Deegan v McPartlin

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 13 December 2019
• Neutral Citation: [2019] IEHC 855
• Docket Number: [2017 No. 799P]
• Court: High Court
• Date: 13 December 2019

[2019] IEHC 855

THE HIGH COURT

David Keane

[2017 No. 799P]

BETWEEN

PAT DEEGAN

PLAINTIFF

AND

JENNIFER MCPARTLIN

DEFENDANT

Tort – Personal injuries – Road traffic accident – Vehicle rolling over foot of cyclist - Liability

Facts: The plaintiff was a cyclist who had been involved in a road traffic accident with a vehicle driven by the defendant. The vehicle had rolled over the plaintiff’s foot causing a fracture. The parties agreed on the quantum of damages but disagreed on the liability element. The matter now came before the High Court for determination.

Held by the Court, that the plaintiff had contributed partly to his injury by recklessly cycling through a red light, but that the defendant had also failed to keep an appropriate lookout for any risks. On that basis the liability would be apportioned on a 40%/60% split

JUDGMENT of Mr Justice David Keane delivered on the 13th December 2019

Introduction

1 At about 8.20 a.m. on the morning of 18 May 2015, an accident occurred at the Donnybrook end of Eglington Road in Dublin when a motor vehicle that was being driven by the defendant Jennifer McPartlin rolled over the left foot of the plaintiff Pat Deegan, who was on a bicycle.

2 When the accident occurred, Ms McPartlin, who had driven south along Brookvale Road (a side road, at the end of which there is a ‘Yield’ sign), was attempting to turn right on to the westbound carriage of Eglington Road (a main road) at the junction between those two roads, and Mr Deegan was cycling along the eastbound carriage of Eglington Road at that junction.

The quantum of the claim

3 In the accident, Mr Deegan suffered a comminuted (meaning fragmented) fracture of the junction of the middle and distal third of his left tibia and fibula, for which he underwent surgery on 19 May 2015. He was discharged from hospital the following day but remained out of work for three weeks. He required physiotherapy and rehabilitation, and the accident had some adverse effect upon his mental health. He is now largely recovered.

4 Very helpfully, the parties have agreed that the quantum of the appropriate damages should be €50,000, and special damages have been agreed in the sum of €1,600. The only issues to decide are whether the accident was caused by the negligence of Ms McPartlin and, if so, whether there was contributory negligence on the part of Mr Deegan.

The locus in quo

5 While the independent expert engineers retained on behalf of each of the parties differ in their assessment of the cause of the accident, they broadly agree on the following features of the locus in quo. There is a yield sign on Brookvale Road at its junction with Eglington Road. While there are no traffic lights at the junction, there is a pedestrian crossing on Eglington Road that is governed by a set of traffic lights approximately 21 metres to the west of the centre of the junction. On each side of Eglington Road there are marked cycle lanes. On the eastbound carriage of Eglington Road, slightly offset from the point where the southbound carriage of Brookvale Road intersects with it, there is a yellow box junction that is 10.4 metres in length and 3.6 metres in width (covering the entire width of the eastbound carriage, excluding the cycle lane).

The pleadings

6 In the personal injuries summons that issued on his behalf on 30 January 2017, Mr Deegan claims that his injury was caused by the negligence, breach of duty, or breach of statutory duty of Ms McPartlin, so that she is liable to him in damages for it.

7 More specifically, Mr Deegan pleads that, amongst other things, Ms McPartlin: drove without due care and attention; caused the collision; failed to notice Mr Deegan and his bicycle; failed to have regard to prevailing driving conditions; drove without reasonable consideration; failed to keep a proper lookout; failed to ensure that the main road was clear before emerging onto it; and failed to yield right of way to Mr Deegan.

8 In her personal injuries defence delivered on 1 June 2017, Ms McPartlin puts Mr Deegan on strict proof of every aspect of his claim, before specifically pleading that Mr Deegan's injuries were occasioned, in whole or in part, by his own acts, in that he: failed to take reasonable care for his own safety; failed to cycle with due care and attention; caused the collision; failed to stop at a red light; failed to have regard to the prevailing traffic conditions; cycled without reasonable consideration for other road users; entered a yellow box junction when his route through it was not clear; failed to cycle in the cycle land provided; and was the author of his own misfortune.

