Ahearne v Tuohy

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMR. JUSTICE MICHAEL PEART
Judgment Date29 Nov 2017
Neutral Citation[2017] IECA 308
Docket NumberNeutral Citation Number: [2017] IECA 308 Record Number: 2016/177

[2017] IECA 308

THE COURT OF APPEAL

Peart J.

Peart J.

Irvine J.

Hogan J.

Neutral Citation Number: [2017] IECA 308

Record Number: 2016/177

Between:
SAMANTHA AHEARNE
PLAINTIFF/RESPONDENT
- AND -
BILL TUOHY
DEFENDANT / APPELLANT

Negligence – Damages – Findings of fact – Appellant seeking to appeal against finding of negligence – Whether proceedings should be dismissed

Facts: The plaintiff/respondent, Ms Ahearne, sought damages from the defendant/appellant, Mr Tuohy, for personal injuries which she sustained when his vehicle collided with her vehicle on the 4th October 2012 in circumstances where she alleged that he was negligent. At the conclusion of the hearing in the High Court (Abbott J) the defendant was found to have been driving negligently. However the trial judge concluded that the plaintiff herself was guilty of significant contributory negligence, and he apportioned liability as to one third against the defendant and two thirds against the plaintiff. The trial judge assessed general damages in the amount of €60,000, being €20,000 in respect of past pain and suffering, and €40,000 for pain and suffering into the future, to which he added an agreed figure of €1,360 for special damages, making a total figure of €61,360. In accordance with the apportionment of liability, judgment was entered against the defendant in the amount of €20,453. The trial judge then made a differential costs order, since the award after apportionment was below the jurisdiction threshold of the High Court, and measured that sum in the amount of €,2000. Judgment was entered against the defendant for the amount of €18,453, and in addition, costs were awarded against the defendant on the Circuit Court scale, such costs to be taxed in default of agreement in the normal way. The defendant appealed to the Court of Appeal against the finding of negligence (one third) made against him, and sought to have the proceedings dismissed in their entirety. He said that there was no credible evidence upon which the trial judge was entitled to find him to have been negligent, let alone to the extent of one third. He appealed also against the amount of damages awarded, the differential costs measured in the amount of €2,000 and the order for costs made against him.

Held by Peart J that the only findings of fact made by the trial judge for which there was evidence which he could accept were that a 50kph speed limit was applicable in the area, and that the defendant did not exceed that limit. Peart J held that neither of those findings of fact could, without more, sustain a finding of negligence against the defendant.

Peart J held that he would allow the appeal, set aside the order made in the High Court, and dismiss the proceedings.

Appeal allowed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 29TH DAY OF NOVEMBER 2017
1

In these proceedings the plaintiff seeks damages from the defendant for personal injuries which she sustained when his vehicle collided with her vehicle on the 4th October 2012 in circumstances where she alleged that he was negligent.

2

At the conclusion of the hearing in the High Court (Abbott J.) the defendant was found to have been driving negligently. However the trial judge went on to conclude that the plaintiff herself was guilty of significant contributory negligence, and he apportioned liability as to one third against the defendant and two thirds against the plaintiff.

3

Having so concluded the trial judge assessed general damages in the amount of €60,000, being €20,000 in respect of past pain and suffering, and €40,000 for pain and suffering into the future, to which he added an agreed figure of €1,360 for special damages, making a total figure of €61,360. In accordance with the apportionment of liability, judgment was entered against the defendant in the amount of €20,453.

4

The trial judge then made what is referred to in the Court's order as a differential costs order (see s. 14 of the Courts Act 1981), since the award after apportionment was below the jurisdiction threshold of the High Court, and measured that sum in the amount of €,2000. Judgment was entered against the defendant for the amount of €18,453, and in addition, costs were awarded against the defendant on the Circuit Court scale, such costs to be taxed in default of agreement in the normal way.

