AN CHÚIRT UACHTARACH

THE SUPREME COURT
O‘Flaherty J,
Barrington J.,
Barron J.,
(399/97)

BETWEEN:
EDWARD MURPHY
Plaintiff/Respondent
.v.

FRANK D. LYONS AND ALAN HAYES
Defendants/Appellants

Judgment (ex-tempore) delivered on the 11th day of December, 1998, by O’Flaherty J.

This is an appeal brought by the defendants from the judgment and order of the High Court (Barr J.) which was given on 25th November, 1997.  The judgment was a reserved one in which his lordship found 100% in favour of the plaintiff.

The essential complaint made by the defendants is that that finding was wrong. They face up to the fact that there had to be a substantial finding of negligence against them but they say there should have been a finding of some negligence against Mr. Murphy as well. They also appeal on the question of damages. They say the damages awarded were excessive.  
First of all to deal with the actual facts of the accident. Mr. Murphy was a retired farmer. He was aged 71 at the time and he set out on a Sunday night,

-2-

23rd October, 1994, at about 10.00 pm to go to Kilkenny to meet his wife who was arriving there having been abroad, had come to Dublin and then journeyed on to Kilkenny. bring her home.  So he was going to rendezvous there, pick up his wife and bring her home.  He was in no hurry, he gave himself plenty to time.  He was driving along in the direction of Kilkenny. He was about eight miles outside Kilkenny City and he was on a straight stretch of road and was coming up to a bend at this stage.  He was on the hard shoulder, he said. The hard shoulder is nine foot wide and then the total width of the main carriageway is twenty five feet, twelve and a half foot each side. He was driving slowly and, as he said in evidence anyone who wanted to pass him out, he let them go. Along then came Mr. Alan Hayes driving a brand new truck, a big heavy 30 ton vehicle with a trailer of some description attached to it. There is no suggestion that he was driving at an excessive speed either. Indeed, after the collision, the tacograph showed a speed of around 31 miles per hour. A number of cars had passed him out. Indeed there was a Mr. Morrisey and he was behind and he was waiting his turn to pass out. He was not sure whether the lorry had moved a little bit into the hard shoulder and the collision took place there or not.  Mr. Murphy himself had no recollection of the actual collision. He does recall driving along and he was not all the time in the hard shoulder. Sometimes he would be

3-

straddling the line dividing it, his disposition was that he was in no hurry and that all these other cars could overtake him.

The collision took place in any event and to give Mr. Hayes’s version of the matter.  He said that he saw Mr. Murphy’s car and saw that it was going slowly and just as he was overtaking it that it moved slightly out into the carriageway.  His lorry struck the right rear of the car. That is the defendant’s case.

The next day Mrs. Murphy went along and took some photographs and we have all found those a bit of an enigma. They show skid marks in on the hard shoulder.

Mr. Conal Clancy has said that it is impossible to reconcile these with any view of the accident. Because if they were made by the lorry it was well in on the hard shoulder and that is inconsistent with nearly every other piece of evidence in the case. I am inclined to agree with that.

The judge, it is true, held that these brake marks were truly made by the truck and by the car.  The plaintiffs engineer came up with an elaborate theory about the car being pressed down by the weight of the truck and that accounted for what he considered were tyre marks of the car.  Aside from all that, the judge then went on to hold, in the alternative so to speak that it is likely that the plaintiff did deviate a little bit, did come out a bit and, he went on to hold, that he was entitled to do so and could not be regarded as being negligent in that

-4-

course. He faulted Mr. Hayes for not warning the plaintiff and that he did not keep a sufficient look out. He was also negligent in failing to indicate his intention to pass out the plaintiff or to draw attention to his position on the road. He went on to hold that his negligence was the sole cause of the accident.

In prior days when cases were tried with judge and jury such a question would have been left before them: was the defendant solely responsible or was there any contributory negligence on the part of the plaintiff?  I think if the judge had found some small degree of contributory negligence against the plaintiff, in turn, I do not think that Mr. Slattery could come here to us and complain about it.  As a matter of law do we say he had to find contributory negligence?  I am unable to make that finding; so I would uphold the learned trial judge’s finding and dismiss the appeal on liability.

