Power v Eustace
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 03 May 2017 |
| Neutral Citation | [2017] IEHC 259 |
| Docket Number | [2013 No. 5612P] |
| Court | High Court |
| Date | 03 May 2017 |
2017 IEHC 259
THE HIGH COURT
Barr J.
[2013 No. 5612P]
AND
Tort – Damages & Restitution – Road Traffic Accident – Collision with stationed vehicle – Dangerous weather condition – Injury to rescuer – Negligence
Facts: The plaintiff had filed a claim for damages against the defendants for sustaining injury to her ankle. The plaintiff contended that she had gone across the road in order to assist the second defendant in pulling her vehicle from the ditch at which time, the third defendant, who was descending the hill, lost control of his vehicle and had collided with the second defendant's vehicle, causing it to roll over the plaintiff's ankle. The defendants asserted that the plaintiff was merely an ‘observer’ as she was watching her brother and son-in-law assisting the second defendant in getting the vehicle out of the ditch. The defendants also alleged contributory negligence on the part of the plaintiff.
Mr. Justice Barr awarded damages to the plaintiff for the pain and suffering to date together with the pain and suffering into the future in addition to the agreed special damages. The Court found that the defendants were negligent in driving the vehicle at the relevant speed limit as it was high speed given the weather condition and the type of slope the defendant was driving. The Court found that the plaintiff was a “rescuer” as she had responded to the plea for assistance made by the second defendant and extended help by asking her brother and son-in-law to reach the relevant spot by crossing the road. The Court held that the second defendant would be 10% liable for the plaintiff's injuries as no person was injured as a result of falling off the second defendant's vehicle into the ditch and her vehicle was not causing any obstruction. The Court found that the third defendant was 90% liable for the plaintiff's injuries. The Court took into account the level of pain, discomfort and disability caused to the plaintiff by sustaining the ankle injury while awarding damages to the plaintiff.
This action arises out of a road traffic accident which occurred on the Bunmahon to Kill Road in County Waterford. The accident occurred at approximately 18.30 hours on Sunday 28th November, 2010. On this particular evening, and for the two days preceding that, the country had been experiencing extremely severe weather conditions. There had been heavy falls of snow in the two days prior to the day of the accident. The melting of snow on the road surface and its subsequent refreezing at night, together with the passage of vehicular traffic over the surface of roads, meant that many of the roads in the country were in an extremely hazardous condition. All the parties were agreed that the surface of the road at the locus of this accident was particularly dangerous due to the fact that the locus was at the bottom of a hill, which had a left turn bend at the end of the hill. The surface of the road was covered with compacted snow and ice.
On the evening in question, the plaintiff had walked with her daughter and her daughter's boyfriend to the house of the plaintiff's mother. This house is shown in photograph 9 of the booklet of photographs prepared by Mr. Edward Flahavan, the plaintiff's engineer. It is a small, thatch-roofed cottage with white painted walls. The house itself is situated at the bottom of a hill, which runs in the Kill to Bunhamon direction. The house is just around a left-hand turn at the foot of the hill. Some short time after the arrival of the plaintiff at her mother's house, her brother, Thomas, also arrived to stay the night with his mother.
Just after her arrival at the cottage, the plaintiff left the cottage to retrieve something from an outside shed. While she was in the front yard, the second named defendant, who also lived nearby, came across the road and asked the plaintiff as to whether any of her brothers were visiting her mother and, if so, whether they could assist her to move her car from the ditch on the far side of the road. It appeared that the second named defendant had driven down the hill in a car owned by the first named defendant, when she had lost control of the vehicle at the foot of the hill and had slid across the road in the direction of the wall and hedge, which was to the left of the chevron sign as shown in photograph 4. She had initially driven straight towards the wall, but on reaching the grass verge on the far side of the road, her car spun around and came to rest exactly parallel to the hedge. There was some confusion in the evidence as to whether she was able to open the driver's door, or had to exit the vehicle through another door. In any event, she managed to get out of the vehicle and come across the road to speak to the plaintiff. Prior to leaving her vehicle, she had telephoned her husband, who had walked up the road from the Bunmahon direction to come to her assistance.
