Moore v Advanced Tyre Company Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Irvine |
| Judgment Date | 31 January 2017 |
| Neutral Citation | [2017] IECA 10 |
| Date | 31 January 2017 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2017] IECA 10 Appeal No. 2015/563 |
[2017] IECA 10
Neutral Citation Number: [2017] IECA 10
Appeal No. 2015/563
THE COURT OF APPEAL
Personal injuries – Road traffic accident – Apportionment of liability – Appellant seeking damages – Whether trial judge erred in law in concluding that the primary obligation rested with the appellant to avoid the road traffic collision
Facts: The plaintiff/appellant, Ms Moore, appealed to the Court of Appeal against the judgment and order of the High Court (Fullam J) of 20th October 2015 made in a personal injuries action brought in respect of injuries sustained by her in the course of a road traffic accident on 2nd May 2013. Her appeal concerned the apportionment of liability found by the trial judge, i.e. 85% as against her and 15% against the defendant/respondent, Advanced Tyre Company Ltd, and also his award of general damages in the sum of €60,000. Ms Moore, submitted that the trial judge erred in law in concluding that the primary obligation rested with her to avoid the collision. As to quantum, Ms Dillon submitted that the trial judge erred in law in that he did not award any general damages in respect of pain and suffering into the future, notwithstanding his apparent acceptance of the evidence that Ms Moore required further surgery to remove the wires in her elbow in order that she might regain full extension of the joint. Ms Dillon asked the Court of Appeal to set aside the award of damages made by the trial judge and to replace it with an award of damages to reflect the extent of likely future pain and suffering ignoring any considerations based her obligations to mitigate her loss.
Held by Irvine J that she was satisfied that the trial judge erred in law in the manner of his approach to the issue of contributory negligence. On the basis of the facts found by the High Court judge she was satisfied that his apportionment of liability as to 85% negligence on the part of the plaintiff and 15% negligence on the part of the defendant was disproportionate to the point that his finding must be set aside. She proposed that liability should be apportioned such that the respondent should be found 60% liable in respect of Ms Moore’s injuries. As to general damages Irvine J was not satisfied that Ms Moore has discharged the burden of proof to demonstrate that the award of €60,000 in respect of general damages should be set aside in favour of any greater sum.
Irvine J held that she would allow the appeal insofar as the liability issue was concerned.
Appeal allowed.
This is the plaintiff's appeal against the judgment and order of the High Court (Fullam J.) of 20th October 2015 made in a personal injuries action brought in respect of injuries sustained by her in the course of a road traffic accident on 2nd May 2013. Her appeal concerns the apportionment of liability found by the trial judge, i.e. 85% as against her and 15% against the defendant and also his award of general damages in the sum of €60,000.
The plaintiff (‘Ms. Moore’) was born on 24th September 1957 and was at the relevant time a customer services advisor with the hardware retailer B & Q. The defendant (‘Advanced Tyre’) is the owner and occupier of a garage premises located at Swords, Co. Dublin. Mr. Mahon, the driver of the motor vehicle implicated in these proceedings, was an employee of Advanced Tyre.
Ms. Moore maintained that on 2nd May 2013, immediately prior to the events the subject matter of this claim she was cycling her bicycle along a footpath proximate to the defendant's premises. She was travelling in the Dublin Swords direction. Roadworks were taking place on the adjacent roadway with the result that the roadway, which customarily accommodated one lane of traffic in either direction, was reduced to one lane for traffic travelling out of Swords in the direction of Dublin. As she approached the premises of Advanced Tyre which was to her left hand side, Mr. Mahon was exiting the car park with a view to joining the aforementioned lane of traffic. He was looking to his left and was, according to Ms. Moore, listening to music with his window open. As he emerged onto the footpath and across her proposed path of travel in one continuous slow movement, she shouted at him to alert him of her approach, but he kept going. Ms. Moore then found herself having to take last minute evasive action which she did by cycling around the bonnet of his car onto the roadway. In the course of this manoeuvre she fell heavily to the ground on her left elbow and sustained serious injuries to which I will later refer.
