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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Rogan v. Walsh & Anor [2004] IEHC 68 (22 April 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/68.html Cite as: [2004] IEHC 68

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HC 170/04

THE HIGH COURT

Record Number: 2001 No. 107 CA

Between:

Frank Rogan

Plaintiff

And

Declan Walsh and The Motor Insurers' Bureau of Ireland

Defendants

Judgment of Mr Michael Peart delivered the 22^nd day of April 2004:

Having entered judgment in favour of the plaintiff yesterday, I indicated that I would prepare and make available today a reasoned judgment setting out my conclusions having heard and considered the evidence.

Since the defendant's in this case have arranged for a note of the evidence to be taken I do not propose to set out in detail the evidence which I have heard from all the witnesses. Suffice to say that some four and a half years ago on the 19^th September 1999 the plaintiff was driving his Fiat Uno vehicle along an extremely narrow road near Finlough, Ballinacarrow, Co. Sligo, and the 1^st defendant was driving his Honda Civic on the same road but in the opposite direction. At the point at which the two cars were in collision, the road measures only 9 feet in width, with a grass margin on the plaintiff's side of 2 feet, and on the defendant's side of 1 foot. The plaintiff's car is 5 feet and 1 inch in width, and the defendant's is 5 foot 6 inches in width. The mathematics make it clear beyond doubt that these two vehicles could not pass each other on this stretch of road without each vehicle pulling as far to its left as possible, and even then only with extreme caution and at a crawling pace.

The plaintiff has stated that on this date as he was travelling on this road he was doing about 10 or 15 mph, and that the 1^st defendant suddenly appeared on the road coming around a bend in the road which was about 25 or 30 yards ahead of him. He said that the 1^st defendant appeared to be coming towards him around that bend at a fast speed, and that the plaintiff immediately braked and pulled into the grass margin on his left as far as he possibly could. However the 1^st defendant came into contact with the driver's wing of the plaintiff's car causing damage to same as appears from the engineer's report and photographs which were produced. The damage to the plaintiff's car was repaired at a cost of £655.87, which figure includes a labour charge of £200. Clearly the impact was not too severe given the relatively minor nature of the damage to the plaintiff's vehicle. The plaintiff basically alleges that the defendant was travelling at too fast a speed to be able to slow down sufficiently in order to pass his vehicle as carefully as is necessary on this very narrow stretch of road.

The defendant on the other hand says that he was not travelling too fast. He says that he was doing no more than 30mph, and that when he first saw the plaintiff's vehicle, it was only about 10 feet away from him, and that he also pulled as far to his left as he could but that his car hit a stone which was part of the stone wall on his left, which caused him to come back out and collide with the plaintiff's car. He also says that in his view the plaintiff was travelling in excess of the 15mph that the plaintiff had stated as his speed prior to this accident.

There is a problem with the 1^st defendant's evidence as to the locus of this accident, and his evidence as to the plaintiff being only 10 feet away from him when he first saw the plaintiff's car ahead of him. The difficulty arises on account of the fact that the engineer engaged on behalf of the defendants, Mr John Mooney has prepared a report on the basis of a meeting which he had with the 1^st named defendant at the locus for the purpose of his report. Mr Mooney has stated that the 1^st defendant identified a point on this road at which he said the impact occurred. Mr Mooney has stated that if that was the location of the impact, the 1^st defendant would have had a maximum sight distance of 25 to 30 metres, and not the ten feet referred to by the 1^st defendant. Mr Mooney has also opined that given the very narrow width of this road it would be necessary that a driver would stop before meeting any oncoming car, and that in order to do so within the available distance such a car would need to be travelling at a maximum speed of 15-17 mph, and that if the drivers were travelling in excess of that speed they could not stop in time and an accident would be inevitable. The defendant has on his own evidence stated that he was travelling at 30mph, which is almost double what Mr Mooney considers to be the maximum speed to enable a vehicle to stop in time. It is worth recalling that the plaintiff has stated that when he first saw the 1^st defendant's vehicle he was travelling at about 15 mph, and that at the time of impact he had almost come to a complete halt. That part of the plaintiff's evidence seems entirely consistent with Mr Mooney's evidence.

Another unsatisfactory aspect of the evidence of the 1^st defendant is in relation to what he says about hitting a stone in the wall at the left margin of the road. He says that no damage was done to his car as a result of this, and that it was his left front wheel which hit the stone and that it was not damaged. I believe that this is not plausible, or that if he did hit such a stone it must have been so slight given that there is no damage, as to be incapable to have been the sole cause of his car being thrown off course and into the front wing of the plaintiff's car as he alleges.

Without going into every detail of the evidence and cross-examination of the parties, I have come to the conclusion that the plaintiff's account of how this accident happened is preferable to that of the 1^st defendant, and that even if the latter is correct in saying that he hit a stone in the wall to his left which caused him to collide with the plaintiff, I am satisfied that the plaintiff did not have sufficient control of his vehicle in the particular road conditions present due to the fact that he travelling at a greater speed that he ought in the circumstances. I believe the plaintiff's account of these events to be the correct version of the events leading up to this accident. The plaintiff's son also gave evidence which is consistent with his father's evidence.

There has been other evidence, including some about a conversation between the two drivers at the scene about the accident and the damage to the cars, and other evidence about the 1^st defendant leaving the scene before the Gardai arrived and so on, but it is not necessary for me to consider that evidence since I am able to reach a conclusion on liability without recourse to same.

