High Court

Duffy v Electricity Supply Board 

1994/2494 P 

18 February 1999 

BUDD J: 

The Plaintiff is aged 61, having been born on the 23 of March, 1937. He used to live at No 15, Phil Shanahan House, North Wall, Dublin 3 and now resides at 51 Spencer Lock, Sheriff Street, Dublin 1. He is normally unemployed, but in reality has been a recidivist professional criminal with an impressive series of convictions since he was ten years of age, and has served many sentences of imprisonment both in this country and across the water in England. He is well-dressed and gave his evidence in a straight forward manner. 

He also has a stoic resignation in respect of the serious right leg injuries which he sustained. He is uncomplaining about these nasty and serious injuries, which he undoubtedly sustained on the night of the 3 of October 1992. I am well aware that he must have impressed a number of judges by his candid manner and his quick wit in the past, as his CV of previous convictions reveals a number of apparently light sentences for larceny and receiving for example, the two most recent sentences are in respect of receiving when he was convicted on the 5 of September, 1979 and was sentenced to two days in Mountjoy, which two days he had presumably already spent in Mountjoy; and on the 5 of September, 1997 he received a suspended sentence of one month for handling stolen property after conviction in the Dublin District Court. This would be a singularly unusual and light sentence in respect of handling stolen property, which was the old crime, in different phraseology, which used to be known as receiving. He has a very good turn of phrase and is quite clearly a plausible and personable rogue. 

I have taken the unusual step of outlining the Plaintiff's past at the outset of this judgment as credibility is very much an issue and the veracity of a number of witnesses has been strongly called in issue, particularly the credibility and veracity of a number of the witnesses, who have been called on behalf of the Plaintiff, as indeed the veracity of the Plaintiff himself has been rigorously challenged. I have had an unusual difficulty in assessing the truthfulness and genuineness of the recollections of a number of the witnesses in respect of the events of the evening and night of the 3 October, 1992, when the Plaintiff alleges that at about 10.15, that he was caused to fall by the negligence of the Defendant Utility in respect of the poor state of restoration of the footpath at the corner of Aungier Street and York Street in the vicinity of the Swan Inn. 

I have carefully considered the evidence of all the witnesses, their demeanour in the witness box, their manner of giving evidence and also their behaviour while they have been here in court and I have taken all this into account in try assessment of the accuracy and truthfulness of their evidence. 

I have had the benefit of an enlargement of an ordinance survey sheet produced by Philip Brunkard, chartered engineer, together with his four photographs in the blue folder. Album A, Photograph depicts the grid at the junction of Aungier Street and York Street. By "grid" I mean the traffic intersection. This is outside the front door of the Swan Bar and the photograph shows this and it also shows the footpath outside the Swan Bar, and in the background it shows the side door to the living accommodation of the Swan Bar with a fine golden Labrador dog standing at the southern side of the -- well, with its head at the southern pillar at the side of the residence door of the Swan Bar on Aungier Street. 

On Photograph 2 in that same folder one can see the cellar covering for the Swan Bar on the extreme left hand side. One can see the golden Labrador, which has moved on towards York Street and one can also see tarmac following around the corner, outside the front door of the Swan and on the footpath where the tarmacs, awaiting the reinstatement of the pavement. The Plaintiff has marked with a red cross the point on the tarmac, which is there or the purpose of temporary restoration, and he has marked that red cross where he says he was tripped or caused to fall breaking his right leg in no less than three places and straining his right knee. mr Brunkard met the Plaintiff at the scene on the 23 March, 1993 and the Plaintiff pointed out to him where he fell. In photographs 3 and 4 in that Album A, Mr Brunkard shows the tarmac and the kerb in the same area as where the Plaintiff put his cross indicating where he had been caused to fall. Mr Brunkard described the half inch depression in the tarmac below the level F the concrete as being a danger where people can be caused to rip and be caused to fall. He said that if there was proper compaction of the sub base then the tarmac used for the purpose of the temporary reinstatement, if it is put down at the proper temperature and properly compacted to fill voids and is also put in at a level slightly above that of the pavement, so that when it is compacted and when it sinks slightly it ends up level with the pavement. And he said that it should not subside in the period before the permanent reinstatement of the pavement is done by the Roads Authority, which is responsible for the pavement. That is Dublin Corporation in this case. 

Counsel for the Defendant Utility, Mr McGovern, very properly intervened at this point to concede that the ESB accepted responsibility for the parts of the tarmac in the photograph, which is depicted in Mr Brunkard's photographs two, three and four, and which are shown in the Defendant's set of photographs, that is Album B and in particular, Photographs 5 and 6, which show the Plaintiff in his crombie overcoat pointing in Photograph 6 to the declivity, to the declivity in the tarmac and pavement area at the corner and he is shown pointing at the declivity with his crutch in Photograph 6. 

The Plaintiff has been consistent throughout this case in contending that he was caused to trip at this point and he has never deviated from this, nor has he ever suggested that he fell at any point further north, nor has he ever suggested that he fell at the point where Garda Lowney noticed a six inch hole in the pavement with jagged edges protruding, which area is down near the North end of the cellar door or covering near the door into the residential accommodation of the Swan Bar. That grating can be seen in Album B in Photograph 7 and the doorway into the residential accommodation in Photograph 8 is the door which door has over it, "58". 

