McLaughlin v McDaid

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 24 January 2018
• Neutral Citation: [2018] IECA 5
• Date: 24 January 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 5 Record No. 2016/96

[2018] IECA 5

THE COURT OF APPEAL

Irvine J.

Irvine J.

Hogan J.

Whelan J.

Neutral Citation Number: [2018] IECA 5

Record No. 2016/96

BETWEEN/

DAVID McLAUGHLIN

PLAINTIFF/RESPONDENT

- AND -

DAMIEN McDAID, MICHAEL McDAID, CHARLES McDAID, McDAID QUARRIES LIMITED

AND

THE MOTOR INSURERS BUREAU OF IRELAND

DEFENDANTS/APPELLANTS

Damages - Injury - Proportionality - Appellants seeking to appeal against the judgment and order of the High Court - Whether sums awarded to the respondent in respect of damages were just, fair and proportionate

Facts: The second, third and fourth defendants/appellants, Mr M McDaid, Mr C McDaid and McDaid Quarries Ltd, appealed to the Court of Appeal against the judgment and order of the High Court (Hanna J) dated the 10th December 2015 whereby the plaintiff/respondent, Mr McLaughlin, recovered damages in the sum of €453,000 and costs as against each of them. The trial judge also awarded Mr McLaughlin his costs to be taxed in default of agreement. The proceedings concerned injuries sustained by Mr McLaughlin to his right foot on the 26th June 2003 at a quarry at Crislaghkeel, Burnfoot, County Donegal which the trial judge found belonged to one or more of the appellants.

Held by Irvine J that the findings of fact made by the trial judge, which were principally made based on his assessment of the credibility of the witnesses who gave evidence before him, could not on the facts of this case, be disturbed. She was also satisfied that the matters relied upon by Hanna J as the basis for his refusal to dismiss Mr McLaughlin's claim under s. 26 of the Civil Liability and Courts Act 2004 were material to the proper exercise by him of his discretion and when taken together provided good and sufficient reason to support his decision that it would have been unjust in all of the circumstances to have dismissed his claim. As to the sums awarded by the trial judge in respect of special damages to date and into the future, Irvine J held that the same were clearly supported by the evidence and could not by reason of that fact be successfully challenged. As to sums awarded in respect of damages for pain and suffering to date and into the future, she was satisfied that the same were just, fair and proportionate having regard to the injuries sustained by Mr McLaughlin and were also proportionate when considered in the context of the scheme of awards commonly made by the courts in respect of injuries of a greater or lesser intensity.

Irvine J held that she would dismiss the appeals.

Appeals dismissed.

JUDGMENT of Ms. Justice Irvine delivered on the 24th day of January 2018

Procedural Background

1 This judgment concerns an appeal brought by the second, third and fourth named defendants/appellants against the judgment and order of the High Court (Hanna J.) dated the 10th December 2015 whereby the plaintiff/respondent, David McLaughlin ('Mr. McLaughlin') recovered damages in the sum of €453,000 and costs as against each of them. The trial judge also awarded Mr. McLaughlin his costs to be taxed in default of agreement.

2 On the 8th July 2016, this court made an order permitting the appellants take up the digital audio recording of the High Court hearing. Regardless of that fact, they did not do so, with the result that this court has determined the within appeal without the benefit of a transcript of the evidence given in the court below. This was only possible because a summary of the evidence given by each witness is contained in the judgment of the trial judge.

3 On the 11th November 2016 the appellants were directed to file and deliver written submissions supporting their appeal by the 31st December 2016. As of the date of the hearing of the appeal ( i.e., the 14th December 2017) no submissions had been filed by Charles McDaid or McDaid Quarries Limited. In the week scheduled for the hearing of the appeal Mr. Michael McDaid filed papers purporting to be submissions in the court of Appeal office. However, this bundle of documents, with the exception of the order made by Noonan J. on the 12th October 2017, is comprised of materials which could have no conceivable bearing on the matters raised by any of the appellants in their notice of appeal.

4 Finally, from a procedural perspective, it should be noted that no books of appeal were lodged by the appellants and the appeal was only able to proceed by reason of the fact that the solicitors on record for Mr. McLaughlin lodged books of appeal with the court some days before the hearing date.

