LIABILITY
The
accident in which the Plaintiff suffered the injuries of which she complains
occurred on the road between Broadford and Tuamgraney in Co Clare. At the locus
the land on either side of the road owned by the Defendant is forestry
plantation with old dry-stone walls, on which over the years ivy and other
vegetation has grown, abutting the road on either side. The dry-stone walls are
the Defendant's property and the Defendant's responsibility. At the locus the
distance from face of wall to face of wall is about 21 feet. The actual
carriageway of the road is about 18 feet wide. There is no margin to speak of
between the wall and the carriageway.
I
accept the Plaintiffs account of the manner in which the accident happened. It
happened on 14 October, 1996 in the late afternoon, at about 4.40 pm. It was a
dull overcast afternoon and it was getting dark. It had been raining and the
road was wet. The Plaintiff was driving from Broadford to Tuamgraney at a speed
of about 40 to 45 mph. As she was approaching a left-hand bend she saw what she
discovered to be stones on the road -about a foot to a foot and a half out into
the road. A lorry was coming towards her on the opposite side of the road. She
could not pull out to avoid the stones and had no option but to go over them.
She went over one stone which, in fact, was a sandstone rock which weighed
approximately 6 stone, and in so doing burst the front left tyre of her car.
She lost control and the car veered to the left and hit the stone wall,
throwing the Plaintiff, who was not wearing a seat-belt, forward and causing
major damage to the front of her car.
It
is clear on the evidence that the stone which deflated the left front tyre and
which I am satisfied caused the accident had come from the Defendant's
dry-stone wall and had been on the road for at least one and a half hours
before the accident. The issue I have to decide is whether it ended upon the
road by reason of the Defendant's negligence.
It
is not in dispute that it is the Defendant's duty to take reasonable care to
ensure that stones from its walls bounding public roads do not end up on the
public road. It is denied, however, that the Defendant was in breach of duty on
the day in question at the locus.
It
was suggested that the stones and rock which the Plaintiff encountered were
dislodged as a result of an impact created by a passing vehicle. Having regard
to the evidence, I am not prepared to infer that that happened, I think it much
more probable that they became dislodged without intervention of an outside
agency.
Then
it was suggested that, as the wall was at least 100 years old and there was no
history of a significant fall of material from it in the past, the risk of
dislodgement or collapse was not reasonably foreseeable and an inspection and
maintenance regime would not have prevented the fall or the accident.
I
have had the benefit of hearing Dominic O'Riordan, Architect, who inspected the
locus with the Plaintiff two days after the accident, and also Fran Hardiman,
Consulting Engineer, and Joseph Costello, a stonemason with 22 years experience
of dry-stone walls, who inspected the wall after the proceedings in the Circuit
Court. I am satisfied on the evidence that the wall in the vicinity of the
locus was unstable and in a dangerous condition both in October 1996 and in
November 1998 -- that there were signs of collapse, partial collapse and
potential collapse in the form of outward bulging. That such was the case is
hardly surprising given that the Defendant has no formal inspection and
maintenance regime in place in relation to walls and merely relies on the
forestry staff on the ground to keep an eye out for collapsing walls, and given
the presence of other factors which destabilise walls, namely:-
(a)
vibrations caused by traffic;
(b)
encroachment by tree roots;
(c)
vegetation, such as ivy;
(d)
general ageing processes; and
(e)
the effect of weather, for example, the process described by Mr Costello
whereby passing traffic splashes pooled rain water at bends against the wall
resulting in the "pinnings" or small stones used as wedges to "tighten" the
wall being washed out.
The
standard of care which the law requires of a roadside occupier in the
Defendant's position is the standard laid down by the Supreme Court in Kelly v
Bord of Governors of St Laurence Hospital [1988] IR 402, that is to say, to
take reasonable care to avoid permitting road users to be exposed to injury
which a reasonable roadside occupier ought to foresee (per Walsh J at page
410). The "essential question in determining liability is whether the risk of
injury or damage complained of was such that a reasonably careful person in the
position of the defendant would have taken the precautions suggested by the
plaintiff" (per Henchy J at page 415).
It
is the Plaintiffs case here that the Defendant should have had a formal regime
of inspection and maintenance in place and that periodic checks followed by
remedial works were necessary for the protection of road users. In my view a
reasonably careful roadside occupier would have taken such precautions. The
Defendant is not absolved from responsibility by reason of the fact that in its
case the task would have been a huge task, because it owns 11,000 acres of
woodland in this area of Co Clare alone, with 15 to 17 miles of road frontage.
Accordingly,
I hold that the Plaintiffs accident was caused by the Defendant's negligence.
Furthermore, leaving aside the seat-belt issue for the moment, I hold that it
was not contributed to by negligence on the part of the Plaintiff, in that I do
not find that the Plaintiff was driving too fast in the circumstances or that
she can be faulted for failure to see the stones and rock on the road and for
failure to take evasive action.
