Tevlin v McArdle
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cross |
| Judgment Date | 06 October 2014 |
| Neutral Citation | [2014] IEHC 436 |
| Court | High Court |
| Date | 06 October 2014 |
[2014] IEHC 436
THE HIGH COURT
BETWEEN
AND
READY v BATES 1983 IR 141
CURRAN v GALLAGHER & ORS UNREP SUPREME 7.5.1997 1997/7/2673
ANDERSON v COOKE & ANOR 2005 2 IR 607 2005/2/272 2005 IEHC 221
CIVIL LIABILITY ACT 1961 S34(1)(B)
GALA v PRESTON 1991 172 CLR 243 1991 100 ALR 29 1991 65 ALJR 366 1991 HCA 18
HUSSEY v TWOMEY & ORS 2009 3 IR 293 2009 1 ILRM 321 2009/27/6679 2009 IESC 1
JUDGE v REAPE 1968 IR 226
Negligence – Road Traffic Accident – Drink Driving – Assessment of Damages – Contributory Negligence
Facts: The plaintiff sustained injuries as a passenger in an uninsured motor vehicle driven and owned by the first named defendant. The plaintiff initiated proceedings against both defendants and obtained judgment in default of appearance against the first-named defendant. The plaintiff sought a declaration against the second named defendant, pursuant to the Motor Insurers Of Ireland Agreement, that they were obliged to satisfy any full or partial judgment that remained unsatisfied after judgment had been entered against the first named defendant. The second named defendant argued that they were not liable due to the plaintiff”s conduct as he knew the first named defendant was intoxicated when he voluntarily entered the vehicle thus abdicating his own safety. The second named defendant also argued that there was an element of contributory negligence on the plaintiff”s behalf for failing to wear a seatbelt.
Held by Cross J: The plaintiff was entitled to damages to be assessed in full against the first named defendant for general damages, special damages, care costs and loss of earnings. In relation to the second named defendant, the MIBI Agreement is a contractual agreement between the Bureau and road users meaning that the Bureau and the State have undertaken not to plead privity of contract. This Agreement fulfils the State”s obligations under various EU directives. Cross J did not accept that because the plaintiff allowed himself to be carried in the vehicle that he was not owed a duty of care by the driver. Cross J also did not accept that public policy prevented the plaintiff, an intoxicated passenger, from recovering damages against an intoxicated driver. Cross J said that to exempt drunken drivers from liability to their passengers would further encourage irresponsible drunk driving. The court assessed the degree of fault under the Civil Liability Act 1961 and stated that the negligence of the driver almost always, and certainly was in this case, greater than that of the passenger. Cross J found that 35% contributory negligence was appropriate in respect of the intoxication of the plaintiff. The liability for contributory negligence in failing to wear a seatbelt was assessed as an additional 10% reduction in damages to be awarded to the plaintiff. Therefore the total figure for reduction by way of contributory negligence was 45%. The plaintiff was entitled to a declaration against the second named defendant.
JUDGMENT of Mr. Justice Cross delivered the 6th day of October 2014
1. The plaintiff is a self-qualified plasterer, born on 20 th March, 1979, who, on 27 th December 2010, suffered significant injuries when travelling as a passenger in a motor vehicle being driven and owned by the first named defendant which was uninsured at the time.
2. The circumstances and the results of the accident were truly horrific and will be referred to subsequently.
3. The plaintiff initiated proceedings against both the defendants and no appearance was entered on behalf of the first named defendant who, at the time of this case, was serving a prison sentence, as a result of his driving causing this accident. The plaintiff, at the commencement of the trial, applied for and obtained judgment in default of appearance as against the first named defendant.
4. The plaintiff's claim against the second named defendant was for a declaration that they were obliged to satisfy in full any judgment, or part of any judgment, remaining unsatisfied with 28 days after date of which judgment was entered against the first named defendant, pursuant to the Motor Insurers of Ireland Agreement entered into on 29 th January, 2009.
5. The defence of the second named defendant put a number of matters in issue and pleaded as against the plaintiff:
(a) that the plaintiff knew that there was not in force an approved policy of insurance in respect of the use of the motor vehicle;
(b) that he travelled in the first named defendant's vehicle, knowing that the first named defendant ought not to have driven the vehicle following the consumption of alcohol, and that the plaintiff consented to voluntarily enter into the vehicle which caused the damage or injury.
