O'Leary v O'Connell

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 05 March 1968
• Date: 05 March 1968
• Docket Number: [1965. No. 1844 P.]

O'Leary v. O'Connell

PATRICK O'LEARY

Plaintiff

and

JOSEPH O'CONNELL, Defendant (1)

[1965. No. 1844 P.]

Supreme Court.

Negligence - Damages - Broken leg - Jury - Apportionment of fault - Distinct findings by jury - Actuarial evidence - Rules of the Superior Courts, 1962 (S.I. No. 72 of 1962), Or. 58, r. 8.

The plaintiff was walking across a road when he was struck by the defendant's motor-cycle and the plaintiff's leg was broken. The plaintiff claimed damages for the negligence of the defendant in a High Court action which was tried before a judge and jury. During the trial the trial judge refused to allow the introduction of evidence of an agreed actuarial calculation of the plaintiff's loss of earnings based on a loss of £1 per week for the remainder of his working life. The jury found that both parties had been negligent, apparently upon the ground that each party had failed to keep a proper look-out. The jury assessed damages at £5,000 (of which £2,000 could be regarded as general damages) and apportioned 85% of the fault to the defendant and 15% thereof to the plaintiff. It was not clear whether the jury had found that the defendant was driving at an excessive speed, but it was clear that they had not found that the plaintiff would be virtually unemployable in the future. The defendant appealed on the ground that the damages so awarded were excessive and on the ground that the apportionment of fault was not justified by the evidence. The plaintiff cross-appealed on the ground that the damages were insufficient, and he also sought liberty to adduce further evidence at the hearing of the appeal.

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Haugh and Walsh JJ.), in dismissing both appeals, 1, that the jury's apportionment of fault should be allowed to stand as it was not grossly disproportionate in the light of the facts established by the evidence.

Donoghue v. Burke [1960] I. R. 314 applied.

2. That the amount of the damages awarded was neither grossly excessive nor grossly inadequate.

3. That the plaintiff should not be given liberty to adduce further evidence.

Per Walsh J.:—(a) ". . . it would be of great assistance to this Court, and indeed to the parties in cases of this nature if the jury were to be instructed to make specific findings in respect of the specific acts of negligence alleged."

(b) ". . . it would be highly desirable in cases of damages, where several elements go to make up the damages ultimately to be awarded and where certain decisions of fact as to future earning capacity and such like have to be decided by the jury before awarding the damages, that the jury should be asked to award damages separately under the various heads which arise in the case . . ."

(c) "It has been decided by this Court in many cases that, where there is a substantial element of future loss of earnings involved in any claim, the evidence of an actuary is not merely desirable but necessary. It is immaterial whether the prospective loss is in respect of a long period or in respect of a short period and whether the period has already commenced or whether it will arise at some stage in the future."

Appeal from the High Court.

The facts have been summarised in the head-note and are stated in the judgment of Mr. Justice Walsh, post.

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

I have read the judgment which Mr. Justice Walsh is about to deliver and I agree with it.

Haugh J. :—

I also agree with the judgment of Mr. Justice Walsh.

Walsh J. :—

On the 31st May, 1964, the plaintiff, while crossing the street known as Evergreen Road in the City of Cork, was struck by a light motor-cycle driven by the defendant and was knocked down and sustained rather serious personal injuries. In an action for damages by the plaintiff against the defendant, tried by Mr. Justice McLoughlin and a jury in the High Court sitting at Cork on the 22nd July, 1966, the jury found that the defendant had been negligent and that the plaintiff had been negligent and they apportioned the degrees of fault between the parties by attributing 85% to the defendant and 15% to the plaintiff. The jury awarded £5,000 damages.

The defendant has appealed against this verdict on the ground that the jury's determination of the proportions of the degrees of fault was perverse and contrary to the evidence, and on the ground that the jury failed to have regard to the directions of the trial judge. The defendant has also appealed on the ground that the amount of the damages awarded was excessive. The plaintiff, by way of cross-appeal, asks for a new trial on the ground that the trial judge wrongly refused to admit in evidence the agreed report of an actuary at the close of the plaintiff's case and, on the question of damages, on the ground that the amount awarded to the plaintiff was inadequate. The latter ground has been construed as being intended to mean that the damages awarded were unreasonably low. The position on the appeal, therefore, is that neither party contests the findings of negligence against both the plaintiff and the defendant and, on the issue of negligence, the appeal is confined...