Louie Dunphy v Helen O'Sullivan

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 11 June 2021
• Neutral Citation: [2021] IECA 171
• Docket Number: Record Number: 2020/54
• Date: 11 June 2021
• Court: Court of Appeal (Ireland)

Between:

Louie Dunphy

Plaintiff/Respondent

and

Helen O'Sullivan

Defendant/Appellant

[2021] IECA 171

Donnelly J.

Noonan J.

Binchy J.

Record Number: 2020/54

High Court Record Number: 2018/10179P

THE COURT OF APPEAL

Personal injuries – Liability – Damages – Respondent seeking damages for personal injuries – Whether the appellant was liable

Facts: A road traffic accident occurred at about 8:15pm on the 11th February, 2017 at Cuffe Street in Dublin. The plaintiff/respondent, Mr Dunphy, was driving his taxi when it was struck from behind by the defendant/appellant, Mr O’Sullivan, in a relatively low speed impact. The plaintiff claimed to have suffered personal injuries as a result. While the defendant did not deny that she drove negligently, she claimed that the impact was so minor or trivial as to be incapable of causing injuries to the plaintiff. Liability was accordingly denied on that basis. The High Court (O’Hanlon J), on the liability question, concluded that the impact of the defendant’s vehicle could have exceeded the threshold of velocity which could result in the plaintiff suffering the injuries he described. The trial judge accepted the evidence on behalf of the plaintiff that an impact can occur with minor damage which can cause injury to the occupant of a vehicle; construction of bumpers is such that relatively severe bumper to bumper impacts can occur where no visible exterior damage is evident. The trial judge assessed the plaintiff’s damages, having regard to the Book of Quantum, at €50,000 for pain and suffering to date and €15,000 for pain and suffering into the future together with special damages agreed at €4,193.82. The total award was thus €69,193.82. The defendant complained that the trial judge erred in her assessment of the medical and engineering evidence in holding that the accident could have caused the injuries complained of by the plaintiff. There was further a complaint about the quantum of the award.

Held by the Court of Appeal (Noonan J) that the trial judge was perfectly entitled to accept the evidence given on behalf of the plaintiff by Mr Culleton. Noonan J held that Mr Culleton was eminently qualified to give that evidence and did so in a coherent and logical fashion; his evidence was not contradicted to any significant degree by the defendant’s expert, Mr Walsh. Noonan J held that the trial judge’s finding on the credibility issue was one that was clearly open on the evidence as a whole. Noonan J was satisfied that the trial judge was perfectly entitled to prefer the evidence of Professor O’Toole, consultant orthopaedic surgeon, over that of Professor Fenelon, the only medical witness called on behalf of the defence. Noonan J held that while the award could be viewed as being somewhat on the generous side overall, it could not be said to be so disproportionate as to amount to an error of law, that being the relevant test: Rossiter v Dun Laoghaire Rathdown County Council [2001] 3 IR 578.

Noonan J dismissed the appeal. His provisional view on the issue of costs was that as the plaintiff had been entirely successful in this appeal, he should be entitled to his costs.

Appeal dismissed.

JUDGMENT of Mr. Justice Noonan delivered on the 11th day of June, 2021

1 This claim arises out of a road traffic accident that occurred at about 8:15pm on Saturday the 11th February, 2017 at Cuffe Street in Dublin. The respondent (the plaintiff) was driving his taxi when it was struck from behind by the appellant (the defendant) in a relatively low speed impact. The plaintiff claims to have suffered personal injuries as a result. While the defendant does not deny that she drove negligently, the primary issue in the case is her claim that the impact was so minor or trivial as to be incapable of causing injuries to the plaintiff. Liability is accordingly denied on this basis. The facts and evidence are set out in detail in the judgment of the trial judge (O'Hanlon J.) and accordingly I propose to refer only to the salient features relevant to this appeal.

Evidence on liability

2 The plaintiff's evidence was that immediately prior to the impact, he was stationary at a yellow box as there was a line of traffic in front of him. As this line began to move, he took his foot off the brake but before he began to move, the defendant's vehicle collided with him propelling him forward. His vehicle was a Mercedes E-Class and the defendant was driving a Volkswagen Golf. Post-accident, the defendant apologised saying she was completely at fault. The plaintiff took photographs of the vehicles on his mobile phone. It was not in dispute that the damage to the plaintiff's Mercedes was relatively slight. The cost of repairs was estimated at €563.82. This consisted primarily, if not entirely, of labour and paint, no parts on the Mercedes requiring replacement.

