Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Nolan -v- Mitchell & Anor [2012] IEHC 151 (20 January 2012)
URL: http://www.bailii.org/ie/cases/IEHC/2012/H151.html
Cite as: [2012] IEHC 151
[New search] [Help]
Judgment Title: Nolan -v- Mitchell & Anor Neutral Citation: [2012] IEHC 151 High Court Record Number: 2007 9146P Date of Delivery: 20/01/2012 Court: High Court Composition of Court: Judgment by: Smyth J. Status of Judgment: Approved |
Neutral Citation Number [2012] IEHC 151 THE HIGH COURT Record No: 2007/9146 P BETWEEN BILLY NOLAN Plaintiff AND
DANNY MITCHELL AND First Named Defendant PATRICK O'NEILL Second Named Defendant Judgment of Mr Justice Esmond Smyth delivered on the 20th of January 2012 1. The plaintiff is an alarm fitter and resides at Millview House, Graigcullen, Co. Carlow. 2. The plaintiff is claiming damages for personal injuries, loss and other damage, sustained by him as a result of a road traffic accident on the night of 17th November, 2005 at the public highway at Tollerton on the Kileeshin to Castlecomer Road in the County of Carlow. At the material time the plaintiff was riding a motorcycle, accompanied by a pillion passenger. 3. The first named defendant, a taxi driver, was driving a Ford Mondeo car owned by the second named defendant, when a collision occurred between the two vehicles. The incident happened almost directly outside or proximate to the entrance to the second named defendant's dwelling house, from which the defendants' vehicle had just emerged. 4. The plaintiff sustained serious injuries as a result of this accident, namely: injuries to his left hand, left knee and right foot; a fracture of the fifth metacarpal in his neck; lacerations to his left hand; a ruptured quadriceps tendon of his left knee, and; a fracture of the fifth metatarsal bone in his right foot. 5. The plaintiff was taken by ambulance to Portlaoise General Hospital, from where he was transferred to Tullamore Hospital. The plaintiff was operated on to repair the quadriceps tendon and was immobilised for approximately three months thereafter. The plaintiff has also been left with an inability to full extend the little finger of his left hand. Some months after the accident, a piece of plastic was discovered embedded in the plaintiffs hand which required surgical removal. 6. Prior to the accident, the plaintiff was an alarm fitter by trade. He said that he had to give up this type of work because of his injuries and will be unable to resume this occupation in the future. This is because the work of an alarm fitter involves, inter alia, working in confined spaces, climbing ladders, lifting weights, removing floorboards, drilling joists, putting in wires and doing external work on bell boxes, etc. 7. The plaintiff claims that because of his injuries he is no longer able to kneel or squat properly, work on rough surfaces or climb ladders. In light of continuing problems with his left hand, including a loss of power in that hand, he claims to have difficulty coping with tasks that require manual dexterity or lifting and carrying heavy loads. The plaintiff states that he has a lot of pain in his left knee, particularly when standing and sitting, and that he has continuing pain in his right foot. After the accident, he spent three months in a wheelchair; thereafter, he had to use crutches and under went a period of physiotherapy and prescribed exercises. FINANCIAL CONSEQUENCES FOR THE PLAINTIFF 9. I will return later to the findings and prognosis relating to the plaintiffs injuries which are set out in a number of agreed medical reports, and also to the more contentious issues arising from the loss of earnings claim, and other matters touching on the credibility and truthfulness of the plaintiffs evidence during the case, and arising from verifying affidavits sworn by the plaintiff in support of the claim. These are matters to be considered by the court in the light of an application by counsel on behalf of the defendants in this case, that the plaintiffs case for damages be dismissed under the provisions of Section 26 of the Civil Liability and Courts Act, 2004. THE EVIDENCE IN RELATION TO LIABILITY 11. The defendants, on the other hand, allege that the accident was wholly caused by the negligence of the plaintiff, or alternatively the plaintiff was guilty of contributory negligence. The defendants allege, inter alia, that the plaintiff drove at an excessive speed; drove on his incorrect side of the road, and drove in a dangerous manner. Evidence of the Plaintiff 13. In essence, the plaintiff's case is that he was travelling on his correct side of the road towards the stretch of road where Mr. O'Neill lives, maybe a foot or two to the left-hand side of the centre of his own side of the road, when he saw the lights of a car shining across the road from Mr. O'Neill's entrance on his right-hand side. The defendant's car proceeded out making a wide arching turn until it was facing in his direction, and occupying the Jane that the plaintiff was travelling in. The lights of this car dazzled him so that he was not able to see either side of the car. He veered to the right to avoid a collision but struck the rear panel of the defendant's car. The next thing that he remembered was that he was in Tullamore Hospital. 14. The scenario outlined by counsel for the defendant and suggested to the plaintiff, was that Mr. Mitchell had a vision of approximately of 188 to 200 metres to his left, towards the direction the plaintiff was coming from, as he emerged from the entrance to Mr. 0'Neill's house. At the end of that stretch (and it is clear that that part of the road is straight), is a bend and dip in the road, where the road veers to the left, as shown in photograph 7 in the defendant's album of photographs. Beyond that dip and left turn is a long stretch of road of about 500 or 600 metres. 15. It was put to the plaintiff that when Mr. Mitchell, the first named defendant came to the mouth of the entrance to Mr. O'Neill's residence, he looked to his left, and he did not see any light (presumably because the plaintiff was in the dip of the road at that point), but as he edged further onto the roadway, turning slightly to his left, he became aware of the lights of the plaintiff's bike emerging close to the ditch on the plaintiff's incorrect side of the road. The bike was travelling fast, in the words of Counsel for the defendants, "like a bat out of hell". In the circumstances, which I suppose could be described as "the agony of the moment", Mr. Mitchell had no option but to "dart across the road" at the angle he was travelling in so as to avoid the plaintiffs oncoming bike. The plaintiff denied that he was travelling too fast or that he was on the incorrect side of the road as alleged by the defendants. Evidence of Mr. John Kelly, Independent Witness 17. Mr. Kelly said the bike was gone "out of sight in seconds" and was "definitely speeding". Having looked at his speedometer, he estimated the bike speed to have been 90 mph. Mr. Kelly said that he did