Sienkiewicz v Wall
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 08 November 2018 |
| Neutral Citation | [2018] IEHC 835 |
| Docket Number | [2016 No. 3534P] |
| Court | High Court |
| Date | 08 November 2018 |
[2018] IEHC 835
David Keane
[2016 No. 3534P]
THE HIGH COURT
Negligence – Breach of duty – Personal injuries – Plaintiff seeking damages – Whether the plaintiff had established any negligence or breach of duty on the part of the respondent
Facts: On the evening of 3 September 2014, a road traffic accident occurred on the N5 (Longford-Westport) national primary road at Cloondara, County Longford, when the plaintiff, Mr Sienkiewicz, a pedestrian, and the motor car that was being driven by the defendant, Mr Wall, collided. In this running down action, tried in Sligo over three days between 5 and 7 November, Mr Sienkiewicz claimed damages for the personal injuries that he suffered in that accident, which he attributed to the negligence and breach of duty of Mr Wall.
Held by Keane J that Mr Sienkiewicz had failed to establish any negligence or breach of duty on the part of Mr Wall.
Keane J held that Mr Sienkiewicz’s claim against Mr Wall would be dismissed.
Claim dismissed.
On the evening of 3 September 2014, a road traffic accident occurred on the N5 (Longford-Westport) national primary road at Cloondara, County Longford, when the plaintiff, Robert Sienkiewicz, a pedestrian, and the motor car that was being driven by the defendant, Noel Wall, collided.
In this running down action, tried in Sligo over three days between 5 and 7 November, Mr Sienkiewicz claims damages for the personal injuries that he suffered in that accident, which he attributes to the negligence and breach of duty of Mr Wall.
The parties broadly agree about the nature and extent of Mr Sienkiewicz's injuries.
Mr William J. Gaine, the consultant orthopaedic surgeon who examined Mr Sienkiewicz on behalf of Mr Wall on 4 May 2018, noted the injuries that he had sustained as; a laceration to his right forehead that required approximately eight stitches (and which has left a visible scar); a fractured molar tooth; bruising around the right eye; contusions to the right side of his face, and to his nose, right shoulder and lower back; and a soft tissue injury to his neck. He was treated in Mullingar Regional Hospital, though not admitted, and was prescribed analgesics. He later visited his G.P. and, on reporting the onset of panic attacks and insomnia, was prescribed anti-depressants and sleeping tablets. He attended his dentist who treated his fractured molar tooth. When examined by Mr Gaine, his neck symptoms had settled, but he was still suffering from intermittent back pain, depression and listlessness. He had not attended a physiotherapist, nor had he undertaken counselling or cognitive behavioural therapy, although each would have benefited him, in the view of Mr Gaine.
On 30 April 2019, more than four years after the accident, Mr Sienkiewicz was examined by a psychiatrist, Dr Mary Maguire, more obviously in preparation for trial than for the purpose of treatment. Who referred Mr Sienkiewicz to Dr Maguire is unclear. Dr Maguire's report, dated 3 May 2019, was admitted into evidence by agreement between the parties.
Dr Maguire recorded that Mr Sienkiewicz had described to her the onset of a fear about electricity and electrical appliances since the accident. Both Mr Sienkiewicz and his wife (who was present when Dr Maguire conducted her assessment) denied that he done any such thing, claiming instead that that there must have been a miscommunication or misunderstanding in the course of that assessment. The couple are both Polish nationals and each gave evidence at trial through an interpreter. It is thus difficult to know what to make of Dr Maguire's conclusion that ‘[e]ven though electricity was not involved in [Mr Sienkiewicz's] accident, feelings of anxiety have spilled over to such appliances, and these feelings are indicative of his underlying Anxiety Disorder.’ In any event, Dr Maguire attributed Mr Sienkiewicz's reported symptoms of sleep disturbance, mildly depressed mood and anxiety to the stress of his impending court case, before expressing the view that those symptoms should abate when that stress ends.
Mr Sienkiewicz's GP, Dr S. Ali, did not give evidence.
The sum of €1,255 in special damages – comprising €715 in treatment fees for Dr Ali; a €200 assessment fee for Dr Maguire; and miscellaneous and travel costs of €340 – has been agreed.
