After four recent Court of Appeal decisions on the assessment of damages in personal injuries cases where the court on each occasion lowered awards of damages, one might be tempted to think that the court had indeed recalibrated damages in personal injury cases in Ireland. In Shannon and Shannon v O’Sullivan, the court was asked to accept that it had. In the judgment delivered by Ms Justice Irvine the court did not accept that it had that saying that the decisions had clarified “the principles to be applied and the proper approach to be taken by a trial judge when making an award for damages for personal injuries so as to ensure that the award made is just, equitable and proportionate”.

If proof was at all needed that there had not been a wholesale recalibration, the case of Murphy -v- County Galway Motor Club Limited & Ors, illustrates that the court is not afraid to raise an award of damages where it deems it appropriate.

Damages Lowered

The Court of Appeal in Nolan v Wirenski reduced a general damages award of €120,000 made by Mr Justice Barr for the plaintiff’s shoulder injury. The award by the trial judge was for €90,000 damages for pain and suffering to the date of trial and €30,000 for pain and suffering in future. The Court of Appeal consisting of Judges Ryan, Irvine and Peart reduced the award for general damages to €65,000 consisting of €50,000 for pain and suffering to date of trial and €15,000 for pain and suffering in the future.

Ms Justice Irvine of the Court of Appeal halved damages awarded to Rita Shannon and Anthony Shannon by Justice Donnelly on the of 25th March 2015 at the High Court, Kilkenny. Justice Donnelly assessment of general damages in respect of Mrs Shannon had been one of €130,000. Justice Donnelly assessed general damages in respect of Mr Shannon at €90,000 in total. Justice Irvine allowed Rita Shannon €40,000.00 in respect of general damages with an additional €25,000.00 in respect of pain and suffering in the future – a reduction of 50%. In respect of Mr Shannon she allowed €25,000.00 in respect of general damage for pain and suffering to date and €15,000.00 in respect of pain and suffering in the future – a total award of €40,000.00 and a variation downwards of €50,000.00.

In In Payne v Nugent (Court of Appeal 2015/67) the court comprising of recently appointed appellate Judges Irvine, Ryan and Peart heard an appeal against the decision and judgment of High Court (Cross J.) dated 15th January 2015. In that case the court assessed general damages for pain and suffering to date in the sum of €45,000and pain and suffering into the future in the sum of €20,000. The Defendant/Appellant sought to argue that the award was excessive. The Court said that “Modest injuries should attract moderate damages” and reduced the award to the Plaintiff to €35000 general damages.

Murphy -v- County Galway Motor Club Limited & Ors

Issues

In this case which concerned an award of the High Court by McGovern J., the court was asked to review the decision on liability, assessment of general damages and the calculation of special damages.

Liability

The plaintiff was a spectator at a motor rally who suffered severe injuries when a car left the road and struck him. McGovern J., held him to have contributed to the accident and found him to be two thirds responsible. The Court of Appeal upheld the appeal of the plaintiff on the liability finding and held that in fact the onus on the organisers was greater and that the plaintiff’s degree of culpability was reduced from two thirds to one quarter.

In considering the issue of contributory negligence the court considered the leading cases of O’Sullivan v. Dwyer [1971] IR 275 and Hay v. O’Grady.

Special Damages

The court considered the assessment of special damages to include the approach in calculating loss of earnings to trial and future loss of earnings (in doing so considering the application in Reddy v Bates). The court held that the trial judge had erred and it raised the award.

Damages for personal Injury

McGovern J, in the High Court had held that damages for the significant injury sustained by the plaintiff be measured at €200,000 being half for pain and suffering to trial and the other half for future pain and suffering. The plaintiff sustained a severe compound fracture to his left lower tibia with disruption of the tibiofibular joint, a dislocation of the left knee with rupture of all of the ligaments around the joint and severe skin loss of the lower left leg. He also sustained a number of small lacerations to his left upper forearm and left hand. Because of the severity of the injury to his leg the plaintiff required an amputation initially at knee level and then later above the knee. He was wheelchair bound for a significant period prior to being fitted with a prosthesis.

The Court of Appeal raised the award for injury to €275,000, agreeing that the award for pain and suffering to trial would amount to an award of €100,000, but taking issue with the award for future pain and suffering.

The court said “To achieve proportionality the judge ought to have regard to the entire spectrum of personal injury claims which includes everything from the most modest type of injury, such as soft tissue injuries, to those which can only be described as extreme or catastrophic and which tend to attract damages of in or about €450,000. It is helpful for a trial judge to endeavour to locate where, within that spectrum, the injuries of any particular plaintiff would appear to lie: see, e.g., Nolan .v. Wirenski, judgment of Irvine J. 25th February 2015. After all, damages are only fair and just if they are proportionate, not only to the injury sustained by an individual plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. There must be a rational relationship between awards in personal injury cases. That said each case must turn on its own facts.

Applying these principles to the present case, it is undoubtedly the case that the plaintiff’s injury must be viewed as a very serious and significant one when considered in the context of the overall spectrum of personal injuries claims. Any amputation, and particularly the amputation of a leg at a young age, will have permanent and irremediable consequences for the victim. It is an injury destined to adversely influence every area of his life”.

“When I think of the entries that might be made by this plaintiff in a diary to be kept by him over the next 50 years or so concerning his pain, distress, disadvantage, embarrassment and upset deriving from his injuries, I am quite satisfied that the sum awarded by the trial judge in respect of future pain and suffering was wholly inadequate by way of compensation and that it must be set aside. It does not fall within what I consider to be the acceptable parameters for future pain and suffering for this particularly significant injury. I would propose a sum of €175,000 be substituted to replace the sum awarded in respect of this category of loss“.

The Court set aside the order of the High Court of damages €199,166 and in its place made an award of €564,682

Comment

The writer agrees that the original decision on the assessment of damages for injury was too low for such an appalling injury, just as I agree that the original decisions in the cases mentioned above were clearly too high. These decisions illustrate that, at last plaintiffs and defendants have a quick and accessible means of appealing judgements such as these. It should not be lost on us that on each of the five cases the court upheld the appeals; that they found for the appellants. Parties do not appeal decisions lightly, given the significant costs implications, but when a decision is clearly too generous or quite the opposite the Court of Appeal is an effective remedy and a welcome addition to the Irish court system.