Mr Duffy then gave evidence himself and he said that he had been residing at the time of the 3 October, 1992 at Phil Shanahan House in the North Wall. He had been brought up in Railway Street off Gardiner Street and he had left school at 14. He had gone to London to live with an aunt. In 1952 to 1976 he had been in London. He had got married over there and his wife had a vegetable stall in Chapel Market in Islington and he said he had helped his wife and lived in Chapel Market. They had no children. Subsequently his parents had become ill and he had returned in 1976. They had moved to Common Street on the North Wall where he had lived with his parents. He was drawing the dole he said, since 1976 and his parents had died, his Father on Christmas Eve of 1989 and his Mother some six weeks later. He himself had moved to Spencer Lock apartments in Sheriff Street after his parents had died. 

He explained that on the evening of the 3 October, 1992 he had gone with his girlfriend, Mrs McGarry, who had come in from Coolock on the bus, and that they had gone to the cinema and it transpired they had gone to the Savoy Cinema. The Plaintiff made it clear that he was making no claim for loss of earnings or for medical expenses, the latter because he had a medical card. And he said that he and his friend, Mrs McGarry, spent some evenings out together most weekends and that that evening the intention was to go on over to look after, what he described as a friend's flat at 60 Bishop Street. That turned out to be a lady! whom he also referred to as "his sister" and although she was not a blood relation, the reference to her as a sister was, he said, because she had been brought up by his brother as one of his own family. 

He described how he met Mrs McGarry sometime just before 8 o'clock and before this he had had a couple of drinks, he said, in Parnell Street in the Shakespeare Pub, a couple of pints of Guinness. And they went to the film and they had left it before it finished and they had walked down O'Connell Street, and they had got the bus to Aungier Street and they got off the bus just before the corner of Aungier Street. One can see that bus stop in the photograph 2 in Album B and again in Photograph 4 in Album B. It is opposite Whitefriars, what I think is Whitefriars Church, very appropriate in view of the fact that I think this case was going on over St Valentine's Day. However, that is where the Plaintiff and Mrs McGarry say they got off the bus and Mrs McGarry stopped to talk to a lady, I think a Mrs Warren, who was on the bus. And he walked on slowly ahead and he passed two people by the corner and said goodnight to them and then he fell over. The cause of this was the state of the footpath, which he realised afterwards and he went and fell down on the road. He hadn't seen the lip on the pavement and he got a shock. He didn't realise what damage he had done to himself at that stage. The two men whom he had bid goodnight to, of whom he said while he didn't know their names he knew their appearance, they moved him in off the road and put him sitting on the pavement with his back to the pub. 

Now, he marked on Photograph 1 in Album 1 as to where they had put him. He put them as having put him outside the main door of the pub, but I don't put any great heed on that because there are a number of witnesses, who give evidence to the effect that when the guard and the ambulance men came he was in fact, further north along Aungier Street in the area where the golden Labrador dog is in Photograph 1 in Album A, the blue album. And my conclusion is that that is where he was after his fall and after he had been moved and I think with a badly broken right leg, that if he was lying on the road, and I have come to the conclusion that he was lying on the road where he said, that he would have had to be moved by other people. I don't think he could have got himself along to that doorway pillar beside the door himself and that the likelihood was at that hour of a Saturday evening he was in fact, moved by the two men to whom he had wished a goodnight, because he knew their faces from having been a fairly frequent visitor to that area. I think that is also fairly likely because I don't believe that you would leave a man with a broken leg sitting outside the front door of that pub on the corner, because somebody would trip over him either coming out of the pub or coming along York Street. Whereas where he was with his back to near the accommodation door of the Swan Bar, that would be the likely place that he would have been put because he would be a bit down from the corner and he would also have some protection in that he would be clearly visible to anybody coming along Aungier street travelling in a southerly direction, they would see him there and wouldn't trip over him. 

He said that one of the men, who assisted him, got the guard to call the ambulance and he was adamant they were people that he hadn't known before, but he knew them to see but didn't know their names. And he said that he was taken down by ambulance to the Meath Hospital. He put the time of his fall at about 10.15pm. There is a conflict in relation to the times at which this accident occurred and I will come back to that, but there does seem to be a discrepancy in that the guard says that he noted in his notebook 10.55pm and he would have noted that as he went to the scene having received a call from his control in Harcourt Terrace. 

There is also another very grave conflict of evidence which is very difficult to explain indeed. The Plaintiff says that Mrs McGarry came with him in the ambulance to the Meath Hospital. The guard says that he didn't notice anybody who seemed to be, as it were, attached to the Plaintiff at the scene and the ambulance men are fairly categoric and indeed, the senior ambulance man is very adamant that he closed the doors of the ambulance (and that he opened the doors of the ambulance) after his colleague, Mr O'Brien, the attendant and the Plaintiff had been put in, the Plaintiff on the stretcher and that Mrs McGarry did not travel in the back of that ambulance to the Meath Hospital that night. Mrs McGarry and the Plaintiff both say that Mrs McGarry travelled in the back of the ambulance. I will return to that conflict of evidence. 