not see the motorbike after that. 18. Mr. Kelly said there is a very short distance between the bend of the road and where the accident happened. He noticed that the car in front of him had slowed down. He slowed down also. He could see two white lights down facing down the road towards him and knew something was wrong. The car ahead of Mr. Kelly slowed down but did not stop at the scene. The Defendants' Evidence 20. Mr. Mitchell said that on the night in question he stopped at the yellow line outside Mr. O'Neill's house, because that "is where you get most of the view at that stage". He said that he did not observe anything on the road before he proceeded out. 21. Mr. Mitchell's case, supported by the evidence of Mr. O'Neill, is that he got to about half way across his own side of the carriageway, to a point where his driver's wheel was almost at the white line, when he heard Mr. O'Neill shout "the bike", and in the words of Mr. O'Neill, Mr. Mitchell "darted across the road" at an angle towards the ditch on the far side. 22. The evidence of Mr. Mitchell and Mr. O'Neill is that when they became aware of the bike it was in the middle of their side of the road, i.e., the incorrect side of the road for the bike, and, according to Mr. Mitchell, it was driving a lot faster that it should have been. Mr. O'Neill said that it all happened too quickly. 23. The case for Mr. Mitchell is really that he had no choice or alternative, if he was going to avoid the oncoming plaintiff, but to dart across the road as quickly as he could to get out of the way of the plaintiffs bike. The Evidence of Garda Michael Hurley 25. Garda Hurley prepared a sketch of the scene as he found it. The sketch indicates a point of impact marked by "X", and the position of the defendants' Ford Mondeo car as found by Garda Hurley. Garda Hurley said he distinctly remembered the car was on that side of the road. He said it was probably a matter of inches, no more than a foot, inside the line. Garda Hurley identified the point of impact from where the car was stopped by the slight debris he found beneath it. He said that there were scrape marks on the road for 40 yards but they were not continuous. They originated from the plaintiff's correct side of the road to the ditch on the far side. 26. Garda Hurley said that to make a left turn towards Carlow and to maintain the position of the car on the Carlow bound carriageway is a straight forward manoeuvre. While he acknowledged in cross examination that trees and the dip in the road may inhibit the sight distance of cars turning towards Carlow, he maintained that there would be no difficulty in seeing down the entire length of the road as shown in photograph number 7. Garda Hurley did not agree that it is difficult to identify the speed of a vehicle on a dark night. He said if a bike is coming at a person at speed, that person will notice it a lot quicker than if it was taking its time. 27. Having completed his initial investigation, Garda Hurley took a statement from Mr. Mitchell. He also took steps to obtain a statement from the plaintiff. He called twice to the plaintiffs house but the plaintiff was not at home. Garda Hurley said that he spoke to the plaintiffs father once or twice requesting him to tell the plaintiff to contact him to make a statement. He said that he also spoke to the plaintiff on the phone after Christmas, some two or three months after the accident, to no avail. Garda Hurley said that the second time he spoke to the plaintiff's father, he told him he would call again and he said that he was assured by Mr. Nolan Senior that he would arrange for his son to be there, however it seems that nothing transpired. Garda Hurley was not challenged on this evidence; nor was it put to Mr. Nolan Senior, in cross examination, that he had in fact such a conversation with Garda Hurley. 28. The plaintiff did not recall any phone call from Garda Hurley about a statement. He said that he was at home at all times, and that he had been in a wheelchair for three months after the accident. The plaintiff said that he knew nothing about any conversations that Garda Hurley may have had with his father. He recalled two Gardai calling in connection with an insurance issue; however they never said anything about statements. 29. The defence contend that the court should reject the plaintiffs denial that he knew, or had been aware, that Garda Hurley was trying to contact him about a statement. I am satisfied that Garda Hurley probably made some efforts to contact the plaintiff about a statement. The problem with Garda Hurley's evidence on this point, however, is that he did not recall the dates on which this happened. Recollection of dates is important in this context because the plaintiff was probably housebound, at least to an extent, for two or three months after his accident. That being the case, it is difficult to see why Garda Hurley could not have been able to track him down. Therefore, I do not propose to make an adverse finding against the plaintiff in this regard. Evidence of the Defendants' Engineers Mr. Edward Flahavan 31. Mr. Flahavan was shown a Garda sketch and considered that the point of impact marked on the sketch shows the defendants' car on its incorrect side of the road. He interpreted the line on the sketch as indicating a slide from the point of impact to the point of rest of the motorbike. He said the slide marks could indicate the speed of the bike from the point of impact to the point of rest; however, they are not an indication of the pre-accident speed of the bike. Mr. Flahavan agreed in cross examination that the report on the damage to the rear of the car indicated a very severe impact and that such an impact would significantly slow down the bike. 32. Mr. Flahavan measured the metal surface of the road at 6.8 metres or 22 feet 4 inches. The plaintiff told Mr. Flahavan that at the time of the accident there were no hard shoulder markings on the road. Mr. Flahavan's evidence is that looking at photo 10 of his album, there is a view available at the entrance of Mr. O'Neill's property of 200 metres. He said it would take about four seconds for a driver exiting the entrance to complete a left hand turn in the direction of Carlow. He did not think it would be necessary for a person turning to the left onto the road to make a wide sweeping turn. He could make the turn and maintain his own side of the road. The entrance to Mr. O'Neill's premises is wide enough for him to do so. 33. Mr. Flahavan said that the plaintiffs motorbike had two side by side lamps, but that from a distance it looks as though there is only a single light. The range of the lights would be approximately 100 metres. Mr. Flahavan said that judging distances on rural roads at night is extremely difficult. In his opinion, a motorist should exercise caution if there is oncoming traffic and the speed of that traffic is uncertain. Mr. Flahavan said it is very difficult to get a motorbike to stop at the rate that you can stop a car. He agreed with counsel