Power v Walsh

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 12 July 2023
• Neutral Citation: [2023] IEHC 398
• Court: High Court
• Docket Number: [Record No. 2020/203P]

Between:-

Philip Power

Plaintiff

and

Elizabeth Walsh

Defendant

[2023] IEHC 398

[Record No. 2020/203P]

THE HIGH COURT

JUDGMENT of Mr. Justice Barr delivered electronically on the 12 ^th day of July, 2023.

Introduction.

1 . This action arises out of a road traffic accident that occurred on 24 December 2018 at 16.30 hours at the junction of Shelbourne Road and Ennis Road, in Limerick. It is common case that the plaintiff's vehicle, a 2008 model Mitsubishi Pajero jeep, was stationary in a line of traffic stopped at traffic lights, when it was impacted from the rear by the defendant's vehicle, which was a 2017 model Toyota Rav 4.

2 . The plaintiff alleges that as a result of the impact, he was caused to suffer a relatively minor soft tissue injury to his neck, for which he was treated by his GP on five occasions and received approximately ten sessions of physiotherapy treatment. He alleges that he suffered losses in the sum of €990, made up of physiotherapy fees of approximately €800, together with GP medical fees and prescription fees.

3 . While the defendant admits that an impact occurred and that it was her fault, she maintains that the level of impact between the vehicles was so minor, that it was impossible for the plaintiff to have suffered the alleged or any, personal injuries, loss or damage.

The Evidence of the Parties.

4 . The plaintiff stated that he had come to a halt in a line of traffic, which was stationary at traffic lights, which were red. He stated that he was the third vehicle back from the traffic lights. He stated that suddenly there was a loud bang when his vehicle was impacted from the rear by the defendant's vehicle.

5 . The plaintiff stated that immediately prior to the impact, he had been talking to his father-in-law, who was a front seat passenger in the vehicle. The plaintiff stated that he had been wearing his seatbelt. As a result of the impact, he stated that he was shunted forwards and backwards in his seat.

6 . The plaintiff stated that he did not suffer any immediate onset of symptoms. He alighted from his vehicle, as did the defendant from her vehicle. The defendant took photographs of the damage to the respective vehicles on her mobile phone. The plaintiff stated that there was no obvious damage to his vehicle, due to the fact that he had a towbar protruding from the rear of the vehicle, which take most of the impact from the defendant's vehicle. He stated that the only visible damage to his vehicle was a crack to the reflector on the spare wheel cover, which was around the spare wheel, which in turn was affixed to the rear door of the jeep. He also alleged that there was minor damage to the right side of the rear bumper, which he thought was caused by the collision between the vehicles.

7 . Having exchanged details, the parties continued on their way. The plaintiff stated that on the following day, he developed a burning sensation at the bottom of his neck just above his shoulder blades. He stated that his neck pain continued over the following days. He attended with his GP on 31 December 2018. He was given analgesic and anti-inflammatory medication. When the plaintiff's neck pain continued, he returned to see his GP on 11 January 2019, 8 February 2019, 2 April 2019 and 16 September 2019. He stated that at the time of the accident, he had been due to take one week's holidays. He was obliged to take a further week off due to his injuries. Thereafter, he returned to his employment as a supervisor with a company that did construction work on behalf of Limerick City Council and other entities. He stated that he was only able to do light duties on his return to work. He was not able to assist the workmen with their tasks, as he had done prior to the accident. He stated that within 8/9 months of the accident, he was back doing full duties.

8 . The plaintiff stated that in total he had approximately ten sessions of physiotherapy treatment, at a cost of approximately €80 per session. He stated that his sleep had been disturbed. He would awake with neck pain a number of times during the night. He stated that by the summer of 2019, he had made a good deal of recovery, but still had neck pain. By Christmas 2019, he had significantly improved to the point where he had neck pain, but it would be relieved when he applied gel to the affected area. He stated that in total he had experienced neck pain for a period of approximately eighteen months post-accident.

9 . The defendant's account of the accident was broadly similar. She stated that she had driven to Limerick from Dublin, for the purpose of spending Christmas with her husband's family. Her sixteen-month-old child was travelling in a child seat in the back of the car. She stated that as she approached the traffic lights, they were showing red. She came to a halt approximately 1.5m behind the plaintiff's vehicle.

