Friday 9 December 2016

Biker secures €154k damages in accident case previously dismissed by High Court

Tim Healy

Published 21/10/2016 | 17:09

Garda Traffic Corps. Stock picture
Garda Traffic Corps. Stock picture

A MOTORCYCLIST has secured almost €154,000 damages for injuries suffered in a road accident after the Court of Appeal overturned the High Court's dismissal of his action.

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Bill Nolan, an alarm fitter, of Millview House, Graiguecullen, Co Carlow, had sued Danny Mitchell and Patrick O'Neill, driver and owner respectively of a car involved in the accident on the night of November 17, 2005.

The accident happened at Tollerton on the Kileeshin to Castecomer road, Co Carlow.  when Mr Mitchell, accompanied by Mr O'Neill as front seat passenger, was preparing to exit from Mr O'Neill's driveway onto the road.

The High Court found Mr Nolan was on his correct side of the road in the moments prior to impact, had been driving at very excessive speed close to 90mph in advance of the collision and failed to stop or slow his bike when dazzled by the lights of the car.

The judge also found Mr Mitchell failed to yield rights of way to the motorbike and failed to keep a proper lookout.

Mr Nolan suffered significant injuries including foot and hand fractures and it was agreed he would have some permanent disability as a result of injuries to his left knee and left little finger.

The High Court ruled the appropriate total damages in the case was €192,440 and said Mr Mitchell was principally responsible for the accident but Mr Nolan was also 40 per cent liable.

No damages were awarded after the High Court granted a defence application to dismiss Mr Nolan's action.

It found he exaggerated his claim about the effect of his injuries on his future earning ability and gave misleading evidence about involvement in the sport of "car drifting" post accident.  Car drifting is driving a car on a racetrack through over steering as the vehicle drifts sideways.

Granting Mr Nolan's appeal, Ms Justice Mary Irvine said the defence had not laid the evidence for their "fundamentally unfair" application to dismiss.

While Mr Nolan's P60 indicated he earned a net €365 weekly before the accident, he was not challenged on his evidence he got €500 weekly "into his hand" while other evidence he could potentially earn up between €800-900 weekly had he not been injured was not contested.

There was no evidence from which the trial judge could reasonably have inferred Mr Nolan had knowingly advanced a false and misleading claim over future loss of earnings, she ruled. 

The High Court also erred in dismissing the claim on foot of its finding Mr Nolan gave misleading evidence about his involvement post-accident in car drifting.

Mr Nolan had not advanced a claim for general or special damages based on inability to compete in that sport and it was difficult to see how a dispute over what he said to an expert about that could justify his claim being dismissed, she said.

She also described as "grossly disproportionate" the finding of 40 per cent contributory negligence by Mr Nolan in relation to the accident, ruling that should be 20 per cent.

The only evidence on his speed was of another motorist overtaken by him earlier who estimated his speed then at about 90mph and it was difficult to see how he could reasonably have been criticised for inability to stop or slow down when suddenly faced by the lights of a car turned into his path of travel, she said.

The appropriate award for Mr Nolan after a 20 per cent reduction for contributory negligence was €153,952, she ruled.

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