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

The duty an employer owes to an employee in order to protect that employee from injury does not amount to an unlimited one. The Irish Court of Appeal discussed this issue in the recent case of Martin v Dunnes Stores. In the case a checkout operator who had left her till to replace a 10kg bag of potatoes, injured her bicep lifting the bag. In the High Court Mr Justice O’Neill found that the defendant employer was liable and the plaintiff was awarded damages. The defendant company appealed. The defendant contended that the plaintiff chose not to seek assistance from her colleagues and that she had received sufficient training that she chose to ignore. The Judge in the High Court accepted that the plaintiff had been well trained in the theory of manual handling and lifting and that the courses provided for her by the defendant were “adequate”, he nonetheless went on to conclude that they were “very inadequate” in that they did had not address the practicalities of what employees might be expected to lift. He instanced a number of products such as bags of dog food, compost and potatoes and found the defendant negligent in its failure to incorporate within its training programme the practicalities of lifting such products.

The Court of Appeal upheld the defendants appeal.

The Court referred to the decision in Bradley v. C.I.E. [1976] I.R. 217 at 223, where Henchy J. stated as follows:-“The law does not require an employer to ensure in all circumstances the safety of his workmen. He will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances.”

The Appeal Court acknowledged that the duty owed by an employer varies depending upon the knowledge and experience of the employee. Further, the more hazardous the work in which the employee is involved the more stringent the duty of the employer to protect the worker. However, their duty is met once they take reasonable and practicable steps to avoid accidental injury.

The relevant legislation is The Safety, Health and Welfare at Work Act 2005, provides at s. 8(1) thereof that:

“Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.” What the words “reasonably practicable” mean are defined in s. 2(6) of the 2005 Act, namely:-

“For the purposes of the relevant statutory provisions, ‘reasonably practicable’, in relation to the duties of an employer, means that an employer has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work”.

The Appellate Court reaffirmed that it is bound by the decision of McCarthy J in Hay v. O’Grady [1992] I.R. 498 thus, findings of fact made by the trial judge which are supported by credible evidence cannot be displaced by the appellate court. This is because the appellate court, unlike the trial judge, does not enjoy the opportunity of seeing and hearing the witnesses. It held “However, insofar as inferences are drawn from circumstantial evidence, an appellate tribunal is in just as good a position as the trial judge to reach its own conclusions”.

The Court of Appeal held that critical to their conclusions on the appeal is the extent of the onus placed on an employer to take due care for the safety and welfare of their employee. In the context of the case at hand it said “it is reasonable to say that the obligation of the defendant was to identify potential hazards likely to affect the safety and health of the plaintiff and then, whether through training or the implementation of procedures and precautions which were practicable in all the circumstances, to guard against those risks: see Quinn v. Bradbury [2011] IEHC per Charlton J”.

In the decision delivered by Justice Irvine the court held that it was “quite satisfied that for an employer, such as the defendant in this case, it reasonably discharged its obligations to the plaintiff by training her on a regular basis as to the principles of safe manual handling which it was then up to her to deploy when faced with any given task. The fact that the training in respect of safe lifting techniques may have been done using empty cardboard boxes or boxes with handles cannot, on the evidence, be considered to amount to a failure on the part of the defendant to meet its common law and statutory obligations to the plaintiff. Its obligation was to identify potential hazards and then implement procedures designed to protect the employee from the risks pertaining to such hazards, which it did”.

The Court felt that “while it is impossible not to have great sympathy for the plight and predicament of the plaintiff, the law on the matter is, I fear, very clear”.

The decision of the High Court was reversed and the Appeal upheld.

Read the decision here

In Byrne v Rahman a plaintiff who suffered injury in a road traffic collision where the defendant had pulled out of an exit into her path, had her case dismissed by the High Court. Mr Justice Barr held that the Defendant was not to be criticized for wrongly assuming that the plaintiff was turning left, where in fact the plaintiff had intended to unlawfully re-join a bus lane. Read the judgement here .

Earlier we highlighted the Court of Appeal’s first decision in a personal injury assessment of damages case. You can read the piece here. In that case the court reduced the award of Cross J. The decision was a welcome relief for insurers who may have been concerned at a perceived rise in damages in personal injury actions driven by some High Court Judges.

Insurers will welcome the decision of the same court in Nolan v Wirenski to reduce 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.

