McEneaney v Monaghan County Council

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 26 July 2001
• Neutral Citation: [2001] IEHC 114
• Court: High Court
• Docket Number: No. 7538P/1996
• Date: 26 July 2001

[2001] IEHC 114

THE HIGH COURT

No. 7538P/1996

McENEANEY v. MONAGHAN CO COUNCIL & COILLTE TEORANTA

BETWEEN

BRENDAN McENEANEY

PLAINTIFF

AND

COUNTY COUNCIL OF THE COUNTY OF MONAGHAN AND COILLTE TEORANTA

DEFENDANTS

Citations:

CIVIL LIABILITY ACT 1961 S34(1)

CIVIL LIABILITY ACT 1961 S2

SINNOTT V QUINNSWORTH 1984 ILRM 523

CONLEY V STRAIN 1988 IR 628

HAMILL V OLIVER 1977 IR 73

REEVES V CARTHY 1984 IR 348

WAGON MOUND, THE 1961 AC 388

BURKE V JOHN PAUL & CO LTD 1967 IR 277

SALMOND ON THE LAW OF TORTS 16ED 202

WELLS V WELLS 1998 1 AC 345

COOKE V WALSH 1983 ILRM 429

COOKE V WALSH 1984 IR 725

WELLS V WELLS 1998 3 AER 481

COOKSON V KNOWLES 1978 2 AER 604

KEALY V MIN FOR HEALTH 1999 2 IR 459

REDDY V BATES 1984 ILRM 197

COOKE V WALSH 1984 ILRM 208

Synopsis

TORT

Personal injuries

Road traffic accident - Liability of local authority - Causation - Failure to include drain in construction of road - Damages - Quantum - Actuarial evidence - Evidence as to applicable interest rates - Driving in excess of the speed limit - Failure to wear seatbelt - Whether local authority negligent in construction of road - Whether plaintiff guilty of contributory negligence - Roads Act, 1993 section 76 - Civil Liability Act, 1961 section 34 (1996/7538P - O'Sullivan J - 26/7/01)

McEneaney v Monaghan County Council

The plaintiff had been severely injured in a road accident when the car which he was driving skidded on a patch of ice. The plaintiff sued the first named defendant on the basis that they had constructed the piece of roadway without including the necessary drainage which the plaintiff claimed would have prevented the formation of ice. The case against the second named defendant had been discontinued. Mr. Justice O’Sullivan was satisfied that the failure to construct a drain amounted to a breach of duty which constituted negligence. The plaintiff was guilty of contributory negligence in driving at an excessive speed. It had not been demonstrated that the plaintiff had contributed to his injuries by his failure to wear a seatbelt. A total of £3,574,369 would be awarded which would be reduced to £2,382,913 taking into account the finding of contributory negligence.

O'Sullivan J.

1 The plaintiff was born on the 9th December 1972 the second of six children of Seamus and Helen McEneaney of Castleblaney, Co. Monaghan.

2 When aged 15 the plaintiff got a part-time job in a garage, he became an apprentice mechanic in 1989, qualified in 1993 and started to work as a mechanic from home and then got a job driving a delivery van around the north east of the country.

3 He is of a sociable disposition, interested in sports particularly the G.A.A., where he trained regularly twice a week with the junior club and played a match once a week; he was interested in motor sports.

4 In the beginning of 1994 he met Maeve McCaughey and they started going out together once or twice a week. On the evening of Sunday the 13th February, 1994 they decided to go out to celebrate the eve of St. Valentine's Day and the plaintiff collected Ms. McCaughey at between 6 and 7pm having travelled some twelve miles to her home at Castleshane outside Castleblayney. They went to the Glencairn Hotel, later to the Spectrum Pub and later again back to the Glencairn where there was a disco which went on to 2: 00 or 2:30am. The plaintiff and Ms. McCaughey left about an hour before that, however, because the plaintiff had to work the next morning. It was a cold night and he set off to drive Ms. McCaughey to her home at Castleshane travelling in the Monaghan direction. As they were travelling he had to slow down to pass through a line of cones which he did without difficulty and then resumed his speed travelling in a northerly direction on the newly surfaced national road between Castleblayney and Monaghan. As he approached a fast super-elevated bend to his left, his car suddenly went out of control having skidded on a patch of ice, travelled across the centre of the road, across the oncoming carriageway, the hard shoulder, the soft shoulder, through a fence and eventually hit a tree. While it was careering across the road it went through a turn of approximately 180 degrees so that the impact with the tree occurred at the right hand rear corner of the car. The plaintiff was found facing down some 10 feet further on away from the car and most likely was catapulted backwards out through the rear window. His passenger Ms. Caughey was found hanging by her seat belt, the car having come to rest on its left side. The plaintiff was not wearing a seat belt.

