Wednesday 17 January 2018

Judge reduces damages by €75,000 as passenger 'knew driver had been drinking'

A WOMAN has had a €190,500 damages award over a road accident cut by 40 per cent because she should have known the driver of the car she was travelling in was impaired by drink.

Mr Justice Sean Ryan said Erin Gallagher (31) should have known it was "highly probable" Oliver McGeady's ability to drive was "seriously impaired" by the fact that he had drank seven bottles of beer.


He also reduced the award to Ms Gallagher, a married mother of two from Gortahork in Donegal, by 40 per cent,  to €114,300, because she was not wearing a seat belt.


The High Court action for damages arose out of significant head injuries the child-care worker suffered when the car she was a passenger in  went out of control on a narrow side road in Co Donegal, struck a telegraph pole and and overturned several times before coming to rest upside down in a field.


Rejecting suggestions that alcohol was not necessarily responsible for the accident, the judge said the driver Oliver McGeady had said he drank seven bottles of beer over a two and a half hour period before getting into his car with Ms Gallagher, her then boyfriend, now husband, and two other passengers.


While he personally felt Mr McGeady "may have drank more", that was the evidence, the judge said.


Gardai also reported a strong smell of drink from Mr McGeady at the scene but were unable to breathalyse him due to his injuries. Mr McGeady had also said he took a narrow road to reduce his chance of being breathalysed by gardai.


A person does not have to be "staggering around or incapable of speech" to have their driving capacity impaired by alcohol, the judge said.


 It was clear from various cases there was "a much more acute understanding of the social damage brought about by drink driving" and that was reflected in the attitude of the courts.


If Ms Gallagher was unable to observe Mr McGeady because of alcohol she herself drank, that was not an answer to a plea of contributory negligence, he said.


While the evidence was Mr McGeady was not so grossly intoxicated as to make it "wholly reckless" to get into the car with him,  it should have been obvious to all five who travelled that the driver was going to be affected by drink to the extent of being incapable of exercising proper control over the car or himself.


Ms Gallagher had sued Mr McGeady, who at the time lived near her home at Cashel, Nagore, Gortahork, over the accident that happened about midnight on Saturday July 19, 2008 on the road between Falcarragh and Gweedore.


The accident happened after the five had left a bar in Falcarragh for a nightclub in Gweedore. Mr McGeady admitted liability but alleged contributory negligence by Ms Gallagher.


In his judgment, Mr Justice Ryan ruled that while Ms Gallagher testified she had worn a seatbelt, he found, on foot of evidence including she was ejected from the car and the nature of her injuries, that she was not wearing a seatbelt.


Given his findings, he assess contributory negligence against Ms Gallagher at 40 per cent.

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