Ryan v Leonard
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 05 October 2017 |
| Neutral Citation | [2017] IEHC 566 |
| Docket Number | [2015 No. 7590 P] |
| Court | High Court |
| Date | 05 October 2017 |
[2017] IEHC 566
THE HIGH COURT
Baker J.
[2015 No. 7590 P]
AND
Tort – Contract-Adequacy of consideration – Personal Injuries – Negligence and breach of duty – Motor Vehicle Accident – Compromise and Settlement of claim – Accord and Satisfaction – Central Bank's Consumer Protection Code – Code of Conduct on Mortgage Arrears.
Facts: The plaintiff sought an order for damages and compensation against the defendants for personal injuries suffered in a motor vehicle accident. The defendants contended that the plaintiff had already been paid the claim by way of settlement and thus, the claim of the plaintiff had been the subject of a prior accord and satisfaction. The plaintiff contended that she was physically vulnerable at the time of the negotiations and thus, was not able to take an informed decision. The issue also arose as to the validity of the letter with respect to the fulfilment requirement of the Code of Conduct on Mortgage Arrears by the Insurance Company. The plaintiff alleged that the letter was incomplete as it did not inform the plaintiff about her contractual obligations prior to the completion of the contract. In the present proceedings, the preliminary issue that arose for the determination of the Court was whether the plaintiff's claim was subject to the prior accord and satisfaction. The defendants claimed that the adequacy of consideration and lack of legal advice as contended by the plaintiff could not make a ground for setting aside a binding contract entered into by the plaintiff.
Ms. Justice Bakerheld that the Court could not decide the preliminary issue on affidavit and without further legal argument. The Court noted that the letter, which purported to inform the plaintiff about her contractual obligations, was incomplete. The Court observed that it would be appropriate for the trial judge to decide that issue by taking full evidence on record.
This judgment is given in the trial of a preliminary issue directed to be tried by Twomey J. on 11th July, 2016, namely whether the claim of the plaintiff against the defendants has been the subject of prior accord and satisfaction.
The plaintiff was involved a road traffic accident on 5th June, 2013 as a result of which she claims to have suffered personal injuries, loss, damage and expense. Liability was at no time in issue in regard to her claim against the defendants.
The plaintiff issued a personal injuries summons on 21st September, 2015, claiming damages for personal injuries, loss and damage arising from the alleged negligence and breach of duty of the defendants, and each of them, in and about the driving of the motor vehicle which collided with the vehicle which she was driving. The defence pleaded by way of preliminary objection that the claim had been the subject of a prior accord and satisfaction arising from a settlement said to have been made between the plaintiff and a representative of AXA Insurance Limited (‘AXA’), the insurer of the defendants, on 19th June, 2013, fourteen days after the accident, by which the plaintiff accepted the sum of €4,000 in full compromise of her claim for damages for personal injuries and special damages. The sum of €4,000 was broken down as to €3,500 thereof in respect of general damages and €500 in respect of out of pocket expenses. The cost of repairing the damage to the plaintiff's motor vehicle was dealt with separately and did not become an issue in these proceedings.
The preliminary issue came on for hearing before me grounded on affidavit and the basic facts are not in contention.
The affidavit of Joseph Fitzpatrick, a partner in the firm of solicitors acting for the defendants, sworn on 12th January, 2016 shows the sequence of events leading to the payment to the plaintiff by or through AXA.
Immediately after the accident, the plaintiff contacted AXA, probably to deal with her car damage and to make arrangements for the repair of the vehicle, but the first memo of any communication with her is an AXA file note dated 6th June, 2013, the day after the accident, which records a phone conversation with the plaintiff in which she expressed herself ‘annoyed’ that she had not received a call from AXA and that she was anxious that arrangements be made to repair her car. The memo records that the plaintiff then went on to say that she had been to hospital, that an X-ray had shown no fractures, that she felt ‘very sore’, had been given a prescription for painkilling medication by her general practitioner and had been certified unfit for work for a week. She said she intended going back to her doctor when the week was over. The writer then went on to record the following:
‘I went through a cpc letter with her and told her we would take care of her out of pocket expenses and l.o.e. if she has any. She agreed that I am to call her on Tuesday and see how she is and if she wants we can have someone call out to her.’
