Nolan v Mitchell & O'Neill

JurisdictionIreland
JudgeMR JUSTICE ESMOND SMYTH
Judgment Date20 January 2012
Neutral Citation[2012] JILL-IEHC 012001
CourtHigh Court
Date20 January 2012

[2012] JILL-IEHC 012001

THE HIGH COURT

Record No: 914 6 P/2007
Nolan v Mitchell & O'Neill

BETWEEN

BILLY NOLAN
Plaintiff

AND

DANNY MITCHELL
First Named Defendant

AND

PATRICK O'NEILL
Second Named Defendant

CIVIL LIABILITY & COURTS ACT 2004 S26

CARMELLO v CASEY 2008 3 IR 524

GAMMELL v DOYLE & WHITE UNREP HANNA 28.7.2009 2009/22/5512 2009 IEHC 416

FARRELL v DUBLIN BUS UNREP QUIRKE 30.7.2010 2010/19/4716 2010 IEHC 327

DUFFY v BOYLAN UNREP O'KEEFFE 8.10.2010 (TRANSCRIPT NOT AVAILABLE)

HIGGINS v CLARKE UNREP QUIRKE 18.11.2010 (TRANSCRIPT NOT AVAILABLE)

AHERN v BUS EIREANN UNREP SUPREME 2.12.2011 2011/2/473 2011 IESC 44

SHELLY MORRIS v BUS ATHA CLIATH 2003 IR 232

HIGGINS v CALDARK UNREP UNREP QUIRKE 18.11.2010 2011/25/6657 2010 IEHC 527

TORT

Personal injuries

Road traffic - Evidence - Liability - Contributory negligence - Whether plaintiff driving on correct side of road - Whether plaintiff travelling at excessive speed - Whether defendant failed to keep proper lookout - Apportionment of liability - Quantum - Injuries - Pain and suffering - Loss of earnings - Loss of employment opportunity - Whether plaintiff's loss of earnings claim based on credible figures - Whether evidential basis for future loss of earnings claim - Credibility - False or misleading evidence - Application for dismissal - Test to be applied - Onus of proof - Standard of proof - Whether plaintiff's evidence false or misleading - Whether plaintiff knowingly tendered false or misleading evidence - Whether information supplied to expert actuary was false or misleading - Whether plaintiff deliberately exaggerated claim - Whether plaintiff tendered false or misleading evidence concerning ability to engage in driving post-accident - Whether false or misleading aspects of claim severable - Whether injustice would result from dismissal - Carmello v Casey [2007] IEHC 362, [2008] 3 IR 524 and Higgins v Caldark Ltd [2010] IEHC 527 (Unrep, Quirke J, 18/11/2010) followed ; Ahern v Bus Éireann [2011] IESC 44 (Unrep, SC, 2/12/2011) applied in part; Gammell v Doyle [2009] IEHC 416 (Unrep, Hanna J, 28/7/2009), Farrell v Dublin Bus [2010] IEHC 327 (Unrep, Quirke J, 30/7/2010) and Shelly-Morris v Bus Átha Cliath [2003] 1 IR 232 considered - Civil Liability and Courts Act 2004 (No 31), s 26 - Proceedings dismissed (2007/9146P - Smyth J - 20/1/2012) [2012] IEHC 151

Nolan v Mitchell

1

The plaintiff is an alarm fitter and resides at Millview House, Graigcullen, Co. Carlow.

2

The plaintiff is claiming damages for personal injuries, loss and other damage, sustained by him as a result of a road traffic accident on the night of 17 th November, 2005 at the public highway at Tollerton on the Kileeshin to Castlecomer Road in the County of Carlow. At the material time the plaintiff was riding a motorcycle, accompanied by a pillion passenger.

3

The first named defendant, a taxi driver, was driving a Ford Mondeo car owned by the second named defendant, when a collision occurred between the two vehicles. The incident happened almost directly outside or proximate to the entrance to the second named defendant's dwelling house, from which the defendants' vehicle had just emerged.

4

The plaintiff sustained serious injuries as a result of this accident, namely: injuries to his left hand, left knee and right foot; a fracture of the fifth metacarpal in his neck; lacerations to his left hand; a ruptured quadriceps tendon of his left knee, and; a fracture of the fifth metatarsal bone in his right foot.

5

The plaintiff was taken by ambulance to Portlaoise General Hospital, from where he was transferred to Tullamore Hospital. The plaintiff was operated on to repair the quadriceps tendon and was immobilised for approximately three months thereafter. The plaintiff has also been left with an inability to full extend the little finger of his left hand. Some months after the accident, a piece of plastic was discovered embedded in the plaintiff's hand which required surgical removal.

