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Cawley v Foley [2001] IESC 102 (20 December 2001)

THE SUPREME COURT

154/01

Denham J.

Geoghegan J.

Fennelly J.

BETWEEN/

SHARON CAWLEY

Plaintiff/Respondent

And JOSEPH FOLEY AND ROSE FOLEY

Defendants/Appellants

JUDGMENT of Mr. Justice Geoghegan delivered the 20th day of December 2001

This is an appeal from a judgment of the High Court (Kinlen J.) awarding to the plaintiff £25,301 damages in a road traffic personal injuries claim.

(2)

The defendants have appealed the award on numerous grounds as set out in the notice of appeal. But for all practical purposes there are three issues on the appeal. These are:

1. Was it open to the learned trial judge to find that the plaintiff suffered any injury at all in the incident (to use a neutral term) grounding the action?

2. Having regard to lack of clarity of findings by the learned trial judge both as to causality and injuries, was the trial unsatisfactory?

3. Is the amount of the damages awarded too high?

It is trite law that the tort of negligence contains three essential elements. First of all there must be a duty of care, secondly, there must be a breach of that duty of care and thirdly, damage must result from that breach. In this case it is not disputed that the first two components existed. It is common case that the plaintiff was driving her car with her three children in it behind the defendants' vehicle which was drawing a trailer when the door or flap of the trailer opened and a sink or portion thereof fell out on the road. The plaintiff alleges that she had to jam on her brakes in order to avoid any impact and that as a result of the sudden stopping process she has been injured. To have set up the trailer in such a way that a sink could fall out of it on the road was obviously negligent and that is not in dispute. What is in dispute is whether the plaintiff, when braking could have conceivably suffered any injury. It is therefore the third

(3)

element in the tort of negligence which is in issue. Counsel for the defendants argue that the learned trial judges decision in favour of the plaintiff was perverse in that on any view science must negative the contention that any kind of injury could have been caused. But scientific theories depend on proven facts. The defendants contend that on the evidence as appearing in the transcript it was not open to the learned trial judge to find in favour of the plaintiff on the liability issue or alternatively that if it was open to him to so find he has not given any indication in the judgment as to what findings of fact he had made. If the defendants are correct in their latter contention they say that the trial was wholly unsatisfactory and there should be a new trial. I will return to that question in due course.

The evidence regarding the so called accident can be summarised as follows. In her direct evidence the plaintiff said that on the 13th of November, 1999 she was driving at a location called St. Joachum's Terrace between 5 and 6 o'clock in the evening. There was a vehicle with a trailer attached in front of her. She was driving behind it when one of the doors on the trailer opened suddenly and a sink fell from the trailer which caused her to brake suddenly. The plaintiff was asked how far behind the vehicle from which the sink fell was her car and she said it was about a car's length. The plaintiff also said that she was travelling at fifteen to twenty miles per hour. The sink fell out and broke

(4)

on the road and the plaintiff instinctively braked. The braking was severe and the car stopped in a very short distance. The plaintiff was wearing a seat belt at the time and that is not really an issue on the appeal, though at the trial the role of the seat belt was not all that clear. In cross-examination the plaintiff made it clear that each vehicle was travelling at more or less the same speed that is to say fifteen to twenty miles per hour. It was put to her that the defendants would say that they were travelling at no more than five to ten miles but the plaintiff kept to her account. It was put to the plaintiff that although the sink undoubtedly fell out the plaintiff had come to a halt without any difficulty and that having come to a halt her car was about fifteen feet on the other side of the sink on the road. Counsel for the defendants Mr. Gilligan S.C. put to the plaintiff that according to the rules of the road and in accordance with engineering evidence that he would be offering if she had been travelling at fifteen miles an hour and had to brake suddenly and stop, it would take her thirty one feet to stop. He then argued that if that was correct she could not be fifteen feet away from the sink when it fell. She disavowed any knowledge of this kind of science but answered "all I know is I had to brake ". It was then put to her that if she was travelling at twenty miles an hour it would take her forty two feet to stop and she simply stated that she did not know that. It was finally suggested to the plaintiff that in order for what occurred to have taken place she would have had to be travelling at much the same speed as the defendants

(5)

(which of course was suggested by the defendants to be five to ten miles per hour) and if she was wearing a seat belt it was highly improbable that she could suffer any injury.

The figures as put by Mr. Gilligan cannot be disputed and they were supported by expert evidence called by him in the form of Mr. Mark Jordan an engineer. But it is not credible in my view to suggest that the trial judge failed to pay heed to or take into account the evidence of braking distances which are commonly put forward in motor accident cases. The correct inference to draw from his judgment is not that he did not take them into account but that the evidence as to the speed of the vehicles and the distance between the plaintiff's car and the trailer could not necessarily be relied upon. If, as would seem to be the case, he believed the plaintiffs basic story in the sense that he came to the conclusion she was a truthful witness giving a truthful account he was entitled to assume that speeds and distances which might tend to discredit her were inaccurate. A legitimate criticism might be made that the learned trial judge should have made this clear which he did not do. But he clearly did make a finding that the plaintiff did have to brake suddenly as a consequence of the sink falling out of the trailer and that she suffered some injuries as a consequence. It was also the case she consistently made to her doctors. I am of opinion that it was open to the learned High Court judge to accept these facts even if they did not tally with speeds and distances put forward.

