Personal Injury Review – Court Of Appeal – Section 26

Facts:

Bill Nolan, an alarm fitter, of Millview House, Graiguecullen, Co Carlow, had sued Danny Mitchell and Patrick O’Neill, driver and owner respectively of a car involved in the accident on the night of November 17, 2005.

The accident happened at Tollerton on the Kileeshin to Castecomer road, Co Carlow.  when Mr Mitchell, accompanied by Mr O’Neill as front seat passenger, was preparing to exit from Mr O’Neill’s driveway onto the road.

 

High Court Mr. Justice Smyth:

The High Court found Mr Nolan was on his correct side of the road in the moments prior to impact, had been driving at very excessive speed close to 90mph in advance of the collision and failed to stop or slow his bike when dazzled by the lights of the car.  Judge Smyth also found Mr Mitchell failed to yield rights of way to the motorbike and failed to keep a proper lookout.

Mr Nolan suffered significant injuries including foot and hand fractures and it was agreed he would have some permanent disability as a result of injuries to his left knee and left little finger.

The High Court ruled the appropriate total damages in the case was €192,440 and said Mr Mitchell was principally responsible for the accident but Mr Nolan was also 40% liable.

No damages were awarded after the High Court granted a defence application to dismiss Mr Nolan’s action in accordance with the provisions of section 26 of the Civil Liability and Courts Act 2004.

It found he exaggerated his claim about the effect of his injuries on his future earning ability and gave misleading evidence about involvement in the sport of “car drifting” post accident.  Car drifting is driving a car on a racetrack through over steering as the vehicle drifts sideways. The Plaintiff had told an expert he had attended for the Defendant he could not partake in this sport any longer.

 

Court of Appeal:

Granting Mr Nolan’s appeal, Ms Justice Mary Irvine said the defence had not laid the evidence for their “fundamentally unfair” application to dismiss.

While Mr Nolan’s P60 indicated he earned a net €365 weekly before the accident, he was not challenged on his evidence he got €500 weekly “into his hand” while other evidence he could potentially earn up between €800-900 weekly had he not been injured was not contested.

There was no evidence from which the trial judge could reasonably have inferred Mr Nolan had knowingly advanced a false and misleading claim over future loss of earnings, she ruled.

The High Court also erred in dismissing the claim on foot of its finding Mr Nolan gave misleading evidence about his involvement post-accident in car drifting.  The Supreme Court noted that, the Plaintiff,  had not advanced a claim for general or special damages based on inability to compete in that sport and therefore found it difficult to see how a dispute over what he said to an expert about his sporting activities, could justify his claim being dismissed.

The Court of Appeal found that the High Court’s assessment of the Plaintiff’s contribution to the accident was overstated. Judge Irvine felt that the contributory negligence of €40% held against the Plaintiff in the High Court was “grossly disproportionate“.  The Court of Appeal reversed this decision reducing the wrong on the part of the Plaintiff to 20%.

The only evidence on his speed was of another motorist overtaken by him earlier who estimated his speed then at about 90mph and it was difficult to see how he could reasonably have been criticised for inability to stop or slow down when suddenly faced by the lights of a car turned into his path of travel, she said.

The appropriate award for Mr Nolan after a 20 per cent reduction for contributory negligence was €153,952, she ruled.

Payments Out In Minor Cases : A Recent View

Judge Jacqueline Linnane: said parental expectations had to be curtailed to some extent in difficult situations. There was a moral duty on parents to provide for their children, a judge has told a distressed mother in the Circuit Civil Court.

The woman concerned said her family was on the edge of poverty when she applied for money to be paid out of court funds to buy school books and other items applicable to their education for her three children.

Some years ago, the three children had been awarded €11,000 each for personal injuries they suffered in a traffic collision. The awards had been lodged in court funds until they reached the age of 18.

The mother had applied for and received payment out of €1,600 in July 2014 and again in 2015 she received payments out amounting to €1,385.

The court heard that this year she had applied to the County Registrar Rita Considine for payments out of €1,700, €1,400 and €370 in respect of her children. The County Registrar had directed payments out of €1,200, €750 and €235.

Ms Considine’s decision was appealed by the children’s mother to the Circuit Civil Court before Judge Jacqueline Linnane who dealt with the matter on Tuesday.

The tearful mother outlined the grounds of her appeal to Judge Linnane and said she was unable to meet the cost of her children’s education. She had nevertheless bought the items her children needed for school before applying to the court.