that the potential to dazzle an oncoming motorist would not arise until the car straightened up. 34. Mr. Flahavan agreed that the sight distances would be reduced if the vehicle moved in towards the ditch on the left hand side. The figures suggested by Mr. O'Hara for the reduced sight distance in those circumstances are 140 metres. Mr. Flahavan said that it would take about four and a half seconds to cover a distance of about 188 metres. He agreed that if the motorbike was doing 90 mph at 188 metres, the motorbike would be out of sight at the time when the car commenced its manoeuvre and that it would only come into view as that was occurring. Mr. Flahavan thought that the type of impact involved in this accident was a glancing blow, rather than a t-bone accident, where one vehicle intersects another at an angle of 90 degrees. The position of the Mondeo on the road was consistent with what the plaintiff had told him. Mr. Vincent 0'Hara 35. Mr. O'Hara's evidence was that the sight distance for the motorist travelling towards Abbeyleix is 188 metres, assuming that the motorist was on the correct side of the carriageway. That is the distance one can see from Mr. O'Neill's house looking towards Carlow. Mr. O'Hara said the dip in the road is probably about 220 to 250 metres or so from Mr. O'Neill's entrance and therefore beyond the extent of sight distance. However, he agreed that the further out you go from the entrance the greater the distance you can see. CONCLUSIONS ON LIABILITY 37. If the position of the defendant's car after the accident was as shown in the garda sketch, then it would be pointing at a slight angle in the general direction of Carlow with its headlights facing down the road. The plaintiff said he was dazzled by lights pointing in his direction. The position of the car on the sketch is consistent with that account. 38. Accordingly, having considered the evidence on this point, I am satisfied as a matter of probability that the plaintiff was on his correct side of the road at the point of impact, and that the defendant's vehicle was on its incorrect side of the road as shown in the garda sketch. 39. However, that is not the end of the matter. There is the evidence of Mr. Kelly to consider. Mr. Kelly is an independent witness. He is an experienced driver with no axe to grind in this case. 40. I have already referred to the detail of Mr. Kelly's evidence. If his assessment of the speed of the bike, which of course can only be an approximation, is correct, then the plaintiff was indeed travelling very fast. This lends support to Mr. Mitchell's recollection, that when he became aware of the bike, it was driving a lot faster that it should have been. 41. Mr. Kelly impressed me as a good witness of fact, and I accept his evidence that when the bike passed him, it was probably on its incorrect side of the road and travelling at an excessive speed. However, as I have said, the bike was on its correct side of the road at the point of impact. Therefore, what probably happened is that, having executed its passing manoeuvre of the two cars, the bike corrected its position on the road before the impact. 42. The evidence is that the 188 metre sight line is a sight line which was taken at a point between the fence at Mr. O'Neill's house and the yellow line, and at that point, it is not possible to see a bike coming out of the dip in the road. However, on the evidence of Mr. O'Hara, when Mr. Mitchell got to the yellow line and beyond it, he would then have had a view to the dip in the road. 43. Both Mr. Mitchell and Mr. O'Neill said that they first became aware of the bike when they were in the middle of their own carriageway. I am satisfied that even if Mr. Mitchell could not see the bike at the yellow lines, then, if the evidence of Mr. O'Hara is correct, he should have had an unobstructed view of any approaching traffic while he was in the middle of his own carriageway. It seems to me to be probable that if a driver was keeping a proper look-out to his left leading up to that position in the middle of his own carriageway, then at that point, he should have been able to see the approach of the plaintiffs motorbike. Furthermore, it is not unreasonable to assume, that at least until Mr. Mitchell became aware of the plaintiffs bike, he was probably exiting from Mr. O'Neill's house at a normal speed. In that case, he should have been able to stop and wait until the bike had passed him safely by. 44. Mr. Flahavan's evidence was that it is difficult to determine where the single light of a motorcycle is in relation to the central line of the road and whether or not it is on its right or wrong side of the road. There was also expert evidence that estimating the speed of an approaching vehicle at night is very difficult, although Garda Hurley had a different point of view. 45. It seems to me that these factors, taken together with the excessive speed of the approaching bike, probably contributed to Mr. Mitchell's decision to dart across the road to avoid the bike, when Mr. O'Neill alerted him to its presence. 46. In addition to these factors, the respective engineers gave evidence about how long it would take a vehicle to travel different distances at different speeds. It is clear from their evidence that the events leading up to this accident must have happened very quickly. 47. However, there is no getting away from the indisputable fact, that Mr. O'Neill, who was not the driver at the time, was able to see the bike before the accident. Mr. Mitchell did not see the bike until Mr. O'Neill alerted him of its presence. 48. Therefore, I am satisfied, as a matter of probability, that Mr. Mitchell, the first named defendant, failed to keep any or sufficient or proper lookout at the time and that this was a major contributing factor to the accident. In the circumstances, he clearly failed to yield right of way to the plaintiff, in breach of the Road Traffic Act 1961 and regulations made thereunder. The first named defendant was coming out of a private entrance and was bound to yield right of way to traffic on the road. 49. Nevertheless, I am also satisfied that there was contributory negligence on the part of the plaintiff, in that on the occasion in question, he was probably driving at a very excessive speed, close to 90 mph if Mr. Kelly's estimate is correct. 