ROAD TRAFFIC ACCIDENTS

Highway Robbery – The old liability rule returns 


A recent Court of Appeal judgment has confirmed that the ancient rule for determining liability for accidents on public roads has certainly not gone away. 

The old rule stipulates that if a local Authority repairs a road but makes a botch of it, they will be liable for any accidents caused by their defective work. This is called Misfeasance.


On the other hand, if a public road over the years simply falls into a state of disrepair, the Local Authority cannot be held liable for any accidents arising from the road’s natural state of disrepair over time. This is called non-feasance.


A 64 year old cyclist riding his bike down a public road came to a ramp right up beside a cattle grid but where, unfortunately, the ramp had worn away leaving a small drop or gap between the ramp and cattle grid.  He came off his bike suffering a serious ankle injury and sued the county council. 

In the high court it was accepted that the ramp/ grid had been in place for many years, but the county council had not interfered with the ramp in any way.  It was also not known when the ramp had deteriorated, presumably over several years. 


The court held that the county council was liable for the negligent construction of the ramp/ grid by its predecessor, Shannon Development.  It ruled that the county council should have been aware of the defect if it had carried out a survey on taking over the road from Shannon Development in 2004 and perhaps should have looked for an indemnity at the time. The high court ruled the county council was liable for injuries suffered by the plaintiff and awarded him € 113, 000 in damages. 

Not surprisingly, the county council appealed to the court of appeal who considered fully the old non- feasance rule in the 1902 Harbison case where the rule was established.  In that case, the court ruled that failure to maintain a public highway did not give rise to any action against the local authority.   However, if the local authority repaired a road but its repairs were defective, then it would be liable. 


The court of appeal held that the high court was wrong in finding that the county council was liable for an inherited defect from a predecessor in title.   It was an established rule that the public “takes the highway as it finds it” and it found there was no legal basis for the trial judge’s finding. 

The appeal court also held that a local authority was not bound in law to inspect a public road and ensure it was free of defects prior to it being formally taken in charge.


Finally, the appeal court confirmed that the Occupiers Liability Act 1995 was not applicable here as it was wrong to suggest the county council was in any way an occupier of the highway. 


The court allowed the council’s appeal to succeed and refused to award any damages to the unfortunate plaintiff. 

The judgments may have been complicated but the rule remains simple; cyclists and pedestrians: take care on the highways – you may not always be compensated out there

! 

O’ Riordan V Clare County Council & Another 19/ 10 /21 (No. 2019/305 [ 2021] IECA 267)

PERSONAL INJURIES Contributory Negligence Reduced Award by 20%

by Snap Websites • 27 July 2023
The plaintiff was a schoolgirl when she was involved in a road traffic accident in April 2019. In the collision she hit her head and sustained injuries but had no recollection or memory of the accident. She had not been wearing a seat belt when the accident occurred. The plaintiff’s airbag was deployed as also was the defendant's but, in his case, he had been wearing his seat belt and did not incur any injury. The case proceeded to an assessment of damages with a contributory negligence claim on account of the plaintiff not wearing a seat belt. The plaintiff suffered deep abrasions to her right temple and anterior hairline. This resulted in permanent scarring to her face and caused her considerable concern in respect of her physical appearance. The plaintiff was interested in makeup and beauty therapy and, although she successfully entered a beauty therapy course, she dropped out because of her injuries. The main scar to her face was 9cm by 4cm and was noticeable at a conversational distance. She was very self-conscious about her scars and wore heavy makeup to conceal them as much as possible. The plaintiff was also diagnosed with psychological injuries following the incident. It was considered that she had developed an adjustment disorder with depressive features at the time. She was prescribed antidepressant medication but stopped taking it after a few days. The plaintiff continued to experience soreness on the scar on her wrist after the accident. She also complained of headaches post-accident. In reviewing the evidence, the judge considered the contributory negligence caused by the plaintiff in her not wearing a seat belt. In a High Court case of O’Sullivan v. Ryan [2005] IEHC 18 the court measured that at between 10 and 25%. There was a dispute over whether the plaintiff hit her head off the side window which was smashed or the windscreen but on reviewing the expert evidence the court was satisfied that the injury was caused by the plaintiff hitting her head off the windscreen. The contributory negligence was assessed at 20%. There was some conflicting evidence on which was the dominant injury and its consequent value in injury terms. The court ruled that the dominant injury was the facial scarring. In measuring the value to be placed on the injuries the court considered a previous case involving a dancer who incurred facial scarring and who received €50,000 in damages though in that case the dancer continued in his career whereas in the case before the court, the plaintiff did not. The court ruled that the injury be valued at €60,000 for the dominant injury and other lesser injuries at €30,000 and special damages of €17,596 amounting to a total of €107,596 reduced by 20% for contributory negligence giving a net of €86,076 damages awarded. Power v Malone [2023] IEHC 366.

PERSONAL INJURIES

by Snap Websites • 20 March 2023
First Award Under New Damages Guidelines. After lengthy lobbying by insurance companies, who were charging higher premiums to cover larger PI awards in the courts, the government introduced, in April 2021, new Guidelines for the courts in their determination of their awards of damages. In a High Court case in July 2022, the judge was tasked to decide the level of damages for a plaintiff girl who was injure d following an accident but who developed Post Traumatic Stress Disorder (PTSD) for several months thereafter. The case was one of the first PI cases where the court had to decide on the damages by applying the new Guidelines. Some commentators were expecting the eventual award to be much reduced, but the actual award was higher than expected. The 14-year-old girl was struck by a car and knocked down. All parties agreed that she had suffered from psychological injuries after the accident, and these were diagnosed as PTSD. She also had some minor injuries and a small scar below her buttock. However, her main injury was PTSD, and this finding was supported by her parents and schoolteachers. She suffered from flashbacks, nightmares, panic attacks and poor attention at school resulting in a decline in her overall academic performance. She had received some professional counselling but would require more although she was progressing satisfactorily. The net issue at the hearing was the assessment of her injuries under the new Guidelines. The plaintiff maintained her injuries were somewhere between moderate and serious PTSD. The moderate type would result in an award of between €10K to € 35K while the serious version would result in a higher award between € 35k to €85K. Not surprisingly, the insurance company argued that her injury fell within the moderate category and should be valued at € 20k. The task of the court was to determine how the new Guidelines should impact on an award of damages. Importantly, it also noted that a court could depart from the Guidelines if the justice of the case requires but must set out concise reasons for doing so. While serious PTSD typically involved a disability for the foreseeable future, the moderate PTSD category envisaged that the plaintiff will have largely recovered, and any continuing effects will not be grossly disabling by the time the case comes on for hearing. The court was satisfied that the plaintiff’s PTSD fell into the moderate category but considering the negative impact on her schooling and Leaving Certificate prospects, it fixed an award at the top end of the moderate category being € 35k. The court also awarded her € 25k for her scar and soft tissue injuries which had largely settled. This brought the total sum awarded to €60k. This case illustrates how a fear of much lower court awards following the new Guidelines appears to be misplaced. Lipinski (A Minor) v Whelan [2022] IEHC 452