McWhinney v Cork City Council

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 31 July 2018
• Neutral Citation: [2018] IEHC 472
• Docket Number: [2015 No. 7847 P.]
• Court: High Court
• Date: 31 July 2018

BETWEEN

IAN MCWHINNEY

PLAINTIFF

AND

CORK CITY COUNCIL

DEFENDANT

[2018] IEHC 472

Barniville J.

[2015 No. 7847 P.]

THE HIGH COURT

Damages – Personal injuries – Contributory negligence – Plaintiff seeking damages for personal injuries – Whether the plaintiff was guilty of contributory negligence

Facts: The plaintiff, Mr McWhinney, was a maintenance fitter. In July 2013 he was contacted by the Cork City Fire Station on Anglesea Street. On 22nd July, 2013, while carrying out repairs to the shutter of one of the fire trucks operating from the station, he sustained a serious injury to his left wrist. His personal injuries action was heard by the High Court (Barniville J) on 9th and 10th July, 2018.

Held by Barniville J that he found for the plaintiff on liability. He made a finding of contributory negligence against the plaintiff, which he assessed at 25%.

Barniville J held that he assessed the plaintiff’s general damages to date at €60,000.00 with general damages into the future of €10,000.00, making a total of €70,000.00 for general damages, subject to the appropriate deduction to reflect his finding of contributory negligence. He noted that special damages were agreed at €13,310.00. Overall, he made an award in favour of the plaintiff of €62,482.50

Reliefs granted.

JUDGMENT of Mr. Justice David Barniville delivered on the 31st day of July, 2018

1 This is my judgment in this personal injuries action which was heard before me in Cork on 9th and 10th July, 2018. On 11th July, 2018, I indicated that:-

(1) I would be finding for the plaintiff on liability;

(2) I would be making a finding of contributory negligence against the plaintiff, which I would be assessing at 25%;

(3) I would be assessing the plaintiff's general damages to date at €60,000.00 with general damages into the future of €10,000.00, making a total of €70,000.00 for general damages (subject to the appropriate deduction to reflect my finding of contributory negligence);

(4) Special damages were agreed at €13,310.00;

(5) Overall, therefore, taking into account both general and special damages and the appropriate deduction to reflect my finding of contributory negligence, I would be making an award in favour of the plaintiff of €62,482.50; and

(6) I would give my detailed reasons in a written judgment.

This is that judgment.

Facts: Circumstances of the Accident

2 The facts as agreed or otherwise found by me are as follows. The plaintiff was born on 15th April, 1965 and is now 53 years of age. He is a maintenance fitter. For the past several years he has been employed as a fitter by Petrofac, a multi-national concern, on off-shore oil rigs in the North Sea. Typically, he is required to work for three weeks and is then off work for the following three weeks. The work involved is strenuous and requires him to work both inside and outside oil rigs in particularly tough and inclement weather conditions. He generally works a twelve hour shift.

3 During the plaintiff's periods off work, he normally returns home to his family in Cork. While at home, the plaintiff carries out work on his own account repairing doors and shutters and the like, primarily for businesses who were previously customers of his prior to the commencement of his employment with Petrofac.

4 It was on one of the plaintiff's break periods back in Cork in July 2013 that he was contacted by the Cork City Fire Station (which is under the control and responsibility of Cork City Council, the defendant). The plaintiff was requested to attend at Cork City Fire Station on Anglesea Street to carry out repairs to the shutter of one of the fire trucks operating from the station. He attended at the station on 22nd July, 2013. He drove there in his own van (a Volkswagen Transporter) which had the plaintiff's tools and other accoutrements for his trade in the rear compartment. Having telephoned to announce his arrival, he was admitted to the rear yard of the fire station which is an area not generally accessible to the public save by prior arrangement. There are some designated parking spaces for visitors and others in the rear yard of the fire station. However, they were all occupied when the plaintiff arrived in his van that day. He asked a staff member present whether he could park his van in one of the bays normally used by the fire trucks. It was confirmed to him that he could. He reversed his van into one of the bays. There are at least five such bays in the rear yard of the fire station. There is some uncertainty as to which of the bays the plaintiff parked in. It is probable, however, on the basis of the evidence of Mr. John Fullam, the defendant's engineer, that the plaintiff parked in Bay 3. In any event, it was either Bay 3 or Bay 4. However, nothing much turns on this.

