Howell v O'Regan

• Jurisdiction: Ireland
• Judge: FitzGeraid J.,Ó Dálaigh C.J.,Walsh J. Walsh J.
• Judgment Date: 14 May 1970
• Neutral Citation: 1965 WJSC-SC 4114
• Docket Number: (90-1969)
• Court: Supreme Court
• Date: 14 May 1970

1965 WJSC-SC 4114

THE SUPREME COURT

O'Dálaigh C.J.

Walsh J.

Budd J.

(90-1969)

Howell v. O'Regan

JOHN HOWELL

Plaintiff

Respondent

v.

PATRICK G. O'REGAN

Defendant

Appellant

1 JUDGMENT delivered on the 14th day of May, 1970by Walsh J. Walsh J.

2 On the 18th May, 1964, the plaintiff sustained personal injuries when the motor cycle which he was riding was in collision with the defendant's motor car on a road junction in County Cork. In the same year the plaintiff instituted proceedings for damages against the defendant alleging that the defendant had been negligent. The case came on for hearing before a jury in the City of Cork on the 21st January, 1966, and the trial judge ruled on the application of counsel for the defendant that on the evidence as adduced the jury could not reasonably find for the plaintiff and he discharged the jury without a verdict and entered judgment for the defendant. An appeal to this Court was taken against that order and on the 15th March, 1967, this Court, as at present constituted, set aside the judgment and directed a new trial on the grounds that there was evidence from which negligence on the part of the defendantcould be inferred. The re-trial took place on the 18th and 19th days of July, 1967, and on that occasion the jury found the defendant was not guilty of negligence and accordingly the learned trial judge gave judgment for the defendant with costs. Again an appeal was taken to this Court against this judgment. The appeal was based upon the ground that the learned judge had misdirected the jury upon the vital fact in the case and that in consequence the trial was unsatisfactory. On the 4th November, 1968, this Court, against as at present constituted, set aside the judgment and directed a new trial upon the ground referred to. The third trial took place again in the City of Cork before a jury on the 14th, 15th and 16th days of July, 1969, and on this occasion the defendant was found guilty of negligence and the plaintiff was found guilty of negligence and the fault was appointed between them as to 60% attributable to the defendant and 40% attributable to the plaintiff. Damages were assessed at £7,306. 10. 0. and upon those findings the learned trial judge, the President of the High Court, gave judgment for the plaintiff in the sum of £4,383. 18. 0. The present appeal has been taken by the defendant both as to liability and as to damages. On liability the defendant, although originally claiming that there was no evidence upon which he could have been found guilty of any negligence, abandoned this point and claimed that the apportionment of fault was such that no reasonable jurycould have made and that the evidence was such that no jury could reasonably have attributed less than half of the fault to the plaintiff. The Defendant also appealed on the grounds that the damages were excessive and were such as could not have been assessed by a reasonablejury.

3 In the judgments of the Chief Justice and Mr. Justice Budd in the first appeal to this Court and the judgment of Mr. Justice Budd in the second appeal to this Court the facts of the case are so elaborately set out as to require no further recital of them by me. The evidence adduced at the third trial did not vary in any important degree from that already given in the first and second trials and is amply recited in the judgments to which I have referred.

4 What emerges is evidence which, in my opinion, would have justified the jury, if they accepted it, in finding that the defendant was guilty of negligence under three headings: firstly, that he did not keep a proper look-out; secondly, that he did not give a proper or any signal indicating his intention to take the right hand turn in the fork of the road; and thirdly, that he did not sound his horn or give any other signal to the plaintiff. So far as the plaintiff is concerned there was ample evidence to support a finding by the jury that he had been negligent in not keeping a proper look-out [and ???query?????? also in failing to slow or stop his motor cycle sufficiently to allow the motor car to pass.]

