Yang v Motor Insurers Bureau of Ireland (MIBI) and Another

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice John Quirke
Judgment Date17 July 2009
Neutral Citation[2009] IEHC 318
Date17 July 2009
Yang v Motor Insurers Bureau of Ireland (MIBI) & Xiang

BETWEEN

MAGGIE YANG YUN
PLAINTIFF

AND

THE MOTOR INSURERS BUREAU OF IRELAND

AND

TOMMY XIANG BAI TAO
DEFENDANTS

[2009] IEHC 318

[No. 3923 P/2004]

THE HIGH COURT

DAMAGES

Personal injuries

Assessment - Quantum - Serious personal injury - Mitigation - Refusal by plaintiff to undergo reconstructive surgery - Whether refusal failure to mitigate damage - Limitation of general damages - Review of limitation - Calculation of general damages - Whether compensatory special damages awarded - Principles to be applied - Relevant factors - Economic conditions - Proportionality - Sotiros Shipping v Sameiet Soholt [1983] 1 Lloyds Rep 605, Steele v Robert George & Co (1937) Ltd [1942] AC 497, Richardson v Redpath, Brown & Co Ltd [1944] AC 62, Selvanayagam v University of West Indies [1983] 1 WLR 585, Sinnott v Quinnsworth Ltd [1984] ILRM 523; Reddy v Bates [1983] IR 141, McEneaney v Monaghan (Unrep, O'Sullivan J, 26/07/01), Kealy v Minister for Health [1999] 2 IR 456, Gough v Neary [2003] 3 IR 92, N (M) v M (S) [2005] IESC 17, [2005] IR 461, Wells v Wells [1999] 1 AC 345 and Heil v Rankin [2001] QB 272 considered - Civil Liability and Courts Act 2004 (No 31) - s 22(1) - Held limit on general damages €450,000; €350,000 awarded to plaintiff (2004/3923P - Quirke J - 17/7/2009) [2009] IEHC 318)

Yun v Motor Insurers Bureau of Ireland & Tao

Facts: The plaintiff, born in China, suffered serious injuries in a motorcar accident in 2002 when the car driven by the second named defendant struck the rear of another vehicle. The plaintiff was a rear seat passenger and claimed damages for her injuries and loss and damage sustained against the second named defendant and the Motor Insurer Bureau of Ireland. Both defendants admitted negligence and the proceedings arose by way of assessment of damages. The issue arose as to whether the plaintiff would undergo corrective surgery that had serious risks attached thereto or whether the failure to undergo such surgery amount to a failure to mitigate the losses of the plaintiff. The plaintiff had been a student and part-time worker in Ireland at the time of the accident and now was seriously incapacitated in Ireland away from family in China.

Held by Quirke J. That damages of €1,826,380.12 would be awarded to the plaintiff, comprised of inter alia €350,000 loss of earnings in the future, €200,000 General Damages in the future, €125,000 General Damages to date and €900,000 care and housekeeping in the future.

Reporter: E.F.

SOTIROS SHIPPING INC v SAMEIET SOLHOLT 1983 1 LLOYDS 605

STEELE v ROBERT GEORGE & CO (1937) LTD 1942 AC 497

RICHARDSON v REDPATH BROWN & CO LTD 1944 AC 62

SELVANAYAGAM v UNIVERSITY OF THE WEST INDIES 1983 1 WLR 585 1983 1 AER 824

SINNOTT v QUINNSWORTH LTD & ORS 1984 ILRM 523 1984/5/1719

REDDY v BATES 1983 IR 141 1984 ILRM 197

MCENEANEY v MONAGHAN CO COUNCIL & COILLTE TEORANTA UNREP O'SULLIVAN 26.7.2001 2003/40/9627

KEALY v MIN FOR HEALTH 1999 2 IR 456 1999/14/4118

GOUGH v NEARY & CRONIN 2003 3 IR 92 2004 1 ILRM 35 2003/24/5584

N (M) v M (S) 2005 4 IR 461 2005/43/9078 2005 IESC 17

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002

WELLS v WELLS 1999 1 AC 345 1998 3 WLR 329 1998 3 AER 481

HEIL v RANKIN 2001 QB 272 2000 2 WLR 1173 2000 3 AER 138

CIVIL LIABILITY & COURTS ACT 2004 S22(1)

1

Judgment of Mr. Justice John Quirke delivered on the 17th day of July 2009

2

The plaintiff, Ms. Yang Yun, was born on the 1 st May, 1981, and is now twenty-eight years old. On the 9 th May, 2002, just eight days after her twenty-first birthday, she suffered serious personal injuries when a motorcar, driven by the second named defendant, Tommy Xiang Bai Tao, struck the rear of another vehicle on the public highway near Drogheda in County Louth. It then collided with a third vehicle.

