Moran v Fogarty

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan
• Judgment Date: 21 July 2009
• Neutral Citation: [2009] IESC 55
• Court: Supreme Court
• Date: 21 July 2009

[2009] IESC 55

THE SUPREME COURT

Murray C.J.

Denham J.

Finnegan J.

No. 145/2005

Moran v Fogarty

[2009] IESC 55

BETWEEN

ROY MORAN

PLAINTIFF/RESPONDENT

and

SÉAN FOGARTY

DEFENDANT/APPELLANT

HAY v O'GRADY 1992 1 IR 210 1992 ILRM 689 1992/2/502

RSC O.39 r45

JUDGE v REAPE 1968 IR 226

HUSSEY v TWOMEY & ORS UNREP PEART 18.1.2005 2005/30/6285 2005 IEHC 17

O'SULLIVAN v DWYER 1971 IR 275

CIVIL LIABILITY ACT 1961 S34

HUSSEY v TWOMEY & ORS 2009 1 ILRM 321 2009 IESC 1

TORT

NEGLIGENCE

Contributory negligence - Road traffic accident -Plaintiff knowing driver intoxicated - Fault apportioned 85% to defendant and 15% to plaintiff - Appellate jurisdiction of Supreme Court - Findings of fact - Personal injuries - Quantum of damages - Whether credible evidence before trial judge for findings - Whether award within parameters of evidence adduced - Whether ample credible evidence to support trial judge's findings - Whether gross want of proportion in apportionment of fault between parties - Whether any error of law - Overall view of blameworthiness of passenger - Just and equitable apportionment - Whether plaintiff aware defendant incapable of driving safely - Hay v O'Grady [1992] IR 210, The Gairloch; Aberdeen Glenline Steamship Co v Macken [1899] 2 IR 1, People (DPP) v Madden [1977] IR 336, Reddy v Bates [1983] IR 141, Judge v Reape [1968] 1 IR 226, Hussey v Twomey [2005] IEHC 17 (Unrep, HC, Peart J, 18/1/2005) Hussey v Twomey [2009] IESC 1 and O'Sullivan v Dwyer [1971] IR 275 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 58 - Civil Liability Act 1961 (No 41), s 34 - Quantum affirmed but apportionment of 35% increased to plaintiff (145/2005 - SC - 21/7/2009) [2009] IESC 55

Moran v Fogarty

Facts the High Court assessed damages in respect of the plaintiff's injuries sustained in a car crash as follows: 195,000 for loss of earnings to date; 650,000 for loss of earnings into the future; 2,691 for agreed special damages; 25,000 for care and maintenance in the past, 267,792 for care and maintenance in the future; 80,000 for pain and suffering to date and; 140,000 for pain and suffering in the future. It then reduced the total award of assessed damages by 15% on the basis that the plaintiff had been contributorily negligent in travelling as a passenger in a car which he knew or ought to have known was driven by a drunk. The defendant appealed that award to the Supreme Court on the basis, inter alia, that the High Court had erred in failing to: apportion a higher degree of contributory negligence to the plaintiff and; properly evaluate the evidence before it.

Held by the Supreme Court (Finnegan J) in dismissing the appeal in relation to the quantum of damages awarded and setting aside that part of the judgment and order of the High Court dealing with apportionment of fault and substituting for the same an apportionment of 35% to the plaintiff and 65% to the defendant that there had been credible evidence before the High Court to support the conclusions reached by it in relation to the assessment of the level of damages. It was the function of the trial judge to resolve conflicts in medical and other evidence and the award had been within the parameters of the evidence adduced. Hay v. O'Grady [1992] IR 210 applied.

That the correct approach in relation to apportionment of liability for contributory negligence was to take an overall view of the blameworthiness of the passenger and arrive at an apportionment which was just and equitable. Should there be two or three elements of fault, it was not necessary that the court should ascribe a percentage to each but rather on an assessment of the blameworthiness as a whole an apportionment should be made. Hussey v Twomey (Unreported, Supreme Court, 21st January, 2009) applied.

Reporter: P.C.