In delivering the judgement Irvine J said “Principle and authority require that awards of damages should be (i) fair to the plaintiff and the defendant; (ii) objectively reasonable in light of the common good and social conditions in the State; and (iii) proportionate within the scheme of awards for personal injuries generally. This usually means locating the seriousness of the case at an appropriate point somewhere on a scale which includes everything from the most minor to the most serious injuries“.

Referring to the limits of awards in personal Injury cases the Judge said “It can however generally be said that insofar as cases which involve catastrophic or life changing injury have come before the Courts in recent years, the level of general damages awarded in respect of injuries of this type has generally been somewhere in or around €450,000 . That is not to say that €450,000 is a maximum. There has been the rare case in which a sum in excess of that figure has been awarded……..Moving back to the present case, the essential point is that it is reasonable to seek to measure general damages by reference to a notional scale terminating at approximately the current maximum award endorsed by the Supreme Court which is in or about €450,000. That is the figure generally accepted by senior practitioners and judges alike as the appropriate level for compensation for pain and suffering in cases of extreme or catastrophic injury”.

The Court referred to the judgement of Denham J in the case of M.N v S.M saying “damages can only be fair and just if they are proportionate not only to the injuries sustained by that 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. As she stated at para. 44 of her judgement “there must be a rational relationship between awards of damages in personal injuries cases.” Thus it is important that minor injuries attract appropriately modest damages, middling injuries moderate damages and more severe injuries damages of a level which are clearly distinguishable in terms of quantum from those that fall into the other lesser categories. In this regard, just because a judge describes an injury as significant this does not mean that the damages must be substantial. Any injury to an otherwise healthy individual is significant. However, when it comes to assessing damages, what is important is how significant the injury concerned is when viewed within the whole spectrum of potential injuries“.

In the case at hand the plaintiff’s credibility was very much in question. She had withdrawn a €350,000 care claim on the morning of the hearing, and despite the fact that the plaintiff claimed that she could not raise her arm beyond a certain point, video evidence presented by the defendant showed that she was able to. The trial judge had found the plaintiff to be a credible witness. The Court of Appeal took a somewhat different view to that of the trial judge. Nevertheless the Court did accept the position reached by the trial judge, although not without comment.

” In my view, the proper approach in this case is to accept that the trial judge was satisfied as to the general credibility of the plaintiff and to examine the award of damages against the background of the medical reports but making allowance for the clear evidence that was demonstrated as mentioned above. I do not think that this court should independently make allowance for a diminution of the plaintiff’s credibility generally, notwithstanding my view that the trial judge should have embarked on that consideration. I confess that I am uneasy not only about the video evidence but also because of the withdrawal on the morning of the hearing of a very large capital claim for past and future care. However, in deference to the judge’s superior position as to the plaintiff’s evidence, I would merely engage in a correction exercise as to the particular findings that the judge made and then consider the damages award in that light….My approach accordingly is to accept the trial judge’s general evaluation of the plaintiff at its height and to see whether his award of damages was on that basis wholly disproportionate, as the defendant submits”.

The Court of Appeal found that the trial judge erred in finding that the Plaintiff could not move her arm beyond a certain point, in light of the video evidence, and that he had erred in finding that at the time of the trial the plaintiff was still taking medication for her injuries. The plaintiff had accepted in cross examination that the medication that she was taking was the same as immediately prior to the accident. The Appellate Court took into consideration the fact that the collision itself was not a violent one and that there was modest damage to the Plaintiff’s car. The Plaintiff was not hospitalised and did not require immediate medical attention. The plaintiff had returned to pre accident levels of medication.

The Court of Appeal did note that that the plaintiff had undertaken approximately sixty sessions of physiotherapy and that her right shoulder had been manipulated under general anaesthetic and the affected area injected and that she had had a further subacromial injection. Further the plaintiff underwent an arthroscopic subacromial decompression and rotator cuff repair. It was accepted that she would continue to have reduced internal rotation but this was not expected to interfere with her day to day activities. Such a restriction was usually only relevant in the context of sporting activity.

The Court of Appeal reduced the award at first instance saying “The trial judge accepted that the plaintiff had suffered a significant injury and awarded her a total sum of €120,000 in respect of pain and suffering (€90,000 to date and €30,000 into the future). In all the circumstances that sum was wholly disproportionate to her injuries. Although they might have been characterised as significant in so far as they reflected a departure from the state of health which she had enjoyed prior to the accident, they are undoubtedly at the lower end of the scale ranging from the minor to the most severe. For my part I am satisfied that the award was disproportionate and excessive to the point that it should be set aside….To conclude, this is a case concerning injuries which can at best be described as relatively modest when considered in the context of the entire spectrum of personal injury claims. Adopting the approach set out above and thus giving all credit to the plaintiff for the credibility finding in her favour, the reasonable and proper award is in my judgment €50,000 in respect of pain and suffering to date and a sum of €15,000 in respect of pain and suffering into the future”

Read the full judgement here.

