Cheng Zhang v Stephen Farrell

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 05 March 2021
• Neutral Citation: [2021] IECA 62
• Docket Number: Record Number: 2018/357
• Date: 05 March 2021
• Court: Court of Appeal (Ireland)

Between:

Cheng Zhang

Plaintiff/Appellant

and

Stephen Farrell

Defendant/Respondent

[2021] IECA 62

Birmingham P.

Whelan J.

Noonan J.

Record Number: 2018/357

High Court Record Number: 2012/8784P

THE COURT OF APPEAL

Damages – Liability – Quantum – Appellant appealing against award of damages – Whether the damages awarded were insufficient

Facts: A road traffic accident occurred at about 5pm on 17th April, 2011 at the junction of Upper Merrion Street and Merrion Row in Dublin. The plaintiff/appellant, Ms Zhang, was walking across the street when she was struck by the motor car of the defendant/respondent, Mr Farrell. She suffered personal injuries and other losses in respect of which she brought proceedings. The High Court (Barr J) in a judgment delivered on the 2nd December, 2016, on the issue of liability, found the defendant 55% and the plaintiff 45% responsible for the accident. Following a subsequent trial on the issue of quantum, the court gave judgment on the 17th July, 2018 awarding the plaintiff damages in the sum of €265,039.30 on an apportioned basis. The plaintiff appealed to the Court of Appeal against both judgments and the final order made on the 20th July, 2018 both on the issue of liability and the award of damages. The plaintiff contended that liability should have been determined 100% in her favour and the damages awarded were insufficient. The defendant cross-appealed and confined his appeal to the award of special damages in respect of earnings, both past and future and the sum awarded for loss of opportunity.

Held by Noonan J that a finding of merely 5% on either side of an equal apportionment must be regarded as an error of law and did not correctly represent the respective degrees of fault of the parties. Noonan J was accordingly satisfied that liability should be apportioned as to 80% against the defendant and 20% against the plaintiff. Noonan J held that the award of general damages in this case amounted to more than one third of the maximum that would be awarded in the case of, for example, a young plaintiff with quadriplegia or severe cerebral palsy requiring lifelong nursing and medical care. Noonan J was not satisfied that the plaintiff had demonstrated that this award could be regarded in all the circumstances as disproportionate, and certainly not disproportionate to an extent that would amount to an error of law. The trial judge assessed a figure of €30,000 under the heading loss of opportunity which, in all the circumstances, did not appear to Noonan J to be an excessive figure or one that he was not entitled to award. Noonan J held that the trial judge was entitled to make an award of damages in respect of the loss of earnings to date as per the actuarial report in the sum of €86,463 and to assess the future loss of earnings for five years at €112,750 and a further two years at 50% capacity of €23,452. Noonan J held that the trial judge’s assessment of damages in this case, both general and special, ought not to be disturbed. Noonan J held that, in the circumstances where the trial judge correctly held that the defendant did not break the red light, there was clearly no basis upon which such a claim for damages could be advanced. Noonan J noted that the total of the damages under all headings assessed by the trial judge amounted to €465,526. Adjusting that figure to take account of the revised apportionment of 80% in favour of the plaintiff, the total of the plaintiff’s damages came to a sum of €372,420.80 and Noonan J substituted for the order of the High Court judgment in that amount. Noonan J accordingly allowed the plaintiff’s appeal and dismissed the cross-appeal.

Noonan J held that, with regard to the question of costs, his provisional view was that as the plaintiff had been successful in her appeal, as an unrepresented party, she was entitled to her reasonable expenses in the matter. With regard to the costs of the High Court, Noonan J held that the plaintiff was entitled to those costs to be adjudicated on the basis of the award of the Court of Appeal.

Appeal allowed. Cross-appeal dismissed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Noonan delivered on the 5th day of March, 2021

1 . This appeal arises out of a road traffic accident that occurred at about 5pm on Sunday 17th April, 2011 at the junction of Upper Merrion Street and Merrion Row in Dublin. The appellant (the plaintiff) was walking across the street when she was struck by the respondent's (defendant's) motor car. She suffered personal injuries and other losses in respect of which she brings these proceedings. The High Court (Barr J.) in a judgment delivered on the 2nd December, 2016, on the issue of liability, found the defendant 55% and the plaintiff 45% responsible for the accident. Following a subsequent trial on the issue of quantum, the court gave judgment on the 17th July, 2018 awarding the plaintiff damages in the sum of €265,039.30 on an apportioned basis.