(6)

But as I have already indicated the fallback position of the defendants is that they were entitled to have an adjudication in the judgment on the precise issues which they had raised and that the absence of reference to these rendered the judgment unsatisfactory and therefore the trial unsatisfactory. It would undoubtedly have been highly desirable if the learned High Court judge had made findings of fact on all the issues raised at the hearing as envisaged by this court in Hay v O'Grady [1992] 1 I.R. 210, but the absence of such precise findings in this case would not, in my view, warrant a new trial. It is reasonably clear that the learned High Court judge accepted the plaintiff's basic story and that is the end of the matter. Furthermore, the defendants were represented by very experienced senior counsel, who understandably to some extent, ran the case on alternative bases in the hopes, no doubt, that one or other of them would attract the judge. Although in the normal negligence action where the issues are essentially issues of fact only it may not be the practice to make closing submissions to the judge, this was an unusual case where it would have been perfectly justifiable and in retrospect highly desirable for counsel for the defendants to list clearly and succinctly before the judge the issues which in his submission should determine the outcome. That was not done. I do not think that in all the circumstances it would be fair to the plaintiff to order a new trial.

(7)

I turn now to the amount of the damages. This is what the learned trial judge had to say about her injuries at p. 2 if. of the transcript of his judgment:-

"However, it must be said that it was a frightening experience to see something come out, particularly when one is driving with three children and unfortunately she did see something. She had no physical injuries of any note. On all the tests done, the x-rays, they were all negative. No doctor suggested that she invented the whole thing. She did make a case of some psychological disturbance but that was not developed. This court is satisfied that she did not suffer as much as she would have the court to believe. As well as that I think that some of her injuries may well have predated this accident. She tried to make the distinction that her previous whiplash was on the left side and this was on the right side. There are other inconsistencies which I needn't draw attention to at this stage. She is unsatisfactory, to put it mildly and I have no doubt because she was a bad subject for this overall and I don't believe that she has any violent blow and in the last moment when it was put to her that she was being inconsistent with her other injuries in the way she was driving with the steering wheel she was wearing a seat belt she came to the idea that it was the seat belt caused the problem and on that I don't think she suffered any damage.

(8)

I am satisfied that this accident should not have occurred but it did result in some damage but not nearly as much as the plaintiff has alleged. The fact that she was vulnerable from her previous accidents and injuries is a matter which the defendant has to put up with. One must accept the plaintiff as one finds them, I don't think she suffered nearly as much as she put it on...."

The judge then went on to award the plaintiff general damages to date of £20,000 and general damages for the future of £5,000 with £301 special damages. The defendants' contention that this was far too high would seem to be well founded. The learned trial judge did not list the plaintiff's alleged injuries in the judgment but in her evidence the plaintiff complained as follows. Although she did not feel any pain immediately following the accident, after she went home she was shaking and upset. She lay down on the settee and fell asleep. When she woke up her right shoulder was stiff and painful and her chest was sore as well as her lower back. She more or less stayed in bed for a weekend and was a lot worse on the Monday morning. She said that her shoulder became more painful that she had pain in the back of her neck that it was radiating up, that her eyes were feeling sore, her head was heavy and that she was afraid there was something wrong with her. She visited her doctor and was referred to casualty. At that stage her headaches were still severe and she had a collar fitted to her neck. She was sent for physiotherapy but had to discontinue it because it appeared to be causing the headaches. She found she

(9)

was not able to do some of her normal housework such as hoovering etc. and she found it painful to dress in the mornings. She had continuous headaches and pain in the neck. As of October 2000 when she visited the surgeon, Mr. MacDevitt, she was complaining of headaches, painful stiff neck and soft tissue injury to the back of her right shoulder. She also had chest injuries. She undoubtedly alleged some continuing symptoms as of the date of the hearing. It was open to the trial judge to find that there would be some suffering into the future. But it is obvious from his judgment that he did not attach great significance to any of her injuries. Indeed, he more or less rejected the chest injury. This court cannot interfere with the award of a High Court judge unless the award is substantially above or below what might be considered by this court to be a reasonable award. In this case I take the view that the award of £25,000 for general damages even allowing for the fact that £5,000 of that was for future pain and suffering was wholly excessive and I would substitute a figure of £12,500 for general damages. I would, therefore, allow the appeal to the extent of substituting the award of ±25,301 damages with an award of £12,801.