Modest injuries should attract moderate damages

Has the Court of Appeal halted the perceived rise in Personal Injuries Damages in Ireland?

There have been two major changes to how we deal with Personal Injuries claims in Ireland in recent years.

Firstly The Courts and Civil Law (Miscellaneous Provisions) Act 2013 implemented new limits, which apply in Circuit and District Court cases in all proceedings issued after 3 February 2014. This was the first increase since 1991 and in respect of proceedings issued after this date, the monetary limit of the Circuit Court increased from €38,000 to €75,000 and of the District Court from €6,350 to €15,000. Notably, for personal injury actions only, the new monetary jurisdiction of the Circuit Court rose to €60,000.

New rules at District Court level provided for measures such as interim applications to Court for discovery and rulings in personal injury cases in respect of minors or persons with a disability.

Secondly the formation of the Court of Appeal in 2014, which the Chief Justice described as the “most important development” in the structure of the courts since the foundation of the State changed the landscape, allowing for greater access to justice in all matters. The formation of the Court also heralded an elevation of position of a number of experience High Court Justices and the appointment of a number of new replacements.

Increases in jurisdiction are usually associated with an increase in the award of damages. The appointment of a number of new High Court judges certainly added to the uncertainty as to what extent the rise might be.

It was only a matter of time before the Court of Appeal got hold of an assessment of Damages however.

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 of Appeal judgement was delivered by Irvine J. The Court set out the principles which guide the court when exercising its appellate jurisdiction, referring to the judgment of McCarthy J. in Hay .v. O’Grady1992 ILRM and referred to it in the following paragraphs

• Firstly, that an appellate court does not enjoy the opportunity of seeing and hearing the witnesses unlike the trial judge who hears the substance of the evidence and also observes the manner in which it is given and the demeanour of those giving it. The arid pages of transcripts seldom reflect the atmosphere of the trail.
• Secondly, if the findings of fact made by the trial judge are supported by credible evidence this court is bound by those findings regardless of how voluminous and apparently weighty the testimony against them may be given that truth is not, he advised, a monopoly of any majority.
• Thirdly, insofar as inferences of fact are drawn by a judge at first instance, it is open to an appellate court to substitute its own inferences. However, he cautioned against such an approach where those inferences were drawn from the judge’s assessment of the oral evidence.

The Court of Appeal set out the approach to be taken in assessing damages and referred to the perceived cap on general damages for the most serious injuries at €400,000. The Court had to consider whether the award in the instant case of €65000 general damages where the Plaintiff suffered from neck and back pain from which she had almost fully recovered was fair and reasonable?

The following passage shows how the Court dealt with the issue at hand.

“So one of the questions I ask myself when considering whether the award made in this case was reasonable or proportionate is whether the trial judge could have been within the appropriate range when he awarded the plaintiff a sum that placed her injuries in terms of value approximately one sixth of the way along an imaginary scale of damages for personal injuries which ends at €400,000 for the catastrophically injured plaintiff. In my view, thus assessed, the award which he made to the plaintiff was not reasonable or proportionate. That is not to say that this is a formula that must be applied by every judge when assessing damages for pain and suffering but for me at least it provides a type of benchmark by which the appropriateness of the award made may helpfully be evaluate.

For my part I fear there is a real danger of injustice and unfairness being visited upon many of those who come to litigation seeking compensation if those who suffer modest injuries of the nature described in these proceedings are to receive damages of the nature awarded by the trial judge in this case. If modest injuries of this type are to attract damages of €65,000 the effect of such an approach must be to drive up the awards payable to those who suffer more significant or what I would describe as middle ranking personal injuries such that a concertina type effect is created at the upper end of the compensation scale. So for example the award of general damages to the person who loses a limb becomes only modestly different to the award made to the quadriplegic or the individual who suffers significant brain damage and in my view that simply cannot be just or fair”.

The Court said that “Modest injuries should attract moderate damages” and reduced the award to the Plaintiff to €35000 general damages.

