Kellie Quinlivan v Motor Insurers' Bureau of Ireland
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 06 July 2021 |
| Neutral Citation | [2021] IEHC 472 |
| Docket Number | [2017 No. 8614 P] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 472
[2017 No. 8614 P]
THE HIGH COURT
JUDGMENT of Mr. Justice Twomey delivered on the 6th day of July, 2021
INTRODUCTION
This is a case which considers claims for personal injuries where there is no witness to the accident and so this Court must bear in mind two key issues:
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• the high onus on the plaintiff to prove on the balance of probabilities that the accident occurred as she claimed – in this case because of a diesel spillage, which could make the MIBI liable, rather than some other cause, such as her excess speed, and,
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• in light of the financial incentive for the plaintiff to establish that the accident occurred in this manner, since her repair costs and personal injuries will be paid by the MIBI, an ‘ appropriate scepticism’ (per the Supreme Court in Rosbeg Partners v. LK Shields Solicitors [2018] 2 I.R. 811 at 823) must be applied to a plaintiff's claim, not because of any dishonesty on a plaintiff's part, but simply because human nature is such that memories and accounts tend to become ‘ unwittingly adjusted’ because of the potential financial consequences for that plaintiff of their evidence.
As noted below, evidence of how a plaintiff's memory can be become ‘unwittingly adjusted’ is provided in this case, where the plaintiff failed to give details of a previous accident to the defendant's doctor (from whom she was seeking compensation), but remembered to tell her own doctor. Indeed, how much a person's memory can become unwittingly adjusted is starkly highlighted by the fact that Ms. Quinlivan told her own doctor (in support of a claim for PTSD) that:
“the front of her car had burst through the wall on the bridge, which had a 30ft drop underneath onto the railway tracks”,
thus giving the impression of her car overhanging a precipice (when in fact there was little damage to the bridge and the car came to rest in the middle of the road).
The plaintiff (“Ms. Quinlivan”) seeks damages for personal injuries from the defendant (“MIBI”) in relation to a single vehicle accident in which she was the driver and sole occupant of a car on the 6th July, 2015. She was a learner driver at the time of the accident and was driving unaccompanied (which she accepted was in contravention of the law), when she claims that her car skidded on diesel which caused her to crash into a bridge on a dangerous S bend on a secondary road between Borris-in-Ossory and Rathdowney in County Laois.
Ms. Quinlivan claims that she is entitled to compensation from the MIBI because the diesel on the road was caused by the negligent use of a vehicle by an unidentified driver.
She is claiming for injury to her back and this is the second of three separate accidents in which she has suffered such injuries. In 2010 she was involved in a car accident and recovered €20,000 in compensation for injuries to her shoulder and back from Tipperary County Council, when the car she was in went into a pothole. In 2018, she was involved in a third car accident in which she received €50,000 as a settlement in relation to damages to her back, neck and shoulder. Thus there is a significant overlap between those injuries and the injuries claimed in this case.
The MIBI claims, inter alia, that Ms. Quinlivan was the only witness to the accident and that in all the circumstances she has failed to discharge the onus upon her to prove that the diesel on the road (which the MIBI says was on the flat part of the bridge), was the proximate or legal cause of the accident, rather than some other cause, such the speed at which she was driving into a dangerous bend (and in this regard, Ms. Quinlivan gave evidence that she was travelling at a speed of approximately 50 kmph, when engineering evidence was provided that a safe speed was 40 kmph on a dry day, but this was a wet day).
The MIBI also claim that even if Ms. Quinlivan had established that the diesel was the proximate cause of action, she has failed to provide any evidence that its presence was caused by the ‘ negligent use of a vehicle’ as required by the relevant MIBI Agreement.
For the reasons set out, this Court finds that Ms. Quinlivan has not discharged the ‘high onus’ on her to prove on the balance of probabilities that the accident occurred as she claimed it did, since she was the only witness to the accident.
In addition, this Court concludes that even if Ms. Quinlivan had satisfied the Court that the accident had so occurred, she has not provided any evidence to support a finding that the alleged diesel spill was caused by the negligent use of a vehicle, so as to affix the MIBI with liability. In particular, this Court concludes that it is bound in this regard by the Supreme Court decision in Rothwell v. MIBI [2003] 1 I.R. 268. This Court concludes that the fact that the current MIBI Agreement (the Agreement dated 29th January, 2009) uses the term ‘ negligent use of a vehicle’ rather than ‘ negligent driving of a vehicle’ (applicable in the Rothwell decision) does not make that decision, on the question of providing evidence to establish negligence, any less binding on this Court.
