O'Sullivan v Dwyer (No. 2)

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 15 May 1973
• Docket Number: [1966. No. 14 P.]
• Date: 15 May 1973

O'Sullivan v. Dwyer (No. 2)

CHARLES O'SULLIVAN

Plaintiff

and

MICHAEL DWYER

Defendant.

[1966. No. 14 P.]

Supreme Court

Practice - Judgment - Interest - Damages consisting of aggregate of four distinct assessments - One assessment set aside on appeal and retrial directed - Other assessments affirmed on appeal - Whether plaintiff entitled to interest on affirmed assessments from date of judgment - Rules of the Superior Courts, 1962 (S.I. No. 72), Or. 28, r. 11; Or. 41, r. 6; Or. 42,r. 15; Or. 58, r. 21 - Debtors (Ireland) Act, 1840 (3 & 4 Vict. c. 105), ss. 26, 27.

The plaintiff claimed damages from the defendant for the injuries and loss suffered by the plaintiff as the result of an accident caused by the defendant's negligence. At the trial of the action in the High Court, the jury assessed the plaintiff's damages at £64,024 which sum was the total of four distinct assessments in respect of three classes of special damage and an award of general damages. The jury also apportioned to the plaintiff 40% of the fault for the accident and judgment was entered for the plaintiff in the sum of £38,414-40 (being 60% of £64,024). On appeal by the defendant, the Supreme Court directed a retrial on the issue of general damages but otherwise affirmed the order of the High Court. Shortly after the judgment in the appeal, the defendant paid to the plaintiff the sum of £17,414-40 being 60% of the aggregate of the three assessments of special damage, but the plaintiff claimed that the defendant was bound to pay interest on that sum from the date of the order of the High Court. At the hearing of a motion seeking clarification of the terms of the order made on the appeal it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh and FitzGerald JJ.) that, 1, the defendant was bound to pay interest at the rate of 4% on the sum of £17,414-40 from the date of the order of the High Court to the date of the payment of that sum to the plaintiff.

2. That, if necessary, the order made by the Supreme Court on the appeal should be amended to conform with the judgment of the Supreme Court.

Motion on Notice.

The facts have been summarised in the head-note and appear in the judgment of Walsh J., post.

The order of the High Court made on the 22nd July and perfected on the 24th July, 1969, was in the following terms:—

"The following questions were submitted to the jury and answered as hereinafter set forth:—

1. Was the flat roof a working platform? Answer:Yes.

2. If so, was the absence of a handrail or toeboard or other effective means to prevent the fall of persons a cause of the accident? Answer: Yes.

3. Was the plaintiff guilty of contributory negligence?Answer: Yes.

4. If you answer 'Yes' to questions 1, 2 and 3, apportion the degrees of fault on a percentage basis as between (a) the defendant (Answer: 60 per cent.) and (b) the plaintiff (Answer: 40 per cent.).

5. Assess damages under the following headings:—

• (a) Out-of-pocket expenses to date: Answer: £5,500.

• (b) Future loss of earnings and pension. Answer:£17,588.

• (c) Cost of nursing in future and cost of housing.Answer: £5,936.

• (d) General damages. Answer: £35,000.

Upon these findings the judge gave judgment for the plaintiff for the sum of £38,414 8s. 0d. and costs—to include the costs of the first trial already had herein. . ."The above order of the High Court was made on the retrial of the plaintiff's action before O'Keeffe P. and a jury in the City of Cork on the 17th, 18th, 21st and 22nd July, 1969. The defendant appealed to the Supreme Court: seeO'Sullivan v. Dwyer [1971] I.R. 275. By its order dated the 12th March, 1971 (see p. 86 post) the Supreme Court set aside the award of £35,000 for general damages and directed a retrial on that issue only. On the 5th May, 1971, the defendant paid to...