2 . The plaintiff has appealed both judgments and the final order made on the 20th July, 2018 both on the issue of liability and the award of damages. In essence the plaintiff contends that liability should have been determined 100% in her favour and the damages awarded were insufficient. The defendant has cross-appealed and confined his appeal to the award of special damages in respect of earnings, both past and future and the sum awarded for loss of opportunity.

Facts

3 . The plaintiff was walking on Baggot Street Lower on the right hand side as one faces Merrion Row. She reached the junction of Merrion Street Upper which was to her right and Ely Place to her left. She intended crossing straight over and proceeding along Merrion Row. The junction is controlled by traffic and pedestrian signals. Traffic travelling towards Merrion Street towards Ely Place was stationary in two lanes at a red traffic light as the plaintiff began to cross the road in front of these two stationary lines of traffic.

4 . She was walking at a normal pace, had traversed half the width of the road past the stationary traffic and about one third of the opposite lane when she was struck by the defendant's motor car. The defendant had driven down Merrion Row in the direction of Baggot Street and just turned left in to Merrion Street Upper when he collided with the plaintiff. The accident occurred during daylight hours with good visibility. None of these facts were in dispute. There was however some dispute as to what the various traffic signals were showing at the relevant time.

5 . CCTV footage was available from two cameras. One was mounted on the wall of Government Buildings on Merrion Street Upper facing towards the junction where the accident occurred. This camera actually captured the accident. The second camera was located on Merrion Row facing in the Baggot Street direction which captured the movement of the defendant's vehicle along Merrion Row immediately prior to the accident.

6 . Although the plaintiff was initially represented in these proceedings, by the time the matter came to trial she had discharged her lawyers and conducted the liability module of the trial herself. However, when the quantum module began, she had instructed a new legal team. At the hearing of the appeal before this court, the plaintiff was again representing herself. As will become apparent, this is relevant in the context of some of the issues arising on this appeal. On the liability issue, the plaintiff and the investigating garda gave viva voce evidence for the plaintiff. For the defendant, only the defendant himself gave oral evidence. However, and significantly, by agreement of the parties, engineering reports were submitted to the court by both sides from Mr. Peter Johnston on behalf of the plaintiff and Mr. Sean Walsh on behalf of the defendant.

The Liability Judgment

7 . The trial judge set out a summary of each side's evidence and in reality, there was very little conflict between the two. The plaintiff gave evidence in accordance with the summary above. She said that she had crossed approximately half way across the far carriageway at the time of the impact. She thought that the pedestrian lights were showing yellow when she crossed. She thought that the defendant's car was driving at a fast speed because she was thrown into the air and spun around as a result of the impact. It was put to her in cross-examination that she had said in her garda statement that the car “looked like it was driving very slow, so I thought he was letting me cross”.

8 . The judge referred to the CCTV footage from the camera on Government Buildings saying (at p. 4):-

“It shows that the plaintiff had crossed approximately two thirds of the way across Mount ( sic) Street Upper, when she was struck by the car. She had crossed in front of two lines of traffic to her immediate right and had crossed approximately one third of the far carriageway prior to the impact. The plaintiff was the only pedestrian crossing the road at the time. In the footage she appeared to have been walking at a normal speed.”

9 . The judge then referred to Mr Johnston's evidence to the effect that Merrion Street Upper was 12.4 metres wide and it would have taken the plaintiff, walking at normal speed, approximately 6 seconds to walk from the footpath to the point at which she was struck. Significantly in the context of this appeal, the judge referred to the fact that Mr. Johnston was able to look at other CCTV footage from different cameras which were not shown to the court, a reference to the camera on Merrion Row. Mr. Johnston noted that this camera showed that the defendant had a green light in his favour as he drove down Merrion Row approaching the junction and the traffic light turned amber as he commenced making his turn into Merrion Street Upper.

10 . Mr. Johnston's evidence was that if the defendant had a green light in his...