The plaintiff went into her mother's house and summoned help from her brother, Thomas, and her daughter's boyfriend, Trevor. The three of them then walked across the road to give assistance to the second defendant and her husband. The plaintiff's daughter came out of the cottage, but remained on that side of the road.
The plaintiff's brother obtained a shovel from the boot of his car and an attempt was made to clear away the snow from in front of the wheels and the men then tried to push the car out of the ditch. While so doing, another car approached coming down the hill from the Kill direction. This car seemed to lose control somewhat as it came to the bend and it went into a zigzag motion crossing over onto the far carriageway, but it managed to right itself and continue on down the road in the Bunmahon direction.
When it was not possible to push the vehicle out of the ditch, the plaintiff suggested that she should return to the house for the purpose of phoning a neighbour who had a tractor, who might come to pull the car out of the ditch. However, before she could do this and a short time after the first car had gone into a speed wobble and then proceeded on, a vehicle driven by the third named defendant came down the hill from the same direction. As it entered the bend, the third defendant lost control of the vehicle and crossed over the far carriageway and went into the ditch, where it collided with the rear of the second defendant's vehicle, causing it to be shunted forward and to roll over the plaintiff's left ankle.
The plaintiff's brother, Thomas Kiely, stated that when he saw the first vehicle go past the front of his mother's house, he then saw the headlights of the third defendant's car coming down the hill. He stated that he saw the illumination of the headlights first and then saw the headlights themselves. He realised that the third defendant's car was beginning to skid and was coming towards him, so he jumped up onto the wall. The third defendant's car hit the second defendant's car and shunted it out of the ditch.
Mr. Trevor Cleary, who was the boyfriend of the plaintiff's daughter at the time and has since become the plaintiff's son-in-law, stated that there was a significant distance between the car that came down the hill first, which went into a wobble and then proceeded on, and the vehicle driven by the third defendant. He stated that the two vehicles were not going bumper to bumper.
The plaintiff's daughter, Ms. Catherine Cleary, who had remained on the far side of the road in the vicinity of her grandmother's cottage, stated that the third defendant was driving slowly. She only saw his vehicle when it was heading for the back of the second defendant's car in the ditch. She thought that there had been an interval of approximately one minute between the time that the first car, the Audi, went around the bend and the arrival of the third defendant's vehicle at the locus.
While there was some divergence between the witnesses as to whether the second defendant's vehicle was tight up against the wall and hedge, or whether it was possible for her to get out of the driver's door, all of the witnesses were agreed that the second defendant's car, which was a VW Polo, was well off the far carriageway and was mainly in the grass verge and ditch. The verge and ditch were estimated as being 1.5m in width. This would mean that approximately 0.5m of the second defendant's car would have been out on the far carriageway.
All the witnesses were agreed that the third defendant's vehicle was travelling slowly when it collided with the second defendant's vehicle. The third defendant himself estimated his speed at approximately 15mph as he came into the bend. The position of the second defendant's vehicle in the ditch was indicated by the orange traffic cone as shown in photographs 3 and 4. The third defendant thought that the second defendant's vehicle may have been somewhat further on, as he thought that the impact occurred approximately opposite to the pedestrian gate leading to the plaintiff's mother's cottage as shown in photograph 9.
The width of the road at the point of impact was measured by Mr. Flahavan as being 10m in total across the two lanes, with the northbound lane towards Kill measuring 4.0m and the southbound lane going towards Bunmahon measuring 6.0m. The downhill gradient at the locus was measured at 7.0 degrees. If the second defendant's vehicle was in the position, as shown by the orange traffic cone in photographs 3 and 4, then the third defendant would have had a line of sight of the second defendant's vehicle from approximately 100m, as shown in photograph 1. A closer view taken 75m from the accident locus is shown in photograph 2. Photograph 7 shows the view looking back up the hill...
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