Damian McGeady, Partner, Lacey Solicitors.

“Even drivers of emergency vehicles, who may be exempted from ordinary speed limits, are not exempted in terms of liability for negligence. They are not given carte blanche to drive without due care. However, in determining whether due care was taken, the court is entitled to give the object of the journey due weight. If this category of defendant is to be held potentially accountable in the law of tort, it would make no sense to conclude that gardaí when performing public order duties could be deemed to be under any less of an obligation in terms of the duty of care which they owe to members of the public”.

Irvine J in Fagan v Garda Commissioner & others [2014] IEHC 128

This is an obiter view given in the action where the innocent Plaintiff was knocked to the ground by riot police in a public order situation. The matter did not concern a road traffic accident. It did restate the position that Garda officers do owe a duty of care to other road users when driving, even in an emergency.

In Fagan the Defendants argued inter alia that the defendants did not owe a duty of care to the plaintiff as to the manner in which they exercised their public order function.

In support of the assertion the defendants relied inter alia upon the decision of The House of Lords in Hill v Chief Constable of West Yorkshire Police [1989] 1 AC 53, the decision of Kearns P. in Lockwood v Ireland [2011] 1. I.R. 374 and that of Hedigan J. in L.M c Commissioner of An Garda and others [2012] ILRM 132. In further support the defendants relied upon Glencar Explorations v Mayo County Council (No.2) [2002] 1 I.R 84 in which the court concluded that a public authority could not be sued in negligence in relation to any decision made by it when exercising its statutory duties, except in exceptional circumstances.

Irvine J. rejected the defendants’ submission that by analogy the court should apply the reasoning in Glencar.

The court noted that the reliance of the Hill case did not afford such immunity from suit and noted that in that case Keith L.J. at para 59 stated precisely the opposite, saying “There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence.”

Irvine J. rejected that the court should conclude that there is some higher threshold which the plaintiff must establish, such as malice or recklessness, so as to succeed in liability.

In Fagan the court dismissed the claim on the circumstances.

Legislation

Section 87 of the Road Traffic Act 2010 provides that the requirements, restrictions and prohibitions of the Road Traffic Acts relating to driving and use of vehicles do not apply to emergency vehicles where the use does not endanger the safety of road users.

It is important to note however that this affects the drivers of the emergency vehicles criminal liability rather than civil liability.

The Courts will of course hold that the social utility of saving life or property or dealing with crime is a factor which merits being taken into consideration when one applies the test of the “reasonable person” which is the test which underlies the standard of care in negligence.

Emergency drivers do not enjoy blanket immunity however.

Case Law

In the High Court (unreported June 1993) case of Strick v Treacy the Plaintiff was driving her car on the Tallaght By-Pass approaching a junction controlled by traffic lights which were green in her favour. A Garda car, which was escorting a fire engine on its way to a school fire, travelled through red lights with its flashing lights on. It transpired that the fire engine was some considerable distance behind the Garda car (the Garda vehicle having failed to stay close so to speak to the fire engine it was escorting). The fire engine then, also with it’s flashing lights on, emerged in breach of traffic lights crossing the path of the Plaintiff who collided with same.

O’Hanlon J apportioned liability three ways.

He held that the Garda driver should have done more to halt the traffic, particularly having regard to the large gap that he had allowed to open up between him and the fire engine.

The driver of the fire engine was negligent because he had a clear unobstructed view for a long distance to his right when he neared the junction.

The Plaintiff was negligent as the Court held that she should have been alerted to the presence of the Garda on the highway and should have been “doubly cautious” when she saw the large fire engine approaching from her left with its lights flashing.

See also O’keefe v Ladola & Dublin Corporation, Circuit Court 12th January 2000, where an emergency driver was held liable in negligence.

What grounds must insurers have to allege fraud in personal injury actions?

In Saleh -v- Moyvalley Meats (Ireland) Ltd, Cross J held that the plaintiff had not deliberately exaggerate his claim. The defendant insurers sought to allege that he had. One medical expert retained by the Defendant had concluded that the plaintiff was “untruthful in relation to his disability”.

The Judge considered whether he should award aggravated or exemplary damages. Aggravated damages compensate the victim of a wrong for mental distress (or ‘injury to feelings’) in circumstances in which that injury has been caused or increased by the manner in which the defendant committed the wrong, or by the defendant’s conduct subsequent to the wrong.