50. It is also of note that, in the Rules of the Road (Road Safety Authority, 2007) motorcyclists are advised to slow down, and if necessary to stop, if they are dazzled by oncoming headlights. This, the plaintiff clearly failed to do, for the obvious reason that he was driving too fast. 51. However, the primary responsibility for this accident in law must rest with the defendant because of his failure to yield right of way. Accordingly, I propose to apportion liability respectively as against the defendant at 60% and as against the plaintiff at 40%. THE PLAINTIFF'S INJURIES AND SEQUAELAE 53. The plaintiff described the effect of his injuries to the court. He said he had to "more or less" learn how to walk again and needs ongoing physiotherapy to mobilise his muscles. The plaintiff said that his left knee still pains him, especially in winter and cold weather, and that his left finger does not move. He said he is left with a scar on his shoulder from contact with the road at the time of the accident, and that he lost all the skin off the top of his hand. Asked about how his knee, the plaintiff said that it does not bend as much as it did before; perhaps a little over a half of what it should. He said he cannot kneel on it. The plaintiff said his social life has been affected because he suffers pain if he stands for too long and that cold weather and walking distances can bring on soreness. The plaintiff agreed that his pain is intermittent, and I understood him to say that he has to squat and crouch down as a form of exercise to strengthen the muscles around his knee cap. 54. The plaintiff said that his injuries have prevented him from fulfilling his ambition to take over the family alarm business. He is precluded from taking over the business because he has been unable to get into attics since the time of the accident, despite attempting to do so on several occasions. He said that the "crouching down" involved in this work was just too painful and if he stands on ladders his right foot and his knee get really sore. 55. The plaintiff said that he had tried plumbing and panel beating but that he was unable to do this type of work because it caused him pain. He also tried working in his father's pub but was having difficulty standing for long periods. The plaintiff said that he did a FAS course, and that because of his anxiety to get back to work, he has taken on a driving job, described as a secured courier run. He drives a delivery van and also does phone work for his father's business. Apart from this, the plaintiff has been out of work since his accident. Mr. Michael O'Riordan, Orthopaedic Surgeon 57. In Mr. O'Riordan's first report of June 2006, he states as follows:
63. In his latest report of March 2010, Mr. O'Riordan noted that the plaintiff was still not back to his work and his walking distance was limited to about one mile after which he experienced pain in his right foot. The plaintiff complained that his left finger had become quite rigid and that he could not fully extend it. It became very painful in cold weather and he was taking painkillers for it. 64. Mr. O'Riordan examined the plaintiff and again proffered a guarded prognosis. It was his opinion that the plaintiffs foot and hand injuries were relatively minor, and while he had no doubt that the abnormalities in the plaintiff's little finger would lead to some inconveniences, it would not interfere significantly with most every day or even industrial activities. Mr. O'Riordan identified the plaintiffs biggest problem as his left knee injury which continued to preclude him from getting into tight and cramped corners. In turn, this prevented him from working as an alarm fitter. He noted again the possibility of the plaintiff developing arthritis in the left knee and him requiring surgical intervention to his left knee in the future, perhaps in 20 years from now. He noted:
Mr. Joseph G. O'Beirne, Orthopaedic Surgeon 66. Mr. O’Beirne felt that it would be possible to restore function to the left little finger by means of a two-stage grafting procedure. However, Mr. O’Beirne was of the view that it would be prudent to get an MRI scan done before embarking on such a procedure and he said that the plaintiff agreed to take time to decide whether he wished to proceed with the operation. 67. The first stage would involve, inter alia, the excision of the scarred tendon and its replacement by silastic rob. After a three month interval, the second stage would consist of the removal of the silastic rob and replacing it by a tendon graft with a tendon taken from another part of the body. Mr. O’Beirne goes into some detail in the course of his report in setting out a fairly complicated sequence of events involved in these procedures, and opines that it is difficult to be categorical as to the likely outcome. He states:-
68. In a further report of October 2011, Mr. O'Beirne notes that the plaintiff had decided not to proceed with the series of operations which are outlined above. Insofar as the likely long term prognosis is for the plaintiff, Mr. O'Beirne stated:
69. There are three reports from Mr. Thompson, an Orthopaedic Surgeon who saw the plaintiff on behalf of the defendants. In his first report dated 11/07/2006, having examined the plaintiff and reviewed the medical notes from other orthopaedic surgeons, Mr. Thompson said that the plaintiff continued to have quite a degree of difficulty with regard to his left hand and did not appear to have any function at all in his left little finger. He found that there was a great deal of scarring over the anteromedial aspect just above the plaintiffs left knee. He also found a good deal of crepitus in the left knee on movement and noted that the plaintiff was unable to fully extend his left knee actively and without pain. 70. Mr. Thompson examined the plaintiffs right foot and found no obvious deformity or swelling. Indeed, there appeared to a full range of movement apart from a complaint of pain over the outer aspect of the right foot. 71. Mr. Thompson noted that the plaintiff was making some progress with his physiotherapist, but he was of the opinion, at the time, that the plaintiff would certainly not make a full recovery and would have a degree of disability as a result of the injury to the left quadriceps muscle. 72. Mr. Thompson reviewed the plaintiff again on 18/03/2008 when the plaintiff told him that there had not been any great improvement with regard to his left little finger, but he felt that his left leg had definitely improved. He complained about pain when standing for long periods or walking a distance and that he had soreness in his lower thigh area. The plaintiff said that he had no distinct pain his left knee but was aware of a definite noise in that knee. Again the plaintiff complained of pain in his right foot, mainly over the outer aspect, when he gets up in the morning, and in cold weather. On examination, Mr. Thompson observed that the plaintiff walked with a normal gait. His report states that:
