Rogers -v- MIBI, [2009] IESC 30 (2009)

Docket Number:239/04
Party Name:Rogers, MIBI
Judge:Finnegan J.
 
FREE EXCERPT

THE SUPREME COURT

APPEAL NO. 239/2004

Geoghegan J.

Finnegan J.

Clarke J.

BETWEEN

PATRICK ROGERS

PLAINTIFF/RESPONDENT

and

THE MOTOR INSURERS' BUREAU OF IRELAND

DEFENDANT/APPELLANT

Judgment of Mr Justice Finnegan delivered on the 31st day of March 2009

The respondent issued a plenary summons on the 21st October 1998 claiming damages for personal injury, loss and damage sustained by him owing to the negligence and breach of duty of a driver of a motor vehicle who remains unidentified and untraced. The action was heard over five days commencing on the 21st October 2003. The learned trial judge delivered judgment on the 5th December 2003 in which he held for the respondent and awarded him damages as follows:-

Pain and suffering to-date 72,000

Pain and suffering in the future 40,000

Agreed special damages 8,700

___________

120,700

The respondent was awarded the costs of the action when taxed and ascertained. The appellant appeals the finding of the learned trial judge on liability.

The evidence

The respondent gave evidence that he was born on the 4th November 1945. At the relevant time he was employed in the Landscape and Public Gardens Section of Dundalk UDC and had been so employed for the previous twenty years. His work involved the planting and maintenance of grass areas and flower beds and in that capacity he had been involved in laying out and planting flower beds and shrubbery on the Newry Road leading from Dundalk including a flower bed in front of the Maxol service station. His home was at Dowdall's Hill which is situate north of the Maxol service station and off the opposite side of the road. On the 26th May 1996 he walked to the Listoo Arms licensed premises which did not necessitate him crossing the Newry Road. He arrived at 8.45 p.m. and remained there until 9.30 p.m. during which time he drank two pints of Guinness. He met Ms Rose Waters by arrangement and they went together to Harry Duffy's Bar which is on the opposite side of a continuation of the Newry Road, that is on the same side as the Maxol service station, at a distance of six hundred yards to the south of the Maxol service station. There was a party in Harry Duffy's because the bar was closing down. He had some cocktail sausages and sandwiches and had five or at most six further pints of Guinness. Normally on a night out he would have five to six pints of Guinness. Ms Waters left the bar around midnight and he remained on until 1.30 a.m. He walked along the footpath of the same side and towards the Maxol service station. The footpath on that side of the road is intermittently separated from the carriageway by a grass verge or planted area. At the service station the forecourt of the service station joins directly onto the footpath and between the footpath and the carriageway there is a planted area enclosed in part within a kerb and in another part by a slightly higher wall some eighteen inches in height. He recalled passing the Listoo Arms where he greeted Mr Hackett, but at that point his memory ceased and his next memory was waking up in hospital. He regained some memory later: as he was passing the forecourt of the Maxol service station he saw "lights coming flying at me and I couldn't get out of the way". This was a car which came from the north and into the Maxol service station. It was a long time after the accident before he recalled the lights of a car coming towards him, approximately three years. He gave this account to Dr Séan Murphy on the 6th October 1999 and to Mr Jack Phillips on the 14th October 2000. He still has no recollection of events after seeing the lights. He also gave this account to Dr Maguire. In his confused state shortly after the injury and while in hospital he did give accounts of having been struck by a small green sand lorry owned by "Phillips" and by a red van.

In cross-examination the respondent said that he had nothing whatsoever to drink in the hour and a half that he remained in Harry Duffy's Bar after Ms Waters left. He was initially uncertain how far he had progressed towards home when he saw the car, but three or four years after the event he remembered that he was at the Maxol service station. He agreed that in September 1996 he informed his surgeon Ursula Mulcahy that he had absolutely no recollection of what happened to him and that his last memory was of being in Harry Duffy's pub. On the 3rd November 2001 he saw his neurosurgeon Mr Pigeon who recorded that the respondent had no recollection of the events. The respondent was satisfied that he was not drunk.

