High Court of Ireland Decisions

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Cite as: [2002] IEHC 135

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THE HIGH COURT

No. 2000/12133p

BETWEEN

LUKE BOYNE

PLAINTIFF

BUS ATHA CLIATH

JAMES McGRATH

DEFENDANTS

Judgment of Mr. Justice Finnegan delivered the 11th day of April 2002.

The Plaintiff resides at 9 Ebenezer Terrace, South Circular Road, Dublin and is a single man aged 3 8 years. He is a diesel mechanic by occupation and at the date of the accident giving rise to this claim was in the employment of a haulage company specialising in the delivery of ready mixed concrete. On the 20th January 1999 at 11 p.m. approximately he sustained serious injuries as a result of his being run over by the first named Defendant's bus driven by the second named Defendant.

On the clay in question the first named Defendant's 51B bus left Dublin city centre at :10.30 p.m. to travel to Bawnogue. The Plaintiff boarded the bus at Thomas Street. On that day he had finished with his employer at approximately 8 p.m. Thereafter in an adjoining premises he had carried out work on a car in a private capacity and delivered the repaired car to Baker's public house in Thomas Street at approximately 9 p.m. He had something to drink there and later that evening had some more to drink in O'Neill's public house in Thomas Street. In total he admits to having had six pints. He boarded the Defendant's bus but thereafter has no recollection of the events of the evening.

Derek McKeown was a passenger on the bus at the back of the lower deck. He saw the Plaintiff board. It was immediately apparent to him that the Plaintiff had drink taken. The Plaintiff sat in the side seat on the left hand side of the bus. During his journey he was swaying in the seat. The Plaintiff and Mr. McKeown alighted at the same bus stop. Mr. McKeown pressed the bell and moved towards the front of the bus but before he got there the Plaintiff stood in the aisle without making any progress towards the door at the front of the bus. Mr. McKeown passed him and stood at the door. When the door opened Mr. McKeown sprang from the bus to the kerb a distance which he estimated at some 4 - 5 ft. Shortly thereafter he heard a moan and on looking around saw the Plaintiff in contact with the centre doors of the bus and being spun by the motion of the bus, then falling to the ground and being run over by the rear wheel of the bus which continued on its journey.

The accident was investigated by Garda Connolly. He found blood on the roadway some eleven feet distant from the bus stop in the direction in which the bus was travelling and some one foot from the kerb. I am satisfied that this represents the locus of the accident which accordingly was somewhat closer to the kerb from that indicated by the evidence of Mr. McKeown.

Mr. Barry Tenneyson gave evidence on behalf of the Plaintiff. From his evidence I am satisfied that the distance from the front of the bus to the centre of the centre doors is fourteen feet. 'Taking this measurement together with the distance from the bus stop to the point: at which blood was found I find that the bus had travelled some 25 feet before it came into contact with the Plaintiff. A necessary corollary of this is that on alighting from the bus the Plaintiff' proceeded past the front of the bus and in the direction of travel of the bus and that the accident occurred in the course of the bus overtaking the Plaintiff.

The second named Defendant the driver of the bus recalled the Plaintiff boarding the same at Thomas Street. The Plaintiff appeared to be very drunk. He had difficulty getting on and had sat on the step and indeed the witness had some concerns as to whether he should carry the Plaintiff and kept an eye on the Plaintiff throughout the journey. I can summarise his evidence as to the Plaintiff s demeanour by recording that he was pleasantly drunk. The Plaintiff' got up as the bus approached the stop at which he was to alight. Before getting off he put: 50p in the bus driver's tray presumably by way of a gratuity. He was slow getting off and once he had alighted the driver had no further recollection of him. He was completely unaware; of the accident.

Liability

The foregoing is the totality of information available to me as to how the accident occurred. In particular I do not know if the Plaintiff reached the footpath and there lost balance and stumbled against the bus or if he was walking along the roadway. Of the two possibilities I take it as the most likely having regard to the evidence of Mr. McKeown that the bus stopped some distance from the pavement and that the Plaintiff never attained the footpath. Having regard to the point of impact he proceeded past the front of the bus and in the direction of travel of the bus and that the accident occurred in the course of the bus overtaking him while he was on the roadway. The second named Defendant was well aware of the Plaintiff s condition and ought to have taken particular care by keeping him under observation to ensure that the bus would pass him in safety: see McKevitt v Ireland 1987 I.L.R.M. 541. This he did not do as his evidence was clear that he lost sight of the Plaintiff once he had alighted from the bus.