10 . The defendant stated that when the traffic lights changed to green, the first two vehicles pulled off and as she expected the plaintiff to do likewise, she moved her car forwards. However, when the plaintiff's vehicle did not move forward, there was a very minor impact between the front of her vehicle and the rear of the plaintiff's vehicle. She stated that this was no more than a “tip”.

11 . The defendant stated that the front of her car impacted primarily with the towbar protruding from the rear of the plaintiff's vehicle. There was also an impact between the badge on the front of her vehicle and the reflector on the back of the spare wheel cover on the rear of the plaintiff's vehicle. She stated that the damage to her vehicle had consisted of the following: a crack to the badge on the front of her vehicle; a retaining screw on the number plate was popped out causing the number plate to hang down; and the front grills above and below the number plate were unclipped, but were not broken. She stated that having exchanged details at the scene, both parties proceeded on their way.

The Expert Engineering Evidence.

12 . No engineering evidence was called on behalf of the plaintiff.

13 . Mr. Tony Kelly, a consulting engineer, specialising in the field of forensic collision investigation, gave evidence on behalf of the defendant. He stated that he had not had the opportunity to examine either of the vehicles. He had been given photographs, which had been taken by the vehicle assessors of the respective vehicles at the time of their examination, a number of months after the accident. He had not had the opportunity to speak directly with the defendant, but had been furnished with a copy of her statement in relation to the circumstances of the accident.

14 . Mr. Kelly stated that there were four areas of minor damage to the rear of the plaintiff's jeep. He was of the view that as the impact between the vehicles was likely to have been a direct rear ending between the vehicles head on, the only damage that was consistent with the impact between the vehicles, was the cracking to the rear reflector on the spare wheel cover. He stated that the other areas of minor damage to the rear of the plaintiff's vehicle, as shown in the photographs in his report, were not likely to have been caused by any impact between the vehicles in the accident.

15 . Mr. Kelly accepted that the towbar protruded beyond the rear bumper and the outer edge of the spare wheel cover to the rear of the plaintiff's vehicle. Therefore in order for the defendant's vehicle to have made contact with the reflector on the spare wheel cover, it would first have had to have come in contact with the towbar. The witness stated that from his examination of the photographs, he had not seen any evidence of damage to the structural components of the defendant's car. He stated that while it was apparent that the defendant's car impacted with the towbar on the rear of the plaintiff's vehicle, it appeared that this only caused a deflection of the front bumper. There was no evidence of penetration during the initial contact and there was no evidence of additional damage as the towbar disengaged from the front of the defendant's vehicle. The witness stated that it was noteworthy that the only damage that was apparent to the part of the defendant's vehicle that came in contact with the towbar, was the unclipping of the grills and the popping of the screw from the number plate. From the photographs it did not appear that there was any structural damage to the front of the vehicle.

16 . In addition, he stated that the crack to the reflector on the spare wheel cover, was probably caused by an impact with the manufacturer's badge on the front of the defendant's vehicle. He stated that it was noteworthy that the leading edge of the bonnet, which was immediately above the manufacturer's badge on the defendant's vehicle, did not appear to be damaged. Thus, he was of the view that the impact between these two areas had been very minor.

17 . Mr. Kelly stated that from the photographs that had been provided to him, it appeared that the contact between the front of the defendant's car and the rear of the plaintiff's vehicle was extremely light, with probably no retarding force exerted on the defendant's oncoming vehicle. If that was accepted, that would have meant that there would not have been an opposing force transmitted to the plaintiff's vehicle during contact. He stated that that was particularly so, having regard to the fact that the Pajero was a reasonably heavy vehicle.

18 . Mr. Kelly stated that he calculated that, given the distance between the defendant's car and the jeep of approximately 1.5m, it was likely that her speed would have been in the region of 5/6 km/h at the point of impact. This meant that the probability of occupant injury to the target vehicle was very low. He stated that some research had suggested that a change in acceleration (ΔV) of 6km/h could cause personal injury. However, more...