Gervin v Motor Insurers Bureau of Ireland

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 04 May 2017
• Neutral Citation: [2017] IEHC 286
• Docket Number: [2016 No. 19 CAT]
• Court: High Court
• Date: 04 May 2017

NORTHERN CIRCUIT COUNTY OF MONAGHAN

BETWEEN

AMANDA GERVIN

PLAINTIFF/RESPONDENT

AND

MOTOR INSURERS' BUREAU OF IRELAND

DEFENDANT/APPELLANT

[2017] IEHC 286

[2016 No. 19 CAT]

THE HIGH COURT

Tort – Damages & Restitution – Collision with untraced vehicle – Minor injuries – Lack of evidence

Facts: The appellant/defendant had filed an appeal against the order of the Circuit Court whereby the Circuit Court had allowed the seven out of nine respondents/plaintiffs' claim for damages against the appellant. The remaining two respondents had also filed appeals against the order of the Circuit Court for the dismissal of their action against the appellant. The key issue for determination between the parties was in relation to the fixation of liability of the alleged accident. The respondents claimed that they had hired a minibus for the purpose of travelling to a specific place, and one of the respondents was driving the minibus and they all had suffered whiplash-type injuries owing to the collision of the rear of the minibus with an untraceable car. The appellant claimed that there was no witness to the said incident and there were no medical records to corroborate the respondents' version of events.

Ms. Justice Baker allowed the appeal filed by the appellant against the seven respondents and dismissed the appeals of the remaining two respondents. The Court held that the respondents were unable to prove their case and there was no evidence to show that the whiplash type of injuries was caused in the manner the alleged incident had taken place. The Court noted that there were two respondents who claimed to have seen the untraceable car and there was inconsistency in their testimony in relation to the description of the car. The Court pointed out that the engineering evidence, too did not support the version presented by the respondents and the evidence of each of the respondents was vague, evasive and unsupported by any documentary evidence.

JUDGMENT of Ms. Justice Baker delivered on the 4th day of May, 2017.

1 This judgment is given in respect of nine separate appeals from the Circuit Court sitting in Monaghan. The nine plaintiffs were passengers in a minibus and claim to have suffered personal injuries arising from an incident when the minibus was alleged to have been hit from the rear by a motor vehicle which is untraced.

2 The defendant is the Motor Insurers' Bureau of Ireland, (‘the MIBI’) sued by virtue of an agreement made on 31st March, 2004 by which a person seeking compensation for personal injuries in proceedings against an unidentified or untraced owner or user of a vehicle may enforce that claim against it.

3 Most of the appellants succeeded in their actions in the Circuit Court and in those cases the appeal is by the MIBI. The claims of two of the plaintiffs were dismissed in the Circuit Court and they have brought these appeals.

4 This judgment is headed in the action first heard, that of Amanda Gervin. The titles and record numbers of the other appeals are set out in a schedule to this judgment. As each of the plaintiffs makes a claim in respect of the same incident, this judgment is given in respect of liability in all nine appeals.

The details of the incident

5 The incident in respect of which the claims are brought occurred in the evening between 7:45 and 8:00pm on 9th August, 2008, at Drumgoole, Silverstream, Co. Monaghan. The plaintiffs are friends, and in some cases relatives, whether by birth or marriage, and they had hired a minibus for the purposes of travelling from their homes, most of them in Northern Ireland, to enjoy an evening together at the greyhound track in Dundalk, Co. Louth.

6 David Morgan, one of the plaintiffs was agreed to be the designated driver and he and another person hired the minibus for the evening for the sole purpose of travelling to and from Dundalk.

7 The incident happened at a T-junction known locally as Snips Bridge where the L5310 and L5920 roads meet, a country road.

8 Each of the plaintiffs in their own way described an incident where they felt a jolt or a thud to the rear of the vehicle as they were turning left off the L5310 onto L5920. Only two of the plaintiffs saw a vehicle, what they describe as a saloon type car of a green colour, although neither of them noticed the number plate and whether it bore an Irish number plate or a yellow Northern Irish plate. The vehicle did not stop and no independent evidence is available of any vehicle of the type described having been present on the roadway at the material time.

9 All of the plaintiffs suffered whiplash type injury, from which most have recovered, although some of the plaintiffs say that they still suffer residual symptoms.

10 Three gardaí attended at the scene of the incident, one of whom was a trainee female garda. Two of the gardaí gave evidence and neither saw any debris or marks on the road that might assist in understanding the nature of the accident.