The decision can be read in full here.

Awards of appeal costs have been made against plaintiff’s whose damages awarded by the High Court were reduced by the Court of Appeal.

Appeal

In Anthony and Rita Shannon v Debbie O’Sullivan the Court of Appeal significantly reduced High Court damages awards. The Appeal Court accepted that the Plaintiff’s were entitled to the costs of the High Court proceedings.

Costs

There was contention regarding the costs of Appeal. During the Appeal the defendant had made Calderbank offers which were not accepted and which were remarkably close to the awards given by the Court of Appeal, each being just above the amount awarded.

Defendant case

The Defendant contended that as per Ord. 99 r. 1(4) of the Rules of the Superior Courts, costs should follow the event. That being so, it was contended that the defendant’s costs of both appeals should be set off against the orders for costs made in favour of the plaintiffs in the High Court. In addition, Mr. Fox S.C., on the defendant’s behalf relied upon the two letters of offer in support of his application. These, he submitted, may be taken into account by the court under the provisions of Ord. 99 r. 1A (b) when considering the costs of the appeal.

Plaintiff’s case

Mr Treacy S.C., for the Plaintiff’s asked the court to note that the Calderbank offers represented 55% of the award made to Rita Shannon and 40% of that made to Anthony Shannon and that the Calderbank offers were less than the amounts which the defendant was required to pay to the plaintiffs as a condition of the stay granted by the trial judge, i.e. €80,000 in the case of Rita Shannon and €55,000 in the case of Anthony Shannon. These amounts, he said were accordingly considered unappealable by the High Court judge. Plaintiff counsel noted that the awards of the Court of Appeal were a multiple of the original tenders made by the defendants, i.e., €24,600 in Mrs. Shannon’s case and €14,600 in Mr. Shannon’s case. He argued that the Calderbank offers lacked certainly as they did not specify that the defendant would discharge the plaintiffs’ costs incurred between the date of judgment and the date upon which the offer was too close. Certainty was a prerequisite to penalising the plaintiff for non acceptance of such an offer and there was no certainty in the offers made by reason of the lacunae identifie.

Counsel for the Plaintiffs sought to advance the argument that they were wrong footed by the judgments of the same court in Payne v. Nugent [2015] IECA 268 and Nolan v. Wirenski [2016] IECA 56, decisions which Mr Treacy S.C., said had led to a recalibration of damages in personal injuries actions. He further argued that the Court of Appeal had endorsed the views expressed by the trial judge as to the good character of both plaintiffs.

The Decision

“The starting point for the court’s consideration must be Ord. 99 of the Rules of the Superior Courts which provide that costs shall, unless otherwise ordered, follow the event. Hence, without ever engaging with Calderbank letters the costs should, having regard to the fact and extent of the defendant’s success on each appeal, be awarded to the defendant”.

The Court rejected that the Calderbank offers were defective. Further the court denied that the previous recent cases cited had recalibrated damages in personal injuries. The Court awarded the costs of appeals against the Plaintiffs to be set off against the High Court costs orders.

The full decision is here

The issue of when a security of costs application should be granted was considered by Mr Justice Barrett in the recent case of Euro Safety and Training Services Limited v FAS [2016] IEHC 161.

Section 390 of the Companies Act 1963 provides:-

“Where a limited company is plaintiff in any action or other legal proceeding, any judge having jurisdiction in the matter, may, if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his defence, require sufficient security to be given for those costs and may stay all proceedings until the security is given.”

Section 390 was repealed on 1st June, 2015, through a combination of s.4 and Sch.2, Pt.1 of the Act of 2014, and reg. 3 of the Companies Act 2014 (Commencement) Order 2015. Section 52 of the Act of 2014, the replacement provision for s.390, now provides as follows:“Where a company is plaintiff in any action or other legal proceeding, any judge having jurisdiction in the matter, may, if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his or her defence, require security to be given for those costs and may stay all proceedings until the security is given.”

Below is an excellent summary of the applicable law given by Mr Justice Barrett. He references the Connaughton and Oltech cases as the leading cases in the jurisdiction which “when read together, provide a quite comprehensive account of the current principles and practices that inform s.390 (and now s.52) applications. Combined into one, stripped of all commentary, and presented in what the court hopes is a coherent sequence, it appears to the court that those principles and practices can be summarised as follows”.

The court did so having heard from counsel on both sides who had presented the court with a substantial body of case law supporting their cases. The judge said “as always, counsel have laboured in the vineyard and plucked a rich crop of case-law from the ever-fruitful vine of precedent to guide the court in reaching its decision“.

It was the cases of Connaughton Road Construction Ltd v. Laing O’Rourke Ireland Ltd [2009] IEHC 7 and Oltech (Systems) Limited v. Olivetti UK Limited [2012] IEHC 512 that the court considered as leading.

The following extract of the judgment is very helpful to practitioners and sets out the guidelines that the court will adopt in security for costs applications.

“Part 7: Connaughton and Oltech SummarisedA. Overview.

24. The court has already indicated above that it considers that the decisions in Connaughton and Oltech, when read together, provide a quite comprehensive account of the current principles and practices that inform s.390 (and now s.52) applications. Combined into one, stripped of all commentary, and presented in what the court hopes is a coherent sequence, it appears to the court that those principles and practices can be summarised as follows.