In the personal injuries summons that issued on Mr Sienkiewicz's behalf on 21 May 2016, he pleads that the collision was caused by the negligence or breach of duty of Mr Wall in the care, control, management or driving of his motor car, providing (largely generic) particulars of that negligence and breach of duty that run to thirty-two enumerated paragraphs. Those particulars include: driving without due care and attention; failing to keep a proper lookout; driving at an excessive speed; failing to sound his horn; failing to apply his brakes in sufficient time; and driving with two front tyres that were excessively worn to the extent that ‘the canvas and wire of the tyre canvas were visible and protruding.’
The personal injuries defence delivered on behalf of Mr Wall on 12 October 2012 admits the occurrence of the collision but denies any negligence or breach of duty on Mr Wall's part, before alleging that the accident was caused by the plaintiff's own negligence and breach of duty. The particulars of that negligence include: failing to keep a proper lookout; failing to allow Mr Wall's vehicle to pass before crossing, or attempting to cross, the road; walking into the path of oncoming traffic; placing himself in danger; causing the accident; being the author of his own misfortune; and, as was to become a significant point at trial, walking on the public highway, failing to wear appropriate reflective clothing, and failing to carry a torch ‘during hours of darkness.’
The following facts are not in dispute. On the day in question, Mr Sienkiewicz went fishing with his friend Sebastian Kasprzyk on the banks of the River Shannon at Clooondara. Earlier that day, Mr Sienkiewicz's wife, Elzbieta Aienkiewwicz, had driven them there from Longford town, dropping them off at a point on the N5 national primary road just outside the village of Tarmonbarry, County Roscommon, which is directly across the River Shannon from Cloondara. The Shannon lies on the same side of the road as the westbound carriageway heading towards the bridge into the village, so it wasn't necessary for the two men to cross the road to access the river on disembarking from the car. Some hours later, they telephoned to ask Ms Aienkiewwicz to collect them at the same spot. She duly drove back from Longford but could not see them there. She then performed a U-turn on the N5 and drove a short distance back along the eastbound (Longford) carriageway, before parking on the hard shoulder a little further from the village than the point on the other side of the road where she had dropped her husband and his friend off earlier. There she began texting her mother while waiting for the two men to return to the car. The accident occurred behind her and she did not see it.
Meanwhile, Mr Wall, accompanied by his 92-year-old mother, was driving through Tarmonbarry on the eastbound (Longford) carriageway of the N5. They were returning to Dublin in Mr Wall's 2002 model Volvo V70 motor car from a funeral service they had attended in Strokestown, County Roscommon. At the end of the village, on the Cloondara side of the River Shannon, there are road signs indicating that the speed limit beyond is 100 km/h. The applicable speed limit before that sign is 60 km/h. Street lighting extends only a short distance to the east beyond the speed limit sign.
The section of the N5 where the collision occurred is approximately 163 metres beyond the 100 km/h speed limit sign, travelling in the direction of Longford. At that point the road consists of a single carriageway in each direction, divided by a broken white line for eastbound traffic and a continuous white line for westbound traffic, side by side. There is a continuous white line for westbound traffic because the road curves to the left in that direction before crossing the Shannon and entering the village. On each side of the roadway there is a hard shoulder, divided from the carriageway by a broken yellow line. Beyond the hard shoulder on each side, there is a grass verge and then a hedge. There is no street lighting there.
Mr Sienkiewicz gave evidence on his own behalf, through an interpreter. He stated that, when he returned from the river to the roadway with Mr Kasprzyk at around 8 p.m., he saw his wife parked on the other side of the N5. It wasn't dark, but it was getting dark; it was, in his words, greyish. He looked left and right and then started to cross. He didn't see or hear any vehicle coming towards him. He didn't hear any car horn or see any vehicle flashing its lights at him. In his words, he marched across the road. He did so at a slight rightward diagonal. Mr Kasprzyk was directly behind him, carrying their fishing gear. Mr Sienkiewicz had almost reached the broken yellow lines on the far side of the road when he was struck by Mr Wall's vehicle. He believes that he was briefly knocked unconscious by the collision because he has only a very fragmentary recollection of subsequent events.
Under cross-examination, it was put to Mr Sienkiewicz that, in making a statement concerning the accident to Garda David Gibbons on 29 September 2014; in providing instructions to Tom O'Brien, the independent expert engineer retained on his behalf; and (it might have been added, but wasn't) in replies to particulars, he had stated that the accident happened at about 9 p.m. Mr...
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