Contributory Negligence

The Defendants plead contributory negligence and give the following particulars:

(a) Failing to have any or adequate regard for his own safety.

(b) hailing to look where he was going.

(c) Exposing himself to a risk of danger or injury of which he knew or ought to have known.

(d) Needlessly endangered himself.

(e) Failing to pay attention or sufficient attention to what he was about.

(f) Failing to have any regard for his own safety in exposing himself to a risk of injury by reason of the excessive consumption of alcohol.

(g) If the Plaintiff did fall, by himself causing the Plaintiff to fall.

(h) The Plaintiff was the author of his own misfortune.

The onus of establishing contributory negligence is on the Defendants. Where there is no direct evidence reliance must be placed on inference as a matter of probability as to what occurred: Clancy v Commissioners of Public Works in Ireland 1992 2 I.R. 449 at 467. Upon this basis I find that the Plaintiff due to his intoxicated state while on the roadway and before attaining the footpath stumbled and fell against the bus and then under the wheels of the bus. Counsel were unable to assist me with authorities as to how the court should approach the issue of contributory negligence having regard to the Plaintiffs state of intoxication.

The matter is dealt with in Charlesworth on Negligence Eighth Edition at paragraph 3 - 48 as follows -

"The excuse of drunkenness has to be regarded when considering contributory negligence. It is no excuse for failing to take reasonable care to prove that the person in question was unable to take proper care, owing to the influence of drink or drugs, which he had taken voluntarily. A drunken man cannot demand from his neighbour a higher standard of care than a sober man or plead drunkenness as an excuse for not taking the same care of himself when drunk as he would have taken when sober. (M'Cormick v Caledonian Railway (1903) SF362) ".

In Kilminister v Rule (1983) 32 S.A.S. R 39 where a person under the influence of drink stepped into the roadway in front of a car at night and was killed he was held to have contributed to the accident to the extent of 35%. I cannot see that this differs in any way from the outcome which would be expected if the Plaintiff had been sober.

In a number of cases this issue arose in circumstances where the Plaintiff was so intoxicated that he did not realise that the driver of the car in which he had taken a lift was himself unfit to drive through drink. The first of these Dann v Hamilton (1939) 1 All ER 59 was argued and determined on the basis of volenti, the Plaintiff's Counsel having declined the trial Judge's invitation to amend his pleadings and include a plea of contributory negligence: see 69 L.Q.R. (1953) 317. 1 find the discussion in other such cases e.g. Nettleship v Weston (1971) 3 All ER 581 unhelpful. However in an Australian case Insurance Commissioner v Joyce (1948) 77 C.L.R. 39 at 47 Latham L. J. said –

"If... the Plaintiff was sober enough to know and understand the danger of driving with (the Defendant) in a drunken condition he was guilty of contributory negligence .... but if he was not sober enough to know and understand such a danger ... if he drank himself into a condition of stupidity or worse, he thereby disabled himself from avoiding the consequences of negligent driving by (the Defendant), and his action fails on the ground of contributory negligence ".

As I understand this whether the Defendant was under the influence of drink only to the extent that he knew or ought to have known and understood the risk he was running or whether he was so under the influence that he was incapable of so knowing he is nonetheless guilty of contributory negligence.

In McKevitt v Ireland 1987 I.L.R.M. 541 at 546 Finlay C.J. said -

"The finding by the Jury that the Plaintiff was guilty of contributory negligence implies a finding that he had by the time of the commencement of the fire sufficiently recovered from his drunken condition to owe a duty to take reasonable care for his own safety which he failed to discharge ".

At first sight this might be seen as authority for the proposition that a Plaintiff so under the influence of drink that he did not know or ought not to have known of the risk to his own safety would not be guilty of contributory negligence. The statement must be read in conjunction with the facts of the case. The Plaintiff was in police custody while drunk and injured himself by setting fire to his cell with matches which a search had not uncovered. The Supreme Court held that a finding of 15% proportion of fault against the Plaintiff was unreasonable to the extent that it should be set aside. I think it likely that the Learned Chief Justice was having regard to the duty which rested upon the Defendant in the circumstances of that case: In short the greater the degree of intoxication of the Plaintiff to the knowledge of the Defendant the more onerous the duty of care on the Plaintiff. The statement merely acknowledges the effect of Donohoe v Stevenson on the principle enunciated in M'Cormick v Caledonian Railwav.