The Plaintiff was taken to hospital. He was operated on the next day in relation to the two fractures in his right leg, his tibia and fibula. They were both displaced fractures. There was one undisplaced fracture just under his knee and that was also dealt with as was the strain of his right knee. I will come back to the medical aspects of this at a later stage where I deal with the question of quantum. But the Plaintiff had about a three weeks stay in hospital. He was operated on. In his uncomplaining way he said he felt "OK after the operation." He went in to have a screw removed. He had a plate put into his right leg. He was only in for a long morning to have that second operation under general anaesthetic. 1992 he went in to have a screw removed. He had a plate put into his right leg. He was only in for a long morning to have that second operation under general anaesthetic. 

Subsequently he had to return in March, 1993. His friend, Anthony Rowe, who would be a relation of Mrs McGarry, called in on him and found him delirious. He was looking after the house of the lady, whom I referred to as his sister in Bishop Street and he had to go back into the Meath Hospital. He had been suffering hallucinations. He was seeing friends and relations who weren't there; apparently he would blink and they would go away. But at all events, he was obviously very unwell and he was transferred across to the Adelaide and the doctors did a further operation. I suspect he was transferred to the Adelaide at the time because of the new operating theatre in the Adelaide Hospital where they carry out revision operations in relation to orthopaedic injuries. At all events, he was operated on there and the metal was taken out and a very strong antibiotic, Gentamicin beads, were put in to try to clear up the infection in his leg. Some five days later he was returned to the Meath and he was seriously ill at that stage, and had to have dialysis treatment because of kidney failure. However, I will return to that aspect, because the doctors don't make a strong connection between the renal failure and his previous leg injury and the aftermath thereof. 

As I said, the Plaintiff is of stoic disposition. When he was asked about his health he said, "My health is fine, one leg is stiff; the leg feels stiff and I get pins and needles down the shin bone. I can get around on the stick and sometimes without it." And he said the right knee sometimes went from under him but he wasn't working and he was singularly uncomplaining about a very nasty injury. 

He was subjected to a not unexpected severe cross-examination. He explained that he was on social welfare of £68.00 unemployment and that he had a disability payment now. He described how he had met Mrs McGarry that night outside the Gresham before 8 o'clock and they had been to a film in the Savoy. He couldn't remember the name of the film, neither could Mrs McGarry and they were criticised for that, but it seems strange on a night when he had had the severe accident neither of them could remember the name of the film they had been to. 

He was also criticized in relation to the name of the flat that he was going to visit. It is in fact 6D Bishop Street, the apartment of Mrs Rose Grace and there are quite a number of people who have taken down his address incorrectly, 16 has been taken down, I think by the, I think it was by the guard, but her address is in fact 6D. And one can understand that people might write down 15 or 16, particularly if the Plaintiff was speaking to them while in pain and they mightn't pick up what he was saying by reason of his accent. He said that they got off the bus at about 10 o'clock and it is only a few yards to the corner, so he thought the accident was probably at about five past ten or thereabouts and he had arrived in the hospital about eleven and he said that he was in a state of shock. 

He was adamant that he had only had two pints of Guinness and that that wouldn't make him drunk and that had been before ever he went to the film. When it was suggested that he was incoherent with drink, he denied this. 

In relation to the medical reports, the Plaintiff's medical reports were handed in and Counsel for the Defendant said that he accepted the contents of both Mr Pegum's reports and both Mr Keogh's reports. There was also a letter dated the 23 September, 1993 from Mr Pegum to the Plaintiff's GP, Dr Eithne Flood, and in the course of that letter, and this was put to the Plaintiff, Mr Pegum wrote in April, 1993; "he developed alcohol withdrawal symptoms and infection around the nail." And the Plaintiff said that in no way had he had a history of a very large intake of alcohol in the preceding months as he simply could not have afforded it. 

Towards the end of the cross-examination it was put to the Plaintiff that he had spent time in prison with larceny convictions, particularly in England and he was taken through a list of convictions and he agreed with the contents of the list; and, in reply to a question from myself, he said that he was never charged with receiving. Now that transpired to be incorrect. He repeated that. He said he had never been convicted or charged with receiving in his life. It is quite clear that he has three receiving charges, if one calls the most recent conviction for handling stolen property "receiving". But the point was made that -- by the Plaintiff himself at a later stage when he was recalled to the witness box -- that what he regards as receiving is the sort of large quantities of goods that a professional fence might receive and that is what he regards as receiving. 

Now, I am well aware that the Plaintiff is and has been very plausible on many occasions but it does seem to me that this is a not unreasonable explanation for his suggestion that he was never charged with receiving. He is quite clearly wrong but his understanding of the crime of receiving, he says, is in terms of a professional fence and that seems to me to be not entirely unreasonable, although I am left with a concern that he has a capacity to be just a little bit too plausible in his giving of evidence. 

Catherine McCarry gave evidence. She said how she had came into the city from Coolock on the bus and they met outside the Gresham and they went to the Savoy, and then they were going to go across to Rose Grace's flat in Bishop Street. When she got off the bus in Aungier Street she was talking to a Mrs Warren and the Plaintiff, Kevin, walked on ahead. She did not see him falling but she saw two men lifting him in against the pub and she said that he was put near to where the dog is, that is the golden Labrador in Photograph 1, and she pointed out the bit of the tarmac that he was brought across from, which is the bit on the corner where he said he had fallen. And she says, and she is quite adamant about this, she got in the back door of the ambulance and it went to the Meath Hospital and she thought she was sitting down in the back of the ambulance and the ambulance man was there. She visited Mr Duffy every day that he was in the Meath Hospital. She had known the Plaintiff all her life but they had only been keeping company of or the last 15 years. She had lived in England. She had been living up in Lancashire. She said that they had left the cinema about 9.30pm. It was a warm evening. He wasn't enjoying the picture and she said she was warm and they went out of the cinema together and they had walked down towards Cleary's and taken the bus to Aungier Street. 