Preliminary rulings

5 Before engaging upon the substantive issues to be considered on the appeal it is material to record that prior to the commencement thereof, the solicitor then on record for McDaid Quarries Limited, Mr. Barry Rafferty, applied to come off record on the company's behalf. He did so in circumstances where he maintained that the relationship of trust and confidence between himself and his client had broken down. Given that there was no objection to Mr. Rafferty's application from Mr. Michael McDaid and/or Mr. Charles McDaid who were present at the time he made his application, the court made the order sought. Accordingly, the appeal proceeded in the absence of any representation on behalf of the company and in circumstances where the court received no written or oral submissions demonstrating why the liability found by the High Court judge against the company should not be upheld.

6 In a separate ruling the court also rejected the submission made by Mr. Michael McDaid that the court, constituted as it was with two female members, could not validly determine his claim. Finally, the court rejected an application made by Mr. Michael McDaid and Mr. Charles McDaid that the appeal be adjourned to await the outcome of a criminal investigation into matters allegedly touching upon the circumstances in which Mr. McLaughlin had sustained his injuries and which they each maintained was crucial to the fair disposal of the appeal.

7 The court rejected the aforementioned application for a number of reasons. First, while the investigation concerned, according to the McDaid's, had commenced further to a complaint which they had made to An Garda Siochána in September 2016, they had waited until the day fixed for the hearing of the appeal to seek an adjournment. Second, the court had no evidence concerning the nature of the complaint and was thereby unable to consider whether the same was material to the appeal. Third, the role of this court is to review the lawfulness of decisions made at first instance based upon the evidence that was available to the court when they were made. In this case the judgment of the High Court judge was delivered on the 10th December 2015. Accordingly, any facts emerging after that date would not be admissible on the appeal, without special leave.

Substantive appeal: Background Facts

8 The within proceedings concern injuries sustained by Mr. McLaughlin on the 26th June 2003. He was seventeen years of age at the time, having been born on the 24th August 1985. He suffered devastating injuries to his right foot at a quarry at Crislaghkeel, Burnfoot, County Donegal which the trial judge found belonged to one or more of the appellants.

9 The trial judge found as a matter of fact that Mr. McLaughlin had been working for McDaid Quarries Limited at the relevant time and that his injuries had been sustained when a fifty five ton Halla 555 track excavator was driven over his foot by a Declan Doherty who was, on the day in question, working for the appellants. As a result of his injuries he was taken to the casualty department of Altnagelvin Hospital where he was diagnosed as having sustained multiple fractures to the toes of the right foot. Mr. McLaughlin spent approximately four weeks in hospital during which time his foot became infected. He underwent a number of surgical procedures in the hope that his toes might be retained. Ultimately the distal half of the right foot had to be amputted with the result that the same is approximately half its normal size and is without toes. He was then wheelchair bound for several weeks before commencing mobilisation with the assistance of crutches. The wounds took several months to heal during which time Mr. McLaughlin suffered significant pain and discomfort.

10 The trial judge found that as a result of his injuries Mr. McLaughlin had been left with an unsightly right foot. He noted the presence of a seventeen centimetre scar to the front of his ankle. He accepted that Mr. McLaughlin had difficulty climbing stairs, that he was unable to perform heavy household tasks and that it was difficult for him to participate in outdoor activities. The trial judge also referred to the fact that he had not been able to engage in any sporting activities since his accident. He also noted that, to his credit, Mr. McLaughlin had managed to return to the work market not long after his injury and that he had managed to remain in full time employment, albeit with the aid of a prosthesis which he would have to wear for the rest of his life.

Judgment of the High Court

11 By his judgment and order, Hanna J. found the appellants negligent and in breach of duty and in breach of statutory duty. He found that they had failed to take proper or adequate precautions for the safety of Mr. McLaughlin. They had failed to provide him with proper training and had permitted him to work with another machine operator in the absence of proper supervision or any means of communication. It was these failings that the trial judge concluded were responsible for the fact that Mr. Declan Doherty ran over Mr. McLaughlin's foot whilst driving the Halla 555 track excavator on the 26th June 2003.

12 The trial judge proceeded to award Mr. McLaughlin a sum of €100,000 in respect of pain and suffering to date and a further sum of €150,000 in respect of...