In McEleney v McCarron and Another (1993) 2 I.R. 132 an accident occurred when the Plaintiff' who was drunk was being assisted to his home by two girls and he fell onto the road. The girls had succeeded in moving his body such that his legs were on the footpath and his torso on the road when the second Defendant's car approached. The girls moved onto the footpath and attempted to attract the attention of the Defendant. The Defendant believed the girls wished to thumb a lift and did not stop his car and ran over the Plaintiff s head causing him severe personal injuries. In the High Court the Plaintiff was found guilty of contributory negligence and fault was apportioned 30% to him. The Defendant appealed to the Supreme Court where it was held that the Defendant in the circumstances of that case was not negligent. The court expressed no opinion on the questions of contributory negligence and the apportionment of fault.

In Judge v Reape (1968) I.R. 226 the facts were that the Plaintiff had consumed a considerable amount of alcohol before accepting a lift in the Defendant's motor car when he knew or ought to have known that the Defendant was drunk. The Defendant did not deny negligence but pleaded that the Plaintiff well knew that the Defendant was drunk and so was guilty of contributory negligence. The jury found that the Plaintiff had not been negligent. The Supreme Court on appeal found that there was plain evidence of contributory negligence and ordered a retrial. Counsel for the Respondent on the appeal relied on passages from Insurance Commissioner v Joyce but not the passage which I have quoted above. The passage quoted in the Judgment and it appears to me accepted as correct by the Supreme Court is as follows –

"If a passenger in a motor car is himself drunk so that he does not realise that the driver of the car is also drunk and allows himself to be driven, he is guilty of contributory negligence in the event of a collision".

From the foregoing it seems to me that the following principles can be gathered -

(1) If the Plaintiff is under the influence of drink to an extent that affects his ability to take care of himself and whether he knows or ought to know of the risk he is running this is a factor relevant to the existence and the extent of the Defendant's duty of care.

(2) In assessing the Plaintiff s conduct for the purposes of contributory negligence his intoxicated state is to be disregarded and this is so whether notwithstanding his intoxicated state he knew or ought to have known of the risk which he was running or was incapable of so knowing.

In the circumstances of this case in apportioning liability I take into account the circumstance that the second named Defendant was aware of the intoxicated condition of the Plaintiff and the extent of his intoxication and evaluate his conduct accordingly. Insofar as the Plaintiff is concerned I evaluate his conduct as if he were sober. I am satisfied that the Defendants on that basis did not take reasonable care for his own safety. If sober he would have moved himself promptly to a position of safety some little way from the bus and would not have stumbled against and under the bus as he did. I apportion liability 75% to the Defendant and 25% to the Plaintiff.

General Damages

The Plaintiff sustained horrific injuries which can be summarised as follows:

(1) A degloving injury of his right lower limb extending from his upper thigh to his distal tibia.

(2) An ischaemic right foot secondary to transection of his right popliteal vessels.

(3) A compound comminuted fracture of the mid shaft of the right femur.

(4) A compound comminuted grade 3 (c) fracture of the right tibia.

(5) A bruised and swollen left ankle with an area of skin necrosis.

He was treated at Tallaght Hospital with the application of an external fixator to his right femur and his right tibia and debridement of his wounds and a repair of his right popliteal vessels. He was an in-patient in Tallaght Hospital for almost six months. He had some 21 procedures, 20 of which were under general anaesthetic and one under local anaesthetic. From an orthopaedic point of view the movement of his right knee is virtually non existent and in the right ankle he has a passive range of movement of just 10° so that he is just able to get his heel to come to the floor. In the opinion of Mr. Borton his limb is viable but constantly very painful. His left leg is functioning normally. The right leg is virtually useless. In the future the question of amputation may arise in which event there will be some difficulties in fitting a satisfactory prosthesis in view of his extensive scaring. His ability to work is seriously compromised although he could do sedentary or office work which did not require physical exertion. In addition he sustained a severe degloving injury and now has severe scaring on both legs and also on the donor site for numerous skin grafts. Skin grafts became infected and took several months to heal. Not surprisingly the Plaintiff developed a reactive depression in February/March 2000. Fortunately this improved over time. However he still suffers from mild to moderate mood changes and anxiety - he is a nervous passenger. It is expected that his psychiatric condition will resolve. It is worth recording that Mr. Pegum in evidence expressed the view that it would have been better for the Plaintiff had his leg been amputated at the beginning as this would have resulted in less pain, more function and an overall better result.