She confirmed that the Plaintiff referred to Mrs Grace often enough as his sister and she knew her. She was asked why they got off the bus stop in Upper Aungier Street near the Swan and why they didn't get off closer to Bishop Street and she said that she never went to the other bus stop and she always got off there and that Mr Duffy was with her. The discrepancy about the times was pointed out to her. The ambulance crew only got a call at 11.07, after 11 o'clock that night, and she said that they hadn't visited anywhere else on the way and that Kevin Duffy had not been drinking while he was with her and he wasn't falling around the street; and that she believed he had only had the two pints he had had when he was in the Shakespeare while he was waiting for her. 

The next witness was Joseph Halpin, who apparently was in his day a very good footballer until he suffered an injury, and he said that on that Saturday evening sometime around 10.30 he was walking up Aungier Street towards Digges Street and he had met Con Caffrey, who was an older friend of his and they were standing outside the Swan Bar chatting. The man whom he now knew to be the Plaintiff, Mr Duffy, had passed by and said "good evening"; he didn't know Mr Duffy, but he had seen him standing in the area and he had bid -- Mr Duffy had bid them a good night; he had been facing south and so he saw Kevin Duffy fall. He was looking over Mr Caffrey's shoulder and saw Kevin Duffy falling and he fell out on to the road; he had gone over and realised that Mr Duffy was in distress and in shock, and it was obvious that he was hurt badly. He is a man, Mr Halpin, who had seen football injuries and he knew this was a bad leg injury and he realised from his own experience as he had had a cruciate ligament injury to his left knee. He had then gone to work, he had been a motor mechanic with Archers in Ringsend for 13 years and had been unable to work since his injury to his left knee. But at all events, he also confirmed that Mr Duffy fell where in Photograph 2 Mr Duffy had made the red mark on the piece of tarmac in the photograph. They lifted him in to the wall of the pub and he said that this was in the area where the lady was standing with the crutch and the shopping bag, that sort of area, and that Mr Caffrey had got a guard to get an ambulance and that he had reassured Mr Duffy the ambulance was coming. 

When the two ambulance men came he, Mr Halpin, had gone off. He said that he was aware of Mrs McGarry's presence but he had never met the lady before and then he forgot about the incident; and he knew Mrs Warren, although it was her husband whom he knew, but he hadn't seen Mrs McGarry and Mrs Warren talking. He didn't know John Murphy, but he did see a man with a bicycle at the scene but he didn't remember him talking to the guard. He thought Mr Caffrey had spoken to the guard. He thought that the whole incident had been over in about 15 minutes and he thought it was probably earlier than 10.50 pm. It was suggested to him that the Plaintiff had fallen in the area to the left of the dog in Photograph 1 and he said, "Certainly not, I disagree with that completely. He wasn't in the area of the dog when he fell." In fact, he would have been behind Mr Halpin at that point and he, Mr Halpin, couldn't have been able to see him as he was looking southwards and had seen him fall. 

He was asked whether the Plaintiff had alcohol on him and he said he had no reason to think he had taken alcohol, he didn't even seem to him to be even "sociable or merry". 

Cornehus Caffrey or Con Caffrey was the next witness. He said he went out about five to ten. He was going along to watch "Match of The Day" in Gleeson's in Aungier Street and he had walked up York Street towards the Swan and he turned right and it was just after 10.00pm or maybe later when he met Mr Halpin. He had known him for years and they stopped to chat outside the Swan and they were in the area where the woman with the crutch and the shopping bag is, and between her and where the golden Labrador is in Photograph 1. He was facing up towards Georges Street and the Plaintiff had come by and the next thing was Mr Halpin said, "Oh Jesus the chap is after falling" and he was halfway out on the road. It is a bad corner. He was half on the street and half on the corner lying down and he thought it was in the area in Photograph 2 where there is the broken piece of tarmac. Both of them had gone to the Plaintiff, who was in agony and they could see that his leg was definitely damaged and they pulled him in by lifting him under the armpits and they put him in against the panel between the woman and the dog in Photograph 1. 

He saw a guard on the far side of the road and called to him and he phoned an ambulance. He waited for the ambulance to come and he thought it all happened between 10.00 and when he went off down to the pub. He was examined about the times. He said, "I saw Mrs McGarry there that night and saw her getting into the ambulance", but he didn't see Kevin Duffy falling. He had helped Mr Halpin to bring him in off the road and saw that his ankle was twisted and that he was in severe pain. 

Mr Duffy was recalled at that stage and he explained that Mr Halpin had come in, I beg your pardon, he knew Mr Halpin to see because he was, Mr Halpin, was interested in football and that Mr Caffrey had come in to see him in the Meath hospital and that from that he knew that it was Mr Caffrey and Mr Halpin, who had helped him in off the road. 