5

The defendant has appealed against the finding of negligence (one third) made against him, and seeks to have the proceedings dismissed in their entirety. He says that there was no credible evidence upon which the trial judge was entitled to find him to have been negligent, let alone to the extent of one third. He appeals also against the amount of damages awarded. Finally he appeals against the differential costs measured in the amount of €2,000 and against the order for costs made against him. He argues that given the amount of the award following the apportionment of liability, the trial judge ought to have made an order under s. 17 of the Act of 1981, as amended, rather than measuring the differential sum in the way he did. I will come to that issue later in this judgment, if necessary.

The circumstances of the accident
6

On the 4th October 2012 at about 12.25 p.m. the plaintiff had travelled along the Glenconnor Road, Clonmel (the minor road) close to where she lives in Co. Tipperary, and having reached the junction where that road joins the Western Road (the major road), she stopped at the white line at the junction as she was required to do before proceeding onto the major road. She was intending to drive across the Western Road, and then turn to her right in the direction of Cahir in order to collect her young nephew. Before moving out into the junction she needed to be sure that there was no car approaching her from her right. If there was none, then it was safe to move forward at least to the centre of the junction. Then, if there was no car approaching from her left, she could continue to make her turn right onto the Western Road itself and proceed on her journey in the direction of Cahir.

7

The plaintiff stated in her evidence that she looked to her right before moving to the centre of the junction, and that she saw no car approaching from her right. She stated that she then looked left, and then right a second time before moving forward. She stated that when she looked to her right on that second occasion she saw a car approaching from her right ( i.e. the defendant's vehicle) and that it was some distance away ‘at the top of the road’. The plaintiff's engineer measures that line of sight to have been c. 78 metres. She is very familiar with this junction. She uses it several times each day. She considered it safe to proceed to the centre of the junction notwithstanding the approaching vehicle, and commenced to do so. However, before she had fully gained the safety of the centre of the junction the defendant's vehicle collided with the rear side of her vehicle. The damage to her vehicle was to the area of the rear wheel on the driver's side. Her car was caused to spin 180 degrees, and was moved a little back from its position in the junction.

8

This is a built up area. There was a 50km per hour speed limit in operation. The defendant says that he was driving at a normal speed along the Western Road, and that when he was a short distance back from the junction where the plaintiff's vehicle was stopped, she suddenly drove forward into his path, giving him no opportunity to avoid colliding with her car, despite braking. The defendant says that he was not exceeding that 50km per hour speed limit. The plaintiff contends that, given the distance that he was from her when she saw him, he must have been driving considerably in excess of the limit, as otherwise she would have easily made it safely to the centre of the junction. The defendant counters this by pointing to the fact that there was only minor damage to the front of his car, and that his airbag did not activate. The engineering evidence was that the airbag is designed to activate upon impact at over 25mph. The defendant stated also that having hit her car his own vehicle was still able to stop within a very short distance, and that when asked to move his vehicle by the Gardai he was able to simply make a left turn into Glenconnor Road, without having to reverse his car in order to make that turn. He considers this to indicate that he had travelled only a very short distance following the collision, consistent with having been driving within the 50km speed limit, and having braked as quickly as he could prior to the impact.

9

When under cross-examination by counsel for the defendant, it was put to the plaintiff that her oral evidence in court differed from the account of the accident which she had given to her expert, Mr Hugh O'Rourke, Consultant Engineer. That account as recorded by him in his report states:

‘At approximately 12:25 pm on the 4 October 2012, the plaintiff, Samantha Ahearne was driving south along Glenconnor Road towards Western Road. At the Glenconnor Road and the Western Road Junction, the plaintiff stopped her car, looked up and down the Western Road, she did not see any oncoming cars, before crossing the Western Road, with the intention of driving west along the Western Road. While crossing the Western Road, the defendant, Bill Tuohy who was travelling east along the Western Road collided with the plaintiff's car, causing the plaintiff's car to rotate 180 about its front wheels, and coming to a final stop as shown in Figure 2…’.[Emphasis provided]

10

When this was put to her, she was asked which account was correct, to which she replied ‘Well, on the first glance as I said I didn't see a car and then when I looked back right after looking left, the second time I looked right’. A short time later she stated ‘no, it wasn't there on the first time. When I...

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