O'Toole v Tipperary County Council
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Hanlon |
| Judgment Date | 25 July 2018 |
| Neutral Citation | [2018] IEHC 447 |
| Docket Number | [2015 No. 194 P.] |
| Court | High Court |
| Date | 25 July 2018 |
[2018] IEHC 447
THE HIGH COURT
O'Hanlon J.
[2015 No. 194 P.]
Tort – Personal Injury – Statutory Duty – Plaintiff seeking damages for injury suffered as a result of a fall from his bicycle after hitting a pothole – Whether the defendant had failed in their duty to maintain the public road
Facts: The plaintiff, an experienced cyclist, was cycling on a public road on 27th April, 2014, when he fell from his bicycle and suffered significant injuries. The plaintiff recounted that this was due to the presence of a pothole on the road and argued that the defendant county council had failed in their duty to maintain the road. Specifically, the plaintiff argued that as the council had undertaken repairs to the pothole in the past, there was a positive duty to ensure that the repairs were effective. The defendant argued that this was a case of nonfeasance rather than misfeasance, and as such the defendant should not be held liable.
Held by O’Hanlon J that on the balance of probabilities the local authority was negligent. The accident was foreseeable, and once the local authority had engaged in repairs of the pothole, the repairs must be effective as either temporary repairs or permanent repairs. To conduct or carry out a temporary repair and then not follow up to ensure the danger does not re-engage will be taken as negligence by the local authority.
O’Hanlon J awarded €85,000 for general damages and €6,129.80 in special damages for a total award of €91,129.80.
Relief granted.
On or about 13th January, 2015, a personal injury summons issued in relation to an accident which occurred on Sunday, 27th April, 2014, when the plaintiff was cycling his pedal cycle along the public highway between Portroe and Ballina, Tipperary. He was caused to fall off his cycle due to the presence of a pothole on the roadway. As a result of this, he suffered severe personal injuries, loss, damage, inconvenience and expense.
The defendant is Tipperary County Council and is the successor in title to North Tipperary County Council. It is pleaded that all material times, the defendant was under a statutory duty to maintain the public roadways, including the proper construction and design of the said roadways, erection of warning signs and like matters.
The Court agreed to amend the date of the accident from 28th April, 2014, which was pleaded, to Sunday, 27th April, 2014.
This case was opened on the basis that the accident occurred on the R494 and that the plaintiff was wearing a helmet, cold weather gear including overshoes on his cycling shoes. He was rendered unconscious by this accident despite the fact that he was wearing a helmet at the time. The plaintiff suffered very serious rib fractures, displaced fracture of the clavicle, hearing loss in the right ear and a shoulder injury to the right shoulder. The plaintiff suffered from a puncturing of the lungs, bleeding from the ear and tinnitus as well as a rotator cuff injury. He is employed in the insurance industry. He was out of work for thirteen weeks following this accident. The plaintiff's contention is that he suffered very serious ongoing sequelae as a result of this accident and may require a hearing aid or implant.
The accident concerned a pothole which is one-foot square and three inches deep and is described by counsel for the plaintiff as a nuisance. It is asserted that this is not a nonfeasance case but rather a case of defective repair and a failure to respond to complaints. Reliance is placed on the decision of Murphy J. in Lewis v. Cork County Council and Youghal UDC, which decided that repairs must be effective.
The plaintiff gave evidence that his date of birth is 21st January, 1966 and he is now aged 52 years. The plaintiff confirmed that the accident actually happened on Sunday, 27th April, 2014. The pleadings were amended accordingly and there was no objection from the defence to that amendment.
The plaintiff described himself as a financial advisor with Finance First and that he had worked with them for ten years and had taken one year leave of absence during that time. He described himself as an insurance broker where he reviews packages in terms of insurance and tries to get better benefits for clients. The plaintiff has worked from home post-accident and has used Skype in his work. One or two days per month, the plaintiff is obliged to travel to Dublin for work purposes. The plaintiff then went on to describe how for the last fifteen years, cycling was his hobby and that he had a previous history of competitive cycling before he had his own young family. The plaintiff explained that he had taken part in the Wicklow 200 which would involve lengthy cycles. On the date of the accident, he left home between 9 and 9:30am and was on the Nenagh/Ballina road. He said that at that stage four or five, the party of cyclists intended going to Limerick and back to Portroe which would be 160km and that they had done that once or twice before but that it was a busy road. However, on a Sunday morning, traffic would not be that heavy.