11 I set out briefly the plaintiffs and their injuries.

12 Amanda Gervin is 44 years of age. She has two children, no relevant past medical history or no prior or subsequent claims for damages for personal injuries. She was wearing a seatbelt and suffered an injury to her neck, shoulders and upper arms.

13 David Morgan was the driver of the vehicle, is aged 41 and describes himself as being of a nervous disposition. Since the incident he was the victim of a very frightening terrorist incident. He had one prior claim arising from an assault when he was a young child which was compromised. Mr. Morgan described himself as being very shook up at the scene and thereafter, such that he was unable to drive the minibus back to the home of Bernadette McBride, the home nearest to the incident. He suffered injury to his neck and general anxiety.

14 Paul Campbell is a married man aged 39 with four children, one of whom was in utero at the time of the incident. He has no prior claims. He took charge after the incident and phoned the gardaí. He gave evidence of debris on the road following the incident. His claim in the Circuit Court was dismissed. He complains of injury to his low back which radiates to his legs.

15 Lyndsey Gervin is 33, she has two children one of whom is deaf. There is nothing relevant in her medical history. At aged 13, she was injured in an accident and was compensated. She suffered injury to her neck, shoulder, bruising and a buzzing sensation in her head.

16 Bernadette McBride is 58 and has nine children, and she cares for the child of her predeceased daughter, her granddaughter. She had an accident claim very many years ago but no other relevant claims. She has a history of back and left leg pain. She claims the injury exacerbated the pain in her back.

17 Deirdre Campbell is 40, and now has four children. She was seven months pregnant at the time of the incident. She is married to Paul Campbell. She was particularly concerned with regard to her pregnancy as she had suffered an ectopic pregnancy and a miscarriage in the past. She has a history of back and wrist pain. She claims to have suffered pain and injury to her hip and left shoulder. No medication was prescribed because of her pregnancy.

18 Kevin Kernaghan is 43, single and not working at present. He suffers from a congenital eye defect resulting in double vision and eye irritation, and is certified blind. He has no relevant medical history although he fell in May, 2008. He claims to have suffered an injury to his neck, right arm, headache and pins and needles as a result of the accident. He has a past claim arising from a car accident in 2000.

19 Joanne McGirr is 35 and works as a secretary. She describes herself as being of ‘extremely nervous’ disposition. She has no previous claims and no relevant past medical history. She claims to have suffered shock, injuries to her neck, back and shoulder and anxiety.

Fiona McGirr, sister of Joanne McGirr is 38 and has one child. She was awarded compensation arising from a terrorist incident in her youth, and from an accident claim when she was a young child. She has no relevant medical history. She suffered back pain in 2006 and a right ankle injury in 2007. She claims to have suffered back and neck injury in the incident.

The question of liability

20 There being no independent witness, and in circumstances where only two of the plaintiffs saw a vehicle, a description of which they are unable to give, and as each of the plaintiffs gave evidence in respect of the claims of the others, and liability being the central issue in the appeals, I propose dealing with the question of liability in all nine cases together.

21 Two of plaintiffs, Amanda Gervin and Lyndsey Gervin, saw a car. Amanda Gervin says she saw a car driving away and Lyndsey Gervin that she saw a car speeding off, but no more. Amanda Gervin is the sole person who might have identified the colour of the license plate or car but she ‘can't recall’ whether the car had a white or yellow license plate. Both witnesses say the car was green.

22 Certain of the plaintiffs heard a car or a vehicle, or at least a noise. Amanda Gervin says that she heard a loud thud; David Morgan, a ‘noise’; Paul Campbell and Lyndsey Gervin a ‘bang’; Bernadette McBride and Kevin Kernaghan a ‘thud’; Joanne McGirr a ‘massive bang’. Fiona McGirr and Deirdre Campbell heard or saw nothing, but both felt a jolt or a ‘good jolt’ forward. Six of the plaintiffs felt that they were jolted forward in the minibus. Most, but not all, of the plaintiffs got off the minibus, although Bernadette McBride returned almost immediately afterwards. Lyndsey Gervin stayed on the minibus until the gardaí arrived. Some of the plaintiffs say the minibus was pushed forward: David Morgan, Lyndsey Gervin, Deirdre Campbell and Kevin Kernaghan. Some of the plaintiffs heard a loud thud or bang:...