B. Connaughton and Oltech Summarised.25. 1. GENERAL APPROACH

2. BASIC REQUIREMENTS3. SPECIAL CIRCUMSTANCES
i. Generalii. Alleged Wrong Engendered

Inability to meet Costs?

iii. Delay

iv. Important point of law

v. Adequately funded as co-plaintiff

vi. Constitution

vii. Point of fact of national importance

viii. Counterclaimants

4. QUANTUM

5. COMPANY WITH NO SIGNIFICANT NET ASSETS

BEFORE EVENTS IN ISSUE

6. AMOUNT OF SECURITY1. GENERAL APPROACH

(1) To obtain security for costs, an initial onus rests on the moving party to establish (i) a prima facie defence to the plaintiff’s claim, and (ii) that the plaintiff will not be able to pay the moving party’s costs if the moving party be successful. [Connaughton, para.2.1].

(2) If (1)(i) and (1)(ii) are established, security ought to be ordered unless it can be shown there are special circumstances in the case which ought to cause the court to exercise its discretion not to make such order. [Connaughton, para.2.1].

(3) It is no part of the task of a court on an application for security for costs to take a view as to who ought to win at trial. No assessment of liability ought to be made, much less any decision beyond stating whether there is a reasonable prospect of a defence succeeding at trial. [Oltech, paras.4-5].

(4) The task for the court, rather than to attempt to decide the case, is to apply the tests mandated by case-law. [Oltech, para.5].

(5) Section 390 (now s.52) expressly envisions that an impecunious plaintiff company may be required to give security for costs and that in many cases this may mean the end of an action, unless someone other than the company is prepared to put up the security. [Oltech, para.7].

(6) To refrain from granting an order for security, save in certain exceptional (and allowed) circumstances, just because it might stifle the plaintiff company’s actions would render the section nugatory. [Oltech, para.7].

2. BASIC REQUIREMENTS

(7) There are two basic requirements to meet before the discretion of the court to order security for costs may be invoked: (i) the defendant must show it has a reasonably sustainable, i.e.prima facie, defence. Second, a defendant must show the plaintiff company is either (i) insolvent, or (ii) so financially challenged that it will not be able to pay the defendant’s costs, if the defendant is successful. [Oltech, para.8].

(8) The reference to a prima facie defence does not just mean a barely arguable defence, since experience suggests that there is little that cannot be argued. [Oltech, para.8].

(9) A defendant seeking to establish a prima facie defence based on fact must objectively demonstrate the existence of evidence upon which he will rely to establish those facts. Mere assertion will not suffice. [Oltech, para.9].

(10) If such objective evidence as is referred to in (9) is adduced, the defendant is entitled to have the court determine whether or not it has established a prima facie defence (on the assumption such evidence will be accepted at trial). [Oltech, para.9].

(11) A defendant such as is referred to in (9) and (10) must establish an arguable legal basis for the inferences/conclusions which it submits the court may arrive at based on such evidence. [Oltech, para.9].

(12) Section 390 (now s.52) contains no reference to the establishment of a prima facie defence. However, it requires a company to provide security where it would be unable to pay the costs of a successful defendant. It is therefore relevant to consider whether or not a defendant has a prima facie defence. Unless the defendant has a prima facie defence, the purpose of s.390 (s.52) would not come into play. [Oltech, para.9].

(13) A reasonably sustainable defence may be one in fact or in law. If in law, then even an affidavit is not required on an application for security for costs. [Oltech, para.10].

(14) The essence of the order for security for costs (or not) is to advance the ends of justice, not to hinder them. It is for a court on such an application to consider, and to balance, the interests of the plaintiff company and those of the defendant in a fair and proportionate manner. [Oltech, para.16].

3. SPECIAL CIRCUMSTANCES

i. General

(15) There is a multitude of special circumstances identified in case-law as allowing the court in its discretion to decline to make an order for security for costs. The terms of this discretion are wide and cannot be regarded as finally settled. [Oltech, para.15].

(16) The burden of proof of special factors rests on the plaintiff company once the defendant has shown a prima facie defence. [Oltech, para.16].

(17) Special circumstances exist in order to enable cases to proceed even where a defence is reasonably open despite the inability to pay such a costs order by the plaintiff. This is because the justice of a case may require that notwithstanding that the defendant has a reasonable defence and that the plaintiff company is financially challenged the case ought to proceed. [Oltech, para.16].

(18) The requirement that special circumstances be established by a plaintiff company, does not have to be complied with in any particular way. [Connaughton, para.4.11].

ii. Alleged Wrong Engendered Inability to meet Costs?

(19) Where it is asserted that the plaintiff’s inability to discharge the defendant’s costs of successfully defending the action flow from the wrong allegedly committed by same, (a) the onus of establishing this rests on the plaintiff, and (b) the obligation of the plaintiff in such circumstances is to establish a prima facie case that its inability to pay the defendant’s costs of the defendant, in the event the defendant were successful, stems from the wrongdoing alleged in the overall proceedings. [Connaughton, para.2.3].

(20) For a plaintiff to be correct that his inability to pay stems from the wrongdoing asserted, four propositions, it seems, must necessarily be true: (i) that there was an actionable wrong on the part of the defendant; (ii) that there is a causal connection between the actionable wrongdoing and one or more practical consequences for the plaintiff; (iii) that the consequence(s) referred to in (ii) have given rise to some level of loss in the hands of the plaintiff which is recoverable as a matter of law; and (iv) that the loss concerned is sufficient to make a difference between the plaintiff being in a position to meet the costs of the defendant in the event that the defendant should succeed. [Connaughton, para. 3.4]. Each of these steps falls to be established on a prima facie basis only. [Connaughton, para.3.5].

(21) As part of the overall question of assessing whether it has been shown, on a prima facie basis, that a plaintiff’s inability to pay potential costs is due to the wrongdoing asserted, the court must look at all the circumstances asserted on behalf of the parties. [Connaughton, para.3.10].

(22) Despite (18), when it comes to this form of special circumstance, i.e. that a plaintiff’s inability to pay potential costs is due to the wrongdoing asserted, in normal circumstances one would expect that a plaintiff company would put before the court (i) some evidence of its current financial position, (ii) some account of its financial position prior to the incident giving rise to the alleged wrongdoing, and (iii) some evidence to suggest that all, or a sufficient portion of, the difference in position can be attributed to the wrongful actions of the defendant. [Connaughton, para.4.11].

