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.

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