Court dismisses claim for aggravated damages against insurer AXA due to lack of evidence proving condition exacerbation.

AN ARD-CHÚIRT

THE HIGH COURT

[2025] IEHC 527

[Record No. 2019/6370P]

BETWEEN

VERA LYNCH

PLAINTIFF

AND

DEAN REYNOLDS, OTIS REYNOLDS, MOTOR INSURERS’ BUREAU OF

IRELAND AND AXA INSURANCE DAC

DEFENDANTS

JUDGMENT delivered on the 6th October 2025 by Mr. Justice Tony O’Connor

Introduction

1. The plaintiff claims damages for nervous shock arising out of the death of her son, Stephen Lynch (“deceased son”) who died on 13 April 2017, after having been struck by a Ford Focus car with a “WW” registration (“the vehicle”) at Brookwood Close, Tallaght, Dublin at approximately 19.00 (“the incident”). The deceased son was aged 31 at that time and was the eldest of the plaintiff’s five children.

2. The plaintiff gave evidence on day 3 of the trial and told the Court that following receipt by her daughter of a text about the incident she was brought in a two-minute car journey to the scene of the incident and arrived at about 19.10.

3. The plaintiff described vividly how she could not see her deceased son due to the “huge crowd of people” around him. When she looked in the direction of the ground as those people were focussed upon, she saw “a lot of blood” rolling from the back of her deceased son’s head. Members of the emergency services who arrived at the same time as the plaintiff took her away to the other end of the street. The deceased son’s father accompanied the plaintiff away from the scene “a couple of hours” after her arrival. The plaintiff “wanted to hold him” and had not realised that he was dead. The body was left on the road with a tent around it until it was finally removed from the scene on Good Friday, 14 April 2017.

4. On Bank Holiday Monday, the plaintiff was brought with her sister by two members of An Garda Síochána (“AGS”) to the mortuary in Marino where she initially could not recognise her deceased son due to how his injuries were covered up. After viewing one side of his face, she made the requested identification. The report of the then Deputy State Pathologist, Michael Curtis, dated 25 July 2017, detailed the horrific injuries to the head, neck, anterior and posterior trunk, right and left limbs before concluding that death was due to a “severe head injury”. The plaintiff learnt of the “multiple skull fractures” and circumstances of the incident as the minutes, hours and days elapsed from the time of the incident.

Infliction of Injuries

5. Edward Davin (now a retired Garda) was a forensic collision investigator who attended the scene that evening. He completed a detailed report with photographs which indicated intentional infliction of injuries to the deceased son. Retired Garda Davin told the Court that “[T]he physical evidence would tend to suggest that the deceased was standing in the path of the vehicle when it made first contact as it travelled at a low speed and pushed or toppled him into the roadway before overrunning him …. That was clarified by the pathologist ….the location of the drag marks on the roadway leading under the right side of the vehicle in combination with the location of the contact marks and deposits of body fluid discovered on the underside of the vehicle would tend to indicate that the deceased was positioned in front of the vehicle in line with the driver seat when contact was made”. Having regard to the braided marks from clothing on the ground, the shredded clothing recovered and the spiral fracture of the right leg, retired Garda Davin agreed that the vehicle had carried on for at least 15/16 metres (50 feet) after first hitting the deceased son.

6. The ensuing criminal investigation delayed the holding of the inquest into the death until 24 October 2024. The jury at the Inquest returned a verdict of “unlawful killing”.

Psychiatric sequelae

7. The plaintiff described for the Court how she was “just existing” after the incident. She attended her longstanding general petitioner, Dr Quigley, who prescribed antidepressant medication. Dr Quigley who was not called to give evidence reported succinctly to the plaintiff’s solicitor in March 2019 about the circumstances and aggravation of the plaintiff’s condition, as relayed by the plaintiff. That background prompted his referral of the plaintiff for psychiatric assessment and care.

8. The plaintiff explained to the Court how the adult mental health services to which she was referred by Dr Quigley, diagnosed her post-traumatic stress disorder (“PTSD”). This diagnosis was challenged on behalf of the fourth named defendant (“AXA” which was joined as a defendant to these proceedings by an Order made on 19 November 2019 at AXA’s own request). AXA received one report based on an assessment of the plaintiff conducted through a Zoom video link on 15 March 2021 by Dr Peter Finian Kelly (“Dr Kelly”). The report of Dr Kelly was the basis of its challenge to the diagnosis of PTSD. This part of the judgment determines whether the plaintiff is entitled to damages for what is termed as “nervous shock”. No defendant other than AXA took issue at trial with the cause and effect of the plaintiff’s condition.

