruttle is an experienced garda officer with particular experience in dealing with cases of this nature. Having regard to the plaintiff’s evidence that she had no reason whatsoever to think the defendant driver had consumed alcohol, this was certainly not a case in which the judge could adopt some middle ground and he was thus clearly entitled to resolve the issue in the manner in which he did.
Finally, in relation to the extent of the apportionment, the same must be seen as one made against the backdrop of changed societal perceptions as to how issues of this sort are to be regarded. In this respect the apportionment of contributory negligence in respect of travelling with an intoxicated motorist is quite different from the type of contributory negligence which arises from the failure to wear a seatbelt. In the latter instance the causative effect of the omission may be evident from the fact that a particular passenger may have suffered severe facial injuries from windscreen glass as a result of failing to secure his seatbelt. In the context of a passenger travelling with an intoxicated driver the fault lies in the decision to travel with such a driver in the first instance. The more the passenger should have realised, or did realise, the risk being undertaken, the greater the degree of contributory negligence. There is thus scope for a much higher finding of contributory negligence in this context than in the case of a failure to wear a seatbelt.
It is inescapable in my opinion to think other than that the plaintiff was well aware of the defendant driver’s inebriated condition, having spent an hour in his immediate company and having also had plenty of opportunities of seeing the defendant driver during the time spent in these licensed premises. On her own evidence she made no effort to ascertain whether he was fit to drive. I am satisfied, as was the trial judge, that she must have been aware his driving was likely to be impaired and the circumstances were clearly such as to put her on inquiry.
In all of the circumstances I believe the apportionment of 40% for contributory negligence should not be disturbed.
DAMAGES
The second part of the plaintiff’s appeal relates to the award made by the learned trial judge in respect of general damages. In that regard the trial judge awarded €35,000 for past pain and suffering with a further €15,000 for future pain and suffering. He allowed her €22,500 for 18 months loss of employment opportunity and special damages of €10,809, making a total of €83,309 which, following the reduction of 40% for contributory negligence, resulted in an award of just under €50,000.
A brief review of the facts shows that as a result of the impact on the night of the accident, a rear seat passenger in the car was thrown against the rear of the front seat in which the plaintiff was seated and that the driver was thrown over to her side of the car. While her seat and the door of the car were jammed, she eventually managed to get out the driver’s side of the car. She had been wearing a seatbelt. She walked from the scene of the accident to the Mercy Hospital but because of a delay in being seen there, her parents brought her to the University Hospital where she complained of neck pain, back pain and chest wall pain. On examination she was found to be alert and wakeful with some tenderness over the upper back between the shoulder blades and in the neck posteriorly. She also had bruising over her right shin. X-rays were taken of her cervical and thoracic spine and right shin, but no bony injury was revealed. Significantly, no x-rays were deemed necessary for her low back. The diagnosis at the time was of soft tissue injury for which analgesics and anti-inflammatory medication was prescribed.
On any view of the medical evidence, which is set out in considerable detail in the judgment of the learned trial judge, the plaintiff suffered no more than relatively minor injuries in this accident. However, a CT scan later undertaken of the plaintiff’s lumber spine in January, 2001 revealed a large right postero/lateral disc protrusion at L5/S1. This was significant for a person of the plaintiff’s age and although the plaintiff was given a care programme for her back and had an epidural injection, neither form of treatment had any positive effect. In July, 2001 an MRI scan showed marked signal change at L4/5 and L5/S1 discs with moderate right disc prolapse. Accordingly, in February, 2002 the plaintiff underwent a discectomy as a result of which the plaintiff obtained considerable relief. Mr. Michael O’Sullivan, Consultant Neuro-Surgeon, who examined the plaintiff in March, 2002, noted that while the plaintiff was more comfortable, she could no longer engage in her hobby of pool and snooker, could not bend down, was unable to sit for long periods or lift and had to take constant analgesia.
The plaintiff became pregnant in July, 2003 and gave birth to a daughter in March, 2004.
