 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Raleigh v. Iaranrod Eireann/Irish Rail [2003] IEHC 112 (19 December 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/112.html Cite as: [2003] IEHC 112 |
||
[New search] [Printable RTF version] [Help]
THE HIGH COURT
1996 NO. 5250P
BETWEEN
DEREK RALEIGH
PLAINTIFF
AND
IARNRÓD ÉIREANN/IRISH RAIL
DEFENDANT
JUDGMENT of Mr. Justice Diarmuid B. O'Donovan delivered on 19th the day of December, 2003
The plaintiff in this case, Derek Raleigh, is twenty eight years of age. At the time of the events which gave rise to this claim he was nearly 20 years of age and he was employed as an apprentice panel-beater with a company named Capital Cars and he resided at Tullamore in the County Offaly. He sat for the leaving certificate examination in the year 1993 and passed all subjects with the exception of Mathematics and Irish. David Raleigh is currently unemployed and resides in Tullamore with his partner and three children. He comes to Court seeking damages for injuries which he suffered as a result of an accident in which he was involved at a portion of the railway line between Clara and Tullamore; an accident which occurred sometime between 3.30 a.m and 4.30 a.m. on the morning of Sunday the 12th August, 1995. On that occasion, he was struck by one of the defendants' trains at a location which was approximately a quarter of a mile on the Clara side of Tullamore Railway Station and, as a result, Derek Raleigh sustained very serious injuries; the most severe of which were to his right leg which resulted in a below knee amputation.
In the light of the evidence which I heard, and, in particularly that of Derek Raleigh, himself, I am satisfied that, on the evening of the 12th August, 1995, which was a Saturday, the plaintiff, who lived about 10 minutes' walk from the Clara/Tullamore Railway Line, went to an off-licence premises where he purchased a number of cans of lager and then collected his girlfriend, met up with two other friends named Cosgrave and Murray and went to a section of the Clara/Tullamore Railway Line; a section which the plaintiff said, was one at which people were accustomed to congregate from time to time for the purpose of socialising and, in particular, having drinks and a section, which he, himself, had frequented regularly since he was ten or twelve years of age. Access to the section of the said railway line to which he went to on that occasion, was gained by climbing a four foot six inch high wall and then negotiating a steep bank about eighteen feet long. This wall and bank are shown in Photograph No. 17 of a book of photographs produced by Mr. James Canty B.E., who gave evidence on behalf of the defence. Having negotiated the said bank, the plaintiff and his companions then went to an area which is shown in Photograph No. 23 of the said set of photographs where they stopped near the railway line and had some drinks. In this regard, the plaintiff conceded under cross-examination, that, while he had frequented that place regularly since he was young boy, he had been chased away from it on a number of occasions by personnel from Iarnród Éireann and he agreed if, on any occasion, on which he had been there, he saw personnel from the railway company approaching, he would run away. He also agreed that he had seen other people being chased away from the location by members of the Railway Company's staff. In those circumstances, I am quite satisfied that, at that location, the plaintiff was a trespasser on the defendant's property and I am satisfied that, being close to a railway line, it was an obvious place of danger, as Mr. Frank Abbot, an engineer, who gave evidence on behalf of the plaintiff asserted. Furthermore, I am satisfied that the plaintiff, himself, was aware that, apart from the fact that that was a dangerous place to be, it was a place at which his presence was not welcome by the defendants; in other words, that he was an unwelcome trespasser. However, Guard Bernard Doheny gave evidence that it was an area which was frequented by young people over the years although, occasionally, the Garda Síochána received requests from Iarnród Éireann to remove trespassers from the area.
Having had some drinks at the point which I have indicated, it appears that some other persons arrived at that place and the plaintiff and his three companions decided to move to another location beside the railway line; this being a place about two hundred yards in the Clara direction; a place shown in Photograph No. 4 of the said set of photographs. Again, it was suggested by the plaintiff that this was another location at which people were accustomed to gather for the purpose of socialising. Over the next couple of hours, it appears that the plaintiff and his three companions had more drink, and then, his two male friends left, leaving the plaintiff and his girlfriend sitting on sleepers with their backs to the railway line. Mr. Raleigh told me and I have no reason to doubt him that, during the evening, he consumed six, seven or eight cans of lager. He said that he was tired because he had been working late that day and, during previous days, had been involved in a lot of football training. In any event, for whatever reason, he said that he and his girlfriend, fell asleep while sitting on the sleepers with their backs to the railway line. His next memory is hearing the horn, or hooter, of a train which woke him up. He said that he looked to his left; that is in the direction of Clara, and he saw the light of a train approaching. It appeared to him to be very close and, as he said "travelling hard". He grabbed his girlfriend (apparently, she had not wakened up) and, in a crouched position, pulled her away. However, while it seems that he succeeded in getting her away from the railway line, his own right leg was struck by the train.