(23) If a plaintiff company seeks, without presenting approximate accounts, to assert that all of its current financial difficulties are attributable to a defendant’s alleged wrongdoing (and thus that there is, in effect, an equivalence between the prima facie scale of the alleged wrongdoing and the said financial difficulties), it would be necessary (i) in addition to showing that the plaintiff company would have made profits in the first place, to demonstrate (ii) a prima facie basis for assuming that no other causes could be said to have generated the current inability to pay costs. [Connaughton, para.4.14].

iii. Delay

(24) An order for security for costs may be refused where there has been delay in bringing the application for such order. [Oltech, para.19].

(25) When it comes to instances of alleged delay: (i) any court considering delay as grounds for refusing an order for security for costs would need to analyse (a) the nature of the delay in light of the means of knowledge of the moving party (as to what that party knew or ought reasonably to have known), and (b) assess its impact on the course of the case in order to decide whether the order ought to be refused; (ii) the reason for the delay must be important; (iii) delay as a reason for refusing to make an order can be very important where the plaintiff company has acted to its detriment in incurring a level of costs that it would not have incurred had it known it would have been required to provide security. [Oltech, para.19].

iv. Important point of law

(26) An order for security for costs may be refused where a point of law arises for decision in the case that is so important that the process of the case should not be interrupted. [Oltech, para.20].

(27) The point of law in issue must not simply be any ordinary point of law that might be argued before the courts on a month-to-month basis; it must transcend the interests of the parties and require as a matter of public interest that it be decided for the benefit of the community as a whole. [Oltech, para.20].

v. Adequately funded as co-plaintiff

(28) Where there is a corporation as plaintiff and an individual as co-plaintiff, both are making the same factual case and the corporation is insolvent but the natural person is adequately funded to meet an eventual costs order against her or him, the order may be refused because the defendant, if successful, is not going to be impeded in recovering costs. [Oltech, para.21].

(29) The same point may apply where (a) where two corporations are co-plaintiffs, and one is adequately resourced and the other not, and (b) where there are two plaintiffs in similar circumstances, one within the European Union and the other not. [Oltech, para.21].

vi. Constitution

(30) The constitutional (though not absolute) entitlement of citizens to access to the courts applies to defendants/respondents as well as plaintiffs. A defendant ought not to be forced to forego (though one would imagine that generally a defendant would be delighted to forego) defending an action against which there is a stateable defence on the merits, out of the fear or being bankrupted by having to incur substantial costs which will be irrecoverable from an insolvent plaintiff. [Oltech, para.21].

vii. Point of fact of national importance

(31) A point of fact of national importance can arise in litigation that is inescapably central to a case and which will settle a concern of great public moment. Such an issue will arise rarely. Litigation between private entities is by nature compensatory or restorative. It is only in the most extreme circumstances that any fact in contention between litigants can keenly affect the public interest. Where such does present, this can be a special factor in refusing to order security for costs. [Oltech, para.22]. [The court notes in passing the somewhat more nuanced approach adopted in this regard by the court in Dublin Waterworld, at para.34 of its judgment, quoted elsewhere above].

viii. Counterclaimants

(32) A defendant may also be a counterclaimant on a subject-matter that identifies as the plaintiff’s defence the same issues that the plaintiff company seeks to plead against the defendant. This could bring about the undesirable situation where an impecunious plaintiff could have its claim frustrated by the granting of an order for security for costs, yet would fall to defend the counterclaim on the very facts in issue in the claim. In such instances, the order for security may be granted on the giving of an undertaking that the defendant’s counterclaim will not be pursued. [Oltech, para.23]. A further undertaking may be sought that the defendant will consent to dismissal of its counterclaim, should the plaintiff fail to lodge the sum ordered by way of security. [Oltech, para.27]. Of course, if the trial of a counterclaim would be substantially unaffected by the absence of a plaintiff’s allegation against the defendant, there is no reason for the counterclaim not to proceed. [Oltech, para.25].

4. QUANTUM

(33) It is not correct that a court should have no regard to questions of quantum in a s.52 (s.390) application. A plaintiff must at least establish a prima facie case that the quantum of damages which he might obtain in the event that he is successful is of an order of magnitude sufficient to reverse the current financial position whereby the plaintiff company would be unable to pay the defendant’s costs in the event that the defendant was successful. [Connaughton, para.3.6].

(34) It does not flow from (33) that it is necessary for a plaintiff to establish a precise quantum of damages which it might recover in the event of it being successful. But it must show, at least on a prima facie basis, that the losses allegedly attributable to the defendant’s wrongdoing are sufficiently large to justify a finding that those losses can explain, by themselves, the plaintiff’s inability to pay costs. [Connaughton, para.3.6].

5. COMPANY WITH NO SIGNIFICANT NET ASSETS BEFORE EVENTS IN ISSUE

(35) When it comes to a plaintiff company which had no significant net assets prior to the events which gave rise to the proceedings, there are no special considerations to be given to such a company one way or the other. [Connaughton, para.3.8].

(36) Unless such a plaintiff company (as referred to in (35)) can establish, on a prima facie basis that, were it not for the wrongdoing asserted, (i) it not only would not have lost the money, but (ii) would have made sufficient profits so as to be in funds sufficient to pay the likely costs of a successful defendant, then it will have been unable to show that its inability to pay costs is due to the wrongdoing at the heart of the proceedings. [Connaughton, paras. 3.8–3.9].

6. AMOUNT OF SECURITY

(37) If an order for security for costs is to be made, it must be for the full sum of the estimated costs: the court has no discretion to award merely a percentage. [Oltech, para.13].

(38) The courts have a discretion as to the awarding of costs; the lure of over-proofing can be factored into the court’s estimation of costs (and hence the level of order for security made). [Oltech, para.13]”.