75. Mr. Thompson reviewed the plaintiff for a final time on the 16/1112009. The plaintiff told Mr. Thompson that his left leg had improved somewhat, but if he is in a car and his knee is bent up for a period he experiences pain and has to stretch his knee out. He continued to complain that standing for long periods on his left leg made it painful and he said he experienced noise and a clicking sensation in the left knee. The plaintiff said he had not been back to work and that the alarm business was very quiet at that time. 76. Mr. Thompson's examination found a full free range of movement in the plaintiffs left knee and no pain on movement. Again, he found definite crepitus in the patello-femoral joint on movement, and some definite muscle waste. The plaintiffs knee joint appeared stable. Examination of his right foot revealed no abnormality. 77. Mr. Thompson's opinion was that the plaintiff had made a good recovery to date. He thought that plaintiff's scarring may improve somewhat but will always remain unsightly. He envisaged that the crepitus in the left knee joint may improve but there was also the distinct possibility of disimprovement with time. Mr. Thompson did not rule out the possibility that the plaintiff will go on to develop arthritis, but stated that it would be impossible to put a percentage with regard to that risk. PLAINTIFF'S EMPLOYMENT AND PRE & POST ACCIDENT HISTORY 79. Before his accident the plaintiff was working as a full-time alarm fitter in an alarm fitting company owned by his father, who also owns a security company and a licensed premises. The security company incorporates a locksmith business which has two premises. 80. The plaintiff was interviewed by Ms. Susan Tolan, Occupational Therapist and Vocation Evaluator, and also by Ms. Paula Smith, Vocational Rehabilitation Consultant. In the course of the interviews, the plaintiff provided a history of pre and post accident employment record and personal circumstances, and how he had fared since the accident. It is clear from the evidence of both Ms. Tolan and Ms. Smith that there is a measure of agreement as to the impact of the plaintiffs injuries on his future work prospects and as to the type of work he will be able to do in the future. Ms. Susan Tolan, Occupational Therapist and Vocation Evaluator 82. The plaintiff told Ms. Tolan that alarm fitting post-accident exacerbated his knee pain and he was unable to get into attics, kneel, or work in awkward positions. Having regard to Mr. O'Riordan's medical assessment of the plaintiff's injuries, Ms. Tolan's view is that would be very difficult for someone with the plaintiffs type of knee injury to do that type of work. She did not feel it would be possible for him to work as an alarm fitter in the future, and indeed, she considered it would be dangerous for him to do so. 83. Ms. Tolan noted also that the plaintiff had a reduced grip in his left hand which would be a problem if he was heavy lifting or doing fine work in a confined space. In view of the plaintiffs complaints about standing for long periods, she considered it would be better for him to have a job where he is able to change his position, move about and sit for periods. Long distance driving might cause problems, but driving locally and doing the relatively light delivery work that he presently does for his father should be encouraged. 84. Ms. Tolan said that jobs involving crouching, squatting, bending or kneeling on a regular basis should be avoided if there is a risk of arthritis to the knee. In cross examination, Ms. Tolan recalled that the plaintiff said that he could not drive long distances without taking a break and she said that would be consistent with the medical evidence. Ms. Tolan agreed that a previous conviction (which the plaintiff admitted to in evidence) could work against a person in the labour market. Ms. Tolan said that the plaintiff had hoped to get back to his father's business. She encouraged him to undertake training courses and if he had difficulty identifying an alternative career, he should consider doing a Fresh Start Course, which is a career exploration course. Ms. Paula Smith, Vocational Rehabilitation Consultant 86. Ms. Smith's opinion was that it would be difficult to suggest that the plaintiff was not capable of doing more hours, if work was available to him. Ms. Smith thought, as did Ms. Tolan, that the plaintiff would be well advised to consider a full training course. She agreed with the medical opinion that it would not be advisable for the plaintiff to return to the alarm installing business; however, she considered that there were many other areas of employment available to the plaintiff. In her view, he was best suited to occupational activities of a relatively light nature. Ms. Smith said that the plaintiff had told her that his earnings were in the region of €550 gross per week. 87. The more contentious aspect of Ms. Smith's evidence arises from her account of what the plaintiff told her, or failed to tell her, about his current hobbies and interests. This issue is significant in the context of the evidence given by the plaintiff in cross examination, wherein it was put to the plaintiff that he had travelled to a number of shows on the continent doing driving demonstrations. These demonstrations involve what is called "car drifting". This is a motor sport which entails driving a car through over-steering in a sideways position, and as the evidence shows, requires some agility and physical competence. 88. In the course of this part of her cross examination, counsel for the defendants asked Ms. Smith about the importance of keeping detailed notes. Ms. Smith replied that she keeps very detailed notes. The relevant part of her note dealing with this issue is as follows:
90. The plaintiff maintained that he did not recall telling Ms. Smith that he had to give up his hobby since the accident. He denied telling Ms. Smith that engaging in that sort of activity would now be too sore. 91. It was also suggested to the plaintiff, in cross examination, that he told Ms. Smith that he was not able to lift or carry heavy items since the accident. He agreed that it was possible he had said that to her, but he did not remember saying it. 92. In fact, it became abundantly clear as the cross examination developed, that the plaintiff had indeed participated in a number of demonstrations of "car drifting" over a period of about 18 months, mainly during 2009, and that he had been to Budapest, Holland, Madrid, Malta, Belfast, Vienna and possibly to France, in furtherance of that interest. 93. The plaintiffs recent involvement in "car drifting" became apparent during cross examination when the court and the plaintiff were shown a number of photos and clips from videos. The photos had been taken from videos purporting to show the plaintiff engaged in his hobby and other activities and were taken from his BEBO site. The plaintiff said that BN86IRL (BN standing for Billy Nolan) was the number of the site he used to upload videos and that he has an account in his name for that purpose. 