6. In relation the latter plea, counsel on behalf of the second named defendant stated at the commencement of the trial, that this was not just a plea in contributory negligence, but they were going to make the case that the plaintiff was not owed any duty of care by the defendant, given his conduct, and that the plaintiff, in effect, abdicated his own safety.
7. Contributory negligence was also alleged by the failure of the plaintiff to wear a seat belt.
8. Counsel for the plaintiff countered the first and second named defendants' opening submissions by stating that under the MIB agreement, the Bureau was obliged to indemnify any unsatisfied judgment after 28 days and could not maintain any defence other than the issue of the knowledge of the uninsured nature of the driving at para. 5(a) above. As will be seen subsequently, this submission was abandoned later by the plaintiff, and the second named defendant conceded that the plaintiff did not know that there was no policy of insurance in placed at the time, and, accordingly, the only issues vis-à-vis the second named defendant were:
(a) whether the second named defendant could escape any liability due to the conduct of the plaintiff and
(b) whether or to what extent any damages of the plaintiff could be reduced for contributory negligence due to the consumption of alcohol and the seat belt issue.
9. The plaintiff is entitled to damages to be assessed in full against the first named defendant; he was travelling as a back seat passenger and he was not wearing a seatbelt. The accident was apparently a high speed, head-on collision.
10. The plaintiff sustained fractures of his pelvis, sternum and ribs and a severe head injury. He was taken initially to Drogheda Hospital and subsequently transferred to Tallaght Hospital. He has no recollection of the events of one week prior to the accident and some weeks thereafter. He was treated with a brace for a number of months. He had symptoms of Depression and was treated by his General Practitioner in that regard. It subsequently transpired that the plaintiff was not suffering from Depression, but had significant behavioural problems and a personality change. He suffered significant diminishment of his interests in the world, difficulties in interpersonal relationships (a long-term relationship with his girlfriend was terminated by her). He suffered a cognitive impairment and the accident had a severe affect on his memory.
11. The plaintiff is an honest witness who tended to minimise his difficulties and gives the impression that he is "grand" and attributes any difficulties in relation to work or otherwise to his physical disabilities. I accept that the plaintiff is incorrect in this belief and that his main continuing difficulties result from his head and brain injury.
12. I have had the benefit of hearing and the reports of Dr. John Owens, psychiatrist, Ms. Alice Gormley, occupational therapist, Ms. Susan Tomlin, occupational therapist and vocational evaluator, Mr. Donnacha O'Brien, consultant neuro surgeon and from Prof. Michael Hutchinson, consultant neurologist on behalf of the defendant. I feel that Professor Hutchinson was overly reassured by the plaintiff's own optimistic account of his disabilities.
13. The plaintiff was not a person with any educational qualifications. He always had a poor level of literacy. He left school prior to doing his Junior Cert in order to take up employment. He worked as a plasterer and his former employer said he was a very good plasterer, though he was not formally qualified. It is true to say that prior to the accident, even during the height of the booming economy, the plaintiff did not work fulltime and seemed to have had a rather casual approach to employment.
14. The plaintiff was expertly managed in hospital and his physical injuries, apart from his brain/psychological problems improved though the plaintiff is left with low back pain which he believes renders him incapable of doing his pre-accident plastering. I accept that the plaintiff is not fit for his pre-accident work, or indeed any meaningful work in the open economy, but I find that this unfitness is due to a combination of his back and head-related injuries. The most serious limiting factor is the head-related injury.
15. The plaintiff, on admission to hospital, had a Glasgow Como scale of 3/15 and was not obeying commands. He was incubated and ventilated. He was then transferred to Tallaght Hospital where he was treated for his "poly-trauma". He developed a respiratory tract infection while in the ICU in Drogheda, in which he resided until the 10 th January, 2011. The plaintiff has made an improvement, however, I accept the evidence of Theresa Burke, consultant neuro psychologist, when she stated:
"The prognosis for this man, in terms of functional limitations will, in my opinion,...
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