Woods v Tyrell

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Cross
• Judgment Date: 24 June 2016
• Neutral Citation: [2016] IEHC 355
• Docket Number: [2014 No. 2986 P],[2014 No. 2986 P.]
• Date: 24 June 2016

[2016] IEHC 355

THE HIGH COURT

Cross J.

[2014 No. 2986 P.]

BETWEEN

DONNA WOODS

PLAINTIFF

AND

JOSEPH TYRELL JUNIOR

DEFENDANT

Tort – Damages & Restitution – Road Traffic accident – Assessment of damages – Nature and impact of injuries

Facts: The plaintiff sought an order for damages against the defendant owing to injuries caused to the plaintiff while she was jogging and had been hit by the van driven by the defendant. The defendant, while accepting part of liability and agreeing to the special damages, claimed that the plaintiff, too, was liable for contributory negligence by jogging by shifting from the road to the grass margin wherein the defendant's vehicle had ultimately slipped. The plaintiff contended that when she saw the defendant's vehicle approaching at high speed on the road, she shifted to grass margin assuming that the defendant's vehicle would continue on the road. The plaintiff contended that she had suffered significant injuries to her spine, wrist, neck, jaw and sternum and a reduction in the range of motion in her cervical spine which had severally impacted her life.

Mr. Justice Cross awarded damages for the pain and suffering endured by the plaintiff in the past and into the future as well. The Court held that the damages must be proportionate and fair to both the plaintiff and the defendant. The Court observed that the provision relating to the cap provided for award of damages in catastrophically injuries might be taken into account in a general way while assessing the damages in non-cap cases. The Court held that where damages were to be assessed under several categories, the Court should take into account the entire amount to determine whether it was fair and reasonable.

JUDGMENT of Mr. Justice Cross delivered on the 24th day of June, 2016

1 The plaintiff is a pleasant secondary school teacher who was born on 8th July, 1969 who was involved in a road traffic accident while jogging on the public highway with a friend on the Ballynacarragy to Mullingar Road.

2 The plaintiff set out jogging two abreast with a friend on the morning which started bright and crisp, it had been cold and frosty that January and she encountered pockets of fog. The plaintiff was on the inside and was facing oncoming traffic when a tractor and trailer being driven by a friend passed her going in the same direction on the far side of the road and then she saw the defendant's van which almost immediately went onto the grass margin and the plaintiff felt her line of escape was cut off, did not know what to do but went on to the grass margin hoping that the van would go back on to the highway but unfortunately the van continued on the grass margin and the plaintiff was struck with the mirror of the van and suffered quite significant injuries.

Liability

3 The defendant accepts that some liability must attach to him but pleads that the accident was in the main caused, or contributed to, by reason of the negligence of the plaintiff in her jogging two abreast (though she was on the inside) on the highway on a foggy morning rather than being on the grass margin which the defendant alleges caused the defendant driver to react by going on to the margin to avoid another vehicle following the tractor and being driven by a Mr. Keegan. In this vehicle Mrs. Keegan was a passenger.

4 The engineer, Mr. Glynn of Denis Woods and Associates, gave evidence. He examined the locus on the 31st January, 2013 just over a week over the accident in which he could clearly see tire marks of the defendant's van on the grass margin. The total width of the road was 6.7m, the carriageway being 3.1m on the plaintiff's side with a margin of 0.2m. The carriageway was slightly wider on the other side, i.e. 3.2m with 0.02m hard margin.

5 Mr. Glynn gave uncontested evidence as to the duties of drivers and indeed of pedestrians and stated that the width of the defendant's vehicle was 1.63m. Two persons running reasonably close together would take up approximately 1m.

6 The plaintiff stated that as she was running she saw the tractor pass her by and then she saw the defendant's van. She gave a distance to Mr. Glynn that the vehicle would have been when she first saw it as about 50m or 60m away but when she gave evidence in court she estimated the distance at approximately the length of court number two, a considerable distance less.

7 The defendant's counsel make the point that if she was 50m to 60m away that the van travelled some distance on its carriageway before it turned into the grass.