Care of the plaintiff

9. The “new patient assessment” letter addressed to Dr Quigley, dated 19 June 2018, from the registrar with the consultant psychiatrist to whom she was referred, described the harrowing account given by the plaintiff. The plaintiff told the consultant psychiatrist that the deceased son was on his way to collect her for bingo. She explained to the consultant psychiatrist how the car had dragged him along the ground which is consistent with the evidence of retired Garda Davin. For the sake of clarity, the solicitors for the plaintiff served in advance of the trial a notice pursuant to s. 15 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 that the plaintiff intended to give in evidence the information contained in the various records including the medical records for the plaintiff. There was no objection by any party to the admissibility of the records. Therefore, this Court regards the information contained in the records as evidence of fact following each event. The Court excludes from its consideration of the issue of attribution to any individual the accounts of alleged facts given to the plaintiff by others who were not called to give evidence at the trial.

10. The “new patient assessment letter” read: - “Since then, she is constantly thinking of the murder, she states she knows who did it. She says the people who witnessed it told her all the details and who did it in the immediate aftermath but then would not tell the guards. She says, ‘My life is over, my heart is broken’, and she is angry at the lack of justice and closure. She experiences flashbacks to the day of the murder frequently. If she hears the screeching of tires or brakes or cars driving fast, she says ‘I’m right back there’. She is constantly ringing her children to see where they are and what they are doing. She is worried the same will happen to them. She says ‘I am worried for everyone’. She has trouble initiating sleep but then stays asleep until morning. She says she wakes up in the morning and forgets the situation she is in and then it all comes back. She does not have nightmares. She says ‘I cannot dream about him’. Her appetite is okay, but she feels constantly nauseated. She takes no enjoyment in anything. She has a passive death wish, no thoughts of self-harm or suicidal ideation. ‘I would never do that to my kids’. She goes to his grave every day and talks to him for two to three hours. However, recently her other children have been getting her to stop doing this as often as they see it is not good for her.”

11. The “new patient assessment letter”, after identifying that the plaintiff had not been seen by psychiatric services in the past despite some anxiety and panic attacks previously, concluded that: - “[The plaintiff] is experiencing a complex grief reaction but also post-traumatic stress and she has been through a significant trauma. We discussed antidepressants today and [the plaintiff] will think about them before her next appointment although she is mostly adverse to medication. We will refer her to psychology for targeted grief and post trauma counselling and we will see her again in the outpatient clinic in two months.”

12. A further letter from the consultant psychiatrist to Dr Quigley, dated 5 March 2019, described the feeling of a huge injustice. That sense of injustice for the plaintiff was evident from the testimony given at trial. The same letter referred to the plaintiff experiencing since the death of the deceased son: - “Intense anxiety, intrusive images of her son’s body and intense anger.”

13. The overall impression was that the plaintiff has “ongoing post-traumatic stress disorder and depression” which will need routine treatment by a team of psychiatrists and psychologists.

14. The account given by Dr Kelly (some seven years after the incident) was put to the plaintiff in cross examination by counsel for AXA. The plaintiff confirmed that she had positive thoughts and memories of her deceased son and she was tired of being scared and worried about other members of her family. She iterated in cross-examination that “The whole thing was not fair on the other children”. She agreed that she still had difficulty sleeping and tended to go back over what had happened to her deceased son. She was referred by Counsel for AXA to the publication of her play which was performed in the Civic Theatre in Tallaght. It emerged that the plaintiff has cried and has got upset during social situations. It was put to the plaintiff that Dr Kelly’s view was that she did not have PTSD, but that she “had a severe grief reaction”. The plaintiff fairly replied how she had previously thought that post-traumatic stress disorder was a made-up thing but explained how she has relied on her doctors and her psychiatric team to provide a diagnosis and treatments which have helped her to cope.

15. In answer to the questions of the Court, Dr Kelly, while acknowledging that the first criterion for PTSD was satisfied (i.e. a very traumatic event had occurred), he did not think “a pervasive sense of threat” arose from the incident. Dr Kelly opined that the plaintiff’s condition arose from the death of her son. When pressed, Dr Kelly accepted “the vigilance she has about her children and that her fears are understandable in the context of what happened”. Dr Kelly disagreed with Dr Martin Mahon’s linking of hyper vigilance to the incident. Dr Kelly felt that the decrease in functioning of the plaintiff happens in normal grief situations as well. Dr Kelly opined that the history which he had obtained was not consistent with intrusion symptoms. The Court was left after Dr Kelly's evidence with an unclear picture of how Dr Kelly related all the undoubted difficulties which the plaintiff has to grief. The Court also noted the submission for the plaintiff that Dr Kelly omitted any reference to the days following the incident and that he had not reviewed the disturbing pathology report of Dr Curtis.