I the case at hand where the Defendant had sought a security of costs order against the Pplaintiff the court found that Euro Safety had:-
“(i) established on a prima facie basis that its inability to discharge FÁS’ costs of successfully defending these proceedings (if FÁS so succeeds) flows from the wrong allegedly committed by FÁS; and

(ii) made detailed and serious allegations of misfeasance in public office against FÁS (all of which allegations are denied), rendering this a case where, for the reasons stated above, an airing of, and adjudication upon, those detailed allegations is a matter of public moment and interest; and
(2) to a lesser but still significant extent, the notable delay that FÁS has manifested in bringing the present application”.The court declined to grant the order for security for costs sought of it by FÁS.

The judgment is here

General Notices: 23rd March 2016 P.I. Direction

Practitioners note the recent direction of the President of the High Court that allows personal injury assessment cases that would normally be heard in Cork, Limerick and Sligo to be transferred to Dublin, if both parties consent.

See wording below.

Direction

1. I, Peter Kelly, President of the High Court pursuant to the provisions of Order 36, rule 2(c) of the Rules of the Superior Courts (Trial) 2012 (S.I. No. 355 of 2012), hereby direct that the trials of personal injuries cases consisting only of assessments of damages which would, but for this direction, take place at Cork, Limerick and Sligo, shall take place at Dublin, provided that all parties to such cases consent.
2. This direction applies to assessments of damages which have already been set down for trial and those which have yet to be set down.
3. Those cases which have yet to be set down shall continue to be set down for a venue in accordance with Order 36, rule 2(b) of the Rules of the Superior Courts.
4. Applications to transfer appropriate cases to Dublin and for the allocation of a hearing date may be made each Monday in term in the Master’s Court before the Deputy Master at 10.30 a.m.

Dated the 23rd day of March, 2016

Peter Kelly,
President of the High Court

A consultative case stated by Judge Patrick Durcan of Ennis District Court sought clarification from the High Court on whether exemptions that applied to vehicles involved in road maintenance and control applied in the instant case where the owner of the vehicle was prosecuted for allowing a driver of a haulage vehicle to exceed permitted hours of driving without a break.

Offences

The accused was charged with two offences as follows:-

(a) That you did on the 29th day of August, 2012 being the operator and owner of a motor vehicle registration number 07TN1545 and the employer of Alan Hayes, the driver of the said vehicle did cause or purport to authorise the said driver to contravene the provisions of Article 6(1) of Council Regulation (EC) No. 561/06 of the 15th of May, 2006 in that the day driving period was exceeded.

Contrary to regulation 41(2)(b) of the European Communities (Road Transport) (Working Conditions and Road Safety) Regulations 2008 made under section 3 of the European Communities Act, 1972 as amended.

(b) That you did on the 29th day of August, 2012 being the operator and owner of a motor vehicle registration number 07TN1545 and the employer of Alan Hayes, the driver of the said vehicle did cause or purport to authorise the said driver to fail to take an uninterrupted break of at least forty-five minutes after four and half hours driving in contravention of Article 7 of Council Regulation (EC) No. 561/06 of the 15th of May, 2006.

Contrary to regulation 41(2)(b) of the European Communities (Road Transport) (Working Conditions and Road Safety) Regulations 2008 made under section 3 of the European Communities Act, 1972 as amended.”

The Facts

The facts were that the vehicle in issue was stopped by Ennis Traffic Corps 29th August, 2012 during a road side check point. On approaching the stationary vehicle the prosecutor examined the tachograph record and interviewed the driver. The tachograph recorded that the driver had driven for eleven hours and twenty-three minutes covering a distance of 697km up to the point where he was stopped at the road side check point. The evidence indicated that the only break taken by the driver over the course of the day was for a period of thirty-one minutes from 7:26hrs to 17:57hrs.

It was accepted that when the accused’s lorry arrived at the locus of the road works, it joined a queue of vehicles which would each in turn be pushed along by a Batelli Paver machine which received asphalt from the accused’s vehicle, at a rate controlled by the Batelli Paver. The process of resurfacing was then completed by steam roller following behind after which the accused’s vehicle would return to base to pick up a further load.

The Issue to be determined

The District Judge posed the following question for the opinion of the High Court:

“Was the accused’s vehicle on the date of the alleged offence being used in connection with road maintenance so as to entitle it to avail of the exemption provided in Article 5(1)(h) of the European Communities (Road Transport) (Working Conditions and Road Safety) Regulations 2008?”

The Legislative framework

Article 6 of the Regulations provides that the daily driving time shall not exceed nine hours.

Article 7 provides that after a driving period of four and half hours, a driver shall take an uninterrupted break of not less than forty-five minutes, unless he takes a rest period.

The 2008 Regulations which transpose the 2006 Regulations into national law provide at regulation 41(2)(b) that a person commits an offence if the person causes, or purports to authorise, another person who is employed by the person, or is under the person’s control, to contravene, inter alia, articles 6 and 7. The penalty for so doing as provided by regulation 52 is on summary conviction a fine not exceeding €5,000 or imprisonment for a term not exceeding 6 months or both. Regulation 53 empowers the prosecutor to prosecute offences under the Regulations.

Article 5(1)(h) provides, inter alia, that certain categories of vehicles are exempted from articles 6 and 7.

These include a vehicle used in connection with road maintenance and control.

The issue was whether, on the agreed facts, the vehicle in question was being used in connection with road maintenance and control. Regulation 5 constitutes an exemption from the operation of the 2006 Regulations and section 53(3) provides that in proceedings for an offence under the 2008 Regulations, it is to be presumed until the contrary is proved that none of the exemptions contained in Regulation 5 apply. Therefore the onus of establishing the exemption rested on the accused.

Relevant case law

Mr Justice Noonan noted that a similar issue was considered by the European Court of Justice in Karuse AS v. Politsei-ja Piirivalveamet (C-222 12 A 13th March, 2014). This was a reference from the Estonian Courts. The facts were that during a roadside inspection, the relevant authority stopped a lorry owned by Karuse which was carrying a load of gravel to a road maintenance works site. The regulatory breach complained of in that case was not the hours of driving, but rather the failure to have the lorry equipped with a tachograph. Karuse pleaded that it was entitled to the exemption. In the course of the judgment, the Court said:-

“Firstly, as regards whether the transport at issue in the main proceedings was exclusive, it is apparent from the file that, in the main proceedings, the gravel was intended solely for use in road maintenance works. It follows that that transport was carried out wholly and exclusively in connection with road maintenance, within the meaning of article 13(1)(h) of Regulation No. 561/2006.