Mr Caffrey had been late arriving and arrived eventually in Court but that was because he had flu and he certainly had every appearance of suffering from flu. He was cross-examined, and he was cross-examined particularly about the times, and he said that he was going to Gleeson's to watch "Match Of The Day", which starts at 10.45. He had left at 9.55 or 10.00 and that it was roughly five or seven minutes to the Swan, maybe longer, 10 or 15 minutes and that he had got to the pub just after "Match of The Day" started. It would have started about 10.45. 

Mr Caffrey was asked if he could remember the name of his friend whom he was visiting in the Meath Hospital and he was unable to recall the name of his friend. That certainly was more than a little surprising. He was also somewhat unsure on recollection as to the ailment or accident which that friend had suffered. He gave a very vague description of the man. 

Guard Lowney was the next witness called and he described how he arrived at the scene at 10.55 pm and he had his notebook with him, and he said he spoke to the injured party and got his name as Kevin Duffy of 6 Bishop Street. There is a discrepancy there of course, in that what Mr Duffy says is that he was actually going to Rose's house, the lady he called his sister, at 6D Bishop Street. 

The only witness whose name Guard Lowney got was a John Murphy of 46 York Road Rathmines. Mr Murphy, he said, was on a peddle cycle and he had no note or recollection of a man on a motor cycle. That is yet another very strange discrepancy. He didn't get the name of either Mrs McGarry, Mr Halpin and he only spoke to the injured party, Mr Duffy and to John Murphy, who was assisting him at this time. He said that, and this seems to be one aspect that is fairly consistent, that the dog, the golden Labrador in Photograph 1, is in the area where Kevin Duffy was at the residential door of the pub. But he said, and a number of witnesses said this, that his neck and shoulders were up against the door and his legs facing towards Aungier Street. That is in line with other people's evidence as to where he was. The guard's view was that Mr Duffy had consumed a large quantity of alcohol. He was quite incoherent. "I felt he was quite aggressive towards me at the time. I was assisting him and he was quite aggressive and annoyed that I was there." 

He wasn't aware of having spoken to Mr Caffrey and didn't make a note of his name. He noted that the footpath was broken and uneven he had a look at it. There were jagged pieces of concrete protruding out of the footpath. Mr Duffy told him that he had tripped on the footpath and where he was standing beside Kevin Duffy he could see the footpath was uneven. 

Now, I stop just to make the point that the guard doesn't suggest that Kevin Duffy was able to get up and point out to him or describe to him where it was that he had his fall and I infer from s that the Guard noted the dangerous bit of pavement near where he lay and assumed that that was where he had fallen. In fact, he confirmed this, because he said "Kevin Duffy said nothing to draw attention to that piece of concrete" and he said, "I assumed he lay where he fell", which is of course, not in line with the evidence given by the Plaintiff or by Mr Halpin or Mr Caffrey. As for where the broken piece of concrete was referred to by the Guard, he said it was some five foot distant to the north of the dog. The Guard said he was at the scene at 10.55pm and he has a note of that in his notebook and he says he would have filled that at the time. 

The two ambulance drivers were called. David O'Brien was the attendant and he produced the record sheet, which he had filled in that night, and from that it is quite clear that the radio transmission was received by him and his driver, Ray Murray at 23.07 hours, so some seven minutes after 11 o'clock. And they were at that time on their way from a call which had taken them to Eden Quay, where the person they had gone to assist refused to be removed by them. They were mobile at the time they got to the Swan, outside the Swan Bar, at nine minutes past eleven and they pulled in, and the back of the ambulance would have been level with the patient and so that the rear door the ambulance would have been roughly level with the cellar door. 

Now David O'Brien's description of Mr Duffy was that he got down to introduce himself and he asked Mr Duffy his name and he found it hard to get his name. He was very incoherent. He thought the man had a good few drinks taken. He got his name eventually as Kevin Duffy of 15 Bishop Street. That is what he noted. 

And I pause to say it is curious that Mr Duffy gave his address Bishop Street, but in view of the fact that he has given a number of aliases in relation to his conviction sheet, it would appear it is his practice to be very careful about giving his own correct name and address, which is another reason why one is naps sceptic, somewhat sceptical about some of his evidence. However, he was going to 6D Bishop Street that night and perhaps that was the reason why he gave Rose Grace's address or an address not dissimilar to Rose Grace's address 15 as opposed to 6D. 

The ambulance men could see that the right ankle was badly damaged and they put a splint on to it and put him on the stretcher and they gave him no painkillers. They have Entenox actually with am in the ambulance, a strong painkiller, but they are under very strict rules that they can't give gas to anyone who has drink taken. 

Now the significance of this is that both Mr O'Brien and Mr Murray both made an assessment of the injured man, Kevin Duffy and in particular, they would have been looking at him and assessing him as to whether he had drink taken, and they were both of the view that he was under the weather -- they didn't actually say that, that is not their phrase, that is mine -- from the taking of drink and it wasn't just that he was in pain. 

Mr O'Brien was adamant that he was in the ambulance on his own I there was nobody with Kevin Duffy in Aungier Street. There nobody with Kevin in Aungier Street. There was no female who made herself known to him and he didn't get the name of any male there other than Mr Duffy. Of course, in a way that is not very significant, because the ambulance men would have been concentrating on dealing with the patient and getting him comfortable and getting him into the ambulance. 