Rose Waters gave evidence. Normally on a night out the respondent would have five pints. She had never seen him affected badly by drink. He was never stone drunk and always able to look after himself. She attended at the Louth Hospital shortly after he was taken there by ambulance. He was later taken to Beaumont Hospital and she saw him after he came out from surgery. She visited him again two days later and a conversation took place. Evidence of the same was allowed by the learned trial judge as evidence of what the respondent said but not as to the truth of what he said. The respondent told her that "he got a bat". In cross-examination she agreed that at some point on the evening in question the respondent had got sick and that his face was black. His shoes were covered in mud and there was mud on his trousers. He was not in that condition when she left him.

The respondent's sister Ms Betty Rogers gave evidence. They lived together in the family home. She had never seen him come home incapable from the effects of drink. On the morning of the 27th May 1996 she found him lying on his back at the back door of the family home at approximately 11.30 a.m. He was unconscious. There was no sign of injury. She arranged for the ambulance to take him to the Louth Hospital. While he was in Beaumont Hospital he told her that he got "a bat of a small sand truck". He was still confused at the time. In cross-examination she said that her belief was that he had fallen at the back door. She recovered his clothes from Beaumont Hospital and they included his wallet with money and his watch and it was clear that he had not been robbed.

Harry Duffy gave evidence. He confirmed that the respondent was at the closing-down party of his licensed premises. He remembered the respondent partaking of cocktail sausages and sandwiches. He let the respondent out from the licensed premises at about 2 a.m. or 2.10 a.m. He had never seen the respondent incapable of walking home although he has known him for more than ten years. On the night in question he was capable of walking home on his own.

A statement of Mr Hackett, the proprietor of the Listoo Arms, was admitted. At about 2.30 a.m. he was walking on the Newry Road towards Dundalk and at the Newry Bridge, and not at the Listoo Arms, he saw the respondent walking on the footpath on the opposite side of the road, that is on the same side as the Maxol service station, and in the direction of the Maxol service station. In his statement he said:-"I would imagine that he had a few pints in him but he was making his way slowly."

A statement of Pádraig Grey was admitted. Between 2.50 a.m. to 3.10 a.m. he was with Tina McCaffrey near the Listoo Arms for some ten to fifteen minutes thumbing a lift. They got a lift and some time later walked back as far as the Maxol service station where they saw a man lying on the side of the footpath. His whole body was stretched out on the road. There is a Renault garage across the road from the Maxol service station and a car was parked there and a number of persons were present including a Mr McEvoy, a Mr Nardone, Ms Ashling Lee and another girl. He pointed out a man lying on the road to the others and they all went over to him. Mr Nardone and Mr McEvoy tried to get the man up and the man told them to f…off. They left him where he was. About ten minutes later another car stopped and a man exited the same and took the man in off the road and put him sitting against the wall surrounding the flower bed at the service station. There was no blood on the man but he was all dirty. The man had not been on the road when he was thumbing a lift earlier that morning.

Stephen O'Connor gave evidence that he left his employment at the Carrickdale Hotel at about 5 a.m. and travelled to Dundalk. At the Maxol service station he saw the respondent lying on the road from his waist down; his upper body was on the flower bed. Together with Fiona Murphy he went across to the man to see if he was alright. There was no blood. He was concerned that his legs would be run over by a lorry or a car. They took him to the forecourt of the service station. He was mumbling. They left him beside the petrol pumps lying flat on his back on the ground. The respondent could not have been caused injury by being lifted. They placed him gently on his back on the forecourt. Had he though that the respondent was injured he would have called for an ambulance. He thought he was drunk. In cross-examination he said that the respondent was not sitting against the wall when he found him and was nowhere near the wall. The respondent told them to f…off. He saw no sign of injury to the respondent. There was muck on the respondent's shoes and trousers, particularly at the bottoms of the legs. The respondent was unable to support himself on his legs. There was no smell of drink from the respondent but he presumed that the respondent had had too much to drink. The witness was shown a photograph of the respondent lying on the forecourt close to the pumps and confirmed that that was the position in which he had left him.

Thomas Kirk gave evidence that he was the manager of filling stations in Dundalk, including the Renault filling station situate across the road from the Maxol service station. He arrived at the Renault filling station at approximately 5 a.m. on the morning of the 27th May 1996. He saw a man lying in the forecourt of the...

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