Evidence was given by Ms. Quinlivan in relation to both the circumstances of the accident and the injuries she sustained as a result of the accident. She gave evidence to this Court that at the time of the accident she was working as a health care assistant and that on the morning of the accident, on 6th July, 2015, she was on her way to a client's house. Her evidence in relation to the accident was that the morning in question was wet but bright and as she was travelling to her client's house, she approached a bend in the road just before a small humpback bridge and she felt the back of her car skid in a ‘snake-like’ motion. Ms. Quinlivan gave evidence that she attempted to bring the car back under her control but was unable to do so and her car then crashed into the left side of the bridge, spun around and stopped on the opposite side of the road.
Ms. Quinlivan's evidence was that she saw a ‘ rainbow’ colour on the road after the accident and her belief is that her car skidded on the road due to a diesel spillage on the road.
Evidence was also given on behalf of the plaintiff by three witnesses who arrived on the scene in the aftermath of the accident (Mr. Daly, Mr. Deegan and Mr. Kirwan).
Mr. Daly gave evidence that he was travelling from the opposite direction to Ms. Quinlivan when he came upon Ms. Quinlivan's car in the middle of the road. He was able to drive past Ms. Quinlivan's car but then decided to move Ms. Quinlivan's car to the opposite side of the road as it was blocking both sides of the road. His evidence to the Court (some six years after the accident) was that he saw diesel on the road as he approached the accident, however, in his statement to the Gardaí just 24 days after the accident, Mr. Daly stated that:
“The top of the bridge was covered in diesel and the roads were wet”.
Mr. Deegan was travelling in the same direction as Ms. Quinlivan when he came upon the accident. His evidence to the Court was that he didn't notice anything in particular about the road but he also stated that he ‘ looked up’ the road after exiting his vehicle and could see ‘ oil or water’ on the road and that there were two patches in total on the approach to the bridge. However, this evidence was given six years after the accident and it is important to note that Mr. Deegan did not provide evidence to the Gardaí in the immediate aftermath of the accident (unlike Mr. Daly and unlike Ms. Quinlivan). It is also relevant to note that Mr. Deegan accepted in his evidence that he didn't have any difficulty when driving towards the bridge, unlike Ms. Quinlivan.
In his evidence, Mr. Kirwan said that he was also travelling in the same direction as Ms. Quinlivan and he was the first person to arrive at the scene following the accident. He gave evidence that he helped Ms. Quinlivan and that she sat in his vehicle. After Mr. Daly arrived at the scene Mr. Kirwan said that he helped Mr. Daly to move Ms. Quinlivan's car. Mr. Kirwan's evidence was that there was oil on the road but he was unable to say the size of that oil patch nor did he give evidence as to where that oil on the road was located.
Clause 6 of the relevant MIBI Agreement, the agreement dated 29th January, 2009 between the Minister for Transport and the MIBI, states:
“Unidentified or Untraced Vehicle, Owner or User
The liability of MIBI shall, subject to the exclusions of Clause 5 above, extend to the payment of compensation for the personal injury or death of any person caused by the negligent use of a vehicle in a public place, where the owner or user of the vehicle remains unidentified or untraced.”
The first issue to establish therefore is whether Ms. Quinlivan has established on the balance of probabilities that the cause of this accident was the diesel on the road, rather than some other cause, such as her own driving.
It is clear from the decision of Baker J. in Gervin v. MIBI [2017] IEHC 286 (in which she relied upon Bennett v. MIBI (Unreported, High Court, Morris J., 22nd April, 1994) and Walsh v. MIBI (Unreported, High Court, Geoghegan J., 15th May, 1996)) that a person who is making a claim against an untraced driver has ‘ a very high onus’ to discharge that everything she says in relation to the claim is true. This is for the very logical reason that, as is the case here, there is no independent witness to the crash and therefore nobody to contradict the version of events put forward by Ms. Quinlivan who has a financial interest in the claims she is making.
It is important to bear in mind that the standard of...
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