High Court allows personal injury claim where forensic evidence proves rear-end impact despite defendant's denial.

[2021] IEHC 480 THE HIGH COURT [No. 2018 6228 P.] BETWEEN NORMA GAVIGAN PLAINTIFF AND JOHNSON MOONEY AND O’BRIEN DEFENDANT EX TEMPORE JUDGMENT of Ms. Justice Reynolds delivered on the 24th day of June 2021

Introduction

1. This personal injuries claim arises consequent upon an accident which occurred on the 11th February, 2016 on the N4 Westbound, between Junctions 3 and 4. Mrs. Gavigan, the plaintiff, was driving her vehicle, a Kia Sportage registration 12 – D – 3705, westbound in the left lane with the intention of taking the Spa Hotel exit and heading for her home in Celbridge.

2. It is common case that it was a clear, dry night and that traffic was relatively light.

3. The defendant’s vehicle was an articulated lorry carrying a bread load for delivery in Galway later that night.

4. Unfortunately, the driver of the vehicle is since deceased.

5. The accident occurred some time between 10:30 and 11 p.m. Mrs. Gavigan had been to the theatre and dropped her friend back to her car at the Deadman’s Inn. She then proceeded on her usual route home.

6. Mrs. Gavigan alleges in her personal injuries summons that the accident occurred when she was struck in the rear by the defendant’s vehicle causing her vehicle “to traverse the roadway and strike the central median”, thereby resulting in serious injuries to her and significant damage to her motor vehicle.

7. The defendant denies the plaintiff’s claim in its entirety and specifically pleads that there was no impact whatsoever between the two vehicles. That defence was prepared on the basis of instructions from the driver of the defendant’s vehicle.

8. Some two days before the hearing was due to commence, the defendant’s legal advisors disclosed the fact of the driver’s untimely death. Witness lists had already been exchanged between the parties in the ordinary way.

Liability

9. The court was advised at the outset that liability remained in issue between the parties and directed that this issue would be determined first.

The plaintiff’s evidence

10. Mrs. Gavigan gave viva voce evidence from the witness box and she recounted the events of the evening. She stated that she was travelling westward along the dual carriageway between Junctions 3 and 4 in the inside lane, when she became aware of bright lights in her rear view mirror approaching from the centre lane behind her. She was travelling just under the speed limit which was 80kmh. She noted that the left indicator of that vehicle was flashing with the intention of moving into her lane and stated she immediately thought to herself “there’s no room, where are you going?”. Thereafter, she stated there was an impact with the rear of her vehicle on the right hand side which catapulted her vehicle across the road where it impacted with the central median. She stated that the whole incident was very frightening; the airbags deployed and she remained trapped in the vehicle until such time as assistance arrived. The Gardai, ambulance and fire brigade services subsequently attended at the scene and the roof was taken off the car to facilitate her removal from the vehicle by ambulance for medical assistance.

11. On cross examination, she advised that she didn’t actually hear the impact from the vehicle as she had the radio on but felt its force on the right rear wing side. She stated that she had no time to take evasive action as it all happened so quickly. It was suggested to her that there was no impact with the defendant’s vehicle but she vehemently disagreed with this. She stated she had seen photographs of her vehicle after the event and noted white paint marks from the cab of the defendant’s vehicle at the rear right hand side of her own vehicle. She confirmed that the cab of the articulated lorry was white.

12. It became apparent during the hearing that she had made a statement to the guards some weeks after the accident. This had not been disclosed to either side along with the Garda file. Over the lunch intermission, Mrs. Gavigan’s legal advisors managed to obtain a copy of that statement. It essentially accorded with the account given by her in her evidence.

13. At the close of Mrs. Gavigan’s evidence, counsel for the plaintiff tactically determined that he would not be calling any further evidence on the liability issue.

14. It is clear that the defendant’s legal advisers were somewhat taken aback as there were other witnesses on the plaintiff’s witness list which they had hoped to cross examine. Of course they were not precluded from subpoenaing them in the ordinary way but had chosen not to do so.

The defendant’s evidence

15. Mr. Barry Lyons, the deceased driver’s employer, gave evidence remotely. He had attended the scene for the purpose of providing assistance to the driver. The gaurds had seized the cab of the defendant’s vehicle and the plaintiff’s motor vehicle for the purpose of forensic examination. Mr. Lyons was assisting by providing a further cab to facilitate onward transport of the bread delivery. He stated he looked at the articulated lorry with the guards and couldn’t see any physical damage. He advised that he had been informed by the driver that there had been no impact between the vehicles. He confirmed that the articulated lorry was approximately 14 tonnes in weight and that the colour of the cab was white.

16. Garda Lynch gave evidence of having attended at the scene on the night in question and taken statements from a number of individuals to assist him in his investigation. He stated he hadn’t noticed any damage to the cab of the defendant’s vehicle but seized the vehicle for the purpose of obtaining paint samples for forensic examination.

17. He confirmed both drivers were tested for alcohol consumption with negative results.

18. Having subsequently considered the witness statements, he was satisfied that there was no evidence of criminal liability on either driver’s part and recommended that the matter be left to civil remedy. The issue of forensic examination of the paint samples from the vehicles was not pursued.

19. That concluded the defendant’s evidence in the case.

Conclusion

20. The upshot of my consideration of the evidence is that there is simply no alternative plausible explanation for the white paint marks visible on the plaintiff’s vehicle other than the impact with the defendant’s white cab. The only other impact was with the central median of the dual carriageway and there is no suggestion that it had anything other than a plain concrete surface.

21. That evidence, coupled with the plaintiff’s very clear and cogent account from the witness box is in my view sufficient to satisfy me on the balance of probabilities that the accident occurred in the manner as outlined by her. There is simply no other reasonable or likely explanation.

22. I accept that there may not have been any damage visible to the cab on the night in question but that evidence has to be viewed in circumstances where the accident occurred late on a dark winter’s night. Indeed, it became clear that the vehicle was some four or five years old and there was no evidence of any scratches or scrapes to it as one might ordinarily expect given wear and tear over time.

23. Further, the evidence has to be viewed in the context of a Kia Sportage motor vehicle being effectively rear ended by a 14 tonne articulated lorry and the dynamics of such an impact.

24. In all the circumstances, I am satisfied that the plaintiff has made out a sufficient case to succeed on the issue of liability.