6

Prior to the accident, the plaintiff was an alarm fitter by trade. He said that he had to give up this type of work because of his injuries and will be unable to resume this occupation in the future. This is because the work of an alarm fitter involves, inter alia, working in confined spaces, climbing ladders, lifting weights, removing floorboards, drilling joists, putting in wires and doing external work on bell boxes, etc.

7

The plaintiff claims that because of his injuries he is no longer able to kneel or squat properly, work on rough surfaces or climb ladders. In light of continuing problems with his left hand, including a loss of power in that hand, he claims to have difficulty coping with tasks that require manual dexterity or lifting and carrying heavy loads. The plaintiff states that he has a lot of pain in his left knee, particularly when standing and sitting, and that he has continuing pain in his right foot. After the accident, he spent three months in a wheelchair; thereafter, he had to use crutches and under went a period of physiotherapy and prescribed exercises.

FINANCIAL CONSEQUENCES FOR THE PLAINTIFF
8

The plaintiff is making quite a substantial claim in these proceedings. The plaintiff states that before his accident, he had been taking home €500 per week. Based on the actuarial figures, his claim for loss of earnings to date amounts to the sum of €142,000. At its highest point, the figure for loss of earnings into the future is estimated by the plaintiff's actuary at almost €450,000.

9

I will return later to the findings and prognosis relating to the plaintiff's injuries which are set out in a number of agreed medical reports, and also to the more contentious issues arising from the loss of earnings claim, and other matters touching on the credibility and truthfulness of the plaintiff's evidence during the case, and arising from verifying affidavits sworn by the plaintiff in support of the claim. These are matters to be considered by the court in the light of an application by counsel on behalf of the defendants in this case, that the plaintiff's case for damages be dismissed under the provisions of Section 26 of the Civil Liability and Courts Act, 2004.

THE EVIDENCE IN RELATION TO LIABILITY
10

Liability is an issue in this case. Essentially the particulars and breach of duty, including breach of statutory duty, set out in the plaintiff's endorsement of claim can be encapsulated in the allegation that the defendant drove out on to the public highway from a private entrance without ensuring that it was safe to do so; when it was unsafe to do so, and; that the defendant driver failed to keep a proper look out, and/or to comply with the relevant provisions of the Road Traffic Act 1961.

11

The defendants, on the other hand, allege that the accident was wholly caused by the negligence of the plaintiff, or alternatively the plaintiff was guilty of contributory negligence. The defendants allege, inter alia, that the plaintiff drove at an excessive speed; drove on his incorrect side of the road, and drove in a dangerous manner.

Evidence of the Plaintiff
12

On Sunday evening on 13 th November 2005, the plaintiff was bringing a friend home as a pillion passenger on the back of his motorbike. They were wearing helmets and motorcycle gear. At the time of the accident they were on the Carlow to Abbeyleix Road, travelling in the direction of Abbeyleix. That part of the road is otherwise known as the Kileeshin Road. The locus of the accident was about a mile and a half from the plaintiff's friend's house where they had been earlier. It is a largely rural area with intermittent dwellings and farms. It is clear from the evidence that the plaintiff is a person familiar with motorbikes. He was driving a Yamaha R1. The road was dry and in good condition at the time. It was dark and there was no public street lighting. His headlights were on and he said that he was doing 50 m.p.h. The plaintiff said that the yellow lines (which are exhibited in photographs taken by the engineers) were not there at the time of the accident.

13

In essence, the plaintiff's case is that he was travelling on his correct side of the road towards the stretch of road where Mr. O'Neill lives, maybe a foot or two to the left-hand side of the centre of his own side of the road, when he saw the lights of a car shining across the road from Mr. O'Neill's entrance on his right-hand side. The defendant's car proceeded out making a wide arching turn until it was facing in his direction, and occupying the lane that the plaintiff was travelling in. The lights of this car dazzled him so that he was not able to see either side of the car. He veered to the right to avoid a collision but struck the rear panel of the defendant's car. The next thing that he remembered was that he was in Tullamore Hospital.

14

The scenario outlined by counsel for the defendant and suggested to the plaintiff, was that Mr. Mitchell had a vision of approximately of 188 to 200 metres to his left, towards the direction the plaintiff was coming from, as he emerged from the entrance to Mr. O'Neill's house. At the end of that stretch (and it is clear that that part of the road is straight), is a bend and dip in the road, where the road veers to the left, as shown in photograph 7 in the defendant's album of photographs. Beyond that dip and left turn is a long stretch of road of about 500 or 600 metres.

15

It was put to the plaintiff that when Mr. Mitchell, the first named defendant came to the mouth of the entrance to Mr. O'Neill's residence, he looked to his left, and he did not see any light (presumably because the plaintiff was in the dip of the road at that point), but as he edged further onto the roadway, turning slightly to his left, he became aware of the lights of the plaintiff's bike emerging close to the ditch on the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT