IRL High Court. Judge refuses to strike out personal Injury case where there was inordinate and inexcusable delay.

In the case of McCarthy v Brandon Constrution and Others, Ryan J refused to strike out the Plaintiff’s personal injury action even where the court was satisfied that there had been inordinate and inexcusable delay.

The court held that once satisfied that there was inordinate and inexcusable delay, that it should apply the the approach that was set down by The Supreme Court in Primor v Stokes Kennedy Crowley.

“In Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459, the Supreme Court focused on whether the delay resulted in prejudice to the defendant in meeting the claim. The Court set the bar high for a defendant applying for a dismiss, holding that the question of particular prejudice was central to the exercise of discretion and it also endorsed and emphasised the importance of the role of the defendant in relation to the plaintiff’s delay. The Supreme Court held that the principles of law relevant to an application to dismiss an action for want of prosecution were that:-

1. the courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice so required;
2. the party who sought the dismissal on the ground of delay in the prosecution of the action must establish that the delay had been inordinate and inexcusable;

3. even where the delay had been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice was in favour of or against the case proceeding;

4. when considering this obligation the court was entitled to take into consideration and have regard to –

(a) the implied constitutional principles of basic fairness of procedures,
(b) whether the delay and consequent prejudice in the special facts of the case were such that made it unfair to the defendant to allow the action to proceed and made it just to strike out the action,

(c) any delay on the part of the defendant, because litigation was a two party operation and the conduct of both parties should be looked at,

(d) whether any delay or conduct of the defendant amounted to acquiescence on the part of the defendant in the plaintiffs delay,

(e) the fact that conduct by the defendant which induced the plaintiff to incur further expense in pursuing the action did not, in law, constitute an absolute bar preventing the defendant from obtaining a dismissal but was a relevant factor to be taken into account by the court in exercising its discretion whether or not to dismiss, the weight to be attached to such conduct depending on all the circumstances of the particular case,

(f) whether the delay had given rise to a substantial risk that it was not possible to have a fair trial or it was likely to cause or had caused serious prejudice to the defendant,

(g) the fact that the prejudice to the defendant referred to in (f) might arise in many ways and be other than that merely caused by the delay, including damage to a defendant’s reputation and business.

O’Flaherty J. held that whilst the Court had inherent jurisdiction to dismiss a claim in the interests of justice where the delay in the proceedings was in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself, it was a jurisdiction which should not be frequently or lightly assumed.”

In applying these principles to the McCarthy case Judge Ryan was of the view that the action should not be dismissed for three reasons. “First, althought he proceedings were instituted only days before the third anniversary of the plaintiffs fall, he was under age for most of the period. Second, there was an explanation for the delay that had some basis in fact, even though it was inadequate. Third, the defendant was itself responsible for substantial delay and default by its own conduct in taking more than two years to deliver its defence.”

The full judgement can be found here:

Mr Justice Charleton in his Judgement in Flynn v Bus Atha Cliath chose to comment on the role of expert witnesses called in road traffic collision personal injury cases.

The Judge noted that in the case at hand, three expert witnesses were called to give evidence in respect of liability, being an engineer for the Plaintiff and one for the Defendant and an expert in driving for the Plaintiff. In addition, the Judge noted that five medical personnel were called in this “simple” case about bruising to a leg and a sore back.

The Judge noted the benefit of experts in resolving specialised issues stating that, “the purpose of an expert witness is to enable the Court to be instructed on arcane disciplines which are outside the experience of a Judge or jury”.

The Judge noted however that in the case at hand at one point the court was informed by an expert of the average speed of the average person walking. The Judge indicated that this is something which is clearly common knowledge.

The Jude went on to comment upon the type of expert evidence that should be given. He noted that in this case which concerned the speed of a bus and braking reaction times due to the presence of a pedestrian on a roadway, “that with the exception of making a calculation as to the speed of the bus by reference to landmarks passed on the video and the distance ahead of the child that was on the road, none of the testimony that was given by the experts involved any expertise. Nor was the evidence, outside that set of calculations as to speed and distance, admissible as expert evidence. Instead it was inadmissible opinion and comment”.

The Judge did stress that his comment is not a criticism of Counsel and it is not a criticism of the experts involved and acknowledged that the practise was now universal and thought it would be worthwhile controlling it as additional costs and excess length of time taken to try a case may impede the constitutional right of citizens to have recourse to the courts. The Judge did indicate that appropriate Orders as to costs focusing on unnecessary experts may assist in that regard as may further Rules of the Court.