Secondly, as regards whether the transport at issue was not ancillary to the road maintenance works, the view must be taken, for that to be the case, that the vehicle concerned must be used directly to spread the gravel on the damaged sections of the roads… However, the mere transport of gravel intended for use in road maintenance works cannot be regarded as being covered by the derogation laid down in article 13(1)(h) of Regulation No. 561/2006.”

The ECJ, following its earlier decision in British Gas, held that the exemption could only apply to vehicles used wholly and exclusively in connection with road maintenance and control and not to vehicles used wholly or partly for that purpose. The prosecutor submitted to the Irish High Court in this case, the primary use of the vehicle was for road transport and the actual laying of the tarmac was merely ancillary to that purpose.

The ECJ in Karuse continued:-

“In addition, although Regulation No. 561/2006 does not provide that the vehicles used for road maintenance and monitoring must be used only near to the road maintenance work site in order to benefit from the deregulation laid down in article 13(1)(h) of that Regulation, that is nonetheless a factor which must be taken into consideration for the purposes of assessing the ancillary nature of the transport as regards those works (see by analogy Morzek and Jager paragraph 12).

Vehicles which travel for a short period of time and over a limited distance may be exempted from the obligation to be equipped with a tachograph without that undermining the objectives of Regulation No. 561/2006 as regards the improvement of working conditions and road safety.

However, an extension of the deregulation provided for in article 13(1)(h) of that Regulation to vehicles which travel over a long distance would have the effect that the drivers of such vehicles maybe induced to drive long hours without a rest, which would be likely to undermine those objectives (see comment to that effect, Seeger, paragraph 36) …

In the present case, it is apparent from the decision for reference that the vehicle in question was stopped approximately 42km from the head office of Karuse and approximately 10km from the site of the works. However, the distance between the site of those works and the loading site has not been given.

Consequently, it is for the referring court, taking into account all the factors in the dispute before it and the above mentioned considerations concerning the geographical and climatic conditions prevailing in the region in question, to assess whether the journey of the vehicle at issue meets the requirement of limited distance and short period of time in order that the transport in question does not undermine the objectives pursued by Regulation No. 561/2006.”

The application of the law

Noonan J noted that in Karuse, as in British Gas, the court came to the conclusion that the exemption contended for could be justified in certain circumstances where the relevant vehicle was travelling a limited distance and for a short period of time. The purpose underlying the regulation would otherwise be frustrated.

The Judge noted that in this case stated the facts were somewhat different holding:-

“The “limited distance” requirement can have no bearing in the present case where the regulations themselves impose no limit as to the distance which may be driven. All that is relevant is the period of time which under article 6 may be up to ten hours provided a break is taken after four and half, as per article 7. Neither of these periods could be reasonably described as being of short duration. Consequently, it seems to me that the caveat stipulated in Karuse must be approached with some caution as it is difficult to see how it could logically be applied to the facts of this particular case.

It seems to me that applying Karuse to the facts of the present case, it is clear that the accused’s vehicle was being used in connection with road maintenance and control at all material times. Whether the actual transportation formed the greater or lesser part of the time seems to me to be largely irrelevant. For example, the regulation does not provide that the vehicle must be “primarily” or “principally” used in connection with road maintenance and control. It either is or it is not. In this case it clearly was”.

The prosecutor had argued that the jurisprudence of the ECJ establishes that derogations or exemptions are to be strictly construed so as to not to frustrate the purpose underlying the particular regulation, and in this case if the exemption applied it would have that effect given the length of time spent driving and the distance driven. Mr Justice Noonan reiterated that the distance was immaterial because there could be no complaint about it if it was driven within two consecutive four and half hour periods. What remained therefore is the time duration.

The Court noted the duty of the prosecution in a criminal law case saying “one cannot lose sight of the fact that this is a criminal prosecution and if there is ambiguity in the relevant provision relied upon by the prosecutor, any such ambiguity must be construed in favour of the accused. There are many cases in which penal statutes have been found to be unconstitutional on the grounds of vagueness and uncertainty – see for example Dokie v DPP [2010] IEHC 110 and the judgment of Hogan J. in Douglas v DPP [2013] IEHC 343.

As the exemption applies in this case, the question then becomes at what point past four and half hours does the exemption cease to apply? Does it apply at five hours, six hours, seven hours and so forth? And more importantly, how can an accused person know when he is breaking the law? If the legislature wishes to render particular conduct penal, it must do so with sufficient particularity to enable every citizen to know what he is and is not lawfully permitted to do. It would for example be perfectly open to the legislature to say that where the exemption applies, the time periods specified may be increased to identified limits. They have not done so”.

The Decision

The Court found that the exemption did apply.

“In those circumstances I am satisfied that the exemption applies to the accused in this case and I propose answering the question posed by the learned district judge in the affirmative”.

Click here link to the Judgment

In Doyle v Lyons and MIBI [2011/2522P] the plaintiff who was injured whilst a passenger in an uninsured car failed to convince the High Court that he did not know that the vehicle was uninsured. The MIBI called evidence from a Garda officer that the first defendant who drove the uninsured vehicle had recently been disqualified from driving for 25 years. The officer gave evidence, that at the sentencing hearing the Plaintiff (Doyle) was present and in fact had jeered as the judge passed sentence. The High Court accepted the evidence of the Garda Officer and held the Plaintiff had in fact known that the first Defendant was uninsured.

