Kelly v Groupama

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 20 April 2012
• Neutral Citation: [2012] IEHC 177
• Court: High Court
• Date: 20 April 2012

[2012] IEHC 177

THE HIGH COURT

[No. 5675 p/2010]

Kelly v Groupama

BETWEEN

PETER KELLY

PLAINTIFF

AND

GROUPAMA

DEFENDANT

EUROPEAN COMMUNITIES (FOURTH MOTOR INSURANCE DIRECTIVE) REGS 2003 SI 651/2003

EEC REG 864/2007

TORT LAW

Personal injuries

Conflict of laws - Injury incurred in France - Assessment of damages - Choice of law - French law - Whether practice of French judges to have regard to book of previous awards non-obligated practice - Whether court bound by previous awards of French judges - Whether assessment of damages matter of practice - Whether court could have regard to levels of compensation in Irish courts - Categories of compensation - Temporary disablement - Pain and suffering - Deprivation or disruption of specific practices or activities - Permanent non pecuniary loss - Aesthetic injury - Sexual damage - European Communities (Fourth Motor Insurance Directive) Regulations 2003 (SI 651/2003) - Regulation 864/2007/EC - Damages awarded (2010/5675P - O'Neill J - 20/4/2012) [2012] IEHC 177

Kelly v Groupama

1 The plaintiff in this case was born in 1937 and is an accountant and economist by profession.

2 Whilst on holidays in Cannes, in France, on 16 ^thJune 2009, he was struck by a van, the property of the Municipality of Cannes and driven by a servant or agent of that Municipality. The van was reversed into collision with the plaintiff, striking him on the right side and knocking him to the ground so that he fell on his left side. This caused a fracture of the head of the left femur. He was taken by ambulance to hospital in France and there received appropriate treatment and was then transferred back to St. Vincent's Hospital in Dublin under the care of Mr. Bill Quinlan, a well-known eminent orthopaedic surgeon.

3 I have had the benefit of several reports from Mr. Quinlan which were admitted in evidence by agreement of the parties. These disclose that X-rays taken of the plaintiff when he was admitted to St. Vincent's Hospital confirmed the fracture of the head of the femur. Very unusually, surgery was not necessary because of the excellent position of the fractured bone. It was felt that full recovery would be achieved by a regime of conservative treatment, subject only to the risk of the development of vascular necrosis in the head of the femur. If this did occur, it would require a total hip replacement.

4 Prior to this accident, the plaintiff was a very fit and physically active man who walked four miles a day, most days, cycled, played tennis, engaged in hill walking and was able to fully participate in all of the physical activities associated with his lifestyle as a husband, father and grandfather of several grandchildren, including gardening, lifting and carrying the usual array of heavy objects that are part and parcel of normal domestic activity.

5 I am quite satisfied that the plaintiff's evidence was given in an understated, accurate and truthful manner and it paints a picture of a very significant compromise of his previous range of activity and of considerable pain and discomfort resulting from this fracture. I have no doubt that for several months after this accident, he was very significantly disabled, and whilst he did initially do well, as time went on it became apparent that necrosis had developed in the head of the femur and it is highly probable that he had considerable pain there and an increasing limitation of normal physical activities.

6 It is clear that the plaintiff has been unable to resume cycling or tennis. I am quite sure that the kneeling and bending associated with gardening must have greatly curtailed that activity and the pain and decreasing range of movement in his hip must have significantly limited his walking tolerance.

7 In due course, it became apparent that the necrosis had advanced to a stage where the only viable solution was total hip replacement. This was done on 5 ^th November 2011. The plaintiff has recovered well from this, but by no means has been restored to his pre-accident state.

8 It would seem to me to be probable that even with the success of the hip replacement, it is unlikely that the plaintiff will recover his pre-accident level of activity and is likely to experience some pain and discomfort, particularly in activities such as gardening. It is difficult to envisage him playing tennis again and the agility needed to manage a bicycle safely will probably elude him in the future.

9 This case is unusual because the defendant, as insurer of the van that injured the plaintiff, is sued directly under the provisions of the European Communities ( Fourth Motor Insurance) Directive, incorporated into our domestic law in Statutory Instrument No. 651 of 2003. It is commoncase that the driving of the van on the occasion in question was tortious and imposes a liability on the defendant to compensate the plaintiff. Thus, the case proceeds as an assessment of damages only, but with a difference to the normal assessments encountered in this Court.

10 It is commoncase,...