16. Dr Martin Mahon, consultant psychiatrist for over 20 years had access to the plaintiff's medical records and examined the plaintiff by way of phone on 13 January 2021 due to the restrictions for Covid 19. He found that the plaintiff's features fulfilled the criteria for PTSD with elements of abnormal grief. He repeated the opinion which was reasoned in his report as follows: - “She exhibited pathological symptoms of intrusion, avoidance and hyperarousal. This disorder was clearly more severe in the immediate period after the trauma. It is not unusual for the disorder to become chronic and for it to relapse. It is difficult to see how her case will respond to appropriate therapy.”

17. Dr Mahon examined the plaintiff by way of video link again on 16 September 2024. He testified that “the PCL-5 checklist” for PTSD is “… not a tool for definitive diagnoses but it helps [psychiatrists] to be more comprehensive and also for [psychiatrists] to grade the severity and the frequency of symptoms…”. He stated that between January 2021 and September 2024, the features of PTSD attenuated but that they were still present.

18. One of the principal points put by counsel for AXA related to whether there was evidence of psychological or psychiatric injury due to the plaintiff’s attendance at the scene of the incident. The Court is satisfied from Dr Mahon’s evidence which was supported by the medical records that the plaintiff has suffered PTSD from the “horrific experience that she had” in the aftermath of the incident which was complicated by her experience at the morgue, the inability to recover any of his clothing and having to endure the long inconclusive investigation into the circumstances including the identity of the driver.

Conclusion on PTSD

19. The plaintiff continues to suffer from severe PTSD arising from the fatal injuring of her deceased son which has attenuated in the last three years. Further, the plaintiff is unlikely to recover from the PTSD which is separate to her grief. In other words, the plaintiff is left with lifelong symptoms caused by nervous shock.

20. The “General guidelines as to the amounts that may be awarded or assessed in Personal Injury claims” do not address PTSD. The judgment of Keane J. in Sheehan v Bus Eireann 2020 IEHC 625 (upheld by Noonan J. in the judgment for the unsuccessful appeal 2022 IECA 28) is a model of clarity both in relation to the law about nervous shock and the approach to the assessment of damages for PTSD in the era before the mandatory application of “the Personal Injury Guidelines”. Keane J. stated that the Court should locate “the seriousness of the case at an appropriate point somewhere on a scale which includes everything from the most minor to the most serious injuries”. Paragraph 8 of Dr Mahon’s latest report, dated 2 November 2024, sets out his findings having regard to factors affecting the level of awards under “the Personal Injury Guidelines” which are quite useful for the task to be undertaken by the Court now. He said that the claim falls within the “serious category” of those guidelines. The plaintiff still feels agitated, sadness and lacks joy in her life. She is no longer invited to social events although she now works part time in retail. One cannot do justice when summarising the effects of the PTSD on the plaintiff other than to refer in a general way to her ongoing depression and requirement for psychotherapeutic interventions. The plaintiff is now in her late 50s and can gain some relief from the ongoing care and treatment. Having regard to the overall limit on general damages, I assess general damages for the period 13 April 2017 to date at €85,000 and general damages into the future at €45,000 which is a total of €130,000.

Which Defendant(s) is/are liable to compensate the plaintiff

21. Essentially, the third named defendant (“MIBI”) and AXA dispute whether the first named defendant (“first defendant”) who had temporary insurance from AXA to drive the vehicle was driving the vehicle at the time of the incident.

Background to the dispute between MIBI and AXA

22. On 17 January 2022 Coffey J. made separate orders against the first and second named defendants (“those defendants”) whereby the plaintiff could recover such damages as the Court may assess from those defendants. Neither of those defendants had delivered a formal defence. Further, neither of those defendants secured legal representation for the hearing of that motion for judgment in default of defence or for the trial of these proceedings.

23. MIBI in its defence delivered on 27 June 2022, required the plaintiff to establish how the MIBI must pay the compensation awarded to the plaintiff. The MIBI referred to the certificate of insurance for the vehicle which had been issued by AXA.

24. The amended personal injuries summons following AXA’s successful application to be joined as an additional named party, merely added a plea that AXA had confirmed by affidavit that it “issued a temporary certificate of insurance to the first named” in respect of the vehicle. AXA in its formal defence: -

(1) required the plaintiff to “prove that the first or second named defendant was driving” the vehicle at the time of the incident;

(2) averred that MIBI is solely liable to pay the damages awarded by this Court. In January 2023 when the trial was adjourned to facilitate a review within the AGS, AXA notified the Court that it was no longer relying on the defence of ex turpi causa having considered the judgment on the appeal from Galway Circuit Court in Mongan v Mongan and the MIBI (unreported judgment of McDonald J, 29 May 2020 [2020] IEHC 262). That plea had related “… to the circumstances in which the [vehicle] was allegedly used to commit a criminal act by intentionally using and driving the [vehicle] to cause injury to or the death of” [the deceased son].