Mr. Raleigh blamed the driver of the train for what happened; for driving too fast and for only sounding his horn, or hooter on one occasion. Mr. Frank Abbot also expressed the view that the driver of the train had not been driving with sufficient care, as a result of which the plaintiff had suffered his injuries. However, the thrust of the plaintiff's case against the defendants, as expressed by his legal team on his behalf, was that the defendants had negligently contributed to the incident which befell him by facilitating and tolerating access by the public and, in particular, by the plaintiff to their railway line. In this regard, Mr. Abbot described the route by which the plaintiff gained access to the railway line as a "structured access" and he said it comprised a metalled pathway on the railway side of the four foot, six inch wall which the plaintiff had climbed over and a line which was cut in briars on that side of the wall. He said that this metalled pathway was constructed of road building material; he said that there six to ten tonnes of it, which he believed had been taken from a nearby quarry and deliberately brought to that area for the purpose of constructing a path. In my view, this was pure speculation on Mr. Abbot's part with little or no justification for it, and, indeed, Mr. Abbot conceded that what he described as "road building material" could also be used as side filling to keep railway ballast in place and that it could, in theory, have arrived at the place at which he found it, by the forces of gravity, although he thought this to be very unlikely. With all due respect to Mr. Abbot, I do not for a minute believe that anyone deliberately carted six to ten tonnes of road building material from a quarry to the area in question for the purpose of building a path there. It makes no sense to me that anyone could, as it where, go to such trouble to build a pathway which, essentially, leads nowhere. I think it much more likely that the material which comprised what Mr. Abbot chooses to describe as a pathway; be it building material used as side filling to keep railway ballast in place or railway ballast itself, came from the railway siding either, as Mr. Abbott suggested, by the forces of gravity or that it had been put or thrown there by people for whatever reason. I do agree, however, that what is shown in Photograph 17 of the book of photographs produced by the defendants and, indeed, in Photographs No. 16 and 17 of the photographs produced by Mr. Abbot, does appear to be a track which resulted from the passage of people or animals. Mr. Abbot said that this track led to a place which was obviously a place of public resort and he appears to have based that view on the fact that he found an empty beer can on the bridge near a parapet wall as is shown in Photograph No. 14 of the book of photographs which he produced. In my view, that can proves nothing; it could have easily have been thrown from a train as it could be a result of a social gathering. However, the plaintiff said that people regularly frequented that spot for the purpose of drinking and, while the defendants disputed that assertion, it seems to me that the existence of that track is somewhat corroborative of the plaintiff's evidence in that regard. It also appears to me that, at one time, a wire fence had been erected on the railway line side of the wall which the plaintiff had climbed over to gain access to the railway line because Photograph No. 20 of the set of photographs produced by Mr. Abbot shows a post with a wire on it which appears to be the remnants of such a fence. In this regard, I am led to believe that such a fence had been erected with the intention of preventing access to the railway line over that wall and that that fence had either been torn down, or had been allowed to fall into disrepair.