1 Judgment of Mr Justice Finnegan delivered on the 21st day of July 2009

2 Judgment delivered by Finnegan J [nemdiss]

3 On the 23 ^rd April 1999 the respondent was travelling as a front seat passenger in a motor car the property of and then being driven by the appellant. The car collided with a wall and in consequence the respondent sustained personal injury and suffered loss and damage. Following a hearing over five days the learned High Court judge found that there was contributory negligence on the part of the respondent and apportioned fault to the appellant 85% and to the respondent 15%. He then proceeded to assess damages and awarded damages under the following headings:-

Special Damages

(i)	Loss of earnings to-date	€195,000
(ii)	Loss of earnings for the future	€650,000

(iii)	Agreed special damages	€2,691
(iv)	Care and maintenance in the past	€25,000
(v)	Care and maintenance in the future	€267,792
	Deductible benefit	€2,428
General Damages
(vi)	Pain and suffering to date	€80,000
(vii)	Pain and suffering in the future	€140,000
	Total	€1,154,37.00

The Notice of Appeal

4 The appellant appeals on the following grounds:-

5 1. Insofar as the learned trial judge found that the plaintiff/respondent was contibutorily negligent to the extent of 15% for travelling in a motor vehicle knowing that the driver was intoxicated:

6 (a) the learned High Court judge erred in law and in fact in not dismissing the plaintiff/respondent's claim in circumstances where the proximate cause of his injuries, loss and damage, was the crash which occurred as a result of the driving of the intoxicated driver and where the learned High Court judge found as a fact that the plaintiff/respondent knew at the time he got into the car the defendant/appellant was intoxicated.

7 2. In the alternative to 1 above, insofar as the learned trial judge found that the plaintiff/respondent was guilty of contributory negligence to the extent of 15% for travelling in a motor vehicle knowing that the driver was intoxicated,

8 (a) The learned High court judge erred in law and in fact in finding that the plaintiff was only contributorily negligent to his injury, loss and damage by knowingly allowing himself to be carried in a car when the driver was intoxicated. The proximate cause of the plaintiff's injury, loss and damage was the accident and the plaintiff would not have been involved in the accident if he had refused to travel in the car where he knew the driver was intoxicated.

9 (b) The learned High Court judge erred in law and in fact in failing to find that the contributorily negligence in this regard was not at least 50% or such other amount as this honourable court deems appropriate.

10 3. In so far as the learned trial judge found that the plaintiff/respondent was wearing a seat belt and was therefore not to be contributorily negligent;

11 (a) the learned High Court judge erred in law and in fact in making such a finding where the sole evidence on that point came from a witness (Mary Clifford) who admitted to having had at least five alcoholic drinks, where the uncontradicted evidence of the defendant was that she was drinking large bottles of cider, where the said Mary Clifford admitted being unconscious after the accident and where the medical report from Mr Kearns (Maxillofacial Surgeon) for the plaintiff/respondent) was agreed as to its contents and specifically recorded that the plaintiff/respondent told him that he was not wearing a seat belt.

12 (b) The learned High Court judge erred in law and in fact in not finding, on the evidence before him, that the plaintiff/respondent was not wearing his seat belt and in failing to find him contributorily negligent to at least the extent of 25% in that regard or such other amount as this honourable court deems appropriate.

13 (c) In the circumstances the learned High Court judge failed to properly evaluate the evidence before him or in the alternative reached a conclusion on the available evidence which no reasonable judge would have reached on the evidence.

14 4. Insofar as the learned High Court judge awarded the plaintiff/respondent the sum of €195,000 loss of earnings to-date;

15 (a) The learned High Court judge erred in law and in fact in awarding to the plaintiff losses which did not take into account the nature of his prior work history or incidents of unemployment in the course of his apprenticeship as block layer. Instead the award of loss of earnings to date was predicated upon him qualifying as a block layer and working without interruption thereafter.

16 (b) In the circumstances the learned High Court judge failed to properly evaluate the evidence before him or in the alternative reached a conclusion on the available evidence which no reasonable judge would have reached on the evidence.

17 5. Insofar as the learned High Court judge awarded the plaintiff/respondent the sum of €650,000 loss of earnings into the future;

18 (a) The learned High Court judge erred in law and in fact in awarding to the plaintiff/respondent losses of that magnitude. In that regard the learned High Court judge ignored the uncontested evidence before him from the plaintiff's rehabilitation consultant that the plaintiff/respondent had a residual earning capacity of between €275 and €400 per week. Further the award made did not take into account his prior work history or incidents of unemployment in the course of his apprenticeship as a block layer. Instead the award of loss of earnings into the future was predicated upon him qualifying as a block layer and working without interruption thereafter.

19 (b) In the circumstances the learned High Court judge failed to properly evaluate the evidence before him or in the alternative reached a conclusion on the available evidence which no reasonable judge would have reached on the evidence.

20 6. In so far...