25. A subpoena duces tecum was served on each of those defendants in accordance with the directions of the Court made on the second day of the trial following oral submissions made by counsel for the plaintiff, MIBI and AXA earlier that day. Those defendants were present at the trial of these proceedings on the next trial day in the following week. Each of those defendants were informed by the Court of the background to the ongoing trial and the ongoing hearing for the assessment of damages. They were reminded that judgment had been obtained against each of them and that there was an issue between MIBI and AXA about the liability to discharge the damages which may be awarded to the plaintiff. Each of those defendants were further informed by the Court that they could refuse to give an answer which might incriminate them.

Questioning of the first defendant

26. The first defendant who gave evidence on day 3 of the trial said that he did not want to be questioned despite the service of a subpoena and a production order for his attendance. Following a direction by the Court, the first defendant listened to the questions posed by Counsel for the plaintiff and the MIBI. He acknowledged that he was the first defendant and confirmed his date of birth. In answer to the question about whether he knew of the judgment in default order made by Coffey J., he told the Court that he was “not in a position to answer any more questions”. He repeated that response when asked whether he had taken out insurance [on the vehicle] with AXA.

27. The questions from Counsel for the MIBI regarding a number of matters including whether: -

(1) he had a policy of insurance for the vehicle;

(2) he was in the driver’s seat of the vehicle at the time of the incident;

(3) he owned the prepay mobile phone (“the mobile phone”) with access to his own mobile number …-….882 that was located at the scene of the incident,

(4) he had fled the scene of the incident and

(5) his insurance company (AXA) had advised him of the trial date elicited the same response that he was “not in a position to answer any more questions”.

28. Counsel for AXA which had transferred insurance cover to the vehicle at the request of the first defendant asked whether he needed legal representation, whether he knew that the trial had been listed for hearing or had received any notification about the commencement of the trial. The first defendant replied that he needed legal representation “to understand the Court proceedings”, that he was not aware of the trial having been listed the previous week and that he had not been notified. The suggestion in the questions posed by Counsel for AXA that he, as a witness (who had been subpoenaed by the plaintiff to assist in establishing facts relevant to the dispute between MIBI and AXA), could have delayed the long awaited trial while the first defendant sought legal advice before answering simple questions about whether he agreed that insurance had been incepted for the vehicle (a few hours before the incident and a number of days before the incident also). The Court adjourned the questioning of those defendants to the afternoon so that the position could be clarified by and for those defendants. Curiously the second defendant informed the Court later in the afternoon that those defendants were “going to have the same solicitor”.

29. Establishing a precedent for witnesses to seek legal advice before answering a question in a trial of civil proceedings, like those before the Court, could cause untold delays to the administration of justice. The first defendant was advised by the Court of his right not to answer a question which may incriminate himself and which the first defendant duly exercised. The first defendant had implicitly accepted his liability to the plaintiff by not delivering a defence and by not seeking to set aside the judgment in default. AXA had the opportunity to engage with the first defendant as it had issued a policy to the first defendant and the Court is unaware of any engagement (attempted or otherwise) between AXA and the first defendant following the incident. An insurer often provides legal assistance to an insured for civil proceedings. The Court has been left in the dark about whether legal assistance was sought by, offered to or given to the first defendant.

30. The Court did note a later reply to Counsel for the MIBI by the first defendant when he stated that he was “not in a position to answer” whether his “…. insurance company [i.e. AXA] had advised him at any stage of the case being listed for hearing…”.

Questioning of the second named defendant

31. The second named defendant (“second defendant”) in reply to Counsel for the plaintiff confirmed his date of birth in 1996. That fact suggested that he could not be covered by AXA’s policy which was limited to those aged 25 and older. The second defendant refused to answer any more questions once Counsel had asked whether he was the registered owner of the vehicle from 18 January 2017 other than to confirm (in a reply to a specific question) that he was not aware of the order for judgment in default against him made on 17 January 2022. No effort was made by or on behalf of the second defendant to set aside that order.

32. In reply to Counsel for the MIBI the second defendant declined to clarify whether he could recall his conversation with a Garda on 13 April 2017 after the incident which will be summarised later. He also refused the further requests for him to identify: -

(1) the driver of the vehicle on 13 April 2017;

(2) the policy of insurance for the vehicle;

(3) those who were in vehicle at the time of the incident, and

(4) whether he or the first defendant were arrested in relation to the incident.

33. Counsel for AXA said that he had no question for the second defendant. Both of those defendants were advised by the Court that they could attend but were not obliged to attend the remainder of the trial. Nothing further was offered or submitted by those defendants during the trial.