5 As has been pointed out before in this Court it is virtually impossible to deal satisfactorlly with an appeal on the question of the appointment of fault unless the jury's findings on the particular acts of negligence alleged have been taken. In this case the parties did not request nor did the judge on his own motion specify in the questions to the jury the particular acts of negligence so that it is not possible to say whether the jury found the defendant guilty of all of the three acts of negligence I have referred to or fewer than three of them. One must proceed, therefore, on the basis that as there was evidence from which the jury could have found against the defendant on all three that they did so find. One must assume also that the jury found negligence on the part of the Plaintiff in the particular to which I have reffered although in his case also the jury was not asked to deal with a specific act or acts of negligence. I think it is necessary to draw attention once again to what I said in my judgment in O'Leary v.O'Connell [1968] I.R. 149 and in my judgment in Cantillon v.Collins 104 I.L.T.R. 1 and to stress once again that unless juries are asked for specific answers in respect of specific acts of negligence allaged it becomes virtually impossible for this Court to question an apportionment of degress of fault between the parties. There is no reason why a jury's actual finding on acts of negligences alleged and contested in a case should not be taken. Because of the omissionto do so in the present case this appeal must be decided on the basis that all the allegations of negligence made against both the defendant and the Plaintiff which are supportable on the evidence must be assumed to have been found established by the jury though the fact may have been otherwise. In actions of this nature parties in their own interests should ask for such findings. In the present case on the assemptions which must be made by this Court there does not appear to me to be any good ground for saying that the apportionment of fault made by the jury is one which no reasonable jury could have made, and the principle laid down by this Court in many cases, all of which may be found listed in O'Leary v. O'Connell (1968) I.R. 149 and Kane v. CohenLimited (5th July, 1968), should be applied and the appeal on apportionment ought to be dismissed.

6 I now come to the issue of damages. The Plaintiff's claim for damages fell under four heads, namely, that he had endured pain and suffering from the date of the accident, that in future he would suffer certain pain and physical incapacity due to the accident, that he had suffered financial loss up to the date of the trial and that for some years in the future he will suffer financial loss attributable to the accident. The jury was in fact permitted to and not requested to do otherwise than to award one global figure.It is now claimed that the damages awarded were excessive and this Court is left to divine as best it can what sums the jury could reasonably have awarded and did in fact award in respect of the various headings already mentioned. This is also an unsatisfactory position and the jury should have been asked to assess the damages under each of the headings particularly as the damages included a substantial claim for prospective loss of earnings attributable to the accident. Following the view expressed in this Court in the judgment in McArdle v. McCaughey Brothers Limited (1968) I.R. 47 and also expressed on other occasions in this Court this desirable practice has been adopted frequently in claims of this nature coming for trial in the High Court before a jury. Again it should be stressed that it is in the interests of the parties themselves to have this done. Otherwise every verdict for damages in global from must be construed as amounting to a finding of the maximum which is reasonably open under each of the heading though in fact the jury may have had a different approach. This must now be the approach for the purpose of this appeal.

7 The Plaintiff suffered a broken collar-bone with the spur of the bone sticking up round the end of the collar-bone into his throat. He had a fracture of the shoulder-blade, several fractured ribs, some of which united in a good position but on united in a bad position causing depression in his right lung. He sustained a collapse ofboth lungs and had to endure special treatment for that. He had a deformity and depression on the right side of his chest and a bad joining in the inside and of his cellar bone and bad injury to the muscle which works his shoulder because of nerve damage at the time of the accident. The consequence of the latter injury is that there is a certain loss of power in the use of his arm. There in also a loss of power in his right shoulder and by reason of the injury to his lung his breathing is limited to some extent and it was advanced on his behalf by his medical vitnesses that his expectation of life might be somewhat affected by the injury to his lung. Before this accident he had had another accident in 1937 which left him with an injury to his back so that to that extent he was even a worse subject for the present accident than another person might have been. The result of his earlier accident was such that even if he had not had the accident in question in this care he would at the expiry of about seven years from the date of the most recent trial have been unlikely to have been able to continue in the job he had before the accident because of the increasing aggravation of the back condition. To that extent, therefore, his incapacity was advanced by that number of years by the present accident. By reason of the accident for the future his earning capacity is diminished for the next six or seven years by...