94. I do not propose to go through the full list of photos ands videos in detail because their contents speak for themselves and full details of them are in the note taken for the parties during the case. I will however refer to some of them. 95. Most of the clips bear the number BN86IRL and carry his name Billy Nolan or Billy Boy. One of these photographs, for example, is a photograph of someone wearing a helmet on and driving a motorbike. It is dated 9th June 2009 and a description under the photo, "Billy Boy up one with 929". The plaintiff denied that he is the person shown in the photograph on the bike. He said that sometimes people type in someone's name and the videos come up on the account. The plaintiff acknowledged that the video had been uploaded in June 2009 and he agreed that he had not changed the description on the photograph since then. 96. The plaintiff was also referred to a clip headed "Ronan Kearney you're up you're gone", which shows a man lifting another man and throwing him over the counter of a fish and chip shop. The plaintiff agreed that he was the person lifting the man over the counter and that the description was his. The plaintiff also agreed that he had uploaded a video on the 22nd October 2007, entitled Billy Nolan doing a burnout in 4AGZE which is the name of a particular car model, and that he appears in a promotional video of a driving demonstration in Hungary in April 2009. 97. In relation to a video of a show in Vienna, the plaintiff said his sister had paid for the flight, that he received no money for that event and that he had just gone there to take a look. He agreed that he is the Billy Nolan doing a burnout in 4AGS, spinning the wheels and burning the tyres. There is another video in which he appears to be squatting or kneeling examining a wheel. The plaintiff himself said that he was kneeling on his right knee and that he was just changing a wheel nut. 98. In his evidence, the plaintiff was adamant that he was not paid for these shows; the person who owned the team paid the expenses, and he (the owner) was in turn paid by the show organisers. The plaintiff said he got to travel for free. He stated that sometimes the shows are sponsored but he was just brought along to drive. The plaintiff said he lived on social welfare payments. Evidence of Ms. Joanne Holt Evidence of Mr. William Nolan (Senior) Mr. Nolan said that he would expect the plaintiff would be on an average of about €400 per week. He said that he has already entered into future contracts for this type of work. Mr. Nolan expected that, if the accident had not happened, the plaintiffs future would be in running the alarm business, and that could earn him even more than €400 per week. Mr. Nolan speculated that, if the plaintiff worked at it, there would be the potential to earn €800 or €900 per week. He said that they are presently paying someone €600 per week for a 40 hour week. 101. Mr. Nolan described his own work as involving meetings clients, carrying out surveys of possible jobs, and occasionally answering alarm calls. Mr. Nolan said the plaintiff would not be able for this type of work. At the moment, Mr. Nolan said that he could not afford to pay the plaintiff a wage because of the downturn in his business. Concluding Observations on the Plaintiff's Post-Accident History 103. The plaintiffs response to Ms. Smith's evidence was to say that he did not recall saying it to her that way; rather that he said "I had not competed." In the light of what I have said about the reliability of Ms. Smith's note and her evidence, I have no doubt that if that had been the plaintiff's response, Ms. Smith would have recorded it. 104. Furthermore, it seems to me quite clear from the videos that were shown in court, that "car drifting" is quite a physical and agile sport, requiring drivers to carry out very sharp and sudden twists and turns. The plaintiff himself acknowledged this when he said that he had problems associated with steering, using the handbrake and the amount of footwork involved in the sport. 105. I had the opportunity of observing the plaintiffs demeanour and attitude to this part of his cross examination. Frankly, I was unimpressed. The plaintiff struck as me as evasive in his attitude and his answers, and seemed reluctant to concede the level of his involvement in this sport after his accident. This is perhaps because he was acutely aware of what he had already told Ms. Smith in January 2011. 106. Accordingly, I am satisfied that the plaintiff did engage in his hobby and that he was physically well able for it, notwithstanding what he had told Ms. Smith. I also note that he was able to lift a man up and throw him over a counter, which is inconsistent with his claim that lifting weights was a problem for him as a result of his accident. 107. However, in relation to the clip which shows the plaintiff kneeling or squatting by a car wheel, I am not convinced that that of itself is sufficient to undermine the wider medical opinion that squatting or kneeling on a regular basis is a problem for the plaintiff. It was not clear from this clip whether the plaintiff was kneeling or squatting. The plaintiff said that while he is unable to kneel, he has done some squatting exercises. 108. Counsel for the defendants also submitted that the plaintiff must have had a source of income from his involvement in car drifting. As far as I am aware, discovery was not sought in these proceedings, either in respect of any accounts the plaintiff may have had, or in respect of relevant documentation in the possession of third parties, which may or may not have reflected payments to him by the team leader or organisers. Given the plaintiffs age, and the nature of the sport he was involved in, this may have been a worthless exercise. 109. There was mention of the plaintiff helping his children in some way, but the extent of this assistance or support was not raised with him in evidence i.e. whether he was making some sort of financial contribution to them on a regular basis. The plaintiff said that he was receiving social welfare in the sum of €170 and that he got occasional help from his sister. If she did, the only document she produced in court was evidence of a payment to Ryanair. 110. The plaintiffs sister said that if she was not able to help the plaintiff, her father would help out if he could. Unfortunately the plaintiffs father was not asked about this when he gave evidence. In fact he said in his evidence, that because of the state of his business he could not afford to pay his son a regular wage. 111. While I may have some reservations to the weight to be attached to the plaintiffs denials that he was paid for car demonstrations, nevertheless, the plaintiffs explanation that he was able to live on social welfare could reasonably be true, as could his assertion that he was not paid separately for the car driving demonstrations or the sponsorship events. In the absence of more concrete evidence on this point, I am not convinced, as a matter or probability that he was in fact so paid. DAMAGES 113. I am satisfied that the plaintiff suffered injuries to his left hand, left knee and right foot. He had a fracture of the neck of the fifth metacarpal and lacerations to his left hand. He had a ruptured quadriceps tendon of the left knee, lacerations and scarring to this knee and a fracture of the fifth metatarsal bone in his right foot. These injuries and their effects on the plaintiff are described in more detail in the reports to which I have already referred. 114. The overall picture I have gleaned from these reports is that the plaintiff is making a good recovery from his injuries, but that there are persisting sequalae.