Undisputed facts

34. The transfer of ownership of the vehicle to a Jean Margaret Reynolds was registered on 25 October 2016. The last registration according to the witness from the motor taxation office of the vehicle occurred on 19 January 2017. That was the registration of the transfer of ownership of the vehicle from the said Ms. Reynolds (mother of those defendants who died in September 2020) to the second defendant who shared the same address. In short, the second defendant was and remained at all material times the registered owner of the vehicle under the Road Traffic Acts.

35. AXA issued a certificate of insurance headed “Road Traffic Act 1961” having policy number ending 980 (W) (“the 980 policy”) to the first defendant for a vehicle having a 07 “D” registration for the period 20 March 2017 to 15 December 2017. Evidence was adduced at trial to show that on: -

(1) 3 April 2017 at 15:31 there was a temporary transfer by the first defendant of the 980 policy to the vehicle until 12.00 on 5 April 2017;

(2) 13 April 2007 at 12.41 the 980 policy was again transferred temporarily to the vehicle by the first defendant using mobile number …-….882 for the period up to 12.00 on 17 April 2017. Although the first defendant declined to confirm these details, the Court is satisfied with the admissibility and relevance of the evidence which establish those facts including the corollary that the first defendant was insured to drive the vehicle at the time of the incident. Call data records show that the conversation which effected that change lasted just over 4 minutes and that the last call from that phone number before the incident occurred at 18:27:42 on 13 April 2017.

Forensic Evidence

36. Dr Yvonne O’Dowd, Forensic Scientist with Forensic Science Ireland, examined the mobile phone. The person who gave the mobile phone to Garda Byrne in the estate where the incident occurred did not give evidence at the trial. The Court does not draw any inference from suggestions made in submissions about that witness who had been subpoenaed and was not called to give evidence. However, the Court has regard to the admissible evidence of facts given by Garda Byrne and Sergeant Cian Steers about where they obtained the mobile phone that evening. Sergeant Steers was the driver of the patrol car with Garda John Byrne and another Garda which had been directed to the scene. They arrived at the scene at 19.09 when CPR on the deceased son was in progress and they secured the area. At some stage after arriving, Garda Byrne was given (within a few feet of the vehicle beside which the body of the deceased son lay) a blue and red plastic bag with a mobile phone. At 20.11 the striped plastic shopping bag containing the mobile phone and labelled “JB2” was given by the said Garda Byrne to Garda Steers who later gave it to the “exhibits officer”, Garda Kevin Bowen. Garda Bowen told the Court that he brought that exhibit to Dr O’Dowd.

37. Dr O’Dowd found that a DNA sample profile “taken from the exterior of the mobile phone matched the reference DNA sample profile of the first defendant. Dr O’Dowd estimated “… the chance of finding this profile if the DNA had come from someone unrelated to [the first defendant] was considerably less than one in a thousand million”. The inconsistency of the second defendant about the vehicle.

38. Garda Aidan Devaney told the Court that he received a call at 20.35 on 13 April 2017 from a person who identified himself as the second defendant. He said that the second defendant asked for a Garda car to go to his house and that the vehicle had been stolen. During the call, the second defendant said that “he had parked the vehicle at his friend’s house, that [he] was driving around Walkinstown looking for it”. He then changed his story to allege that the vehicle was taken from his mother’s house. The second defendant was advised that a record of the theft could not be made until a formal statement was made.

39. Detective Garda Jason Weir gave evidence on the first day of the trial, that at the request of Garda Devaney he attended at the house of the second defendant at 21.00 on 13 April 2017. He knew those defendants were brothers and the location of their family home. Neither of those defendants who he identified as brothers, met Detective Garda Weir at that time.

40. At 21.13 Garda Devaney telephoned the second defendant’s phone number which had been used to report the alleged theft. The second defendant was told that a Garda was at his house and he replied that it would take him twenty minutes to get back. He queried whether he could be in trouble because he had sold the vehicle on the previous day to “a fella” who was never identified by the second defendant. No further attempt was made by the second defendant to clarify the situation for the AGS or the parties to this action since then.

41. Before the Court makes conclusions relating to the second defendant, it clarifies that it does not accept the generality of the submission for AXA “that no adverse inferences can be drawn by the Court from the decision [of those defendants] to exercise [their] common law and constitutional right not to give evidence”. McDonald J. at para 34 of Mongan v Mongan and MIBI [2020] IEHC 262 understandably expressed a view based on caselaw resting with Whelan v Allied Irish Banks plc [2014] 2 I.R., that he could not draw an adverse inference from the failure of the MIBI to call the first named defendant as a witness for the obvious reason that the first named defendant might incriminate himself. At the trial before this Court, the plaintiff actually subpoenaed those defendants. The plaintiff had obtained judgement in default against each of those defendants and it remained for the plaintiff to establish facts to identify whether it was AXA or the MIBI which will be liable by way of indemnity. The inferences are limited to the circumstances which are detailed later in this judgment.