The plaintiff described the group as casual cyclists who did charity cycles and gave the example of the Ring of Kerry being traversed for that purpose. The plaintiff further described training for a charity cycle between Mizzen and Malin Head last year which was 600km. That was done over three days. He described the weather as wet and misty when he left Borrisoleigh. He was wearing full winter gear with overshoes on shoes and a base layer of jackets over that as well as a helmet at the time.
The plaintiff described Portroe as involving a sharp climb for 4km with a fifteen-degree gradient. They were split up at different levels and the party had agreed to meet at the viewing point.
The plaintiff was coming down the hill. He described his line of vision and how he was using the drop bars on the bike to reduce the centre of gravity. He was feathering the brakes because the road was wet and he did not want to skid. He did not see the pothole. He said he was completely disorientated and did not know what was going on after he fell. The plaintiff described having been taken to hospital and having an injury to the right side of the pneumothorax. A right sided drain was inserted into the lung which remained in for four days. He was in hospital until Friday of that week. Regarding the right clavicle injury, he was obliged to wear a sling for four to six weeks. That was standard treatment for a clavicle fracture. The plaintiff lost consciousness on impact. He was bleeding from the right ear and had an awful headache with buzzing in the right ear. He was seen by an ENT surgeon in relation to the ear issue and the severe headaches continued for the first couple of days. The plaintiff described how he now goes deaf if he is in a room with other people or in a bar with a TV. He can now hear a person alright but the buzzing is still there. He describes this as not affecting his work but rather his social life. The plaintiff has indicated in his evidence that his wife will say that he cannot hear her and will give evidence of that. His balance was not affected.
In relation to the injury to the clavicle, he wore a sling and he said that if he now looks in the mirror, the right shoulder has dropped one and a half inches by comparison with the left shoulder. He describes having pain if he uses a manual lawnmower. He feels pain in his shoulder area and may have a rotator cuff injury.
The plaintiff lives in Templemore and agreed to work in the Templemore area post-accident. He said that a number of hours driving would cause pain in the shoulder.
The plaintiff described being able to lift his right arm to 80 degrees but cannot undertake jobs such as household painting any more.
The plaintiff described being treated with injections two to three times a day. He was also treated with acupuncture and physiotherapy and was advised to have a paravertebral block.
As a result of this, the plaintiff has now had to limit his cycling and can feel pressure or pain in the lungs pressing against his ribs on exercise. The plaintiff indicated that it took him one full year to get to 80% in terms of his mobility. He described having a scar on the right side below the ribcage where the drain was inserted.
The plaintiff indicated that there was water generally in the area where he was cycling at the time of the accident. He moved to the centre to improve his line of vision. His carbon-fibre bike snapped in two. He gave its value as €2,800.
Under cross examination, the plaintiff confirmed that he had been cycling for fifteen years and that he had had other falls from his bicycle. He described one previous accident where a car hit him and he suffered injuries to two ribs on the left side.
It was put to this witness on cross examination that the hospital records of 27th April, 2014 from Limerick Hospital describe one other person who was trying to avoid falling on him or to his side. He said he was not aware of the record and that when he hit the pothole, he hit the ground and he did not remember anything after that. He said he was on the side of the road and he was put into an ambulance.
It was put to this witness that the ambulance driver recorded him having fourteen out of fifteen in terms of his level of consciousness. He said he did not recall, that that it was a damp and misty morning and that it was wet. It was put to this witness that a meteorological witness would say that there was a ridge of high pressure and that he would describe that by saying that there might have been localised trace.
The plaintiff disagreed with that and said that the gear he would have...
To continue reading
Request your trial
-
Delaney v Circle K Ireland Energy Group Ltd (Formerly Topaz)
...that it was very much felt that this case turned on its own facts (note that reference was made to O'Toole v. Tipperary County Council [2018] IEHC 447; Hampson v. Tipperary County Council [2018] IEHC 448; Furlong v. Wexford Borough Council [2018] IEHC 450; and Kearney v. Tipperary County Co......