5 The plaintiff sustained catastrophic injuries as a result of this accident. His spinal cord has been severed between the fifth and sixth thoracic vertebrae resulting in complete paralysis below the level of the nipples of his chest with the inevitable tragic paraplegia, loss of all sensation and useful movement below this level, loss of control of bladder and bowel function, loss of sexual sensation and meaningful function and continuing vulnerability to injury including pressure sores to the lower portion of his body. In this context fractures to his left jaw, breastbone and two ribs pale into insignificance. He was taken to Monaghan General Hospital and later the same day to the Mater Hospital in Dublin where he was noted to have sustained fractures to the laminae of his 4th, 5th, 6th and 7th thoracic vertebrae as a result of which a metal implant was inserted from his 1st to his 9th thoracic vertebrae. As a consequence of this catastrophic injury the plaintiff has, to the date of the hearing of this action in June, 2001 had more than seven years of almost uninterrupted pain and suffering, commencing with the operation in the Mater Hospital in Dublin, followed by a stay in the rehabilitation clinic in Dun Laoghaire. I will set out a summary of the plaintiff's injuries, efforts to rehabilitate himself and prepare himself for some kind of working life in the future at a later point in this judgment.

6 Against the first defendant as Road Authority the plaintiff says that they were negligent and in breach of their duty to him in and about the design and maintenance of their road and in particular because at the bend in question they failed to provide a french drain which would have collected water which seeped from the slope on the adjoining lands to the east (that is to the plaintiff's right as he approached the bend and owned by the second defendant) and travelled onto the road, thereby creating a localised hazard so that it was foreseeable that on a night such as the one in question a patch of black ice would form in circumstances which would not be predictable to the driver of a car.

7 This road was realigned in 1965 and had just been resurfaced in the months prior to the accident and indeed some of the cones associated with those works were still in place on the night of the accident. The 1965 realigned road replaced an earlier one further to the west (and further from the second defendant's lands) which was about 1 metre higher and which did have a drain to the east thereof unlike the road built in 1965 and resurfaced just prior to the accident.

8 Against the second defendant the plaintiff suggests that their lands (which sloped upwards from the road at a gradient of approximately 1 in 5) contained some channels which facilitated the flow of water onto the first defendant's road and it was further claimed by the first defendant against the second defendant that the latter had a duty under Section 76 (5)(b) of the Roads Act1993to take reasonable steps to prevent such water flowing onto the public highway.

9 At the conclusion of the plaintiff's evidence on liability, counsel for the second defendant applied for a dismiss of the plaintiff's claim against his client and both defendants having intimated that they intended to go into evidence should that application not succeed, I deferred an adjudication thereon until I had heard all the evidence. Following this the first defendant called one witness and one witness only, namely Mr. Eugene Daly, a hydrogeologist who gave evidence that it would have been possible for the second defendant to prevent the water flowing from the second defendant's lands onto the roadway by constructing an interceptor drain some 200–300 yards long and 1–1½ metres deep at a cost of some £5,000.

10 Following this counsel for the second defendant made an application for a nonsuit of the first defendant's claim for contribution and indemnity against his client to which I acceded; my reasons are available on the transcript. At this point counsel for the second defendant renewed his application for a nonsuit of the plaintiff's claim against him and counsel for the plaintiff indicated that he was not opposing such application and accordingly I acceded to the application with the result that the second defendant had no more interest in the case save in regard to costs.

11 As a result the issues on liability with which I have to deal in this judgment concern only the issues arising between the plaintiff and the first defendant.

12 In the absence of rebutting evidence called on behalf of the first defendant it is necessary only to summarise briefly the evidence on liability called by the plaintiff.

13 Mr. Paul Romeril, the well known forensic engineer, gave evidence that the design speed of the road in wet conditions was 120 kilometres per hour and certainly 112 kilometers per hour equating to 70 miles per hour. In dry conditions the speed limit would be determined by the vehicle.

14 The source of the water at the point of the accident was ground water seeping through a vertical face which had been cut into the rising terrain to accommodate the super elevated curve of the road. The "springline" had been cut through and he referred to photographs showing water emerging from the cut. Because there had been no...