42. Further, these are not criminal law proceedings. Para 11-08 in McGrath on Evidence (3rd Edition) as cited in support of the submission for AXA followed a discussion by the authors about the right not to be compelled to incriminate oneself and the influence of the jurisprudence of the European Court of Human Rights on criminal suspects and accused persons. Chapter 11 of that same book proceeds to examine the rationale for that right and the right to silence. The judge at any criminal trial of either of those defendants can exclude answers given to the questions posed during the trial of these civil proceedings which may breach rights of those defendants under Article 38.1 of the Constitution. In these proceedings, the dispute is effectively between MIBI and AXA due to the road traffic statutory regime for motor insurance. The Court can draw an inference from a refusal by a witness to answer a question.

43. The Court does however accept the submission for AXA that opinion evidence about the legal responsibility of either of those defendants given by AGS witnesses should be excluded from the Court’s consideration. In addition, the decision by the Director of Public Prosecutions (“DPP”) not to prosecute either of those defendants to date is irrelevant to this Court.

44. Counsel for AXA submitted that the Court “in applying the civil standard of proof ‘on the balance of probabilities’ should adopt a rigorous and exacting approach which requires ‘clear and convincing proof’ on the basis of admissible evidence that the first defendant was driving the vehicle…” due to “the most serious and grave nature [which] carry serious consequences for one or other of the defendants”. The plaintiff has already obtained judgment against the first defendant. Neither the first defendant nor AXA has taken any step in any disclosed investigation or otherwise to start the process of setting aside the judgement in default against the first defendant. In making that submission, AXA can only identify the serious consequence for itself because it was iterated for AXA on a few occasions that it could not and did not represent the first defendant. The Court is not persuaded that identifying the driver in these proceedings has any consequence other than to create a liability to pay damages to the plaintiff. No certainty or inference about the identity of the driver will be created by the determination of these civil proceedings for any future prosecution of either of those defendants. Nevertheless, the Court confirms that it has indeed applied a rigorous and exacting approach in making its deductions.

45. The Court eliminated from its deliberation the evidence which cannot be accepted. The Court when writing this judgement only identifies those witnesses whose testimony contributed to its reasoning and findings on the balance of probabilities. In other words, the Court has taken care to exclude potentially relevant facts which were not established at the trial of these proceedings. The Court, for example, specifically excluded many details about those defendants which were considered by members of AGS in its investigations leading to the sending of a file to the DPP. The oral statements given to the AGS at the scene by individuals who did not give evidence at the trial have been ignored by the Court. As in a jury trial those statements are not admissible because the authors have not been examined.

46. The Court having regard to the admissible evidence adduced and particularly the testimony given by Garda Devaney, Detective Garda Marcus Regan (on day 5 of the trial concerning his interview about the driving of the vehicle on 5 April 2017, eight days before the incident) and Sergeant Brendan O’Halloran (on day 5 of the trial about his observance of the first defendant driving the vehicle on 5 April 2017) together with the refusal of those defendants to answer any question at trial relating to relevant incidents, along with their failure to apply for the setting aside of the judgements in default against each of them, leads the Court to conclude on the balance of probabilities that the second defendant: -

1. was aware of the incident immediately after the incident at the least;

2. was aware from an early stage after the incident that he as registered owner of the vehicle had a potential criminal and civil liability for the incident due to the registration of ownership of the vehicle in his name. The inconsistent accounts about the location of the vehicle given to Garda Devaney and his failure to meet with Garda Weir contribute to this conclusion ;

3. was not insured to drive the vehicle at the time of the incident;

4. was or ought to have been aware of the first defendant’s use of the vehicle in the week of the incident;

5. has never sought to rebut a presumption that he had consented to the use of the vehicle by the first defendant;

6. knew of the temporary transfer of the AXA insurance policy to the vehicle for dates in April 2017 and

7. was alert to the potential consequences which follow the driving of the vehicle at the time of the incident without insurance cover.

The position of AXA

47. It was submitted that “AXA’s liability to the plaintiff in these proceedings depends entirely on the plaintiff discharging the legal burden of proving as a fact that the first defendant was driving the [vehicle] at the time of the fatal collision”. The submission relies upon the plaintiff’s joinder of the MIBI to support the proposition that the plaintiff cannot establish that the first defendant was driving the vehicle. In addition, AXA maintained that s.