However, I am persuaded by the existence of what I choose to call the track, and the existence of that post which is shown in photograph No 20 of Mr. Abbots set of photographs that, for some considerable time prior to the plaintiff's accident, people were accustomed to accessing the defendant's railway line by climbing over the wall in question and negotiating the steep bank on the railway side of that wall by means of that track and, if for no other reason than the appearance of the track, I am satisfied that the defendants must have been aware of that practice. Furthermore, I am satisfied that the defendants implicitly facilitated or tolerated that practice by their failure to take appropriate steps to prevent access to their railway line at that point and I think that they can be faulted on that account. In that regard, it seems to me that, while it might not be reasonable to expect that the defendant should have foreseen what, precisely, the plaintiff did on the occasion of the incident which gave rise to this claim, if one assumes, as I do, that they were aware or ought to have been aware, that persons were accustomed to frequenting their railway line, at that point they should have foreseen the likelihood that one or more of those persons would do something stupid whereby their safety was imperilled. Accordingly, it seems to me that, while at the material time, the plaintiff was an unwelcome trespasser on the defendant's railway line, he passes the test of proximity and foreseeability expressed by the Supreme Court in the case of Purtill v. Athlone UDC (1968 I.R. at p 205) and the case of McNamara v. The Electricity Supply Board (1975 I.R. at p. 1) and endorsed by the Supreme Court in the case of Smyth v. CIE (1991 1 I.R. at p. 314) whereby he is entitled, to some extent, at least, to succeed in his claim herein against the defendant. In this regard, however, notwithstanding the allegations in that behalf made by the plaintiff and, indeed, by Mr. Abbot against the driver of the defendant's train at the material time, Thomas O'Brien, I am not at all persuaded that Mr. O'Brien was in anyway to blame for what happened. In this regard, in the course of his evidence, Mr. O'Brien said that, on the occasion in question, he had first seen the plaintiff and his girlfriend sitting on the left hand side of the railway line as he approached them with their backs to the rail and their feet stretching down an adjoining slope at a time that his train was entering a right hand bend on the Clara side of the point at which he had seen the plaintiff and his companion which, in the light of the evidence of Mr. Canty could have been some five hundred yards distance from where the plaintiff and his girlfriend were located and, therefore, a distance within which Mr. O'Brien could have brought his train to a halt before he reached them; if, as I believe, because Mr. O'Brien said so, he was travelling at a speed of between thirty miles per hour and forty miles per hour. If that is so, then, undoubtedly, Mr. O'Brien could be blamed for having failed to bring his train to a halt without striking the plaintiff. However, I am quite satisfied by other evidence which I heard that Mr. O'Brien is very much mistaken in his belief that he first saw the plaintiff and his girlfriend when his train was entering that bend because, apart altogether from the fact that the plaintiff's engineer, Mr. Abbot, expressed the opinion that the maximum view of the plaintiff and his companion which Mr. O'Brien would have had as he approached them would have been some two hundred yards and Mr. Canty was of the view that it was only sixty to eighty metres and, indeed, Mr. O'Brien contradicted himself when he said that he thought that the plaintiff and his girlfriend were only fifty yards away from him when he first saw them, it seems to me that it would have been physically impossible for Mr. O'Brien to have seen the couple at a time when his train was just entering that right hand bend. I say that because it appears that the only light on the train were twin fixed headlights which shone forward, and therefore, would not illuminate the couple until the train was more or less facing in their direction which it would not have been doing as the train entered that right hand bend. Looking at photographs Nos. 1 and 2 of Mr. Canty's set of photographs, it seems to me that the light on the train would not have illuminated the plaintiff and his companion until most of that bend had been negotiated by the train. In that regard, no one appears to have measured the distance from the point at which the train entered the straight which followed that bend and the point at which the plaintiff and his companion were located but Detective Garda Lynagh, who was one of the members of the Garda Síochána who investigated the plaintiff's accident, said that he paced it and found that distance to be some one hundred paces which I think is in or about one hundred yards. I would accept that the probabilities are that Mr. O'Brien would have had a somewhat longer view than 100 yards of the plaintiff and his girlfriend when he first saw them but, given that a train travelling at between thirty and forty miles per hour, which as I have indicated, I am satisfied was the speed at which this train was been driven cannot, as I interpret the evidence of Mr. Brian Hughes, another engineer, who gave evidence on behalf of the defendant, be brought to a halt within a distance of approximately one hundred and fifty yards. I accept Mr. O'Brien's evidence which, indeed, seemed to me to be corroborated by that of Mr. Abbot, Mr. Hughes and Mr. Canty that, given the view of the plaintiff and his girlfriend that he had as he approached them, it was impossible for him to bring the train to a halt without striking them. Indeed, I am satisfied, that, apart from blowing his horn and applying his brakes when he first saw the plaintiff and his girlfriend there was nothing more that Mr. O'Brien could have done to prevent the train from striking the plaintiff. In this regard, by the way, I accept without reservation Mr. O'Brien's assertion that, at the material time, he believed he had in fact avoided the plaintiff and that that is the reason why he had not brought the train to a halt. In that regard, it was pointed out to Mr. O'Brien that Regulation 7.1 of Iarnród Éireann's Regulations require that, in the event that the driver of a train observes a source of danger he is required to stop the train immediately and it was put to Mr. O'Brien that he had been in breach of that Regulation. Mr. O'Brien rejected that suggestion but, even if it were true, it is irrelevant because I am satisfied that, one way or another. Mr. O'Brien could not have brought the train to a halt without striking the plaintiff.
In my view, the only other relevant piece of evidence insofar as the issue on liability is concerned is that of Mr. John Mullin, the defendant's district manager at the material time, Mr. Mullin produced photographs which he took when he visited the scene of the plaintiff's accident on the following day. Those photographs show the extent of the vegetation to the side of the railway line at a point in or about where the plaintiff was struck by the train and clearly indicates a restricted space between the railway line and that vegetation.
