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Cite as: [1999] IESC 38

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Cronin v. Mulligan [1999] IESC 38 (14th May, 1999)

Ref No. 70/98

THE SUPREME COURT

Barrington J.

Lynch J.

Barron J.

CRONIN

Plaintiff/Appellant

MULLIGAN

Defendant/Respondent

JUDGMENT (ex-tempore) delivered on the 14th day of May, 1999 by Barrington, J.

1. This case arises out of an accident which occurred on the 11th October, 1996 when the Plaintiff/Appellant was a passenger in her daughter’s car when the car was in a head on collision with another car which was, at the relevant time, on the incorrect side of the road. The Plaintiff suffered significant injuries. She suffered an injury to her head, a serious injury to her knee, and an injury to her thumb.

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2. The case was an assessment but naturally, in the circumstances, the issue of contributory negligence was raised by the Defendants on the basis that the Plaintiff was not wearing a seat belt. She gave no explanation for not wearing a seat belt except the very honest explanation that she simply forgot - she didn’t think about it. Unfortunately she is under a statutory obligation to wear a seat belt, and while it is quite clear that the injury to her head was in large measure caused by not wearing a seat belt, it is also true that her injuries generally are consistent with injuries suffered by a person not wearing a seat belt. The learned trial Judge was anxious to stress the importance of people wearing their seat belts and he assessed contributory negligence against her at 20%. This Court, having considered the matter carefully, doesn’t feel that it can interfere with that apportionment.

3. The appeal also relates to the quantum of damage. Here by far the most serious injury the Plaintiff suffered was the injury to her knee. Her Doctor finally sums up the injury to her knee as follows:-

“As regards her left knee, she had a very significant injury to her left knee with a comminuted fracture of the distal pole of the pate/la and avulsion of the patellar ligament. She responded very well to excision of the comminuted bone and repair of the patellar tendon and she has very useful return of the function to her right knee. She

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shows persistent signs however of degenerative changes at the patello femoral articulation which are likely to increase in time and should she, as a result of arthritic changes occurring in the patello femoral articulation develop significant pain, then it is possible that she may require a patellectomy. This would have the effect of relieving her pain but would also leave the knee feeling much weaker afterwards “.

4. It is an injury which the learned trial Judge rightly described as a serious injury. Apart from these injuries there is the very unfortunate circumstance which the learned trial Judge attached some significance to, that the Plaintiff missed her daughter’s wedding. She is also left with a scar on her forehead which the learned trial Judge also considered to be significant, although it is fair to say that the Plaintiff herself didn’t make a very big issue of it.

5. This Court, looking at all three injuries including the sadness and unfortunate circumstances of missing her daughter’s wedding, would assess general damages in total in the sum of £60,000. To that must be added £2,055.00 for special damages and then making the discount at 20% in contributory negligence, this Court arrives at a figure for damages of £49,644.00.