There is no rule in the Dublin Fire Brigade Ambulance regime, which would not entitle the ambulance men to exercise discretion and, indeed, most nights they would take an accompanying person with an injured party to whatever hospital they are going. It is uncommon. It is not against the rules, so it wouldn't have any great significance for the ambulance men. That being said, both Mr O'Brien and Mr Murray are adamant and categoric that they did not carry Mrs McGarry in the back of that ambulance that night. 

Under cross-examination David O'Brien said that the splint takes about a minute to put on and that Mr Duffy was very incoherent, and he formed the view it was because he had a good few drinks taken. He was slurring his words and he was very hard to understand, "Often enough injured people are shouting with pain", Mr Duffy didn't seem to Mr O'Brien to be shouting with pain. Again he emphasized "No one travelled in the ambulance that night except the patient and myself. I am certain because I thought Mr Duffy was on his own. There was no one around except the Garda and those who were there were not in his company and I didn't think that any of them knew the patient." He said he couldn't measure the quantity of drink taken. He could ask questions and assess his slurring of his words. There was a smell of drink. He incoherent and it was difficult to get information, "If a man suffering from pain then he can still answer questions as correctly and properly" and he came to the conclusion, he, Mr O'Brien, that the Plaintiff had a fair few drinks taken. 

Duffy was recalled to clear up the aspect about "receiving" he said that he thought "receiving" was getting lorry loads of stuff. I have already mentioned that aspect of the matter. 

The next witness was Detective Guard PJ Conway. That was in relation to the Guard's very efficient dealing with the arrest of the Plaintiff on the 15 July, 1997. The guard came at short notice. He brought his record about the case, and it was quite clear that Kevin Duffy had been charged with "handling stolen property" under Section 33 of the Attended Larceny Act and he had pleaded guilty on the 5 September, 1997 and received a suspended sentence. 

Mr Ray Murray, the ambulance driver, would have been the senior ambulance man and he remembered Guard Lowney being at the scene when they got outside the Swan. He didn't think that Kevin Duffy was accompanied. He had got the splint and the stretcher from the ambulance and was right beside Kevin Duffy as he lay on the footpath and he had told him what they were going to do. He didn't remember Kevin Duffy saying anything. Both he and his colleague had assessed Kevin Duffy. He got a strong smell of alcohol and made a decision that there would be no Entenox given. 

He shut the back doors to the ambulance and there was only Kevin Duffy and Dave O'Brien inside. He heard Mrs McGarry's evidence in court but he was adamant that only Mr O'Brien and Mr Duffy came to the Meath Hospital in the ambulance. Mrs McGarry was not in back of the ambulance and as far as he was concerned, he never met Mrs McGarry before. 

He was cross-examined on the basis that he must have dealt with a lot of cases that night and he said that this was a case he remembered, and the reason he remembered it was because when he looking at Kevin Duffy he thought he was a retired fire officer, District Officer Walker, who was out in Dolphin's Barn. When he got down to assess the patient he realised it wasn't District Officer Walker and he wasn't going to give him Entenox because of the smell of drink, but he was also, that is Mr Duffy, was not talking clearly and a man in pain would still be able speak clearly. He formed a view that it was drink, he had had more than two pints of Guinness. He didn't regard Mr Duffy as being been particularly aggressive to them. 

Now that is the evidence and I have gone through that at some considerable length because there are issues of credibility of witnesses. There is the issue as to the time of the accident and there is the issue as to the locus of the accident, that is where it actually happened. 

And the simplest aspect of this case from my point of view, is the question of quantum and I propose to deal with that first. Reports of Michael Pegum dated 19 August, 1994 and the 23 May, 1997 have been handed in in a booklet together with reports from Professor Brian Keogh dated 13 December, 1996 and the 13 March, 1997. There is also the letter from Mr Pegum to Dr Eithne Flood dated 23 September, 1993, which has a reference to Mr Duffy taking alcohol. I am not particularly influenced by that letter to Dr Flood, but I think it is worth quoting what Mr Pegum says about this matter. In his report of the 25 August he gave a description of the accident in that: 

"Mr Duffy said that he had tripped and fallen. He was brought to the Accident and Emergency Department of the Meath Hospital by Dublin Fire Brigade Ambulance at 11.12 pm on the 3 October 1992. He was admitted under my care. The injuries sustained: 

1. The Right Lower Leg. There were fractures of the shafts of the right tibia and fibula. 

2. The Right Knee. There was a sprain of the right knee and a fracture of the head and neck of the fibula just below knee joint level. 

A plaster splint was applied and Mr Duffy was admitted to hospital. At operation the following day the fracture of the tibia was reduced and fixed with a steel intramedullary nail with locking screws at both ends. On the same occasion, following stabilization of the tibial fracture, the knee joint was examined and was found to be stable, with no significant damage to the ligaments. Arthroscopic inspection of the interior of the knee found that there was some blood within the joint but that the cartilages and bone services were intact. (I read this as "bony surfaces") 

Mr Duffy made good post-operative progress and was allowed to begin walking with crutches on the 6 October. The wounds healed well and he was discharged home on the 13 October and attended the Out-Patient Clinic for review. At a day case operation on the 26 November 1992 one of the screws was removed from the upper end of the tibia to allow some pressure at the fracture site on weight bearing (dynamisation of the fracture). The wound of this little operation healed well and he continued to attend the Fracture Clinic as requested, with x-rays owing progressing union of the fracture. 

