THE HIGH COURT
									1997 No 10781P
BETWEEN
SEAN SHERRY

			PLAINTIFF
AND 

PADDY SMITH AND EUGENE O’SHEA 
	
			DEFENDANTS

JUDGMENT of Mr Justice Richard Johnson delivered the 20th day of December 2000

	This case arises out of an incident which took place on the 13th of October 1996 at or near the village of Kill, Co. Kildare.  The accident happened when two vehicles, one driven by the Plaintiff and the other driven by the first named Defendant, both travelling towards Dublin from the Kildare direction collided.  The accident took place at what is generally known as the Naas dual carriageway as appears from the maps and the photographs provided herein.  From the evidence the Naas dual carriageway is normally a four lane highway, two lanes going in each direction.  However, as the dual carriageway coming from the south namely from Kildare and approaches the traffic lights and junction at the village of Kill, it branches into four lanes and I will call these counting from the left A, B, C and D.  Lane A is for those intending to turn left at the junction and go to Straffan.  Lane B is for traffic of a slow nature going towards Dublin.  Lane C is for overtaking traffic going towards Dublin, and lane D is for traffic intending to turn right at the traffic lights and go to the village of Kill.
	The accident happened approximately 80 yards or so, south of the junction and the debris would indicate that the collision took place mainly on lane C but partially also on lane D.  It is accepted the incident occurred when the car driven by the Plaintiff collided with 
the rear of a minibus being driven by the first named Defendant in which there were at the time were in all nine people.
	As a result of the incident the Plaintiff’s vehicle was turned round on the roadway and was left facing Kildare in lane C the Defendant’s vehicle was pushed from behind overturned on its leftside, skidded along the ground until its roof collided with the main traffic light pole then turned round the traffic light pole and came to a halt across the lanes C and D approximately. 
	The evidence of the engineers in this regard was not contradicted and I hold that is the manner in which the accident happened.  The impact between the two cars was of an overlapping nature mainly being two thirds on the righthand side of the Plaintiff’s vehicle colliding with the lefthand rear side of the Defendant’s vehicle.  As a result of the incident the Plaintiff inter alia suffered personal injuries which will be dealt with hereandafter.