As I have already indicated, I am satisfied that, for the reasons which I have outlined, the defendants must bear some responsibility for what happened to the plaintiff. However, I have no doubt at all but that the plaintiff, himself, was largely the author of his own misfortune and, in apportioning blame worthiness I am satisfied that I must visit the plaintiff with a much greater degree of fault than that of the defendants. In this regard, I cannot think of anything more irresponsible than that a grown man would sit on a railway line in the middle of the night with a feed of alcoholic drink in him and I think that the plaintiff's wrongdoing was compounded by the fact that the point at which he chose to sit on the railway line was such that he had very little room to manoeuvre in the event of an emergency because of the existence of adjoining vegetation. Furthermore, apart altogether from the obvious danger, he well knew that he was an unwelcome trespasser. Indeed, I was tempted to conclude that the plaintiff's conduct was so reprehensible that it negated any fault on the part of the defendants. However, on balance, I have decided that I must reflect the defendant's responsibility for failing to take appropriate steps to prevent trespass on the railway line which they must have known was taking place by an apportionment of fault, albeit small, against them. In all those circumstances, it seems to me that a reasonable apportionment of fault between the parties is that the plaintiff should be visited with 85% of the blame and the defendants with 15% thereof.
As I have already indicated, as a result of the incident which gave rise to this claim, the plaintiff suffered a very severe crushing/degloving injury to his right foot which resulted in his having to submit a below knee amputation of his right leg. He told me and I have little doubt but that this was an extremely painful experience. In addition, he sustained lacerations of his left buttock and right upper arm and multiple facial abrasions. However, although it appears from the reports submitted by Ms. Patricia Eadie; the plastic surgeon under whose care the plaintiff came with regard to his injuries, that the latter injuries i.e. the lacerations of his left buttock and right arm required debridement and repair and the abrasions to his face were scrubbed, Mr. Raleigh made little of those injuries, and, indeed, apart from describing them in her reports and noting that, as a result of them, Mr. Raleigh has been left with permanent scarring on his buttock and right upper arm which she did not consider to be a major problem, Ms. Eadie makes no other mention of them. Accordingly, apart from noting that Mr. Raleigh has residual scarring on his buttock and right arm which the good Lord did not give him, I must assume that in the absence of any complaint by him with regard to that scarring, he is not particularly worried about it. Neither has he experienced any other problems relating to the injuries which he suffered to his buttock and right arm. However, the loss of his right leg is a very different matter and apart from the obvious consequences of such a loss, he has been troubled by recurring blistering and infection of the stump which is particularly prevalent during warm weather, and necessitates the temporary removal of the prosthesis with which he was supplied to replace the missing limb, which has greatly interfered with his capacity to sustain employment. In this regard, in the immediate aftermath of his accident, Mr. Raleigh was taken to Tullamore General Hospital from which he was transferred to St. James' Hospital, Dublin on the same day. Shortly after his admission to St. James' Hospital, he was taken to the theatre where, under general anaesthetic, a below knee amputation was performed. His post-operative course was complicated by a haematoma in his stump which required drainage under general anaesthetic. In all, he spent some two to three weeks in hospital and was then transferred to the national rehabilitation unit where he spent a week as an inpatient and, thereafter, ten visits as an outpatient and, in the fullness of time, he was fitted with an appropriate prosthesis. As I have indicated, since then he has been troubled by a recurring breakdown of the stump which I gather from Ms. Eadie's report is not an unusual phenomenon and is likely to be an on-going problem for the plaintiff and that, as Ms. Eadie said, he will have to care for his stump very carefully to avoid getting chronic infections.
Following the loss of his right leg, the plaintiff was out of work for some six months. He then returned to his pre-accident employment, as an apprentice panel beater with Messrs Capital Cars. However, due to recurring blistering of his right stump which, occurred more frequently in warm weather, or when he was working in a warm environment, he had many absences from work, and eventually conceded that he could not cope with the demands of that employment and gave it up. Since then, he has had a variety of part time jobs including painting, working as a cleaner in a garage, working on building sites, cleaning up after plasterers and other relatively menial tasks. He estimated that, since leaving employment with Capital Cars he has been employed about twenty percent or thirty percent of the time. He told me that he has been trying to get work all of the time. I have no reason to doubt that and that he is registered with FAS. However, he said that, because of recurring blistering and the sweating of the stump of his right leg he cannot work in a warm environment and that, when the stump is blistered or infected, he has to remove the prosthesis. In that regard, he said that, during the last year, he had to remove the prosthesis for that reason on about ten occasions. He tells me that, although he goes to discos and tries to dance, he cannot play football and he very much regrets this because, before his accident, he played regularly for a team in Charleville. He also told me that he experiences recurring phantom pains in his left leg which are troublesome and which I gather will be an on-going problem for him.