116. While this hopefully is a fair summary of the medical and vocational evidence, it is clearly not a full picture of the plaintiffs actual physical capabilities and his true rate of recovery from his injuries. The video clips demonstrate that the plaintiff had recovered most of his physical abilities, strength and agility, at least as far as back as 2009 and possibly as far back as 2007. By July 2009, he was well able to lift a man over the counter of a chip shop. 117. On his own evidence, the plaintiff can drive distances with intermittent breaks to stretch his leg. He obviously has the capacity to lift some weights, and I am frankly surprised that he was not able to continue working in his father's pub where he could surely have taken occasional rest in between shifts if he became tired. 118. In all the circumstances, I propose to award general damages for pain and suffering to date in the sum of €75,000. Noting that there is a risk of arthritis in the future with a possible requirement for surgery when the plaintiff is in his fifties, I assess general damages for pain and suffering into the future in the sum of €50,000. 119. The position with regard to loss of earnings to date and into the future is somewhat unsatisfactory. The important issue in this context is to ascertain what the plaintiff's earnings would have been if he had not suffered his injuries and to ascertain his capacity to work and earn a living post-accident. 120. The difficulty in question arises from the conflict between what the plaintiff said his pre-accident earnings were, and what is actually revealed in his P60 for the year ending 2005. The plaintiff claims that immediately before the accident he was earning €500 per week. Ms. Nolan had a note that his earnings, at that time, were €550 net, and he told Ms. Smith that they were €550 gross per week. However, that is at variance with the figure in the plaintiff's P60, which equates, I am informed, with a gross weekly figure of €406.90 or net earnings of €356 per week. 121. No satisfactory explanation was forthcoming for this significant discrepancy. The plaintiff was not asked to clarify this matter; nor was the matter raised during the evidence of the plaintiff's father and sister, both of whom are directors of the company he worked for, and should, given that it is a family company, be familiar with its books. 122. This is an important issue, because the plaintiff's actuary based his projections on a schedule of progressive percentage wage increases that it is alleged the plaintiff would have earned if he had stayed in his employment as an alarm fitter. 123. Mr. Nigel Tennant, an actuary from the firm of Seagrave-Daly & Lynch Ltd., gave evidence on behalf of the plaintiff, and said that he prepared reports in May 2010 and April 2011. He said that the projections in the report of May 2010 were based on an estimated increase in the plaintiffs earnings since the date of his accident of around 30%, which would equate to a net weekly wage of €481. 124. This estimate of a 30% increase was contained in a letter dated 15th February 2010, from Mr. Paul Lynch, a certified public accountant of McDonnell Lynch & Co., provided accountancy services to Locksmith Limited for a number of years. This letter stated, inter alia, that:-
As the alarm business was and is part of the normal trade of the Lockshop Ltd., and as that company has recorded losses in all years from 2005-2009, it would not have been possible to transfer the alarm business to Billy Nolan Jnr. and maintain the company's solvency." 126. Mr. Nolan said that the plaintiff had been an employee of the company for part of the time since 2005 and that he was on the books of the company for the accounting year ending at the end of July 2011, and that the books of the company record a figure of approximately €3,000 in respect of the plaintiff for that year. 127. Mr. Lynch said that he had no idea how the plaintiff would have been receiving €200 a week above the figure of €356. He ventured to suggest the additional figure might be accounted for by motor expenses. Mr. Lynch said that he did not know if the plaintiff received cash from the company. 128. In fact, there was no evidence from any source during the hearing of the case that the difference might have come from motor expenses, or cash from the company. Indeed, it is notable that no clarification or explanation was forthcoming in that regard. 129. At the end of his evidence, I invited Mr. Lynch to examine the books of the company, and that if he wished to add anything to his earlier evidence, he could be recalled at a later stage. Mr. Lynch was not recalled. 130. Mr. Tennant said that his firm had been asked to compile a figure for past loss of earnings, and in this context he referred to his updated report of April 2011. He said the figures in this report were based on a handwritten schedule, and entitled "loss of earnings for Billy Nolan" which is contained in a letter dated 27th January 2011 from the plaintiff's solicitors Messrs PJ Byrne. That letter says:-
Yours sincerely, PJ Byrne" 132. Mr. Tennant was obviously concerned at the sharp increase in the figures provided in the later schedule, compared with the earlier figure of a 30% increase identified by Mr. Lynch, because Mr. Tennant wrote to the plaintiffs solicitors pointing this out and "seeking confirmation as to which set of figures his report should be based on". Yet despite that obvious concern on the part of Mr. Tennant, it does not appear that there is any reply to that letter, and the claim for loss of earnings proceeded on the basis of the later schedule. 133. As a matter of observation, it is difficult to see how a company which was recording losses between 2005 and 2009 could have had the wherewithal to pay the plaintiff the level of increases projected for him and claimed by him during that period. 134. In fact, Ms. Tolan's evidence is that rates of pay may have gone down, rather than up, during the recession. She said the current minimum wage is €8.65; the rates for a locksmith would still be between €10 and €15 per hour, and security personnel earn the same amount of money as well. By comparison, Ms. Tolan said that the alarm installer type rate of pay has stayed the same at approximately €400 to €500 per week. 135. Ms. Smith thought that the figure of a 30% increase in the plaintiffs earnings during the relevant period was high and suggested 15% as a estimate. Apparently, national wages increased by 10% over that period. 136. Having considered this part of the case, I am satisfied that there is no evidence whatsoever to substantiate wage increases of either 30% or 50% during the relevant period. Therefore, I propose to address the question of loss of earnings to date on the basis of the plaintiffs earnings as set out in his P60 which was handed into court. The figures contained in the revised schedule of loss of earnings as per the P60 netted at €18,512 per annum since the date of the accident, which covering the period since the accident, amount, I am informed, to €98,612. However I do not consider that the plaintiff was significantly handicapped to the extent that was made out. He is able to work. I consider that he was probably well able to undertake a variety of employment of the type suggested by Ms. Smith and Ms. Tolan, at the very least as far as 2009. In the circumstances, I propose to allow a figure of €70,000, for loss of earnings to date from which the usual deductions are to be made, including any amounts received from his father since the accident. I understand that these deductions amount to the sum of €28,580.50 in respect of illness benefit received from 17th November 2005 to 8th April 2009 and €10,431.000 in respect of Jobseekers Allowance received from 1st October 2010 to date. The plaintiffs earnings from work carried out for his father from 15th October 2010 to 9th December 2011 amounts in total to the sum of €43,558.70, which deducted from the sum of €70,000, comes to the sum of €27,444.30. 137. Insofar as the claim for future loss of earnings is concerned, the reality of the situation is that I do not have a sufficient evidential basis to be in a position to apply a multiplier to any particular figure. Indeed, it is possible that the sort of employment that has been indicated for the plaintiff would pay him more than he would get as an alarm installer. 138. However, I acknowledge that as a result of his injury, the plaintiff may well suffer a loss of opportunity in the future, in the sense that the spectrum of his employment has been diminished. Doing the best that I can for the plaintiff, and noting that he has now recovered to the extent that he is sufficiently able bodied to undertake a variety of employment opportunities, more likely under the auspices of the family company, I will assess a figure under that heading in the sum of €40,000. 139. In summary, the figures for damages are as follows:-