3

The plaintiff was a rear seat passenger sitting directly behind the driver of the vehicle when the collisions occurred. She was wearing a seatbelt. She suffered very serious injuries as a result of the collisions including: (i) a compression fracture of her first lumbar vertebra, and, (ii) a further compressive collapse of the superior anterior end-plate of her first lumbar vertebra with kyphosis in an anterior posterior direction at the level of the fracture.

4

In these proceedings she claims damages from the defendants to compensate her for her injuries and for the consequent loss and damage which she has sustained.

5

She claims that the collisions, (and her consequent injuries), were caused by the negligence and breach of duty of the second named defendant, Tommy Xiang Bai Tao.

6

Her claim against the first named defendant, the Motor Insurers Bureau of Ireland, is made pursuant to the terms of an agreement in writing dated the 21 st December, 1988, between the (then) Minister for the Environment and the Motor Insurers Bureau of Ireland.

7

Both defendants admit that the road traffic collisions on the 9 th May, 2002, which caused the plaintiff's injuries were caused by the negligence of Tommy Xiang Bai Tao and that the plaintiff is entitled to recover damages from both defendants, jointly and severally, to compensate her for her injuries and for the loss and damage which she has sustained and will sustain in the future.

8

No contributory negligence has been alleged on the part of the plaintiff and, accordingly, the task for this Court is to assess the damages to which the plaintiff is entitled by reason of the admitted negligence and breach of duty of the second named defendant.

FACTUAL EVIDENCE
9

The following facts have been established in evidence:

10

1. The plaintiff was born on the 19 th May, 1981, in the city of Dalian in Northern China. She is the only child of devoted parents. Her mother is the manager of a hotel and her father is a transport manager working in the same hotel. She was enrolled by her parents in a good local regional school (called the Dongbei University of Finance and Economics) at the age of 6 years and received an excellent first and second level education in China.

11

A Notarial Certificate issued by her school recorded that, during her final three years at school, (between the 1 st September, 1997, and the 15 th July, 2000,) she attended the school's College of Technology and achieved an impressive student's score list in a variety of subjects including: Chinese; Maths; English; Computer Science; Economics Law; Securities Law; Physical Education and a number of other subjects.

12

She chose not to proceed to third level education in China. Instead she decided to travel with her boyfriend. Tony Cao Zhi (hereafter "Tony"), to Europe after graduation so that she could learn English and study accountancy.

13

She wished to graduate with an internationally recognised degree in accountancy. An advertisement in a local newspaper recommended Irish educational institutions and in consequence she chose to travel to Dublin to achieve her objective.

14

She arrived with Tony in Dublin and commenced an intermediate English language course in the American College in Dublin for six months.

15

In April, 2002, she enrolled in the English Language Institute on St. Stephen's Green for a one-year course in English at a cost to her of €2,000.

16

Thereafter, it was her intention to commence a three-year accountancy degree course in either University College Dublin or Grace's College preparatory to graduation as a Certified Accountant.

17

She obtained a student visa which permitted her to work in Ireland for up to twenty hours per week whilst she was resident within this jurisdiction.

18

2. On 9 th May, 2002 the collision occurred which caused her injuries. The car in which she was a passenger was travelling from Dublin towards Drogheda. She heard a bang and felt that her body had been thrown forward and backwards as a result of a very big impact.

19

She immediately suffered pain in the middle of her back which was so severe that she could not speak and was unable to move. When the car came to a halt she loosened her seatbelt with her left hand and opened the door with her right hand. When she tried to step out and to stand up, she felt unbearable pain in her back and slid down onto the ground close to the damaged car.

20

After a short time an ambulance came and she was provided with oxygen. Supports were placed on the stretcher which had been provided for her. A paramedic cut off her clothes and touched the area which was swollen. When he did so, she suffered a pain so severe that it was difficult to describe. She was brought to Our Lady of Lourdes Hospital in Drogheda where X-rays and CAT (CT) scans were undertaken.

21

On admission to hospital, she was asked to stand up but the pain was so severe that she became deaf and was assisted back to bed, she was sweating and her hair was sticky and her clothes were wet.

22

She remained in the hospital in Drogheda for between eight and ten days suffering constant severe pain in her back. Whilst in the hospital she could not walk or visit the bathroom by reason of her condition. Doctors administered painkillers intravenously though her stomach. A swollen area developed in the centre of her back which she could not touch.

23

3. She was treated in hospital by way of medication only. A soft brace was applied to her back. After she had been discharged home she suffered constant debilitating pain and very severe disability in every aspect of her life. This pain and those disabilities have remained with her constantly since. She has required continuous care and assistance from her boy friend, Tony, for every type of domestic activity and for the performance of intimate bodily functions. This has caused her constant humiliation and embarrassment.

24

She needs assistance walking, (even short...

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