Adrian O'Sullivan v Louise Nally

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 21 April 2015
• Neutral Citation: [2015] IEHC 252
• Docket Number: [No. 7090 P./2013]
• Court: High Court
• Date: 21 April 2015

[2015] IEHC 252

THE HIGH COURT

[No. 7090 P./2013]

O'Sullivan v Nally

No Redaction Needed

BETWEEN

ADRIAN O'SULLIVAN

PLAINTIFF

AND

LOUISE NALLY

DEFENDANT

Criminal proceedings – Accident – Injury – Independent evidence – Causation of the accident.

Facts: The plaintiff sought an action for compensation and damages against the defendant for the injury sustained as a result of the road accident. The plaintiff and the defendant each claimed that they were respectively on their side of the road. Independent evidence of the actual collision clarified that the plaintiff's motorcycle drifted across the white line and went onto the defendant's side of the road.

Mr. Justice Baar held that the plaintiff's complaint against the defendant would be dismissed. The Court found that the plaintiff's motorcycle crossed slightly over the centre white line and made contact with the wing mirror on the defendant's car. The Court accepted the honest and accurate account of the accident/evidence tendered by the independent witness. Therefore, the Court held that the plaintiff would be liable for the cause of the accident.

Mr. Justice Barr

1 This action arises out of a road traffic accident which occurred on 16^th August, 2011, on the Old N55 Road leading from Granard, Co. Longford, to Ballinagh, Co. Cavan. The accident happened at approximately 18.30hrs. It was a dry, fine evening. According to the report compiled by Dennis Wood Associates, Consulting Forensic Engineers, the speed limit at the locus was 100kph.

2 The plaintiff's case is that he was driving his BMW K200 motorcycle at a speed of approximately 40mph along this road. He was approaching a fairly sharp bend to his left. He stated that he took up a position slightly to the right of the centre of his lane. This enabled him to have the best view possible of the bend which, for him, was a left hand bend.

3 The plaintiff stated that as he was going around the bend, the defendant's car, which was travelling in the opposite direction, came across the continuous white line in the centre of the road and her wing mirror clipped the plaintiff's right shoulder. He also struck the car on the rear in the area of the rear wheel. This caused the plaintiff to go into a speed wobble, which caused him to cross over to his incorrect side of the road and he headed straight for a van which was travelling behind the defendant's car. The plaintiff lost control of the motorcycle and he fell to the ground. The van had taken evasive action by turning to its left and it ended up in the ditch and hedge at the side of the road.

4 The plaintiff stated that the impact between the defendant's car and his motorcycle happened between telegraph poles no. 1035947 and 1035948 as shown on the map prepared by Tony O'sKeeffe and Company Limited, Consulting Forensic Engineers. The plaintiff was adamant that the defendant's car and, in particular, the wing mirror thereon were over on his side of the road at the time of the impact between the wing mirror and his right shoulder. He stated a number of times that the defendant's vehicle appeared out of nowhere and that the accident happened in a split second.

5 The plaintiff was supported in his account by the evidence of Mr. Bernard Donohue, the owner of a garage premises, which was a little further up the road on the plaintiff's side of the road and closer to Ballinagh, almost directly opposite pole no. 48. Mr. Donohue was standing in a portacabin, which was used as an office, at the front of the garage premises. He was standing at a window looking back up the road in the Ballinagh direction. He stated that he recalled seeing the plaintiff approach the garage. The plaintiff was travelling quite slowly. In fact, he recalled commenting to his son, who was in the office,"If everyone travelled as handy as that we would have no accidents". He estimated that the plaintiff was travelling at about 40mph. The plaintiff was in the centre of his lane. Literally seconds later, he heard the crash and ran out to see if he could help.

6 By agreement between the parties, a map and photographs prepared by Tony O'sKeeffe and Company Limited on behalf of the defendant, were used at the hearing.

On the map, the width of the plaintiff's side of the road was given as 3.24m and the width of the defendant's carriageway was 3.22m. This tallied with the garda sketch of the locus which gave the plaintiff's carriageway as being 10 feet, 8 inches wide and the defendant's carriageway as being 10 feet, 5 inches wide. According to Mr. O'sKeeffe's report, the sight line that each of the vehicles would have of the other was 54m.