THE
PLAlNTIFF'S INJURIES
Apart
from cuts and bruises, the Plaintiffs main injuries were soft tissue injuries
in the right side of her neck and going down her right arm and to her wrist,
coupled with post-traumatic headaches. She had a pre-accident history of
congenital scoliosis which had been treated with rod and fusion. Dr Dominick
Cooke, Consultant Physician and Rheumatologist, who was called on behalf of the
Plaintiff, acknowledged that there was no aggravation of this condition as a
result of the accident.
In
fact, the Plaintiffs complaints have all been very thoroughly investigated
since the accident -- by her general practitioner, Dr Lee, by Dr Cooke and by
Mr Varian, to whom she was referred in connection with her wrist. She was
x-rayed and had a CT scan. There is general consensus on the part of her own
medical advisers and Mr Conor Meehan, Consultant Orthopaedic Surgeon, who
examined her on behalf of the Defendant, that the prognosis is good and that
she will have no long term problems as a result of the accident.
The
following excerpts from two of Dr Cooke's reports, in my view, gave the
"flavour" of the oral evidence. First, reporting on 2 February, 1998, sixteen
months after the accident, Dr Cooke stated:-
"When
seen today, Nicola told me that since I last examined her she has improved
considerably and she feels now that she is virtually completely over the
after-effects of the accident, but she qualifies this by saying that she still
has some residual symptoms in the neck and shoulders and also pain in the R
(wrist) from time to time and this would be noticeable when she is doing her
embroidery work. She also finds that in addition to her embroidery work, she
finds her wrist is painful in the course of her daily activities such as
printing, cooking, cleaning, housework etc, and the wrist is the most
bothersome of her problems now . . . .
On
examination, I found that she had full movement of the neck, shoulders and arms
with very slight pain and stiffness at the extremes of movement, but there was
no restriction and no neurological deficit in the upper limbs.
Clearly
Nicola has improved substantially. She has some residual symptoms, in-keeping
with the natural history of her injury, but at this stage I am optimistic in
regard to the long-term prognosis."
Following
his most recent examination on 15 September, 1998, Dr Cooke reported:-
"On
examination I found that she had reasonably full movement of the neck,
shoulders and arms. There was no pain, no muscle spasm but she pointed out to
me that in the course of her work if she did get neck pain it would be
involving the whole of her neck, shoulders and upper back area. This is
particularly noticeable if she works for 'too long'. My feeling is that Nicola
has improved further from the soft tissue injuries. I feel at this stage that
the long-term prognosis is excellent and she certainly won't be left with any
lasting disability as a result of theses soft tissue injuries."
The
Plaintiff is 38 years of age. She has three children aged 14, 11 and 5. By
profession she is a screen-print artist.
SEAT-BELT
I
have no doubt that the Plaintiffs injuries were exacerbated by reason of her
failure to wear a seat-belt. In my view, given the nature of her injuries, her
damages must be reduced by 20% on this account.
DAMAGES
Special
damages are agreed in the sum of £2,160.00. In relation to general
damages, I consider that the appropriate award is £15,000.
DECISION
The
appeal is allowed. There will be a decree for £13,728.00.
The
Appeal pursuant to Notice dated the 8 October 1998 from the Order of the
Circuit Judge for the County of Clare made herein dated the 1 October 1998
coming on for hearing before the Court this day.
Whereupon
and on reading the said notice the said Order and the Pleadings and exhibits
herein and on hearing Counsel for the Plaintiff and Counsel for the Defendant
and the evidence adduced on behalf of the Plaintiff
AND
THE COURT FINDING that the damage suffered by the Plaintiff was caused partly
by the negligence of the Defendant and of the Plaintiff, IT IS ORDERED that the
damages recoverable by the Plaintiff herein be reduced in accordance with
Section 34(1) of the
Civil Liability Act 1961
AND
THE COURT FURTHER FINDING:
[1]
That the total damages that would have been awarded to the Plaintiff if there
had not been contributory negligence on her part by reason of her failure to
wear a seat-belt would have been £17,160.00
[2]
That such sum should be reduced by 20% by reason of such negligence and that
80% should be payable by the Defendant
It
is accordingly ordered and adjudged that the Plaintiff do recover from the
Defendant 80% of £17,160.00 that is to say £13,728.00 with
appropriate costs of the Circuit Court and this Court -- the Court certifying
[a] for Senior Counsel and [b] that a refresher be payable in respect of the
Appeal hearing which was heard on the 9 December 1998 -- together with all
reserved costs when taxed and ascertained.
The
Defendant having been duly served with the Civil Bill herein and having entered
an Appearance and delivered its Defence thereto and the action having come
before the Court this day for trial
HEREUPON
and on reading the pleadings and on hearing Mr Pat O'Gorman of Counsel
(instructed by Mr Patrick J D'Alton) for the Plaintiff and Mr Gerard Kiely of
Counsel (instructed by Messrs Kennedy McGonagle Ballagh) for the Defendant and
the oral evidence adduced
THE
COURT DOTH HEREBY ORDER as follows:
THAT
the Plaintiffs proceedings be struck out forthwith.
THAT
the Defendant do recover from the Plaintiff its costs and expenses of the
proceedings herein when taxed or ascertained.