The reference to ‘the cpc’ is to the Central Bank's Consumer Protection Code (‘the Code’), and to ‘l.o.e’ to loss of earnings.
The next file memo is dated 11th June, 2013, and also records an incoming call from the plaintiff in which it is recorded that ‘she said still has a lot of pain radiating down her back’ and was due to return to her doctor on Thursday, 13th June. It is recorded that the plaintiff acknowledged she had received a letter from AXA that morning and that she ‘would be happy’ if the AXA representative called her again on Thursday afternoon, after she had visited her doctor.
The next recorded phone call was on 13th June, 2013, which records an outgoing call from AXA. The plaintiff had been back to her doctor and had been certified as still unable to work for another week. It is recorded that she said she was ‘still feeling sore on her back and neck but said she feels some improvement’. The last sentence of that file note is important and reads as follows:
‘I mentioned to her if would be ok if we had someone call her to see her to discuss her injuries and she said that was fine.’
The next day, 14th June, 2013 a representative of AXA, Robert McMahon, called to the home of the plaintiff. The contemporaneous, or near contemporaneous, memorandum of that meeting describes the plaintiff as complaining of a soft tissue injury to her neck and of pain radiating into her shoulder blades, and that she remained under the care of her general practitioner who had prescribed anti-inflammatory medication which she continued to take. She said she had ‘improved a little’, but had not yet had physiotherapy as her doctor considered it to be too early to do so, and that she was due back to see her doctor the following week and ‘would consider matters after she had spoken to him’. At that meeting, it seems the plaintiff advised that she might let matters rest for a few weeks to see how her injury progressed.
Four days later on 18th June, 2013, the plaintiff telephoned Mr. McMahon and said that she would revert to him after meeting her doctor the following week, and that she was ‘a little improved’ and hoping to return to work if her doctor permitted.
The compromise agreement was made in a telephone conversation initiated by the plaintiff the following day, 19th June, 2013. The contemporaneous note records that she indicated that she wanted to settle the matter although she was still off work and due to return to her doctor the following day. She said she felt well enough to return to work and a discussion was had regarding likely out of pocket expenses, doctors' bills and other special damages. The figure of €4,000 was offered as an ‘all-in’ figure to include special damages to date and into the future. The plaintiff was advised that she was entitled to the benefit of a ‘cooling off’ period of ten days but said she was happy to waive this and to settle the matter immediately.
This agreed amount was then paid to the plaintiff.
The plaintiff in her replying affidavit, sworn on 22nd February, 2016, says she is now ‘very dissatisfied’ with the sum received in purported settlement of the claim and that she remains symptomatic.
The plaintiff avers that at the time she entered into the agreement to compromise she had ‘no prior knowledge of the value of personal injuries in terms of compensation’ and that she learnt of what she calls the ‘true value’ of her claim when she attended her solicitor to discuss a second accident on 8th October, 2014, in which she suffered related injuries and in respect of which separate proceedings for damages for personal injuries have been commenced, and in which liability is not in issue. AXA also insures the defendant in that claim.
Following the road traffic accident on 8th October, 2014, the plaintiff suffered an injury to a lower disc which required surgery. She has remained symptomatic and suffers from pain in her lower back with radicular symptoms in the legs. A number of MRI scans have been performed. The scan on 1st March, 2014, before the second accident, showed degenerative changes and a centrolateral disc protrusion on the right. This had reduced by 3rd November, 2014, but the scan on that date, close to the second accident, showed a new centrolateral protrusion to the left at L4/5. A scan taken in January, 2017 showed the L5/S1 protrusion to have increased again. The plaintiff makes the argument that the fact her lumbar spine injury had improved somewhat by the time of the second accident suggests that the disc condition was traumatic in origin.
It is the case that the plaintiff has objective clinical verifiable signs of low back...
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