On the basis of the admitted medical reports and the evidence of the Plaintiff and of Mr. Pegum [ assess the Plaintiff's claim for general damages as follows:

Pain and suffering to date	£75,000
Pain and suffering into the future	£75,000
Total:	£150,000

Special Damages

The Plaintiff's special damages have been agreed save and except the claim in respect of future loss of earnings. The agreed special damages are as follows:

Medical and related expenses	£60,111.77
Loss of earnings to date	£43,019.77

It is agreed between the parties that the Plaintiff's future loss of earnings should be calculated on the basis of a net weekly loss of £175. The task of the court in assessing damages wider this heading is to arrive at a lump sum which represents as nearly as possible full compensation to the Plaintiff. In this case the multiplicand has been agreed but the parties differ as to the multiplier - there is no agreement as to the assumed real rate of return on capital that is the return net of tax and management expenses and the assumed rate of inflation. The higher the assumed real rate of return on capital the lower will be the lump sum award. The courts have taken the approach that inflation can be taken into account by the assumption that a Plaintiff can invest the lump sum award and more particularly that the same can be invested partly in equities and partly in gilts resulting in both a hedge against inflation and a reasonable degree of security. In the United Kingdom this approach was reviewed in detail in Wells v Wells 1998 3 All ER 481 that review being prompted by the availability in the United Kingdom of index-linked Government stock which in addition to providing an income also guaranteed that the capital sum preserved its real value by being index-linked to the retail price index. It is against the background of the availability of such an investment that the dicta in Wells v Wells must be considered. There is no equivalent investment available in this jurisdiction and accordingly to avail of that investment available in the United Kingdom would carry with it an exchange risk as a result of which the security which such an investment offers would be undermined. Within the Euro zone similar investments are available in France but again the security offered is undermined by the possibility of divergent rates of inflation between France and Ireland. For the foregoing reasons I do not consider the availability of index-linked Government stock whether in the United Kingdom or in France as relevant to the approach this court should adopt in arriving at an appropriate lump sum award. Having regard to the range of investments available in this jurisdiction, in the euro zone generally, in the United Kingdom and other economies and having regard to the general requirement of a Plaintiff that he act reasonably to mitigate his damages it seems to me that the approach of the Court of Appeal in Wells v Wells is the appropriate one to adopt –

"It is for the court to hold the balance evenly between both sides, and just as the Plaintiff is entitled to an award which achieves a nearly as possible full compensation for the injuries sustained, so also we think the Defendant is entitled to take advantage c f the presumption that the former will adopt a prudent investment strategy once he receives his award. Furthermore the court, which as already noted, is dealing with probabilities when fixing the multiplier, can and should pay regard to the high probability that the Plaintiff will invest prudently; any other approach would be artificial. "

I am satisfied that a prudent investor having a lump sum to invest would apportion the same between gilts and equities the apportionment in any particular case however depending on his particular circumstances.

As to the proportion of a fund which should reasonably and prudently be invested in equities and gilts the evidence before me is that the average for 18 Irish managed funds is that 70% is invested in equities and 30% in gilts (to include 5.6% in property and 4.7% cash deposits). I consider this approach as a reasonable and prudent one. I accept the evidence given on behalf of both the Plaintiff and the Defendants that there is no such thing as a risk free investment and that the risk associated with investment in gilts is less than that in investment in equities. As against this a prudent investor whether managing his own funds or partaking in a managed fund will spread the risk associated with equities. As of the 31st December 2001 the typical Irish find had approximately 18% of its equities in Irish equities and the remainder spread between the United Kingdom, the euro zone, North America, Japan and the Pacific excluding Japan as a means of minimising risk. The beneficial effect of such a policy was made apparent by the events of February this year when the share price of Elan (22% of the Irish index) and AIB (14% of the Irish index) lost 65% and 13% of their value. The ten largest Irish managed funds had an average exposure to these two shares of 2.3% of their total funds. It seems to me that this puts in perspective the risk associated with prudent investment in equities. In calculating the real rate of return on equities allowance is made for management charges.

The suggested split between equities and gilts at 70% and 30% is not constant or appropriate in every case and the appropriate split will be determined by the anticipated duration of the fund the shorter that period the greater percentage of the fund which should be maintained in gilts. For the last five years of such period it would be appropriate to have the bulk if not all of the fund in gilts or on deposit to minimise the risk of having to realise equities in a depressed market. In Wells v Wells Lord Lloyd said -

"So it does not follow that a prudent investment for the ordinary investor is a prudent investment for the Plaintiffs. Equities may well prove the best long term investment. But their volatility over the short term creates a serious risk ... If there is a serious fall in equities in the first five or ten years during which the Plaintiff will have had to call on part of his capital to meet his needs and will have had to realise that part of his capital in a depressed market the depleted fund may never recover ".

