Category: Publications

High Court, 14^th February 2018, Barrett J

Purcell, Anthony v Tesco Ireland Ltd and David McInerney [2017] IEHC 68

Tynan, Murphy & Yelverton – solicitors for the plaintiff

O’Rourke Reid – solicitors for the defendants

Background

The plaintiff filed an appeal against the order of the Circuit Court for refusing the plaintiff’s application for the amendment of the personal injury summons. The plaintiff only wanted to include a statement that he had first felt pain in the course of stocking shelves. The plaintiff contended that his earlier submission was that he was injured by pushing trolleys. The defendants alleged that by way of the proposed amendment, the plaintiff was trying to introduce new elements, which could not be allowed.

Outcome

Barrett J allowed the plaintiff’s appeal. The Court relied on the case of Smyth v Tunney [2009] 3 IR 322, where it was stated that facts might be added by amendment if they served to clarify the original claim but not if they were new facts. The Court held that it would allow the amendment sought by the plaintiff in the personal injury summons as the plaintiff’s main contention was the same that he sustained injuries due to the pushing of trolleys as alleged by him earlier.

The Court noted that the proposed amendment merely clarified that the plaintiff had first felt pain while stocking the shelves and not by pushing the trolleys, which he sought to rectify. The Court held that it did not see anything in the facts of the within application that could cause prejudice to the defendants.

Court of Appeal, 24^th January 2018, Irvine, Hogan & Whelan JJ

David McLaughlin v Damien McDaid, Michael McDaid, Charles McDaid, McDaid Quarries Ltd and the Motor Insurers Bureau of Ireland [2018] IECA 5

C.S. Kelly & Co, solicitors for the plaintiff

Unknown solicitors for the defendants

Background

The second, third and fourth defendants, Michael McDaid, Charles McDaid and McDaid Quarries Ltd, appealed to the Court of Appeal against the judgment and order of the High Court (Hanna J) dated the 10^th December 2015 whereby the plaintiff/respondent, David McLaughlin, recovered damages in the sum of €453,000 and costs as against each of them. The trial judge also awarded Mr McLaughlin his costs to be taxed in default of agreement. The proceedings concerned injuries sustained by Mr McLaughlin to his right foot on the 26^th June 2003 at a quarry at Crislaghkeel, Burnfoot, County Donegal which the trial judge found belonged to one or more of the appellants.

Outcome

The findings of fact made by the trial judge, which were principally made based on his assessment of the credibility of the witnesses who gave evidence before him, could not on the facts of this case, be disturbed. She was also satisfied that the matters relied upon by Hanna J as the basis for his refusal to dismiss Mr McLaughlin’s claim under s. 26 of the Civil Liability and Courts Act 2004 were material to the proper exercise by him of his discretion and when taken together provided good and sufficient reason to support his decision that it would have been unjust in all of the circumstances to have dismissed his claim. As to the sums awarded by the trial judge in respect of special damages to date and into the future, Irvine J held that the same were clearly supported by the evidence and could not by reason of that fact be successfully challenged. As to sums awarded in respect of damages for pain and suffering to date and into the future, she was satisfied that the same were just, fair and proportionate having regard to the injuries sustained by Mr McLaughlin and were also proportionate when considered in the context of the scheme of awards commonly made by the courts in respect of injuries of a greater or lesser intensity. Irvine J held that she would dismiss the appeals.

Cork Circuit Court, 16^th February 2018, Berkeley J

Christopher Faulkner v Martin Maguire and Julie Morey, Cork Circuit, Unrep.

Daly Derham Donnelly solicitors for the plaintiff

MDM solicitors for the defendants

Background

This was a claim before the circuit court by the plaintiff, Christopher Faulkner, arising from a road traffic accident on the 22^nd August 2014 in Mahon, Cork. The plaintiff was a passenger in a car driven by the first named defendant which was rear-ended by the second named defendant, Martin Maguire and Julie Morey respectively.

Outcome

The plaintiff’s recollection of the circumstances of the accident differed greatly from the evidence given by the second named defendant. The second named defendant alleges that she was stopped at a junction behind the first named defendant, when the first named defendant reversed into her. Evidence was also given by the Garda who attended the scene after the accident.

Under cross examination gaps appeared between the evidence given by the plaintiff and what he told various doctors when he attended with them. Differences appeared in the Plaintiff’s evidence regarding what injuries he suffered, and for how long he had been treated for same. In particular, unanswered questions arose regarding Mr Faulkner’s use of prescription drugs. Under cross examination it also transpired that the plaintiff had failed to disclose a previous accident. When this was put to the plaintiff he said the reason he had failed to mention it was because he was a minor at the time, but he later accepted that although he had difficulty recalling same the accident happened when he was either 17 or 18 years of age (the Plaintiff is now aged 21). Counsel for the defendants noted that not only were the plaintiff and the first named defendants friends, but they were also family.

Owing to the plaintiff’s inconsistent evidence the plaintiff’s claim was dismissed, with costs awarded against him.