76 of the Road Traffic Act 1961 is not relevant to the fact-finding task for the Court. Indeed, “[T]he ordinary rule is that a person who alleges a particular tort must, in order to succeed, prove (save where there are admissions) all the necessary ingredients of that tort and it is not for the defendant to disprove anything” (Henchy J. in Hanrahan v. Merck Sharp and Dohme [1988] IESC 1, [1988] ILRM 629).

48. Mr. Colin Featherstone, investigations manager with AXA, was called by Counsel for AXA to clarify issues surrounding the calls made by the first defendant to AXA. Mr. Featherstone was unable to confirm when or how the incident first came to the attention of AXA. However, the letters from AGS to AXA dated 17 April 2017 and 22 April 2017 brought the incident to the attention of AXA. It was unfortunate that AXA could not clarify how and when it first relied upon the inconsistent accounts of the second defendant about the alleged stealing of the vehicle. For the sake of clarity, the Court has no evidence that the vehicle had been stolen at the time of the incident. Garda David O’Brien, PSV Inspector, who was tasked on 17 April 2017 to examine the vehicle, told the Court that there was no evidence of “hot rodding” and that the ignition bar was intact. In fact, he started the vehicle with its own key.

49. The Court is left with having to decide whether it was the first defendant (insured by AXA) or the second defendant who was driving the vehicle. The Court accepts the submission for AXA that the plaintiff has a duty to establish that the first named defendant was driving the vehicle, despite the order granting judgment in default against the first named defendant.

50. The process by which AXA was joined to these proceeding without ancillary or subsequent orders for disclosure was ultimately somewhat unsatisfactory. No directions were sought or given for the disclosure by AXA of any investigation on its part including attempted engagement with the first defendant since it became aware of its potential liability. The Court returns to this aspect later.

51. A solicitor for AXA swore an affidavit on 10 October 2019 which averred that the first defendant failed to report the incident to AXA “and has failed to co-operate with [AXA]”. No witness clarified if AXA ever sought the co-operation of the first defendant. Mr. Featherstone (“investigations manager” with AXA) on day 8 of the trial explained that those with insurance cover sometimes do not disclose accidents to their insurers. Mr. Featherstone did not have any contact with the first defendant but accepted the general proposition that AXA would contact its insured if it discovered that a party had been knocked down by a vehicle it had insured for that day.

52. The said affidavit exhibited an email from AGS in Tallaght, dated 27 February 2019, to the plaintiff’s solicitor who had sought details of the name of the driver. The reply from AGS was that the driver was not known. The affidavit did indeed mention that AXA had not received a report that the vehicle had been stolen. Significantly, AXA’s ground for seeking to be joined as a defendant was that judgment in default could be obtained without reference to AXA.

53. AXA never applied to vacate the judgment in default against the first defendant having regard to its acknowledged interest. AXA maintained that it was entitled to insist upon the plaintiff establishing that it was first defendant who drove the vehicle. AXA distinguished its stance in Quatja v Badila and AXA Insurance Limited unreported judgment of MacGrath

J. on 23 March 2018 [2018] IEHC 202 (“Quatja”) which was an appeal from a Circuit Court order granting judgment in default against the first named defendant who AXA had insured. Those proceedings involved an alleged “stage-managed” collision.

54. While recognising the inability of AXA to give instructions for the defence of proceedings on behalf of the first defendant, it appears to the Court that future applications by insurers under the road traffic legislation to be joined as a named party deserve to consider the interests of the plaintiff also. Each application will be considered on its own merits. The requirement to identify the registered owner (as opposed to the user or potentially actual owner) and driver of a motor vehicle involved in a road traffic accident arises within a legislative and regulatory framework governing the use of motor vehicles.

55. The Court has already outlined its conclusions in relation to the second named defendant and will now proceed to explain its further reasoning for identifying on the balance of probabilities that it was the first defendant who was the driver of the vehicle at the time of the incident for the purpose of resolving the dispute between AXA and the MIBI.

The first defendant

56. In the absence of evidence to the contrary the Court considers that the first defendant was driving the vehicle for the following reasons: -

(1) No one other than the first defendant was insured to drive the vehicle on that day. The second defendant was aware of the consequences of being caught driving the vehicle without insurance and the Court has already discounted any lingering suggestion that the vehicle was stolen.

(2) The first defendant refused to answer basic questions about when he used the vehicle and particularly about whether he was driving the car on the day of the incident.

(3) The first defendant having been in contact with AXA in the afternoon of the incident made no attempt to advise AXA about whether he was involved or not involved in the incident. Further, there was no evidence of engagement between AXA and the first defendant when they both knew of their potential liabilities to the plaintiff in damages.

(4) The first defendant has never attempted to set aside the judgment in default of defence while the second defendant had little basis to do so as he was the registered owner.

(5) The first defendant was seen driving the vehicle in the week prior to the incident.

