In the recent High Court case of Erin Gallagher v Oliver McGeady delivered by Mr Justice Ryan on 8th March 2013, the High Court was asked to rule on an assessment of damages in a personal injury action subject to two issues of contributory negligence.
This case arose out of a road traffic accident in July 2008 in County Donegal. The defendant admitted liability for the crash in circumstances where he was driving and the plaintiff was one of four passengers. Mr Justice Ryan noted that the issues that arose in the case were whether the plaintiff was guilty of contributory negligence in travelling in a car with a driver who was under the influence of alcohol and in failing to wear a seat belt. The plaintiff denied that she knew or ought to have known that the defendant was affected by alcohol so as to be impaired in driving and claims that she was indeed wearing a seat belt.
The plaintiff gave evidence that she travelled to a public house in Falcarragh County Donegal and met her then boyfriend and the Defendant. She stated that she was not in the Defendant’s company and later that night a number of people agreed to go to Gweedore to a nightclub. The plaintiff stated that the defendant offered her a lift and she did not notice anything untoward about his condition and he drove off in a normal manner.
The defendant stated that he and a friend collected the plaintiff from her home and first went to the Anchor Bar where their group of approximately five people were in full view of everyone else and that they were drinking in rounds so that everybody could see what every body else was drinking. The defendant stated that he was drinking bottles of Heineken and that the plaintiff was also drinking. The Defendant then stated they went to the Comer bar and the plaintiff did move away from the group temporarily but that she could still see what everyone else was drinking.
The Court considered the following questions:
- Was the plaintiff in one or two bars prior to undertaking the journey on which on the accident occurred?
Justice Ryan noted that upon being presented with a transcript of cross-examination of the plaintiff by Senior Counsel for the defendant, it was possible to read the plaintiff’s answers as being an admission that she was in two public houses. The judge further noted that what was clear was that the plaintiff in her garda statement acknowledged being in the Anchor bar whilst in evidence she stated she was in the Corner bar.
The judge stated that he preferred the evidence of the defendant and stated that it was apparent that the defendant was drinking along with all of the other people and that was going on for approximately two and half hours or more in two different licensed premises. The judge further noted that it was observable that the defendant was drinking over the entire period and it was obvious that his capacity to drive was likely to be impaired. He stated that the plaintiff should have observed that and should not have travelled with the defendant as a result.
The plaintiff’s Counsel argued that it was not sufficient that the driver’s capacity to control the car be impaired by alcohol, but that it had to be shown in addition that the accident came about because of that. The judge commented that the fact the defendant stated that he took this road to reduce his chances of being sought by the Gardaí and breathalysed indicated what he himself thought of his condition.
The parties in the car asked the Defendant to slow down which he did not do and in avoiding an oncoming car, the Defendant’s car went out of control as he was driving so fast. The car went some 65 feet with the rear passenger wheel in the roadside depression and then struck a telegraph pole and broke it, after which it overturned a number of times before ultimately coming to rest in a field. Upon attending the scene it was observed that there was a strong smell of drink from the Defendant and the Garda was unable to breathlalyse him because of his injuries.
The judge noted that it was “irresistible that the defendant’s capacity to drive…………was substantially impaired by the alcohol that he consumed”. and stated that the Plaintiff “should have known that” and that the plaintiff was guilty of contributory negligence in travelling with the defendant at a time when his capacity to drive was impaired by alcohol.
2. Whether the plaintiff was wearing a seatbelt
The defendant claimed that the plaintiff was guilty of contributory negligence in failing to wear a seatbelt and that her injuries were consistent with failing to wear a seatbelt and that she told the nurse at Letterkenny hospital that she was not wearing a seatbelt. The plaintiff’s case was that she was confused after the accident because she had suffered a severe impact to her head. Dr. Mark Jordan, Consulting Engineer, gave evidence for the plaintiff and expressed the opinion that the plaintiff was wearing a seatbelt. The defendant’s medical expert gave evidence that the plaintiff’s injuries were consistent with the history of being ejected from the car and were not consistent with wearing a seatbelt.
The judge concluded that the plaintiff was not wearing a seatbelt as studies showed that 97% of people who were ejected from vehicles after crashes were not wearing seatbelts. The judge also determined that there was no evidence that the seatbelts were defective.
Quantum of Contributory Negligence
Justice Ryan summarised the position that a passenger in a car driven by a person who is under the influence of alcohol takes the risk of being seriously injured. The decided cases referred to in the judgement cover a range of findings of contributory negligence that in the modern jurisprudence came between 30% and 50%. The judge noted that failure to wear a seatbelt was visited with less severe sanction in terms of finding of contributory negligence. In a case where a passenger knew or ought to have known of the intoxicated condition of the driver and also failed to wear a seatbelt, a finding of contributory negligence in the amount of 55% was made.
Where there was an issue of contributory negligence in relation to the condition of the driver and the failure to wear a seatbelt, in the current case, he assessed contributory negligence in the amount of 40%.
It was agreed that the plaintiff suffered a significant head injury with fractures of the cheek bone and jaw and also had fractures of left and right clavicles with significant shoulder pain and restriction of left shoulder movement. In addition the plaintiff had fractures of her ribs bilaterally, lacerations of the left hip, the right buttock and the left thigh and the last of these had left a significant scar. The plaintiff also had memory difficulties resulting from the accident.
There was dispute between the parties about injuries to the plaintiff’s neck and her back and the judge stated that is was noteworthy that the plaintiff did not had an MRI scan, a CT scan or even an X-ray of her back. The judge also stated that it was significant that the plaintiff did not make any complaint about her back to her orthopaedic surgeon
The court observed that the plaintiff had been on job seekers allowance since 2010, which was implied by the defendant that she was actively looking for work and that she was fit for such work. The court noted that this point represented a serious obstacle for the plaintiff in making a case of incapacity now and into the future. The court stated that it did not propose to make an award under this heading but that the sequelae of the injuries including ongoing pain, discomfort and some general loss of faculty must be reflected in damages.
The court took into account the plaintiff’s time in hospital in Letterkenny and Derry, the severe pain she experienced, and the multiple areas of her body that were affected and the lengthy recuperation.
Award of Damages
In conclusion the High Court assessed general damages for the past at €100,000 and for the future at €65,000. The court noted that the agreed special damages were €25,500. The total sum of €190,500 was reduced by 40% in view of the finding as to contributory negligence. In summary the plaintiff was awarded €114,300.