7 The defendant's account of the accident was at variance with the plaintiff's account in that she denied ever crossing over the centre white line onto the plaintiff's side of the road. The defendant stated that she was driving her Citroen C4 Picasso car on the day in question. She was bringing her mother-in-law, who was 78 years of age, back to a hospital in Monaghan. She stated that she had been travelling at approximately 50/55mph as she came into the bend which, for her, was a right hand bend. She was adamant that she was, at all times, on the correct side of the road. She stated that the plaintiff's motorcycle was travelling too fast for the bend. She stated that his motorcycle drifted across the centre white line and impacted with her driver's side wing mirror.

8 The defendant stated that the plaintiff's motorcycle proceeded to glance off the side of her vehicle and she heard a thud as it struck the rear bumper area. She continued up the road and brought her vehicle to a halt in the vicinity of pole no. 49. She checked that her mother-in-law was all right and she then turned and brought her vehicle over to Mr. Donohue's garage, where she parked at the side of the road.

9 The plaintiff suffered very severe injuries in the accident. He had a fracture to his right scapula and clavicle, bilateral lung contusions, bilateral pneumothorax, spinal fractures to his C2, T10 and L1, and multiple rib fractures. He required surgical intervention on his right shoulder and back. He went on to develop complex musculoskeletal pain, an ongoing reversible airflow obstruction consistent with asthmatic bronchitis and a reactive depression for which he required counselling. In the days and weeks following the accident, he experienced excruciating pain in all areas of his body. He described living in a "bubble of pain", for which he had to take up to 40 painkillers each day. This is relevant because on 21^st January, 2012, the plaintiff made a cautioned statement to Garda Michael Kelly. That statement was in the following terms:-

"On 16/8/11 I was travelling from Cavan to Longford. The road conditions were very good, it was like it was a new road, very good conditions for bike riding. I was riding motorbike 07-D-90315. I was coming into Granard Village, coming towards a series of bends, road surface looked to be very good, very dry weather, recently done. I was coming up to a bend going around to the left. 1 can remember seeing a van in the distance and I can also remember seeing a sign on the road saying that there was a series of upcoming bends. The next thing I remember is jamming on the brakes. After that, all 1 can remember is waking up on the side of the road, lying on my right shoulder. I was then rushed to Cavan Hospital and then transferred on to the Mater Hospital. As for the accident itself, I can'st remember anything else. From the accident, I suffered a broken back, broken ribs, broken collarbone, deflated lungs and when I woke up first on the road I could not move my body. This statement has been read over to myself and I do not want to make any additions or alterations to this statement."

10 It was put to the plaintiff that he had not made any mention in the statement of the defendant crossing over the white line and coming onto his side of the carriageway. The plaintiff stated that he had been in severe pain that day, hence he had just made a very short statement, as his main objective was to get back to bed as quickly as possible. He stated that he thought that he had said to the garda that the defendant's vehicle had come across onto his side of the road.

11 The plaintiff's account of making this statement was supported by the evidence of his wife, Collette O'sSullivan. She stated that in January 2012, her husband had only just been discharged from hospital. In addition to his injuries, he had contracted MRSA while in hospital. He had lost three stone in weight. He was also suffering from depression.

12 She recalled Garda Kelly taking the statement. It had been taken in the form of questions and answers. The statement had been taken in the kitchen of her home. An additional complication was the fact that one of the plaintiff's children was also quite ill at the time. She recalled her husband saying that he was hit by the wing mirror of the car, which came out of nowhere. She recalled her husband saying this a number of times. He repeatedly stated that he got side swiped by the mirror.

13 Garda Michael Kelly gave evidence in relation to the taking of the statement. He said that he was obliging a colleague with the investigation of the accident as he, Garda Kelly, was stationed in the area where the plaintiff lived. He went out to the plaintiff's house to take the statement. He administered the usual caution at the commencement of the statement. Garda Kelly stated that the plaintiff told him what happened that day and he wrote it down as the plaintiff's statement. At the conclusion of the statement, he read the statement over to the plaintiff and the plaintiff signed the statement. He stated that it was an accurate account of what the plaintiff had...