	The Plaintiff’s evidence indicated that he had been in Naas, had had two and a half pints of lager had got into his car with two friends.  He then attempted to go to a club called Swan Dowlings.  However, Swan Dowlings was full and the Plaintiff went from there to another disco which he knew which was being held in the Ambassador Hotel which is situated near Kill on the Kildare side.
	The Plaintiff says he went to the Ambassador Hotel but because of the crowds there he and his companions decided to go home to Newcastle.   The Plaintiff said that he came from the Ambassador Hotel onto the dual carriageway which required him crossing the two lanes coming from Dublin and that he turned right into the fast lane that is lane C and was driving towards Dublin at approximately 60 to 65 miles per hour.  As he came towards the traffic lights he saw that they were green, and for the purpose of attempting to make sure that he got the green light, he accelerated up to 70 miles an hour for the purposes of so doing.  The Plaintiff said the Defendant’s vehicle swung suddenly from the slow lane or lane B across his path without signalling the intention of so doing and presented him with a situation where he could not avoid the collision.  His evidence was that he tried to break but  to no avail and the collision took place. Volkswagen Golf which he was driving did an 180 degree turn and faced back  towards Naas.
	This version of events was supported by Mr. Horton, who was his front seat passenger and by two witnesses a Mr. Stanley and a Mr. Doran who were seated in a vehicle  at the entrance of the Straffan road, waiting for the lights to come in there favour and were looking towards Naas watching the traffic.  In cross examination it was put to the Plaintiff that he was doing 90 to 94 miles an hour.  He hotly contested this and indeed did his witness Mr. Horton who said he would never sat in a car with someone driving like that.  Mr. Doran and Mr. Stanley confirmed there was not an indictor on the minibus across the road and stuck to this story despite severe cross examination.  
	Mr. Smith the driver of the minibus gave evidence that he had come with a number of passengers from Kilcock to bring them to the  Ambassador Hotel for a disco.  He gave evidence which I accept that he was very familiar with the road from the Naas to the Ambassador Hotel although he was unfamiliar with the road from Kilcock to the Naas dual carriageway.  Apart from the fact that I believe the witness himself there was also evidence to say that he had spent many years in the army driving this road on a regular basis and therefore that he knew the road very well.  He also indicated despite cross examination that he had deliberately avoided the slip road into the Ambassador Hotel from the Naas dual carriageway and at all times intended to go up to the traffic lights and there do a U turn to come back down towards the Ambassador Hotel which of course as already stated is already situated on the other side of the road approximately half a mile back from the lights.  The reason he gave for doing this was that he considered the slip road to be unsafe and thought it was a dangerous turn.  I accept this evidence.  He then went on to say that having been in lane B he put on his indicator and he positioned himself in the fast lane namely the C lane of the dual carriageway at approximately where the petrol station appears on the photographs and map and he came on towards the slip road, and he was moving into the slip road when he was hit from behind by the Plaintiff’s vehicle.  He admitted that he was totally unaware of the presence on the roadway of the Plaintiff’s vehicle and had not seen it.  Mr. Smith’s version of events was supported by the evidence of a Mr. Walsh who was sitting in a motor car at the Kill side of the junction waiting for the lights to coming in his  favour.  He was looking towards Naas as well.  He says he saw the minibus coming across the road and he saw the indicator. However, he  did not see the Plaintiff’s car at all.  It is interesting to note that while the evidence of Mr. Stanley and Mr. Doran was that they could see the Plaintiff’s car they could not see the indicator.  Doctor Woods an engineer giving evidence on behalf of the Defendant said that positioning himself where Mr. Stanley and Mr. Doran were seated it could not be possible to see the indicator of the Defendant’s minibus, however, Mr. Purcell, engineer for the Plaintiff also went to the locus in quo and contradicted Doctor Woods and said that the indicator would have been visible.
	There was uncontested evidence called by the Defendants in the names of Mr Munroe and Doctor Woods, both eminately qualified engineers, both who working from the photographs the debris, the measurements and all other of the physical matters which are available to them both independently came to the conclusion that the speed of the vehicle driven by the Plaintiff must have been on average in excess of 90 miles an hour though there was some minor variation between the engineers, they certainly both gave to the conclusion that the difference in speed between the vehicles at the moment of collision must have been in the region of 45 miles per hour and having regard to the fact the Defendant admitted he was doing over 50 miles an hour at the time of the accident I accept that this evidence particularly as it was not as it was uncontradicted by any engineering evidence.
	Both of these engineers achieved their findings by different means of calculation and were not challenged in any way except by the oral evidence of the Plaintiff.
	Evidence is also given by a number of the passengers of the minibus all of who indicated that the Defendant was travelling at a modest speed.  That there was no sudden movement or jerk in the driving, however, a Ms. Robinson indicated that prior to the accident she had seen lights behind.  