Mr Duffy was brought to the Accident and Emergency Department of the Meath Hospital on the 5 April 1993 suffering from hallucinations. He also said that he had had pain in his right leg for the previous five days. His right foot appeared bruised and swollen. 

He was admitted to the Adelaide Hospital under the care of Professor Ian Graham and became very ill, developing acute renal failure. This was associated with evidence of infection around the nail in the right tibia and with necrosis (localised tissue death) muscles in the right thigh and lower leg. At operation the various muscles groups were decompressed by fasciotomy and the nail and screws were removed. A string of beads of bone cement impregnated with Gentamicin (a powerful antibiotic) on a steel wire was inserted into the medullary cavity of the tibia. 

Mr Duffy was transferred to the Meath Hospital on the 10 April where he was treated for his renal failure by Professor Ian Keogh with dialysis. He remained very ill for several days, but the various wounds healed well following suture of the fasciotomy wounds on the 15 April. The leg was stabilized in cast at this stage. 

Renal function returned and dialysis was stopped on the 1 May 1993 and Mr Duffy was allowed up on crutches on the 4 May. He was discharged home on the 13 May and continued to attend the Fracture Clinic in the Meath Hospital as well as Professor Keogh's Out-patient clinic. 

The fracture went on to heal soundly and all signs of infection in the tibia subsided completely. Mr Duffy was examined for the purpose of preparing this report on the 19 August 1994. Symptoms: 

1. The Leg. He said that his leg felt stiff in the mornings, the symptoms being concentrated in the lower shin. It would loosen up the day went by. It was neither improving nor deteriorating. The Right Knee. It felt a little stiff but there was no feeling instability." 

Mr Pegum's findings on examination were, "The right leg had a normal shape and alignment. There was a scar 70 millimetres long in the midline just below the knee, through which the nail had an inserted and removed. There were two scars, 40 millimetres and 60 millimetres long on the inner side of the leg just below the knee and just above the ankle, through which the locking screws had been inserted and removed. There was a scar 140 millimetres long on the inner side of the calf and another 120 millimetres long on the outer side, together with a scar 80 millimetres long on the front of the thigh. These remain from the fasciotomy operations to relieve pressure on the underlying muscles. All of these scars were well healed but quite easily seen. There was no wasting or selling of the leg or ankle. The ankle joint had a full range of movement and the knee had full straightening but slight limitation of bending. Mr Duffy walked using a stick but not leaning heavily upon it. 

X-rays of the right leg taken on 19th of August 1994 showed that the fractures had united soundly with about 5 millimetres of shortening. The gentamicin beads in the upper tibia were still in place, and there was no sign of infection." 

And in his prognosis Mr Pegum said, "In his accident Mr Duffy sustained a minor injury to his right knee and severe fractures of the right lower leg. This was treated in a standard way and did very well initially. However, in April 1993 he became very ill with necrosis of muscles in the leg around the nail and developed renal failure as a result. This needed major medical and surgical treatment but his kidney function returned and his fractures united. He is left with relatively minor symptoms which he does exaggerate. However, he does have some discomfort in the leg and needs a stick for walking. He would be fit only for work in which he could spend most of the time sitting down and is unlikely improve in this respect. There is no risk of the development arthritis in the future, but there is a definite small risk that infection may flare up. This can happen at any stage over 20 years or more." (Quoted) 

I also have the reports from Professor Brian Keogh, who deals with the renal failure and he says in his report of the 13 December, 1996 that he had a history of a very large intake of alcohol in the preceding months, that is before he came in in April suffering from the hallucinations. They had to give him dialysis and he had a very stormy passage and then had an excellent recovery of his renal function. 

He was written to again and replied on the 13 March, 1997 and extract from his letter the passage, "I also stress that this person's social circumstances were such that his intake of alcohol was considerable". And he describes in that report the renal failure, the acute renal failure and he says in the penultimate paragraph of the letter, because he was being asked specifically whether there was a link up with the old injury, "Certainly it is fully acceptable that Mr Duffy's fall was followed by insertion of pins into his leg and that he would make a slow but protracted recovery. In many respects it might be very difficult to argue given his social circumstances that his renal failure would under normal circumstances be part of that chain of events. With respect I would suggest it is probably stretching the possibility little far." 

It is a somewhat circumlocutory phrase, but my impression of what Professor Keogh is saying, is that it is stretching the matter to suggest that the leg injury can be held responsible for, and linked to his renal failure and he used the phrase "social circumstances" meaning "circumstances" as one of the factors in relation to the renal failure. 

Well it seems to me that the infection at the pin in the leg certainly can't have helped the Plaintiff's condition, but it would seem from what Professor Keogh says that one can't make any direct link at all between the infection at the pin and the subsequent renal failure. 

Mr Pegum in his further report says that the prognosis is as he has already given it to be and when he examined the Plaintiff on the 23 May 1997 he found that, as to the right lower leg the scars were very visible, and were as he had reported before; and there was no sign of infection in the underlying bone and ankle joint and he had a full range of movement. So, that is a happy matter from Mr Duffy's point of view. 

