Nolan v O'Neill

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 21 October 2016
• Neutral Citation: [2016] IECA 298
• Date: 21 October 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2016] IECA 298 Record No. 2014/377/COA

Between /

Bill Nolan

Plaintiff/Appellant

- and -

Patrick O'Neill

and

Danny Mitchell

Defendants/Respondents

[2016] IECA 298

Irvine J.

Finlay Geoghegan J.

Peart J.

Irvine J.

Neutral Citation Number: [2016] IECA 298

Record No. 2014/377/COA

THE COURT OF APPEAL

Damages – Contributory negligence – Burden of proof – Appellant seeking damages for negligence – Whether trial judge erred in law in finding the appellant guilty of contributory negligence to the extent of 40%

Facts: The plaintiff/appellant, Mr Nolan, brought a claim arising out of injuries sustained by him in a road traffic accident on 13th November 2015. On 20th January 2016, the High Court (Smith J) found that the second defendant/respondent, Mr Mitchell, had driven a motor vehicle owned by the first defendant/respondent, Mr O’Neill, in a negligent manner such that it had collided with Mr Nolan’s motor cycle causing him significant injuries. Concerning the liability issue the trial judge found Mr Mitchell principally to blame for the collision but made a finding of contributory negligence to the extent of 40% against Mr Nolan. As to quantum, the trial judge valued Mr Nolan’s claim for pain and suffering to the date of trial in the sum of €75,000 and for pain and suffering into the future at €50,000. With respect to his claim for loss of earnings to the date of trial, having made certain allowances for income earned post-accident and deductible social welfare payments, he considered Mr Nolan entitled to an award of €27,440. As to future loss of earnings, having concluded that, regardless of his injuries, Mr Nolan was capable of engaging in a wide variety of employment opportunities, he was satisfied that an award of €40,000 in respect of loss of opportunity would be appropriate. The High Court judge proceeded to dismiss Mr Nolan’s claim pursuant to s. 26 of the Civil Liability and Courts Acts 2004 having expressed himself satisfied that he had sought to exaggerate his claim by introducing evidence which he knew to be false or misleading and that in the circumstances of the case the dismissal of the action would perpetrate no injustice. The plaintiff appealed to the Court of Appeal against the judgment of the High Court.

Held by Irvine J that two principal issues arose for the court’s consideration on this appeal, namely: (i) having regard to the facts found, did the trial judge err in law in finding Mr Nolan guilty of contributory negligence to the extent of 40%; and (ii) did the trial judge err in law when he dismissed Mr Nolan’s claim pursuant to the provisions of s. 26 of the Civil Liability and Courts Act 2004. Irvine J held that she was satisfied that the finding of contributory negligence of 40% on the part of Mr Nolan was excessive to the point that such finding must be set aside. Having regard to the evidence she favoured a finding of 20% contributory negligence. As to the decision of the trial judge to dismiss Mr Nolan’s claim based upon the provisions of s. 26 of the 2004 Act, Irvine J was satisfied that the trial judge erred in law when he concluded that the defendants had discharged the burden of proof required to succeed in their application to dismiss the claim under that section.

Irvine J held that, having regard to her conclusions on the issue of contributory negligence, the damages sum must be reduced by 20%. She proposed an award in favour of Mr Nolan in the sum of €153,952.

Appeal allowed.

Judgment of Ms. Justice Irvine delivered on the 21st day of October 2016

1 This is an appeal against the judgment of the High Court (Smith J.) delivered on 20th January 2016 in a claim brought by the plaintiff (‘Mr. Nolan’) arising out of injuries sustained by him in a road traffic accident on 13th November 2015. The High Court judge found that the second named defendant (‘Mr. Mitchell’) had driven a motor vehicle owned by the first named defendant, (‘Mr. O'Neill’) in a negligent manner such that it had collided with Mr. Nolan's motor cycle causing him significant injuries.

2 Concerning the liability issue the trial judge found Mr. Mitchell principally to blame for the collision but made a finding of contributory negligence to the extent of 40% against Mr. Nolan.

3 There was no real dispute as to the extent of Mr. Nolan's injuries. He sustained a fracture to the neck of the fifth metacarpal bone in his right foot, a fracture of the fifth metacarpal bone as well as serious lacerations to his left hand and a ruptured quadriceps tendon of his left knee requiring surgical repair. Mr. Nolan was immobilised for three months in a wheelchair, thereafter spent a significant period on crutches and underwent extensive physiotherapy. It was agreed that he would have some permanent disability arising from the injuries to his left knee and left little finger.