	There was further evidence uncontradicted that the Plaintiff was found to have been breathalysed the accident was found to have 125ml of alcohol per ml of blood.  Doctor Farrelly gave evidence as to the effect this would be likely to have on the condition of the Plaintiff and basically indicated that it produced a lack of judgment and possibly a state of euphoria.  Another witness called on behalf of the Defendant was Sergeant Gamble.  He said he had seen the Plaintiff earlier in Naas and that the manner in which the car was driven had attracted his notice.  He wished to speak to the Plaintiff if he met him later and he anticipated meeting him later that evening around Naas however.  However, he said that within an extraordinary short time a message came through that a crash had taken place at Kill, he went there immediately.  It is quite clear that from Sergeant Gambles evidence that in his view the Plaintiff could not have been to the Hotel Ambassador prior to the accident this was because of the distance involved and the short time between the reporting of the accident and when the Sergeant had seen the Plaintiff in Naas or are the Sergeant had not taken specific times and whereas it may had been very close indeed I find that the Plaintiff did in fact go to the Ambassador Hotel.  Throughout this case there were two underlying suggestions being made by the parties, one is been made by the Plaintiff that the Defendant Mr. Smith did not know where he was and that he was lost.  As already stated I reject this absolutely.  The second was made by the Defendant that Messrs. Doran and Stanley were in some way connected with the Plaintiff and I reject this absolutely as well. As far as I am concerned the parties to this case have been doing there best to give an accurate account of the incident as they remember it.  Under these circumstances I find the following facts:-
1	The Plaintiff was travelling with his headlights on up the C lane of the Naas 		dual carriageway and had being doing so from the time he came on to the dual 		carriageway from the Ambassador Hotel, which was approximately a half a 		mile away from the traffic lights.
2	The Defendant drove up the Naas dual carriageway with the intention of 			turning right at Kill.
3	The roadway in question is a broad straight road apart from a slight bend.  This 	bend would not in any material way diminish the ability of the parties to see 		each other. Apart from any lighting that the cars might have had on 			themselves the road itself is well lit by public lighting.
4	The cars had each other in view for a considerable length of time and had the 		parties being keeping a proper lookout I find it is a fact that they would have 		seen each other.
5	The Defendant travelled initially on the B lane and switched over to the C 			lane and attempted to switch to the D lane at a point far closer to the traffic 		lights than he believed.  The Defendant believed he had left the B lane at the 		filling station which appears on the maps and photographs.
6	The Defendant drove from the B lane to the C lane with the intention of going to the D lane without seeing that the Plaintiff was on the roadway. The evidence is that at no time was the Defendant aware that the Plaintiff was on the roadway at all.  There is a duty on persons moving from one laneway to another to ensure they are so doing that they do so without causing embarrassment or danger to any other road user.  In order to carry out their obligations on foot of this requirement it is necessary that they should check carefully the mirrors to ensure that it is safe so to do and I find the Defendant did not so do.
7		The Plaintiff was travelling at excessive speed and I accept the evidence of 			Mr. Munroe and Doctor Woods that he was travelling at approximately 90 to 			94 miles per hour.
8		The Defendant came across the path of the Plaintiff thereby creating an 				emergency for the Plaintiff.
9		Because of the speed at which the Plaintiff was travelling he was unable to 			cope with the emergency.
10		The capacity of the Plaintiff to cope with the emergency was further 				diminished by his consumption of alcohol. 
11		I find the Defendant had his indicator on at the time he crossed the road from 			the B lane to the C lane.  Thereby I find that the Plaintiff contributed to the 			accident in two ways because he drove at an excessive speed and because he 			had drink taken he was unable to cope with the emergency he was presented 			with.  I am further satisfied the Defendant was negligent in his failure to 				appreciate the Plaintiff was on the roadway at all.
		Overall the blameworthiness for this occurrence lies mainly with the Plaintiff and I find liability on the basis of 75% against the Plaintiff and 25% against the Defendant.
		The Plaintiff at the time of the accident was aged 30 years and was a chef working for the P&O Lines.  He suffered in the accident from a 
1		Bleeding nose 
2		Abrasions of the nose
3		A cut on the lower lip for which no sutures were required 
4		Soft tissue injury to the right side of the chest, right shoulder and neck 
5		Injury joint of the fourth finger.  He has developed a mallet finger as a result 			of this.	
		He continues to suffer from two problems one a pain in his shoulder and down his forearm on the right side and other problem is his back.  The doctors opinion is that the Plaintiff will benefit from physiotherapy but unfortunately there is no physiotherapy available on the ships where he works.
		He suffers still from pain on the right shoulder and down the forearm to the right side and further pain in his back.  However, where as the Plaintiff does have a continuing disability it is of a minor nature and the medical evidence is that a full recovery should be anticipated with a complete physiotherapy treatment which unfortunately he has not had, he also has a mallet finger.
		Under these circumstances I award and assess damages to the Plaintiff at £25,000.00 general damages plus special damages of £3,610.00 and the Plaintiff is entitled to 25% of the said amount together with the costs.