Defence Argument

The defence of the second defendant put the plaintiff on full proof of all matters, denying negligence and alleged contributory negligence on the part of the plaintiff. In particular, it claimed that it was not liable for the injuries suffered by the plaintiff on the following ground:-

“Strictly without prejudice to the foregoing, the second defendant relies upon clause 5.2 of the agreement dated the 31st March, 2004 between the second named defendant and the Minister for Transport and pleads that it bears no liability to the plaintiff in circumstances where, at the time of the accident, he knew or ought to have known that there was in force an approved policy of insurance in respect of the use of the vehicle in which he was travelling then being driven by the first defendant.”

It was accepted by the MIBI that following the decision of the Court of Justice in Commission of the European Communities v. Ireland (Case 211/07) [2008] E.C.R. 33. that the inclusion of the words “or ought reasonably to have known” at paragraph 5.2 of the Motor Insurers’ Bureau Of Ireland (MIBI) Agreement 2004 was in breach of Council Directive 84/5/EEC of 30th December, 1983 and therefore, the MIBI must prove actual knowledge on the part of the plaintiff that the first defendant was uninsured, in order to avoid liability under Article 5.2 of the MIBI Agreement.

MIBI relied on passages from two judgments, first Kinsella v Motor Insurers Bureau of Ireland [1997] 3 I.R. 586 and Devlin v Cassidy and The Motor Insurers Bureau of Ireland [2006] IEHC 287, a decision of Peart J. delivered on the 31st July, 2006. While it was acknowledged that these cases related to the interpretation of the phrase “or ought reasonably to have known” struck down in Commission v Ireland, counsel relied on certain passages in those judgments. It was submitted that actual knowledge encompasses imputed knowledge as per White v White [2001] 1 WLR 481 and in which such a construction was held to be compliant with the Second Directive. In Kinsella, Finlay CJ. upheld a decision where the trial judge drew inference from the plaintiff’s lack of credibility in other aspects of the case.

Plaintiff’s Argument

Counsel for the Plaintiff argued as regards actual knowledge, that the MIBI must prove actual knowledge on the part of the plaintiff i.e. that at the time of the accident the plaintiff knew that the first Defendant had no insurance. That the test according to Finlay CJ. in Kinsella was a subjective one. Counsel further argued that the second defendant had not proved the plaintiff’s state of knowledge on the evening in question. It was submitted that the first defendant could have been called for that purpose but was not, although she had been listed in the second defendant’s schedule of witnesses. Counsel for the Plaintiff submitted that the court can infer from this that the first defendant did not support the proposition that she was not insured to drive a motor vehicle on the 10th October, 2008.

It was submitted on behalf of the plaintiff that the only evidence tendered by the MIBI was an allegation that the plaintiff was in court on 17th October, 2007 when the first defendant was sentenced. However, there is nothing in the evidence relating to the intervening twelve months which supports actual knowledge on part of the plaintiff. The plaintiff contended that it was entirely speculative to suggest that even if the plaintiff was in court in October, 2007 and witnessed the sentencing of the first defendant, that he had it in his mind twelve months later.

The Decision of the Court

The decision was given by Mr Justice Fullam. The judge acknowledged that since the decision of the European Court of Justice in Commission v Ireland, the defence of an insurer based on a claimant’s knowledge that the vehicle in which he was travelling was uninsured must be proved by actual knowledge.

The court further acknowledged that while it may seem that the MIBI will be faced with an insurmountable task in terms of proving that a plaintiff knew that there was no insurance, there is no reason, in principle, why a court would not be precluded from inferring that a plaintiff knew that there was no insurance on the balance of probabilities citing the House of Lords decision in White v White [2001] 1 WLR 4 81 and in which such a construction was held to be compliant with the Second Directive. Fullam J held that indeed in Kinsella v MIBI, although dealing with the wording of the 1964 MIBI Agreements, Finlay C.J. specifically upheld a trial judge drawing inferences from the plaintiff’s lack of credibility in other aspects of the case.

Fullam J noted that in Devlin v Cassidy and The Motor Insurers Bureau of Ireland [2006] IEHC 287 Peart J. cited the following passage from the judgment of Lord Nicholls in White v. White dealing with the question of imputed knowledge:

“Finally on this particular topic, it is interesting to note the comments of Lord Nicholls in the House of Lords in White v. White [2001] 2 AER. 43 at p.48. He was considering, in the context of the same exclusion clause appearing in the MIBI Agreement in the United Kingdom, the question of what constitutes knowledge for the purpose of the exclusion clause. He states in this regard at p. 48:

“There is one category of case which is so close to actual knowledge that the law generally treats the person as having knowledge. It is the type of case where, as applied to the present context, a passenger had information from which he drew the conclusion that the driver might well be uninsured but deliberately refrained from asking questions lest his suspicion should be confirmed. He wanted not to know (‘I will not ask, because I would rather not know’). The law generally treats this state of mind as having the like consequences as would follow if the person, in my example the passenger, had acted honestly rather than disingenuously. He is treated as though he had received the information which he deliberately sought to avoid. In the context of the directive that makes good sense. Such a passenger as much colludes in the use of an uninsured vehicle as a passenger who actually knows that the vehicle is uninsured. The principle of equal treatment requires that these two persons shall be treated alike. “

There is nothing to distinguish the present plaintiff from the category of person referred to in this passage. The reference to collusion towards the end of the passage has a resonance of what Finlay CJ states in Kinsella , about the blameworthiness of the passenger who is at least condoning the commission of a serious offence, and that a court should accordingly be concerned “to assess as to whether the attitude or conduct of the person concerned at the time of the accident was in this particular sense blameworthy.”

The Court accepted the MIBI contention that “the obvious inference is that the plaintiff is in the category of claimant identified by Lord Nichols in White v. White as a person not wanting to ask because he knew the answer”.

The Court found against the first defendant, uninsured motorist and dismissed the claim against MIBI.

The decision is reported here.

In the matter of Rita Shannon, Plaintiff/Respondent and Debbie O’Sullivan, Defendant/Applicant [2015 No. 166]

The number of personal injury awards by the High Court being substantially reduced by the Court of Appeal is gathering pace.

