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Cite as: [2009] 3 IR 293, [2009] 1 ILRM 321, [2009] IESC 1

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Judgment Title: Hussey -v- Twomey & ors

Neutral Citation: [2009] IESC 1

Supreme Court Record Number: 103/05

High Court Record Number: 2001 15591 p

Date of Delivery: 21 January 2009

Court: Supreme Court

Composition of Court: Geoghegan J., Kearns J., Finnegan J.

Judgment by: Kearns J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Kearns J.	Appeal dismissed - affirm High Court Order	Geoghegan J., Finnegan J.

Outcome: Dismiss

THE SUPREME COURT

Geoghegan J.
Kearns J.
Finnegan J.

[S.C. No. 103 of 2005]

BETWEEN

CYNTHIA HUSSEY

PLAINTIFF/APPELLANT

AND

MARY TWOMEY, EUGENE COURTNEY
& THE MOTOR INSURERS BUREAU OF IRELAND

DEFENDANTS/RESPONDENTS

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.