According to the Law Commission REPORT ON AGGRAVATED, EXEMPLARY AND RESTITUTIONARY DAMAGES (2000) “The aim of exemplary damages is two-fold: to punish the defendant and to deter both the defendant and others from engaging in conduct that is extremely malicious or socially harmful, in Lord Devlin’s own words “to teach a wrongdoer that tort does not pay”. An exemplary damages award may also be intended to vindicate the rights of the plaintiff, or, as Lord Devlin stated to vindicate the strength of the law. It has the additional, incidental effect of providing compensation and satisfaction to the plaintiff. In the context of the Constitution, the particular purpose of exemplary damages is to vindicate and defend individual constitutional rights, to punish the defendant’s disregard of them and to deter their breach“.

In the Saleh case Judge Cross considered the test of the reasonableness of the Defendant’s approach saying “I fully accept that it is reasonable to give parties in civil litigation latitude to make their case in a robust manner. Indeed, such latitude is necessary to enable the parties to join issue on what is between them. But as I stated in Lackey, the courts must be vigilant in not allowing irresponsible or overenthusiastic invocations of such pleas. It is not new or startling to suggest that any allegation of fraud is made on peril and should not be made unless, at the very least, there is strong evidence to sustain it. The only thing that might be considered startling is that this antique rule should seemingly be forgotten“.

The Court held that the defendants conduct of the action was not irresponsible or unreasonable.

The Court did caution that were it not for the report of the medical expert, it would have concluded that the Plaintiff was entitled to aggravated or exemplary damages.

Read the judgement here

Damian McGeady

Its a supreme Court of Missouri case, so the usual disclaimer applies.

The case of Scottsdale Ins Co. v Addison Ins Co et al is an interesting Insurance case.

The matter arose out of a very tragic road traffic accident resulting in the death of a driver, whose family sued for damages.

The Primary Insurer insured to a $1,000,000 limit. The excess insurer insured to a $2,000,000 limit.

A demand was made by the deceased’s family to settle the cast for $1,000,000. The primary insurer refused. It was a costly refusal. The Primary insurer later settled the case for $2,000,000. The excess insurer (Scottsdale) issued proceedings on the principle of equitable subrogation as a basis for an excess insurer to recover from a primary insurer’s wrongful refusal to settle a claim.

The Supreme Court of Missouri upheld the Court of Appeals decision to reverse the trial Judge’s judgement in favour of the Primary Insurer, recognising that the excess insurer could recover in equitable subrogation for the failure of the Primary Insurer.

Here is a report on the case

In the case of McCaughey v Mullan, Mr Justice O’Hara found that although the pedestrian was drunk and presented a danger to herself on the road, that despite the fact that the Defendant driver was not speeding, he had driven at a speed which was too fast and did not allow him to stop within the distance he could see ahead.

The Defendant sought to argue that the Plaintiff was guilty of contributory negligence to a large extent (90%), while the Plaintiff’s representatives accepted that the Plaintiff contributed greatly to the accident by being drunk in the middle of or on the Defendants side of the road at night, they argued that the extent of that contribution could not exceed 50%.

There was much emphasis upon The Highway Code and in particular Rule 126 which states:

“Stopping Distances

Drive at a speed that will allow you to stop well within the distance you can see to be clear”

Further

Article 51(6) of the Road Traffic (NI) Order 1995 provides:

“A failure on the part of any person to observe any provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under the Road Traffic Orders) be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings.”

The Defence sought to persuade the court that drivers cannot be asked to strictly adhere to the provisions of The Highway Code. The Judge rejected the argument finding “The fact that this honest sober driver was unable to stop leads me to conclude that he was driving too fast – otherwise it is probable that he would have been able to stop within the distance he could see to be clear.”

The Court considered the issue of the Plaintiff’s contributory negligence, referring to the Judgement of Denning LJ in Froom v Butcher [1975] 3 All ER 520. Denning LJ said

“Negligence is a man’s carelessness in breach of duty to others. 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.”

The court acknowledged that until 1948 a plaintiff who was guilty of contributory negligence was disentitled from recovering anything if his own negligence was one of the substantial causes of the injury. That was changed in Northern Ireland by section (2) 1 of the Law Reform (Miscellaneous Provisions) Act (NI) 1948 which provides:

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage…”

The Court held that in the instant case the Plaintiff was a road user who failed to look after her own safety, and for those reasons reduced her damages by 60%.

Read Full Case Here

Damian McGeady, Partner