Mr. Mahon on the other hand maintained that Ms. Moore had been cycling on the roadway and that he had seen her as he brought his car to a stop well short of the kerb. He was satisfied that the reason she fell from her bicycle was that the pillows she was carrying on her back carrier had caught the front of his car as she sought to mount the footpath to get out of the way of oncoming traffic.
In his ex tempore judgment the trial judge accepted Ms. Moore's evidence that she had always been cycling on the footpath. It was illogical that she would cycle against the oncoming traffic in circumstances where she would have to escape to the safety of the footpath every time a motorist advanced in her direction. He also found that Ms. Moore had been cycling at a jogging pace as events unfolded. In his judgment, the trial judge expressed himself satisfied that Mr. Mahon had indeed seen Ms. Moore as he exited the defendant's premises but had nonetheless emerged onto the footpath without looking to his right i.e. in her direction.
As a matter of law the trial judge concluded that the ‘primary obligation in this case was on the plaintiff to take care’ and held her guilty of contributory negligence to the extent of 85%. In doing so he relied upon the following factors:-
(i) She should not have been cycling on the footpath, something he described as a fact of life.
(ii) She had seen Mr. Mahon's car emerging and it behoved her to avoid the accident by stopping and getting off her bike.
(iii) She was cycling too quickly.
Insofar as Mr. Mahon's culpability was concerned, the trial judge concluded that he had been negligent in emerging without looking to his right.
Ms. Patricia Dillon SC, of behalf of Ms. Moore, submits that the trial judge erred in law in concluding that the primary obligation rested with Ms. Moore to avoid the collision. She submits that having regard to his finding that Mr. Mahon emerged without looking to his right and consequently never saw Ms. Moore that it was perverse to find her 85% responsible for her injuries.
Counsel accepts that as a matter of law and in particular by reason of Regulation 13 of the Road Traffic (Traffic and Parking) Regulations 1997 (‘the Regulations’), her client was not permitted to cycle along the footpath. However, she submits that Mr. Mahon was also under an obligation pursuant to Regulation 8 to yield right-of-way to all vehicles and pedestrians proceeding in either direction when seeking to enter a public road from private premises, as was the case here. She also seeks to rely upon Regulation 5 which provides that where compliance with a Regulation is not possible as a result of an obstruction to traffic or pedestrians or because of an emergency situation, the restrictions otherwise provided may not apply.
In addition to his breach of Regulation 8, Ms. Dillon relies upon the clear breach on the part of Mr. Mahon of his common-law obligations to take reasonable care to ensure that he did not, by his actions, endanger Ms. Moore's safety. He ought to have anticipated, as he prepared to move out onto the footpath, the potential presence of a wide variety of persons such as joggers, pedestrians, skateboarders and indeed cyclists.
In terms of the Court's apportionment of liability, Ms. Dillon seeks to rely upon a number of decisions concerning the blameworthiness of those who knowingly get into a car with an intoxicated driver and later sustain injury. In those cases the courts have been reluctant to attribute more than 30% or 40% responsibility to the passenger. By that yardstick, and having regard to the findings of fact made by the trial judge, she submits that little or no liability should have been allocated to her client. This was particularly so in circumstances where the roadway which would normally have been available to her was not so available by reason of the ongoing road works. In evidence she had stated that she was reluctant to take the additional risk of cycling on a dual carriageway which was the only alternative route to her place of work.
As to quantum, Ms. Dillon submits that the trial judge erred in law in that he did not award any general damages in respect of pain and suffering into the future, notwithstanding his apparent acceptance of the evidence that Ms. Moore required further surgery to remove the wires in her elbow in order that she might regain full extension of the joint.
Counsel's second submission concerns a statement by the trial judge in the course of his judgment concerning the reluctance on the part of Ms. Moore to have the further surgery which had been recommended by her orthopaedic surgeon. In this regard, immediately prior to pronouncing his award, the trial judge referred to Ms. Moore's obligation to mitigate her losses and did so in the context of the evidence she have given concerning her reluctance to have the aforementioned surgery. That being so, Ms. Dillon invites this Court to infer that he...
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