SECTION 26 OF THE CIVIL LIABILITY AND COURTS ACT, 2004 142. Section 26 of the 2004 Act provides as follows: "26-(1) If, after the commencement of this section, a plaintiff in a personal injuries gives or adduces, or dishonestly causes to be given or adduced, evidence that
(b) he or she knows to be false or misleading, (c) the court shall dismiss the plaintiffs action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done
(a) is false or misleading in any material respect, and (b) that he or she knew to be false or misleading when swearing the affidavit, dismiss the plaintiffs action unless, for reasons that the court shall state in its decision the dismissal of the action would result in injustice being done." (3) for the purpose of this action, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court. 143. One of the principal issues dealt with in these authorities is the question of the onus of proof and the standard of proof to be applied in a section 26 application. This is an important point because the provisions of the section are mandatory. In other words, once the court is satisfied that the plaintiff has given or adduced evidence which is false or misleading in any material respect, it is obliged to dismiss the plaintiffs claim unless the dismissal of the action would result in an injustice being done. 144. The purpose of section 26 and the standard of proof to be applied was referred to by Peart J. in Carmello v. Casey [2008] 3 IR 524 at pp. 539-540 as follows:
148. Further in the judgment Denham C.J. states that:-
150. In the course of his judgment in Higgins, Quirke J. stated that:
152. However, in considering the effect of section 26, I am not suggesting that the provisions of the section are so drastic that it is inevitable that once a finding of falsehood in respect of one aspect of a claim is made, it necessarily follows that it is fatal to the whole claim; that would be to ignore the proviso in the section, that if the dismissal of the action would result in justice being done the sanction is not mandatory. Whether an injustice has been done, would depend on the circumstances of a particular case. In the course of his judgment in Higgins v. Caldark (unreported, High Court, 18 November 2010), Quirke J. drew attention to two instances of a possible injustice:
153. Counsel for the defendants contended that the part of the plaintiffs claim based on the schedule of progressive increases in the pay the plaintiff would have earned but for his accident is false and misleading within the terms of section 26. It is part of the claim that was verified on affidavit. Mr. Reidy said the figures furnished to the actuary, Mr. Tennant, setting out progressive increases in earnings were not based on fact. He argued that the total of the differential based on the figures is in the region of €175,000, both past and future, which, he urged, is a very significant sum of money. 154. These figures, which in effect amount to increases of 50% in the relevant period, were set out in the course of a letter from the plaintiffs solicitor to Mr. Tennant. That letter incorporated a schedule prepared by the plaintiff's sister, Joanne Holt, who has a bookkeeping role in her father's company. These percentage increases were part of the instructions to Mr. Tennant on foot of which he based his actuarial calculations which are contained in his report. They were the figures that were put into evidence as part of the plaintiffs claim in respect of loss of earnings. They were not withdrawn at any stage, thus distinguishing the situation in Ahern v Bus Eireann, where the report of the actuary was not put in evidence. 156. It cannot be said, nor indeed was it suggested by counsel for the plaintiff, that because the figures were not compiled or drafted by the plaintiff personally, they do not come within, or form part of, the plaintiff's claim for damages. I am satisfied that in this case, the figures are attributable to the plaintiff himself. 157. In the course of his judgment in Shelly Morris, Hardiman J. stated at p. 255: "The claiming of a very large sum of money from a defendant is a serious matter and most plaintiffs will know this quite well. It is, in any event, the responsibility of a solicitor to ensure that the plaintiff is fully aware of the significance and, indeed, solemnity of advancing a claim for hundreds of thousands pounds, or a lesser sum, before the claim is presented to the defendant, not to speak of the court". 158. In this case, it was clear from the sequence of events outlined earlier, that Mr. Tennant was obviously concerned that the figures he had received from the plaintiffs solicitor were "substantially ahead of the accountants estimate." The level of his concern is reflected in the fact that he requested further instructions seeking confirmation as to which set of figures his report should be based on. Despite these obvious concerns which were communicated to the plaintiff's solicitors and presumably to the plaintiff himself, the implications of which are obvious, no response was forthcoming. 159. In response to Mr. Reidy's submissions, Mr. McCarthy said that the plaintiff always maintained that he earned €500 into his hand and that the defendants were not prejudiced by this claim because they had been given the plaintiff's P60. Therefore, he submitted that the defendants could be under no misapprehension as to what the plaintiff's pre-accident earnings actually were. 160. The difficulty with this proposition is the unexplained conflict between the figure in the P60, which was originally furnished to the defendants in May 2008, and the plaintiffs claim that he was earning €500 or €550. It was always open to the plaintiff to explain this conflict, but he chose not to do so. 161. However the reality of the situation facing the defendants, is that they had to deal with a claim from the plaintiff seeking, inter alia, €447,000 for loss of earnings into the future and €142,000 for loss of earnings to date. This claim was based on figures supplied to the plaintiffs actuary; which figures, I am satisfied, have no evidential basis whatsoever. 162. Mr. McCarthy argued that in view of the overall evidence in the case, including the plaintiffs good work record, that the defendants had not satisfied the appropriate standard of proof, and accordingly their application under section 26 should not succeed, and that, in any event, this is a case which can be decided by resolving the normal anomalies and inconsistencies that typically arise in personal injury actions. Conclusion on the Section 26 Application 164. The defendants' counsel also submitted that the plaintiff must have had another source of income from the "car drifting" demonstrations and that he was probably paid for these, and that he was untruthful in response to Garda Hurley's evidence that he had arranged to take a statement from him, and that these are matters that come within the scope of section 26. I have dealt with these matters already, and it appears therefrom that I am not satisfied, as a matter of probability, that the plaintiff's evidence on these on these two discrete issues is false or misleading within the terms of section 26. 165. I am, however, satisfied that the plaintiff gave false and misleading evidence when he told Ms. Smith about having to give up his hobby of "car drifting" because of the limitations on his physical capacity brought about by his injuries. This evidence was clearly untruthful and the reasonable inference that I draw from it, as a matter of probability, is that he gave misleading evidence, which he knew to be misleading in a material respect. 166. Finally, may I say that it is part of the everyday function of judges in contested cases to resolve anomalies and inconsistencies, to accept or reject evidence, or to attach greater weight to some part of the evidence than other parts, and to interpret and apply the law. 167. This is a case where the plaintiff has been successful in part of his claim. However, in view of my findings as to the plaintiffs falsehoods, I am satisfied that this is not a case where the successful parts of the plaintiffs claim can be rescued from the provisions of section 26 and, as I am also satisfied that no injustice will result from a dismissal of the plaintiffs action, then this is the order that I must make.
|