The evidence

9 Mr Deegan gave evidence on his own behalf. It was broadly as follows. At the time of the accident, he was 44 years old and a director of the company through which he operated a bicycle shop in Sandymount. He has been a cyclist all his life. On the morning in question, he was commuting by bike from his home in Rathfarnham to his business in Sandymount, as he had been doing regularly for the previous four years. There was an uninterrupted line of stationary traffic on the eastbound carriage of Eglington Road on either side of the pedestrian traffic lights. Those lights were amber when he cycled over the pedestrian crossing, which is located just prior to the junction with Brookvale Road. He was cycling in the bicycle lane. It was approximately 8.10 a.m.

10 At the Brookvale Road junction, Ms McPartlin's vehicle was blocking the cycle lane, so Mr Deegan stopped at the edge of the cycle lane in the yellow junction box and put his left foot down on the ground. Ms McPartlin's vehicle kept nudging forward onto Eglington Road. Mr Deegan could see that the driver, Ms McPartlin, was looking in the other direction. The front offside wheel of the vehicle rolled onto his foot. He thumped the bonnet of the car as hard as he could. Other persons came to his aid. Ms McPartlin's vehicle reversed off his foot.

11 Under cross-examination, Mr Deegan confirmed that he was riding a bicycle with a carbon fibre frame and that he was wearing lycra cycling clothes, a cycle helmet, and cycling shoes with pedal clips. He had been cycling that route for several years. His commute was probably five miles and took approximately half an hour. As he cycled along Eglington Road, he remained in the cycle lane until he got to the junction. There were one or two cyclists ahead of him and he did observe that one female cyclist had stopped at the pedestrian lights. He did not know why that cyclist had stopped.

12 It was put to Mr Deegan that the cyclist he had seen stopped at the pedestrian lights was a woman named Shona Darcy and that she would give evidence that she was stopped at those lights because they were red. Mr Deegan disagreed and denied that he had deliberately cycled through a red light to prevent having to brake and, thus, to preserve his forward momentum.

13 Mr Deegan said that he could not stop in the cycle lane because Ms McPartlin's vehicle was already nudging out across it, so he moved to his right into the yellow box junction and halted, placing his left foot on the ground. There was no good reason why Ms McPartlin didn't see him. He accepted that, when Ms McPartlin did realise what had happened, she reversed off his foot immediately. He could not remember whether he had shouted or cursed or Ms McPartlin. He could only remember being in excruciating pain.

14 Mr Deegan denied that he had moved into the yellow junction box because he was proposing to proceed up the right-hand side of the line of eastbound traffic, before taking a right turn onto Donnybrook Road and then a left turn onto Anglesea Road.

15 Mr Deegan denied that his bicycle had collided with Ms McPartlin's vehicle. There was no damage to his bicycle and he did not believe that there had been any damage to Ms McPartlin's vehicle. It was put to him that there was some damage to Ms McPartlin's vehicle in the form of a very slight mark over the offside front wheel arch cover. He was unaware of that.

16 Alex Foran, an independent expert engineer, was called to give evidence on behalf of Mr Deegan. In his report and in his sworn evidence, Mr Foran expressed the opinion that the pedestrian lights on Eglington Road, 20 metres to the west of the Brookvale Road junction do not control that junction. In approaching from Brookvale Road, Ms McPartlin's vehicle was obliged to yield to traffic on Eglington Road. Ms McPartlin should have seen, and yielded to, Mr Deegan's bicycle as he proceeded past the Brookvale Road junction on that road.

17 Under cross-examination, Mr Foran acknowledged that a red light at the pedestrian crossing would require all traffic, including cyclists, to stop.

18 Mr Deegan's case concluded with Mr Foran's evidence.

19 The first witness called on behalf of Ms McPartlin was Shona Darcy. Ms Darcy confirmed that, at the time of the accident, she was cycling eastwards along the cycle lane on Eglington Road. Ms Darcy was an experienced cyclist, who commuted to work daily on her single speed bicycle and was a very active mountain biker at the weekends. She could not remember whether Mr Deegan was cycling in front of or behind her, but she did remember that when she stopped at a red light at the pedestrian crossing, Mr Deegan continued through it. She saw Ms McPartlin's car come slowly out from...