5 Having reversed his van into the particular parking bay, the plaintiff then went in search of the Duty Officer at the fire station from whom he was to take his instructions for the repair job he was being engaged to carry out. The Duty Officer was based in the front of the fire station. To get there, the plaintiff had first to step down from the driver's side of his van and then walk along the side of the van and through the fire station to the Duty Officer's office in the front of the station. Having reported to the Duty Officer and having been told what work was required of him, the plaintiff was then escorted back through the fire station by another fire officer and was shown where the particular fire truck was located which had the faulty or damaged shutter which required repair.

6 The plaintiff states that he asked that officer whether it was alright for him to leave his van parked in the particular parking bay in which he had previously been directed to park and that he also stated that he had left his keys in the ignition in case it had to be moved to make way for another vehicle. He was told that it would be in order for him to leave his van parked where it was. The plaintiff's evidence in that regard was not contested by the defendant and I accept it.

7 The plaintiff then returned to the passenger side of his van, opened the sliding door of the van and got up into the rear compartment of the van to obtain the tools he required for the job. He took some tools out with him, which he held in his right hand. He then backed down out of the rear compartment of the van (apparently not holding on to anything with his left hand as he did so). As he backed out of the rear compartment he put his left foot down onto the ground. Unfortunately, he placed that foot on the sloping side of an uncovered drain which ran across the length of the yard and under the open rear sliding door of the plaintiff's van. The purpose of the drain was to enable excess water to be removed and drained off from the yard. Having put his foot down on the side of the drain, the plaintiff was thrown off balance, fell over and put his left hand out to protect himself from the fall. Unfortunately, the plaintiff sustained a very serious fracture to his left wrist as a result.

8 There is no dispute between the parties that this was how the accident occurred. The defendant's engineer, Mr. John Fullam, who had obviously not witnessed the accident, accepted in evidence that the plaintiff's explanation of the accident was as it had subsequently been reported to him (Mr. Fullam) by a member of the fire station staff who had witnessed it. I have no hesitation in accepting the plaintiff's account of how the accident occurred. The plaintiff struck me throughout as an honest and truthful witness in all respects.

9 The plaintiff stated in evidence that he had not noticed the drain at any point before he was caused to lose his balance and fall. He said on a number of occasions in his evidence that it did not ‘ register’ with him. He accepted that he had visited the fire station on about five or six occasions over the course of the previous year. He also accepted that he would have had to reverse over the drain when parking his van in the parking bay. However, he said that he did not notice it as he was more concerned about protecting the mirrors on his van while reversing into the bay. The plaintiff also stated that he did not notice the drain on the day of the accident while walking from his van into the station in order to speak with the Duty Officer or when he returned to his van to get the tools required for the job from the rear compartment of the van. The plaintiff stated that the presence of the drain did not ‘ register’ with him on any of these occasions. He accepted, however, in cross-examination that in hindsight he probably ought to have noticed it and that it was a ‘ fair comment’ that he ought to have had ‘ more of an eye out’ for it. However, he says that he did not notice it. I completely accept the plaintiff's evidence in that regard. The plaintiff's fair and appropriate concession in cross-examination that he probably ought to have noticed the drain before the accident would undoubtedly provide a basis for a finding of contributory negligence against the plaintiff in the event that the plaintiff established that the defendant was liable for the accident.

10 As noted earlier, the plaintiff sustained a serious injury to his left wrist. I will address the nature of this injury and the treatment received by the plaintiff for it in a later part of this judgment.

Liability Expert Evidence

(a) Plaintiff's evidence

Liability Expert Evidence

11 On the question of liability, the plaintiff called evidence from Mr. Frank Whyte, a consultant engineer. Mr. Whyte attended at the scene of the accident on 5th May, 2015 in the company of an insurance investigator/adjustor representing the defendant. The plaintiff and his solicitor, Mr. Cuthbert, were also present. Mr. Whyte took a series of photographs at the scene and prepared a report for the court (dated 11th May, 2015). Mr. Whyte...