Judgment in the above case comes after several other cases where awards were reduced on appeal. Most recently in Nolan v Wirenski, the Court of Appeal reduced a total award of €125,650 in a personal injuries action to €65,000. See here.

In her judgement delivered on March 18 2016, Ms Justice Mary Irvine of the Court of Appeal halved damages awarded to Rita Shannon and Anthony Shannon by Justice Donnelly on the of 25th March 2015 at the High Court, Kilkenny.

Justice Donnelly assessment of general damages in respect of Mrs Shannon had been one of €130,000.

Justice Donnelly assessed general damages in respect of Mr Shannon at €90,000 in total.

However Ms Justice Mary Irvine on Appeal expressed how she was “in the unenviable position of having to take issue with the conclusions of the learned High Court judge”.

The Defendant maintained that each of the awards were excessive to the point that they should be set aside.

The Plaintiff’s injuries were sustained in a road traffic accident on 7th November 2012.

A robust challenge to the validity and extent of the injuries sustained by both Plaintiffs was maintained by the Defence.

Inter alia submissions were made that the Plaintiffs were examined several weeks post-accident, not by their long established G.P. but rather by a retired G.P.

The Plaintiffs had not missed any time from work.

Furthermore it was submitted that the Plaintiffs had no further medical review until being seen by a Doctor McCarthy in February 2014 some 14 months after their initial attendance.

Justice Donnelly at first instance interpreted this as evidence of stoicism on the part of the plaintiff’s and she considered and held that the fact that each of the Plaintiffs had not lost any time away from work to be evidence of honesty rather than any basis upon which to challenge the credibility of the plaintiff’s or the extent of their injuries as alleged.

Both Plaintiffs had pre-existing asymptomatic degenerate changes which were rendered symptomatic.

Both the Plaintiffs developed Post Traumatic Stress Disorder.

Counsel for the Defence, Finbarr Fox SC submitted, that the severity of the injuries sustained by both Plaintiffs had to be measured by reference to the extent to which their injuries had affected their enjoyment of life or deprived them of their ability to participate in activities which they would otherwise have enjoyed.

Measured in this way, he submitted that the awards of Justice Donnelly were disproportionate to the injuries sustained and disproportionate to awards commonly made in more serious cases.

Having considered the principles which are to be applied in the assessment of general damages and in actions at appeal, Justice Irvine confirmed that it is clear that an Appellate Court should not interfere with the award of a trial Judge if it is only for the purpose of making some moderate adjustment. This is because the Appellate Court has not heard or seen the witnesses give their evidence and also the Court needs be cautious about second guessing the Trial Judges assessment as to what constitutes appropriate damages in any given case. It should only intervene where it is satisfied that the award made was not appropriate to the injuries sustained and considers that the award made constitutes an erroneous estimate of the damages properly payable.

Justice Irvine rejected the proposition advanced by Senior Counsel for the Plaintiff, Mr Aidan Doyle SC, that the Plaintiff’s claim should not be measured on a scale of damages which starts at €0 and ends at €450,000.00. Mr Doyle submitted that general damages were effectively capped in catastrophic injury cases given the substantial special damages such actions attract.

Justice Irvine however rejected any view that a Plaintiff can have their general damages reduced on the basis that they are to be awarded a very large sum in respect of their claim for Special Damages. Special Damages represented a calculation of actual losses, past and future, which leaves the matter of General Damage to be assessed entirely separately.

Justice Irvine went on to assert that most Judges when it comes to assessing the severity of any given injury and the appropriate sum to be awarded in respect of pain and suffering to date will be guided by the access to questions such as the following:-

• Was the incident which caused the injury traumatic, and if so, how much distress did it cause?
• Did the plaintiff require hospitalisation, and if so, for how long?
• What did the plaintiff suffer in terms of pain and discomfort or lack of dignity during that period?
• What type and number of surgical interventions or other treatments did they require during the period of hospitalisation?
• Did the plaintiff need to attend a rehabilitation facility at any stage, and if so, for how long?
• While recovering in their home, was the plaintiff capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependent in all or some respects, and if so, for how long?
• If the plaintiff was dependent, why was this so? Were they, for example, wheelchair-bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependent?
• What limitations had been imposed on their activities such as leisure or sporting pursuits?
• For how long was the plaintiff out of work?
• To what extent was their relationship with their family interfered with?
• Finally, what was the nature and extent of any treatment, therapy or medication required?

Justice Irvine found it difficult to see much evidence of pain, suffering, treatment or limitation on lifestyle such as would support the award for General Damages made by the Justice Donnelly.

Whilst Justice Donnelly considered the Plaintiff’s lack of engagement of the medical process, the need for medical attention and treatment etc. was stoical, Justice Irvine considered that the fact that they did not return seeking further medication, treatment or advice, had to be somewhat indicative of the level of pain and suffering that they were, in fact, experiencing.

In terms of the psychiatric injuries sustained by each Plaintiff, Justice Irvine observed that whilst Justice Donnelly made findings of fact in respect of each Plaintiff and charted their recovery she did not however state her conclusions as to the severity and frequency of their symptoms such as flashbacks and nightmares, nor her conclusions as to the extent to which and over what period these had affected the Plaintiffs and their enjoyment of everyday life.

Certainly, there was no evidence that the severity of such psychiatric symptoms required the Plaintiffs to seek any professional assistance.

Justice Irvine concluded that regardless of the deference which an Appellate Court must have forward to the Judgment of the Trial Judge she was satisfied that the awards of general damages in favour of the Plaintiffs were not just and fair or proportionate to the injuries received. Neither were they proportionate to those commonly made in personal injury claims involving greater or lesser injury.

Justice Irvine allowed Rita Shannon €40,000.00 in respect of general damages with an additional €25,000.00 in respect of pain and suffering in the future – a reduction of 50%. In respect of Mr Shannon she allowed €25,000.00 in respect of general damage for pain and suffering to date and €15,000.00 in respect of pain and suffering in the future – a total award of €40,000.00 and a variation downwards of €50,000.00.

The full Judgment is available here.

Terry Lacey

Partner