I am also satisfied from the evidence that while this impact was not a very severe impact, neither can it be called trivial, since some of the damage to the plaintiff's vehicle consisted of the front wheel having been pushed backwards according to both Mr Mooney, the defendant's engineer, and the plaintiff's engineer who describes it as "resulting in the right hand front wheel rim and suspension being impacted back slightly". This finding has a relevance to the injuries complained of by the plaintiff, since it is submitted on behalf of the defendants that such a minor accident as this could not have resulted in the injury which the plaintiff says he suffered to his elbow, shoulder and particularly his knee in this collision.

The plaintiff says that in the impact he must have hit his knee off the dashboard or the side of the driver's door. He also says that the impact made him grip the steering wheel very tightly and that this has caused him injury to his elbow. His shoulder also gave him trouble for a while afterwards.

Again there is no need for me to detail all the medical evidence since there is a transcript of that evidence if it is required. But it is a fact that the plaintiff by September 1999 had pre-existing degenerative changes in his elbow and right knee. In about 1980 he had suffered a crusciate ligament injury to his right knee, and in 1992 had sustained an injury to the radius in his right arm.

On the day following the present accident the plaintiff attended his GP in relation to his injuries, including to his right knee. He also attended for X-Ray at Sligo General Hospital at that time.

The injuries have caused him some difficulties in relation to his occupation which involves the breeding and breaking of horses, which are in the main show-jumpers. His son rides these animals in competition and they are sold on. That is the nature of his business in very general terms. Part of the breaking and training involves a process called "lunging", and it is this aspect of his job that the plaintiff has stated is affected by the pain in his elbows, and he complains of a loss of power in his right arm to an extent. One of the plaintiff's doctors has noted, nevertheless, in a report, that the plaintiff's right hand grip is strong. However I am satisfied that the accident did aggravate the elbow which had received the earlier insult in 1992, but the plaintiff is left with an increased amount of pain and discomfort and it is worse in cold weather.

There is no doubt in my mind that the pre-existing arthritic symptomology has been aggravated to an extent by the 1999 accident, but obviously he cannot be compensated in these proceedings for any element of his present condition which is attributable to the earlier injury, except to the extent that the symptoms have been worsened.

His pain and discomfort in the shoulder area has cleared up, and while there is no doubt in my mind that he had this discomfort for a period of time, it is not a major item, and in this regard the fact that the plaintiff has admitted that he failed to wear his seat-belt, I am satisfied that any damages relating to the shoulder injury only, should be discounted to the extent of 50% on that account. But I do not think that the elbow and knee injury are affected or worsened by the failure to wear the seat-belt.

The real and most serious aspect of the plaintiff's injuries is the pain he is suffering in his right knee. The pain in his knee in fact is noted by the doctors as having settled for a couple of years after the accident, but in 2002 or thereabouts he developed painful symptoms and has received treatment in respect of this. The defendants submit that since the symptoms had cleared up within a reasonable time after the accident and did not reappear until about 2002, the present difficulties cannot be related back to the accident in 1999. However one of the plaintiff's specialists, Mr Healy, gave evidence that arthritis symptoms can come and go from time to time, and he did not agree that because it had appeared to settle after a while, the later symptoms therefore could not be related back to this accident. Having considered the very helpful medical evidence and reports, including that of the defendants' medical expert, Mr Fintan Shannon, I am satisfied, on the balance of probabilities, that the plaintiff's complaints since this accident can be related back to this accident to the extent that the accident caused an aggravation or exacerbation of his pre-existing degenerative changes, both in his arm and his knee.

There has been some suggestion that it will be necessary for the plaintiff to have a knee replacement, and that while this may have been something he would be required to have even without the 1999 injury, he will in all probability need to have it done sooner than otherwise. One view is that he may need a replacement by age 60, but Mr Shannon on the defendants' behalf was more optimistic. However, I am satisfied, again on the balance of probabilities, that since there has been an exacerbation of the pre-existing degenerative changes, it is more likely than not that the plaintiff will need such a replacement somewhat sooner than he would otherwise. That is something which must be taken into account, but only to a small extent since he would probably have to undergo that procedure in any event. According to Mr Healy's evidence there should be no cost implications for the plaintiff in relation to any knee replacement.

As I have stated I am not setting out every detail of the medical evidence, but I have considered it all carefully. I am satisfied that the symptoms which the plaintiff would in any event have suffered in the future have been brought forward in time as a result of the 1999 accident, but none of the experts have been precise as to the number of years by which these symptoms have been accelerated, but for the purpose of my calculations I am assuming that period to be in the order of five years.

I have heard no evidence which enables me to know whether the plaintiff will be at any loss in respect of earnings in the future as a result of the effects of these injuries, and I was urged by Counsel for the plaintiff, Jon Finlay S.C. that I should make some allowance in that regard under the heading of general damages. However, I have decided that in all probability, partly on account of the nature of the business involved, namely breeding and training of show-jumpers, as well as the plaintiff's involvement in the business (although at the present time he is working with a trainer in England) that it is more than likely that the plaintiff's earnings will remain the same as if this 1999 accident had not happened. I have therefore taken no account of this factor in my calculation of damages.

In my view a sum of €6000 is appropriate in respect of the shoulder injury, and as I have stated I am discounting this figure by 50% in respect of the plaintiff's contributory negligence in respect of the shoulder injury, because he did not wear a seatbelt, so I award the sum of €3000 under that heading, and only in respect of past pain and suffering associated therewith.

Taking the elbow injury and the knee injury together, I award a sum of €50,000, divided as to €30,000 in respect of past pain and suffering, and €20,000 in respect of future pain and suffering.

Special damages have been agreed in the sum of €1800.

I therefore give judgment to the plaintiff against the defendants in the sum of €54800, and costs to include any reserved costs.