Judge Linnane told the woman she had taken a risk buying the items before applying for payments out. It was the moral duty for each parent to provide for their children and there would soon be nothing left for the children:.

“I want to give them the best start possible in life and this is money they need now rather than a lump sum when they are 18,” the mother, who represented herself, told the court. “It’s better they get the value of the money now rather than spending it on something like a motorbike when they are 18.”

Judge Linnane said there may be nothing available to provide for third level education for the children. Substantial payments out had been made and the court was being asked to pay out further sums.

We are in a situation of near poverty,” the woman told the court. “We can’t afford to do it.”

When Judge Linnane said that in difficult situations parental expectations had to some extent to be curtailed the woman told the court: “Our expectations have been enormously curtailed.”

Judge Linnane said that for the provision of school books she would allow further payments out of €256.69; €138.05 and €66.00 in the three cases.

A number of Circuit judges have made it clear in the past that damages awards for children are for the benefit of the children when they reach adulthood and not a substitute for the parental cost of rearing a child.

Case Law Update – High Court Cork

Helen Boland –v- Reardans High court Cork 17/10/2016.

A 36-year-old woman who was knocked down stairs as bouncers put an unruly patron out of a pub claimed €750,000 for future loss of earnings.

But, yesterday, a High Court judge did not relate her most serious complaints to the fall. Mr Justice Michael Twomey awarded Helen Boland of Midleton, Co Cork, over €25,000 for general damages for neck and ankle injuries and over €20,000 special damages making a total of over €46,000.

However, he did not attribute the plaintiff’s serious back injury or depression to the fall.

John Lucey SC, for the defendant company, Rearden’s of Washington Street, told Mr Justice Twomey there had been a tender offered in settlement of the case before it went to trial. He said this tender would have certain implications for the issue of costs. James O’Mahony SC for Ms Boland asked for an adjournment of the costs ruling and the judge acceded.

The accident in Rearden’s occurred six years ago on November 19, 2010. Ms Boland was accidentally knocked over by doormen, ejecting a patron, causing her to fall down four or five steps.

Initially, the plaintiff experienced an ankle injury and soft tissue injury to the neck. However, she later developed a back injury. In the course of the seven days of evidence at the High Court sitting in Cork, there was conflicting evidence about whether the back injury was a naturally occurring injury or one attributable to the fall. The back injury required surgery and injections, and morphine patches for pain.

After citing a number of conflicts between medical practitioners, Mr Justice Twomey said in his view the lower back pain and depression were not caused by the fall. He only awarded compensation her in respect of general damages for neck and ankle and some loss of earnings in the first year after the accident.

The plaintiff was in the Irish Navy for 10 years but had moved on to other employment prior to the date of the accident. More recently, she did a degree at CIT in human resource management.

Case Law Update Ireland

Please see recent case law in Ireland, please see below two recent judgements delivered, the first one in the court of Appeal dismissing a Plaintiffs claim following a fall while using an escalator in an airport. The second the dismissal of an allegedly fraudulent claim in the circuit court. A welcome update indicating that the Court of Appeal can be open to dismissing claims, where liability is an issue and the Circuit court is willing to dismiss fraudulent claims.

 

Court of Appeal :

Report Irish Times 2016, Woman’s €40,000 award for airport escalator fall overturned, Judge says it is ‘only commonsense’ that a person would use handrail for their safety

Elizabeth Lavin (69) lost her balance and fell on the escalator to departures in Terminal 2 at Dublin Airport on November 2nd, 2011. She was given a €40,000 award for injuries received but this has now been overturned by a judge.

 

A woman’s €40,000 award for injuries received in a fall on a Dublin Airport escalator has been overturned by the Court of Appeal.

Elizabeth Lavin (69), of Blackhall, Calverstown, Kilcullen, Co Kildare, has already received a part payment of €25,000 from DAA which was the basis on which the authority was permitted to bring an appeal against the award.

When Kieran Fleck SC, for the DAA, raised the matter of the part payment with the appeal court, Mr Justice Michael Peart said it appeared the court had no function in that regard and it may have to be brought back before the High Court.

He also said it “may be possible for the parties to come to some mutual arrangement”. The judge made the comments when he put back the question of costs of the case to another day.

Ms Lavin lost her balance and fell on the escalator to departures in Terminal 2 on November 2nd, 2011. She received what the court described as a “nasty” injury to her head and other soft tissue injuries.