The complicating factor which the trial judge had to resolve was whether these injuries were attributable to the accident the subject matter of the present proceedings or to a second accident involving the plaintiff which occurred on 24th June, 2000. On that occasion the plaintiff was the driver of a motor car which went off the road into a field hitting a concrete post on the way. The plaintiff on that occasion had three passengers in her motor car all of whom were injured and who have instituted proceedings. A significant amount of damage, amounting to €6,000, was done to her motor car.
The learned trial judge found, and in my view had ample evidence for so finding, that the plaintiff’s low back pain only became a significant problem in November, 2000 and thus attributed the bulk of the plaintiff’s injuries and career diminution to the second accident.
While the plaintiff herself attributed all her symptoms to the first accident, the trial judge attached considerable significance to the fact that the plaintiff never told her medical advisors about this second accident when she was seeking assistance for her low back pain. While the learned trial judge erroneously believed from a reply to notice for particulars that the plaintiff had altogether withheld information about the second accident from her legal advisors, that error, relied upon by Mr. Hickey to suggest that the learned trial judge’s findings on this whole issue were unreasonable, arose through a mistake on the part of the plaintiff’s legal advisors in failing to supply a correct version of the reply to particulars in the book of pleadings which was before the trial judge. Mr. Hickey argued that this unfortunate mishap coloured the trial judge’s entire approach to the question of damages, but I am satisfied, both from his judgment and indeed the entirety of the medical evidence, that the learned trial judge had ample grounds for doubt and unease as to the plaintiff’s truthfulness and candour in relation to her injuries. For example, the plaintiff never told her general practitioner about the second accident. She never told Dr. Diarmuid O’Connell, to whom she was referred for acupuncture, of the second accident. She never told Dr. Ryder, Radiologist, about the second accident. She did not tell Dr. Michael Molloy, Consultant Rheumatologist, about the second accident. While the plaintiff did make a brief reference to the second accident when consulting Mr. Michael O’Sullivan, she said it did not cause any injury. Dr. Frank Matthews, on behalf of the defendants, indicated he had never been told about the second accident, although the plaintiff appeared to be a different person after the second accident, he having examined her both before and afterwards. Equally, Mr. Ciaran Barry, Consultant Orthopaedic Surgeon, sought a history from the plaintiff and she never made any reference to her second accident.
Thus while in evidence she indicated that the second accident had no bearing on any of the injuries sustained in the first accident, the evidence predominantly is to the effect that the back became a significant feature after that second accident. She told Mr. O’Sullivan in 2001 that she had three sets of symptoms, namely pain in the neck radiating into both shoulders, pain in the right chest wall, and lastly, low back pain, which he noted had started “approximately six months after the accident”. The learned trial judge noted a considerable effort was made to dilute or alter this last observation, although it is undeniable that this is what the plaintiff told him when he first saw her.
Considerable reliance was correctly placed by the defendants on the decisions of this Court in Patrick Vesey v. Bus Eireann [2001] 4 IR 192 and Shelley-Morris v. Bus Atha Cliath [2003] 1 IR 257, both cases which underline in the clearest terms the onus which rests upon a plaintiff to give evidence in a truthful and straightforward manner.
In reaching the conclusion which he did reach, namely, that the plaintiff’s low back injuries arose from the second accident, the learned trial judge was entitled to have regard to the fact that the plaintiff had not disclosed the fact of this second accident to the defendants doctors or to most of her own medical attendants, together with her sworn evidence that it had no effect on any of her injuries. The learned trial judge was uniquely qualified to determine the plaintiff’s credibility having had the opportunity of observing the plaintiff in the course of giving evidence and I am accordingly satisfied that the learned trial judge’s findings are entirely sustainable on the evidence. Put shortly, there was ample evidence upon which the learned trial judge could make the finding which he did and his fully reasoned judgment sets out clearly the basis upon which he did so. His findings thus fall four square within the principles enunciated by this court in Hay v. O’Grady [1992] 2 I.R. 210 and I would not therefore interfere in any way with the findings of the learned trial judge in respect of quantum of damages. Indeed, on the findings which he did make, the award which included a substantial sum for loss of earnings, may be considered as generous.
I would therefore dismiss the appeal herein.