4 As to quantum, the trial judge valued Mr. Nolan's claim for pain and suffering to the date of trial in the sum of €75,000 and for pain and suffering into the future at €50,000. With respect to his claim for loss of earnings to the date of trial, having made certain allowances for income earned post accident and deductable social welfare payments, he considered Mr. Nolan entitled to an award of €27,440. As to future loss of earnings, having concluded that, regardless of his injuries, Mr. Nolan was capable of engaging in a wide variety of employment opportunities, he was satisfied that an award of €40,000 in respect of loss of opportunity would be appropriate.

5 Notwithstanding the aforementioned findings the High Court judge proceeded to dismiss Mr. Nolan's claim pursuant to s. 26 of the Civil Liability and Courts Acts 2004 (‘the Act’) having expressed himself satisfied that he had sought to exaggerate his claim by introducing evidence which he knew to be false or misleading and that in the circumstances of the case the dismissal of the action would perpetrate no injustice.

Issues

6 Two principal issues arise for the court's consideration on this appeal and they are as follows:-

(i) Having regard to the facts found, did the trial judge err in law in finding Mr. Nolan guilty of contributory negligence to the extent of 40%, and

(ii) did the trial judge err in law when he dismissed Mr. Nolan's claim pursuant to the provisions of s. 26 of the Civil Liability and Courts Act 2004?

The finding of contributory negligence: relevant background facts.

7 On the night of 17th November 2005 Mr. Nolan, accompanied by a pillion passenger, was riding his motorcycle on the Carlow to Abbeyleix road travelling in the direction of Abbeyleix. It was dark, there was no on street lighting and the weather was fine. In the moments prior to the collision Mr. Mitchell, accompanied by a front seat passenger, Mr. O'Neill, was preparing to exit from his driveway onto the same roadway. His house was on the opposite side of the roadway to that upon which Mr. Nolan was travelling and he intended to make a left-hand turn to travel in the direction of Carlow.

8 Mr. Nolan maintained that in the moments leading up to the collision he had been riding his motorcycle on his correct side of the roadway, a few feet in from the centre white line. He was suddenly dazzled by the oncoming lights from Mr. Mitchell's motor car on his carriageway and was unable to avoid the impact. Mr. Mitchell, on the other hand, claimed that Mr. Nolan had been travelling on his incorrect side of the roadway close to the ditch on his side of the road with the result that, instead of making an immediate left hand turn onto his own carriageway, he was forced to dart across the roadway onto his incorrect side of the road in his efforts to avoid the oncoming motorcycle.

9 Gda. Hurley, the investigating garda, produced a sketch map depicting the locus in quo post accident. From what he had found at the scene he was satisfied that the impact had occurred on Mr. Nolan's side of the roadway. He further stated that the manoeuvre which Mr. Mitchell was performing at the time the impact took place was a straightforward one and was capable of being executed within the confines of the carriageway onto which he was turning. He also stated that a motorist intending to make that left hand turn had a sight line of 200 metres in the Carlow direction. The court also heard independent testimony from a motorist who was overtaken by Mr. Nolan a couple of hundred metres prior to the scene of the accident. He told the Court that he was travelling at approximately 65mph when overtaken. That being so, he thought that Mr. Nolan could have been travelling as fast as 90mph.

10 The trial judge in the course of his judgment made the following findings of fact, namely that:

(i) Mr. Nolan had been riding his motorcycle on his correct side of the roadway in the moments prior to impact.

(ii) Mr. Nolan had been driving at a very excessive speed, close to 90 mph in advance of the collision.

(iii) Mr. Nolan had failed to slow or stop his motorcycle when dazzled by the lights from Mr. Mitchell's oncoming car.

(iv) Mr. Mitchell's proposed turn did not require him to travel beyond the centre white line.

(v) Mr. Mitchell had failed to yield right of way to Mr. Nolan's vehicle.

(vi) Mr. Mitchell had failed to keep a proper lookout and had only become aware of Mr. Nolan's oncoming motorcycle when alerted to its presence by his passanger, Mr. O'Neill.

(vii) Had Mr. Mitchell been keeping a proper lookout as he emerged he would have been able to see the approach of Mr. Nolan's motorcycle and would, if necessary, have have been able to stop and wait until he had passed him by.

Decision on the issue of contributory negligence

11 It is well established law that an appellate court should not interfere with an apportionment of liability made by a judge or jury unless satisfied that such apportionment was grossly disproportionate having regard to the evidence. (See Snell v. Haughton ...