On question of damages: this man who had, I am sure, worked very hard all his life and was a substantial farmer had retired and handed the farm over to his children and was looking forward to a happy retirement.  No doubt he would be able to pursue his hobbies, shooting and driving his car and meeting his friends and distilling the wisdom of old age by the fireside, in accordance with Mr. de Valera’ s vision.  That was all taken from him. He sustained great trouble with imbalance and with memory loss. His life was shattered really. It is so that he had had a number of medical procedures in the past. He had a

-5-

knee replacement, he was suffering somewhat from blood pressure and gout and he had an anterior resection for a rectal tumour in 1993. He had treatment for a prosthetic tumour in 1994. So he had his problems but perhaps he had looked forward to putting a lot of that behind him and enjoying a certain measure of leisure. That really has been taken from him. He has been rendered very disabled and requiring a significant lot of help. There has been no complaint made about the judge’s summary of what happened so I can do no better than to take the description of the injuries from his judgment. He said:- 

“The plaintiff suffered a substantial head injury resulting from amnesia and double vision. There was bleeding inside the skull and an interference in the system for draining fluid from the brain. By reason of the latter, there was a building up of fluid causing pressure which, in turn, resulted in a significant degree of imbalance and memory loss. The plaintiff also suffered fractures of three ribs and a soft tissue injury to his neck. The latter condition has cleared up reasonably well but he continues to have some restriction of movement in the neck. He was in hospital for about three weeks. This plaintiffs double vision cleared up spontaneously in March 1995, but his balance became progressively worse and he was confined to a wheelchair. He also developed bladder trouble related to the pressure problem in his head. This led to an operation by Mr. Rawluk at Beaumont Hospital on 28th August, 1995. He inserted a shunt in the plaintiffs skull and associated pipe work which helps to drain away the excess of fluid. As a result of the operation, the bladder

-6-

difficulty cleared up and the plaintiff is able to walk again, though to a limited extent only. 

Having been immobilised for a long time, he had stiffened up and developed also a fear of falling. The end result is that he can walk for only a couple of hundred yards and he has some difficulty and requires to be accompanied. He has some difficulty in getting about the house, particularly in getting up from chairs and also attending to some his needs, such as taking a shower, using the toilet and putting on his socks and shoes. He requires help in these activities. His memory is still partially defective.”

Mr. Rawluk had not been certain all along as to what the plaintiffs problem was. He thought it might have been the ageing process but as time went on he came around to hold that it was as a result of trauma that the plaintiff had all these problems. He then based that partly on the fact that he had improved following the insertion of the shunt and that his condition remained stable. His hydrocephalus would have been brought on as a consequence of the head injury which he suffered during the accident. He concluded that since his condition has remained stable for the three years following the accident he thinks it is likely that his condition should remain stable for the foreseeable future.

-7-

Mr. Sean Murphy, the distinguished neurologist, reached the conclusion that the plaintiff had Alzheimers disease and while no doubt the accident contributed to some degree to it, it was not the predominant cause of what was wrong with him.

The judge had these two opinions and he preferred that of Mr. Ruwluk. If there is one thing settled in our jurisprudence it is that a trial judge is so entitled to do. He had corroboration if he needed it. He accepted the evidence of the man’s wife, Mrs. Murphy, whom he thought was a very honest and truthful witness.  She made a contrast between the man before the accident as being independent and capable, out about his farm everyday, giving a hand and, having put aside the more onerous duties, he was still there to give a certain amount of help and advice from time to time. Now here he is. His whole life is really wrecked.
For that he assessed damages at the sum of £40,000 for pain and suffering to date, to cover the three years to the date of trial and £65,000 for the future making a total award of £105,000.  I think we all agree that at first flush it sounds a large sum of money to give a man of his age, and while no money is ever enough to compensate anybody for serious injury, but we have to set limits. But as against that he certainly endured a lot up to the date of the accident and his life is wrecked for the future. So while it is on the high side

-8-

and somewhat generous, I cannot detect that it is so high as to justify me in saying that it was so disproportionate as to call for the intervention of this Court. As we have laid down frequently, we can only interfere if we think the award was so out of kilter, either too high or too low, as to be one that cannot be justified.

The other items that flow from that. I do not take, Mr. Clancy - once we uphold the essential finding that his condition is due to the actual trauma - as contending too strongly that the other sums are wrong. One is £10,000 for the capital value of aids and equipment and that was brought down by a third, it was originally £15,000. these things anyway.  The judge took the view that he might need some of It would not be right to require the defendants to pay the full amount. Then there is the cost of employing a nursing attendant, but again he brought that down from a figure of about £67,000 to £50,000.  I might be inclined to do something in relation to that figure but I am very impressed by that fact that Mrs. Murphy did not make any claim for the great attention she had to give her husband over those three years since the accident to the date of trial. She would have been perfectly entitled to put in that claim, not a huge claim but some modest remuneration for all that additional work she had to do. The day is long gone when it is expected that relatives of a person injured through someone else’s negligence would not be entitled to claim. There was a

-9-

time when I think one took the precaution of getting some form of contract executed but I think that would be an extravagant requirement in this present day and age.  So again, while it is somewhat on the high side, I do not think it is so high as to call for the intervention of the Court and I would dismiss the appeal on that ground as well.

Ex-temp 379
JO’F - DO’C