As to the right knee, Mr Pegum says, "There was no swelling or deformity. The knee had a range of movement from 0 degrees to 130 degrees (full straightening and slight limitation of bending)" 

Now, I am about to give my view as to quantum but I don't want to raise anybody' s expectations or hopes by doing that. It seems to that the appropriate amount for quantum, and I take into account the Plaintiff's very stoic characteristics and attitude and his complaining disposition, and his obvious capacity to cope with a nasty injury and to adapt his life style to it, all of which are very much to his credit. It seems to me that the pain and suffering to date; including the operations on his leg, the three fractures, two of them displaced fractures, the third undisplaced fracture at the top of the right tibia, the sprain of the right knee and the scarring, which is very obvious and nasty, though in a person of his age, perhaps not so significant as it would be in a younger person, I think the appropriate figure in relation to that is £27,500.00 to date. 

As for the future pain and suffering; he is going to have to walk probably with a stick for the rest of his days. He has the scarring for the rest of his days and he is open to some vulnerability of risk of further problems with that leg. I think a figure of £8,500.00 is appropriate, making a figure of £36,000.00 in total and there are no specials, so that in the ordinary way if this was a case on full liability, that would be the quantum. 

However, I have come to a number of conclusions in relation to credibility and veracity and as to what actually happened on this night and I make a number of findings insofar as I have to in relation to these matters. 

The first point to make is that Mr Duffy is a citizen of this State and is entitled to bring a civil action. The nature of his background and his curriculum vitae is such that one has a natural scepticism about his evidence and indeed, about a number of the witnesses, who have been called on his behalf. But there is one thing absolutely certain in this case and that is that Kevin Duffy on the night of the 3 October of 1992 sometime before that ambulance arrived on the scene had suffered a very nasty injury to his right leg. There is a conflict as to the credibility of the witnesses. There is conflict in relation to the time of the fall and there is a conflict as to the location of the fall. 

Now on the question of liability, the onus of proof to satisfy me on the balance of probabilities, rests on the Plaintiff and I have come to the following conclusions based on my observance of the witnesses, my observations of them as they have sat in court and their general demeanour, and on a careful consideration of the evidence that I have been given. And the first conclusion that I have come to is that I should accept the Plaintiff's evidence that he did fall at the point marked X on Photograph 2 in Album A. That is that he did fall on the piece of tarmac, which he is seen pointing to with his crutch in Photograph 6 in the Defendant's Album, that is Album B and that the ESB in my view, are responsible for the state of the pavement in that location. And I accept Mr Brunkard' s evidence about tarmac and reinstatement of pavements and the fact that the ESB was responsible for the creation of a dangerous hazard on that corner. And so, I have come to the conclusion that the Defendant is liable in relation to the Plaintiff's fall because of their having left that pavement in hazardous condition and that this hazardous condition was caused by the way in which the Defendant Utility left the tarmac, the temporary restoration of the pavement, at that spot. If nothing else, they should have came back and levelled up the tarmac so that there wasn't a declivity leaving an edge, which people were likely to catch their foot in. 

As to the time of the fall, I believe that I should accept that the time of the fall was probably sometime later than 10.15 pm in view of the Guard's evidence that he received a call and got there at 10.55 pm. I think that the fall was probably a bit later than 10.15 pm. I am dubious about the Plaintiffs evidence on this aspect of time and I have come to the view that on the evidence of the guard, who would have considerable experience in assessing people's states of inebriation and on the evidence of the two ambulance men, who had to make a positive assessment about the Plaintiff's condition, I have come to the reasoned conclusion that the Plaintiff had very much more drink on board than two pints of Guinness. Accordingly, I do not accept that he came straight from the cinema to the point outside the Swan Bar. I also accept the evidence of the guard and the ambulance men with regard to his incoherency to the effect that his speech was difficult to understand and that this was not, as one of the ambulance men put it, what you would expect if a person was simply in pain but that in the ambulance man's view, he was suffering from having too much drink taken. 

So, in respect of liability I find that the Defendant is liable. 

But I now turn to the aspect of contributory negligence. In view of any acceptance of the evidence of the Garda and of the two ambulance men and their positive assessment about the Plaintiff's state of inebriation and his incoherence, it seems to me that a very large contributory factor in the Plaintiff's falling on this piece of hazardous reinstated pavement due to the negligence of the ESB, was nevertheless because the Plaintiff failed to take care for his own safety. He failed, despite the reasonably good lighting in the vicinity outside the pub, to note the generally poor state of the pavement in that area. This was an area which he traversed fairly frequently. He visited his sister, Rose Grace in Bishop Street. He must have known that the pavements in that area, I think of Aungier Street/York street are very poor and despite this, in my view, probably because of his state of inebriation, he wasn't keeping a proper look out. I accept the evidence of the garda, Garda Lowney, and the two ambulance men with regard to his intoxicated state. I regard his condition as being very much a contributory factor in his having fallen and suffered injury that night. I believe that he failed to keep a proper look out and I regard him as being 75 percent negligent and culpable in relation to his fall. I apportion liability as to one quarter, 25 percent on the Defendant Utility, the ESB, and 75 percent against the Plaintiff. 

And since I regard the quantum as being £36,000.00, I divide that by four and accordingly, providing I have the mathematics right, the finding is £9,000.00 to the Plaintiff.