Notwithstanding this it does not seem to me that investment managers having custody of pension funds can be said to be imprudent. Again the investment policy of the Wards of Court Office on advice follows a general policy in relation to longer term funds, that is over ten years, of maintaining a 70% 30% equities gilt split. I therefore consider that course to be one which a prudent investor would follow and I regard the Plaintiff as having a duty to act reasonably to mitigate his damages and that it should be assumed that he will follow the course of a prudent investor.

The next matter to be determined on the basis of the evidence is the return to be expected if such an investment policy is pursued. Firstly in this regard I adopt the view of the House of Lords in Wells v Wells that in the case of a Plaintiff it should not be assumed that the income on investments will be reinvested. However it seems to me that some account must be taken of the possibility of investing income. If one assumes that income is received at the end of year one and applied rateably throughout year two then throughout year two a decreasing proportion of the income will be available for investment for example by placing on interest bearing deposit: a reasonable approach would be to assume for the purposes of calculations that the entire interest earned in year one would be available to be placed on deposit for one half of year two and so on in succeeding years. In the evidence given before me the Plaintiff s calculations as to real rate of return were on the assumption that income would not be reinvested while the Defendant's calculations were on the basis that it would and to some extent thus accounts for the difference of opinion expressed by their respective witnesses.

The evidence for the Plaintiff is that the real rate of return on a portfolio containing 70% equities and 30% gilts would be 2.9%. For the Defendant the evidence was that the real rate of return on a split portfolio would be 4% and perhaps somewhat higher. The Plaintiff's calculations are on the basis that income would not be reinvested while the Defendants' are on the basis that it would.

Having regard to the evidence and the view which I take of the course which a prudent investor would pursue and the obligation of a Plaintiff to act reasonably to mitigate his damages by acting as a prudent investor I accept the Plaintiff s evidence as to the real rate of return. The same however requires some adjustment to take into account the possibility of reinvesting income to some extent. Making this adjustment I find that the appropriate multiplier having regard to the Plaintiff s particular circumstances should be calculated upon the basis of a real rate of return of 3%.

The Plaintiff s work history is as follows. He commenced employment in 1978 as an apprentice mechanic and continued with that employer until 1983 following which he remained out of work for a year. He then obtained employment as a static guard with a security company for one year. In 1985 he resumed employment as a mechanic and continued in that employment until 1990 after which he was unemployed for some two years other than for some casual work. In 1992 he again obtained employment as a security guard for one year after which he returned to his trade and continued to work at his trade until the date of the accident. I had the opportunity of assessing the Plaintiff while he gave evidence and I accept that it is likely were it not for his accident that he would have continued to work until the age of 65. Having regard to the serious nature of his injuries and the difficulties which lie experiences in carrying out his work he is unlikely now to continue to that age and it is likely that he will cease work altogether in fifteen years time at age 55 approximately. The appropriate multiplier based on a real rate of return of 3% in respect of his loss of earnings at £175 per week to age 65 is £975. This gives a figure of £170,625. In addition he will lose £67 per week from age 55 to age 65: I have been given an agreed multiplier for this calculation on the basis of a real rate of return of 2'/z% at £354 per £1: it is necessary to reduce this to reflect a real rate of return of 3% and I propose to adopt a figure of £325 per £1 in respect of additional loss of earnings from age 55 to 65. This gives a figure of £21,775. Having regard to the Plaintiffs employment history pre accident it is appropriate to make some reduction under Reddy v Bates. Further I take the view that notwithstanding that he will be unfit for full time employment between the ages of 55 - 65 the Plaintiff has special skills as a diesel mechanic and is likely to engage in some intermittent or casual employment. I propose abating the total award for future loss of earnings of £192,400 by 10%. This results in a net award under this heading of £173,160.

The total award to the Plaintiff accordingly is as follows -

Pain and suffering to date	75,000.00
Pain and suffering into the future	75,000.00
Agreed. special damages other than loss of earnings	60,111.77

Loss of earnings to date	43,019.77

Future loss of earnings	173,160.00

Total:	426,291.54

This sum converts to euro at 1 euro = IR£0.787564 in the amount of E541,278.60.

The Plaintiff having contributed to the accident by his own negligence to the extent of 25% this sum must be reduced in that proportion. I award the Plaintiff the sum of €405,958.95.