3 The situation regarding damage to the Volkswagen Golf was however different. It suffered quite extensive frontal damage estimated to cost €4,128.82 to repair and this rendered the vehicle an economic write-off. As was pointed out in the evidence of the various experts, while the front plastic and metal parts of the Golf, designed to crumple in an accident, were extensively damaged, the centre section of the front bumper reinforcement bar, made of what was described as “Wolfsburg steel”, was damaged by being indented and pushed back in the centre.

4 Evidence was given on behalf of the plaintiff by Mr. Pat Culleton, a Chartered Engineer, Chartered Physicist and Chartered Scientist with 35 years' experience in forensic investigations and expert testimony. His primary degree is in physics and maths and he also has a master's degree in physics and a master's degree from the Department of Mechanical Engineering in UCD. He has three post-graduate qualifications in civil, structural and environmental engineering. He said he is a forensic engineer who investigates accidents for a living. Mr. Culleton met the plaintiff at the locus of the accident, interviewed him and took photographs.

5 He was advised by the plaintiff that his car travelled about a car length as a result of being struck from behind. Mr. Culleton estimated that this meant the Mercedes went from 0 to 11.5 miles per hour during the impact and then stopped. He noted from the photographs of the defendant's car that it had sustained substantial damage. There was distortion of the heavy steel box section behind the plastic front bumper which was pushed rearwards. The bonnet was crumpled. He said the front cross-member behind the front bumper of the Golf was made of heavy gauge Wolfsburg steel which was distorted rearwards, indicating a substantial impact.

6 In cross-examination, Mr. Culleton accepted that the bumper on the Mercedes was not deformed by the impact. He agreed that this indicated that the impact was not that severe. However, he said that the Mercedes had taken a hit sufficient to cause injury. It was put to Mr. Culleton that the defendant's experts would say that the Golf had been subjected to heavy frontal damage costing some €14,000 to repair in an earlier accident in 2010, in effect suggesting that this might explain the extent of the damage in the index accident. Mr. Culleton strongly refuted this thesis which he described as “staggering”. It was put to him that it was a very minor impact and in response, Mr. Culleton said that he was not saying it was severe but rather agreed it was a minor impact but sufficient to cause injury.

7 The defendant gave evidence that she was 37 weeks pregnant at the date of the accident. She said she sits quite close to the steering wheel normally but had possibly allowed a little more room because of the pregnancy bump. She said that she did not make contact with the steering wheel as a result of the impact nor did the airbags in her car inflate. She described the impact as “mild”.

8 Two experts were called on behalf of the defence on the liability issue. Mr. John Barnwell was described as a motor engineer employed by Aviva Insurance, the defendant's insurer. He had prepared the estimate of damage in respect of the plaintiff's car. He described the impact to the Mercedes as “light” with no distortion of the rear bumper reinforcement. It required no replacement parts. He described the damage to the Golf as being “moderate impact damage”.

9 The defendant's second expert was Mr. Seamus Walsh, a forensic collision investigator. He is a former Garda Sergeant who had been in the force for 35 years, mostly spent as a PSV Inspector. He had a City and Guilds level certificate in Forensic Collision Investigation and investigated many accidents. He had studied the involuntary movement of persons in road traffic accidents as part of routine collision investigation. Contrary to Mr. Culleton's view, Mr. Walsh was of opinion that the impact had the effect of increasing the speed of the Mercedes by a nominal 4.3 km/h.

10 He said this would have such little effect on the occupants of the Mercedes as to be barely noticeable. He described the impact as “relatively light”. Such an impact would, in his opinion, give rise to a level of movement of persons in the car only marginally greater than they would experience in normal driving. In cross-examination, Mr. Walsh accepted counsel's suggestion that the impact was not minimal and he conceded that it was a little more than that.

Evidence on quantum

11 The plaintiff was born on the 10th July, 1952 and was thus 64 years of age on the date of the accident. He claims to have suffered soft tissue injuries to his left shoulder, chest and lower back. The plaintiff did not immediately appreciate that he was injured and the damage to his car was comparatively slight so that it could still be driven. Accordingly, he continued to work that evening, dropping his fare to her destination. His evidence was that it was on the following Thursday that he found himself...