(6) The first defendant failed to give any account for the location of the mobile phone in the vicinity of the incident from which he had phoned AXA earlier. That same mobile phone was used some thirty minutes prior to the incident. The chain of evidence from procuring the mobile phone close to the scene of the incident to the undisputed forensic evidence which linked it to the first defendant is admissible in these civil proceedings.

Aggravated damages

57. Counsel for the plaintiff submitted that the conduct of AXA in these proceedings created grounds for the Court to mark its disapproval by way of an award of aggravated damages. Counsel submitted that AXA avoided exhibiting the certificate of insurance knowing that it was an essential proof until the trial of the action. It was not until 5 January 2023 that AXA furnished a copy of the temporary certificate of insurance which was three years after AXA had applied to be joined in the proceedings. Further AXA had required in its formal defence to establish that the deceased son was lawfully present at the scene of the incident and that it wasn’t until day 9 of the trial that the plaintiff and her advisors learnt of the previous transfer of insurance cover by AXA to the vehicle for 3 April 2017 to 5 April 2017. Lastly, Counsel for the plaintiff deprecated a position taken by AXA until after the trial had commenced that the vehicle had been stolen.

58. In reply Counsel for AXA submitted that no complaint about the process by which AXA engaged with the plaintiff’s solicitors had been made prior to the conclusion of the trial. AXA explained that the certificate of insurance had not been exhibited because such certificates were not issued for temporary insurance cover. It was further submitted that the Court ought not consider the earlier transfer of insurance to the vehicle for the first defendant to be relevant to its deliberations.

59. Counsel for AXA stressed that the plaintiff’s solicitors had never requested AXA to disclose details of communications which it had with the first defendant.

60. It was submitted that the engagement of Dr Kelly by AXA was also in line with the practice in this type of litigation involving potentially uninsured drivers. Regarding the criticism about not seeking to vacate the default judgment against the first named defendant, Counsel for AXA distinguished the facts in these proceedings from the facts in Quatja. It was submitted that the collusion in Quatja was not evident to AXA in these proceedings and that AXA had no standing to instruct a legal team on behalf of the first named defendant without his instruction. Counsel for AXA cited the sentence from Kelly J. in O’Donnell v O’Donnell [2005] IEHC 216 at para.14: - “The maintenance of a denial of liability is not an abuse of the process of the court. A defendant is entitled to require a plaintiff to prove his case.”

Consideration of claim for aggravated damages

61. It is indeed unfortunate that directions for disclosure of any investigations conducted by AXA and any attempted communications by AXA with the first defendant did not follow the order permitting AXA to be joined as an additional named defendant. Courts in this jurisdiction are restricted somewhat by the adversarial process. The Court in this instance does not have inquisitorial powers as may exist in civil law jurisdictions. It is for insurers and parties to encourage efficient fact finding. Trials like that which occurred in these proceedings will be more efficient from time and cost perspectives if insurers are directed to disclose material in compliance with the relevant Data Protection legislation and privacy rights at an early stage. It is trite to add that each application for disclosure deserves to be considered on its own merits. Lest there be any doubt, the Court is not critical of the parties who participated fully at trial. Awaiting the outcome of the inquest and getting some clarity around whether a criminal prosecution would ensue, contributed significantly to the delay in have these proceedings resolved. The unfortunate circumstances around the death of the deceased son and the system for addressing wrongs cannot be attributed to AXA. AXA was deemed entitled to be added as a party in these proceedings. It should be added that AXA before the evidence at trial was concluded, assisted in the quest to resolve the circumstances of how and when insurance was provided to the first defendant for the vehicle by producing the transcripts of the telephone calls between the first defendant and AXA.

62. There was no evidence of exacerbation of the plaintiff’s condition caused by AXA. Therefore, the Court declines to award aggravated damages to the plaintiff against AXA for its conduct in these proceedings.

Final orders

63. The Court invites the parties to address it on the final terms of the orders to be made following the delivery of this judgment. The Court requests that the solicitors for the plaintiff serve a hard copy of this judgment on each of those defendants in the manner adopted for service of notices during the course of the trial along with a covering letter that they may attend the Court at 10:30a.m. on 15 October 2025 which will hear all parties about the terms of the final orders to be made including those relating to costs. Appearances: Aedan McGovern SC and Noel Cosgrove BL instructed by Bernadette M. Barry & Co., Solicitors for the plaintiff. The first named defendant in person. The second named defendant in person. Paul Murray SC and Paul Henry O’Neill BL instructed by Stepehen Mackenzie & Co., Solicitors for the third-named defendant. Edward Walsh SC and Eamon Marray SC instructed by Axa Legal Services, Solicitors for the fourth-named defendant.