The full Decision can be found here:

In the case of Flynn v Bus Atha Cliath [2012] IEHC 398 Charleton J held that the plaintiff had been injured whilst rising from her seat to alight from the bus. The injuries were caused by the momentum of the vehicle changing dramatically due to the braking of the driver.

The Judge accepted however that the drivers actions were entirely reasonable, a child having ran on to the road in front of the bus.

He said “The courts cannot apply a counsel of perfection. The duty of care expected of a driver is a high standard but it is still to be measured by the reactions and expectations of reasonable men and women.”

He went on to conclude, “Nothing could have been done to avoid the accident to Mrs Flynn. The bus driver Mr Friel reacted correctly to a potential hazard to life. In the circumstances, the case must be dismissed.”

The full report is here:

In the case of Fagan v Griffen, the court had to assess damages where the Plaintiff had suffered significant injury.

The Plaintiff is 32 years of age. He is an engineer with a Degree from Trinity College, Dublin. He had no memory of the incident, and had suffered from amnesia for a number of weeks.

He sustained a serious head injury, fracture of the sternum, minor lung contusion and abdominal injuries. He underwent a number of operations whilst hospitalised. He had been left with some scarring although the scarring formed very little as regards the case. He had suffered from double vision which had persisted for some time and was suggestive of a significant closed head injury which led to fourth cranial nerve palsy on the right hand side which had improved. He was left with a clicking sensation in his ankle and had some difficulty with his gait. He had suffered some soft tissue injury to his back, had lost a front tooth which was repaired and a noted diminution in the senses of taste and smell.

Although his physical injury was significant, it was agreed that the Plaintiff had made a remarkable recovery.

The main area of contention in the case was the issue of the Plaintiff’s psychiatric injury and whether his personality had been changed as a result of the incident.

Having heard substantial evidence, the court found that the Plaintiff’s personality had indeed changed, and notwithstanding the fact he had largely physically recovered, the change in his personality had greatly impinged his employment prospects. Mr Justice Cross awarded a sum of €532,160.00 for future loss of earnings allowing a 10% reduction for Reddy v Bates.

The total special damages claim (of which future care costs were set at €300,000.00) came to €1,139,380.90.

When assessing general damages, the court noted that the purpose of damages in tort is insofar as money can do, to put the Plaintiff into the same position had the incident not occurred.

The court recognised that on any view of the matter, although the Plaintiff’s physical injuries had largely settled, they were significant indeed. The court acknowledged that the Supreme Court in Sinott v Quinnsworth had indicated that a cap should be placed on general damages in circumstances in which the Plaintiff has been awarded substantial sums in past and future expenses.

The court noted the Decision of Quirke J in Maggie Yang Yun v Motor Insurers Bureau of Ireland (2009) IEHC 318 which found the appropriate present cap on general damages was €450,000.00.

The court however also acknowledged that it is important to note that what was decided in Sinott v Quinnsworth was that there was a cap on general damages, not that general damages in case that failed to reach the standards of being the most extreme should suffer a pro rata diminution. Quirke J acknowledged therefore that although there is a cap on general damages, many cases may be entitled to a figure up to the level of that cap.

In this case however Mr Justice Cross acknowledged that while in many ways these were catastrophic injuries, they did not represent such an insult to the Plaintiff that they could be categorised as being in the most extreme grouping.

Interestingly, he noted “while I am obliged to have regard to the Book of Quantum, I find that nothing in this book is of great assistance to me”. He assessed general damages in the sum of €150,000.00 for pain and suffering to date and €100,000.00 for pain and suffering into the future, being a total of €250,000.00.

The total award was for €1,389,308.90.

The full Judgement can be found here:

I liked this from Hogan J in a recent Irish High Court action.

“It might seem surprising that litigation presently pending in the District Court of Denver, Colorado (“the Colorado litigation”) concerning a disputed share purchase contract of the shares of an oil company registered in St. Kitts and Nevis and which is currently operating in Belize should give rise to an application in this jurisdiction for evidence to be taken on commission of an investigative journalist and a former theologian who specialises in the investigation of cults.”

Interested? Read the full Judgement here:

Enjoy.

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Read more here.