8 The plaintiff however states that when she first saw the van shortly afterwards it moved onto the grass cutting off her escape line.

9 The defendant himself did not give evidence but statements from Mr. and Mrs. Keegan who were travelling behind the tractor travelling in the same direction but on the other side of the road as the plaintiff were read into evidence by agreement in the absence of Mr. and Mrs. Keegan.

10 The Keegans essentially say that there was ‘dense fog’, that they were going slowly, that they were keeping a distance behind the tractor and trailer when Mrs. Keegan noticed the plaintiff and her friend, who was wearing a grey jacket, on the side of the road and ‘when they were level with the joggers I saw a blue van coming in the opposite direction’. Mr. Keegan does not think that the van was travelling fast. Mrs. Keegan before she saw the van remarked apparently that an accident was likely and the Keegans saw the accident in the driver's door mirror.

11 I accept that the morning became somewhat foggy. I have photographs taken by the plaintiff's friend at some time after the incident when the ambulance was still on the locus and you would describe the weather there not as dense fog but as misty or somewhat foggy.

12 The plaintiff has also been criticised for not having a high visibility jacket and while she did not have a high visibility jacket her clothing at the time was shown to me and there is no doubt that it was bright. In any event the defendant does not make the case that he did not see the plaintiff until late in the day. As indicated the defendant's driver has not given evidence at all but I believe that the defendant and her friend were there to be seen.

13 The accident was clearly caused by the defendant's driver miscalculating. Had he continued along the road even had the plaintiff not stepped into the grass margin, which I believe she would have done so, there was sufficient room for the defendant's vehicle to pass by the plaintiff and her friend still jogging at the side of the road even if the other carriageway was taken up by the Keegans' vehicle.

14 It does seem to me that from the Keegans' evidence that the Keegans' vehicle had clearly passed by the locus of the accident and the right hand carriageway was available to the defendant's driver but in any event had it not been available the left hand carriageway would have been available even had the plaintiff continued jogging on the highway.

15 Unfortunately the defendant's action in driving his vehicle onto the grass margin is indicative of either that he was not keeping a sufficient lookout until the last minute or that he was driving at an excessive speed or in any event that he entirely miscalculated the situation thinking that he should drive onto the grass margin thus clearly cutting the plaintiff off from her natural line of escape on to the grass margin.

16 I find that had the defendant continued on the roadway the plaintiff would have gone on to the grass margin and no accident would have occurred.

17 The weather conditions were not as foggy as the Keegans believed, it may be that they had just emerged from a pocket of denser fog. The fact that the Keegans did not see the plaintiff on the far side of the road until shortly before the impact is of course of no relevance as the Keegans had no business to be looking on to the right hand side of the road in the first place.

18 The plaintiff is, as has been admitted entitled to succeed against the defendant, I do not find any contributory negligence against the plaintiff, she was entitled to be on the public highway, there was not excessive traffic, a tractor and trailer passing by with another car behind it is not excessive traffic. As soon as the plaintiff saw the defendant's motor vehicle coming against him, it moved onto the grass margin and accordingly, she is not to be faulted for being on the public highway and her natural line of escape onto the grass margin was denied by the actions of the defendant. Accordingly, the plaintiff is entitled to succeed against the defendant in full.

Damages

19 By sensible, if late agreement between the parties, special damages have been agreed in the sum of €14,000.

General Damages

20 It is trite law to say that the purpose of general damages is to place a plaintiff in the same position as he or she had been before the commission of the tort. In relation to general damages for pain and suffering, of course, this is an imprecise exercise. If a person has lost an eye in an accident caused by the negligence of the defendant, it is impossible to place that person in the position that they were prior to the accident.

21 An award of money is, of course, all that the courts can do, and is ‘notional or theoretical compensation to take the place of that which is not possible, namely actual compensation’– see Rushton v. National Coal Board [1953] 1 Q.B. 495 at 502.

22 A judge in a personal injury action must place himself or herself in the position of a jury and to provide reasonable compensation for the pain and suffering the plaintiff has endured and will likely to be endured in the future. The process of assessment must be rational, bearing in mind that the particular effect of an identical or...