She was intending to fly to the UK for a family funeral and was accompanied by her sister-in-law (81) and niece. Ms Lavin was behind the two women on the escalator with her carry-on luggage immediately on the step behind her.

The appeal court said CCTV footage showed her left hand was not gripping the handrail and she was holding what appeared to be her boarding card. The footage made clear that turning around to adjust her carry-on bag in some way caused her to fall over and down the escalator.

Emergency button

Another member of the public pushed the emergency button halting the escalator.

The High Court’s Mr Justice Michael Hanna, in April 2015, awarded her €60,000 but found one-third contributory negligence bringing the award to €40,000. A three-judge appeal court said it could not agree.

Mr Justice Peart said the sole basis for the finding of negligence was that the defendant failed to bring to Ms Lavin’s attention, by adequate signage, that she could have taken one of the lifts rather than the escalator.

The judge said the lifts are in the immediate vicinity of the escalator and clearly visible because they are behind a feature blue transparent glass wall.

There was no evidence Ms Lavin ever brought the nervousness she had about using the escalator to the attention of her two companions , both of whom were seen in the CCTV footage confidently making their way to the escalator. There was also no evidence Ms Lavin gave a thought to asking nearby airport staff, wearing hi-vis jackets, if there was a lift, the judge said.

“She simply followed her sister-in-law and niece to the escalator without any apparent unease or hesitation”, he said.

Mr Justice Peart said the duty of care the owner/occupier of a premises has is restricted to taking all reasonable steps to avoid injury which is known to exist or which ought to be known to exist. It was a duty to prevent damage from “unusual danger”.

Unusual danger

It cannot be said the escalator presented an unusual danger, such that there was an obligation to warn someone of any particular danger in using it, beyond providing normal signage, he said.

“Indeed, its is only commonsense that on a moving escalator the person would use the handrail in order to take reasonable care for her own safety,” he said.

There was a handrail and there was also a sign directing passengers to the lifts.

The High Court decided the accident would not have happened if there was adequate signage.

Mr Justice Peart said this was incorrect as a matter of law. There was a disconnect between the adequacy of the signage, even if one accepts it was inadequate, and the proximate reason for her fall, he said.

He also said the High Court was wrong to consider the DAA failed in its duty of care in relation to signage.

The escalator was safe and in compliance with the relevant standards, he said.

 

Circuit Court:

AN ALLEGEDLY FRAUDULENT car crash, said to closely fit a pattern of six suspicious accidents that could cost up to half a million in damages and costs, was thrown out by a judge yesterday at the request of Zurich Insurance.

Barrister Paul McMorrow told the Circuit Civil Court that throughout the chain of apparently linked accidents comprehensive insurance policies would be taken out only days before the accidents followed by the disappearance of the drivers and the old cars they used in rear-ending collisions.

Mr McMorrow told Judge Jacqueline Linnane:

The driver in the case before the court has since become untraceable, all part of a pattern of six accidents which happened in darkness all at “T” junctions in remote locations throughout the country without any independent witnesses.

Mr McMorrow, who appeared with DAC Beachcroft Dublin, solicitors for Zurich Insurance which was defending the claim on behalf of the Motor Insurers Bureau of Ireland, said it was usual for potential defendants in these cases to quickly become untraceable.

David Culleton, a solicitor with DAC Beachcroft Dublin, stated in a sworn affidavit that Lilija Timermane had been a passenger in a car on a remote road near Portlaoise, Laois, only three days before Christmas 2012.

Andrius Bajoras, the purported owner and driver of a 12-year-old Rover car had crashed into the back of the car in which she was travelling. Bajoras purported to have taken out insurance cover shortly before the accident with Zurich Insurance, but neither he nor the old Rover had been traceable since.

Mr McMorrow told the court that Timermane had failed to turn up for two examination appointments with the Bureau’s Medical Advisor Robert McQuillan and had failed to deal with a Notice for Particulars from DAC Beachcroft Dublin.

Counsel said Andrius Bajoras had purportedly taken out insurance with Zurich 26 days before the accident “for what appears to have been fraudulent purposes.” Bajoras had been uncontactable since shortly after the crash.

The court heard that the plaintiff Timermane had not provided a proper address and the Department of Social Protection had “absolutely no record of her.” The address she had provided had been very similar to a non-existent address provided by Latvian Igors Jurans, a plaintiff in another similar case, and about whom the Department of Social Protection similarly had no records.

Judge Linnane dismissed Timermane’s claim with costs to the MIBI. The remaining cases are being further investigated and may yet be abandoned by the claimants.