The Plaintiff was assessed by Mrs. Paula Smyth, a vocational rehabilitation consultant, with regard to the implications for his future employment arising from the loss of his right limb. In that regard, I have been furnished with a report from Mrs Smyth dated the 17th April, 2000 and, as I interpret that report, she accepts that Mr. Raleigh is no longer capable of pursuing a career as a panel beater. Indeed, she is of the view that overall his options for work have been somewhat reduced by the loss of his right leg. Nevertheless, she considers that he is suited for a range of occupations and she thinks that it would be advisable for him to undergo an amount of retraining. As I interpret Mrs. Smyth's views she believes that, notwithstanding his ongoing disability, Derek Raleigh has the capacity to engage in employment which will attract an equivalent wage to that which he might have earned as a panel beater but that, because of his disability, will be an unattractive proposition to would be employers and, therefore, could have difficulty in obtaining employment. Moreover, he will be limited to the choice of work that he can undertake. However, it has not been established that, as a result of the loss of his right leg, he will suffer a permanent loss of income which can be quantified and, therefore, I must speculate the extent to which his future earning capacity has been reduced by his injury and propose to allow him a sum by way of general damages to compensate him for that loss. So far as the past is concerned other, than being told that the plaintiff has only been able to engage in gainful employment for about twenty or thirty percent of his time since he left his employment as an apprentice panel beater with Capital Cars, I have no idea what he has lost in monitory terms and, once again, I can only compensate him for that loss by including something in respect of it in my assessment of his general damages to date. In fact, although counsel for the plaintiff, in the course of opening the case to me, intimated that special damages would be in the region of £456,000 the only concrete figures with which I was furnished are those with regard to the cost providing the plaintiff with a prosthesis and stump socks and the cost of maintaining and replacing the artificial limb into the future. These figures are contained in a report dated 19th February, 2001 from Dr. F.X. Keane in the rehabilitation unit; the contents of which I understand have been agreed by the parties. However, I was not furnished with any actuarial evidence to assist me to capitalise those costs into the future. So, again I must speculate. I find the necessity for all this speculation to be very unsatisfactory. However, doing the best that I can I assess the plaintiff's general damages to date to include pain, suffering, disability, restriction of recreational activity and an allowance in respect of loss of earnings in the sum of €250,000. As for the future, to cover the same matters, I will assess general damages in the sum of €400,000. On top of that, as I interpret Dr. Keane's report, since his accident, Mr. Raleigh has spent £8,092 providing himself with new replacement prosthesis (£1,358 in September, 1995, £1763 in January, 1996, £1371 in October, 1997 and £3,600 in two prosthesis since 1997 which were replaced in three year intervals at a cost of £1,800 each) £1,008 in respective of stump socks (24 socks at £7 each i.e. £168 per annum) £2,000 in respect of new sockets (£1,000 every three years) £1,200 in respect of maintenance (£200 per annum for six years) and £1,050 in respect of new liners (£175 per annum for six years). That is a total of £13,350 the euro equivalent of which is €16,951. As for the future, again as I interpret Dr. Keane's report, the plaintiff will require to replace his prosthesis every three years, the cost which, back in February, 2001, Dr. Keane estimated at £1,800. I imagine that they cost about £2,000 now, given that the plaintiff is twenty eight years of age and probably has a life expectation of at least forty five years it follows he will have to replace the prosthesis fifteen times; the capital cost of which will be £30,000 which, somewhat arbitrarily, I would discount by 10% to allow for immediate payment i.e. £27,000 the euro equivalent of which is €34,283. In addition, again, assuming that he survives forty five years, he will require fifteen new sockets for his prosthesis at a cost of £1,000 every three years i.e. £15,000, stump socks a cost of £168 punts per annum i.e. £2,540 maintenance at £200 per annum i.e. £9,000 and new liners at a cost of £175 per annum i.e. £1875. Those additional matters, on my calculation, total £34,395 and, again, when I discount that figure by 10% to allow for immediate payment, the result is £30,955; the euro equivalent of which is €39,305. Accordingly, it seems to me that the past and future cost to Mr. Raleigh of providing himself with prosthesis and ancillary equipment is £90,539 and I propose to include that sum in the amount of his damages. Accordingly, I assess damages in this case in the sum of €740,539; 15% of which is €111,081 which I wish to award to the plaintiff.