High Court awards €39,000 to plaintiff for road accident injuries, applying contributory negligence reduction.

THE HIGH COURT

[2026] IEHC 260

Record No. 2021/6616P

BETWEEN

PATRICK CONWAY

PLAINTIFF

AND

BRENDAN O CONNELL

DEFENDANT

JUDGMENT of Mr. Justice Barr delivered ex tempore on the 28th day of April 2026.

Introduction.

1. This action arises out of an accident that occurred in the early hours of 8th September 2019. It is the plaintiff’s case that as he was walking with many other people on Main Street heading into Lisdoonvarna, the defendant’s car overtook him on his right towing an animal transport box or cow box, which struck the plaintiff’s right ankle, as a result of which the plaintiff states that he put out his right arm to stop himself falling and struck the side of the cow box causing him to suffer a fracture of his right wrist.

2. The defendant accepts that he was driving his Toyota Avensis car in the centre of the road. He accepts that he overtook the plaintiff who was on his left. He states that the next he knew was when he heard a loud bang and felt a severe thump to the trailer that he was towing. He states that when he brought his vehicle to a halt and looked in his wing mirror, he saw the plaintiff lying on the ground. The defendant denies that he was travelling at speed prior to the impact between the plaintiff and his trailer.

Liability.

3. The plaintiff is a 58-year-old civil engineering contractor. He owns machinery and engages in various forms of construction work on behalf of clients.

4. The plaintiff stated that it was his practice to attend the matchmaking festival in Lisdoonvarna. He would usually go down there for one night. He stated that having finished his work at approximately 15.00 hours, he washed and shaved and got ready for the festival. He left his home in Limerick. He had a meal in Inagh on the way to the festival.

5. The plaintiff stated that he parked his Jeep in a designated car park. He went to The Matchmaker pub in the village at approximately 21.30 hours, where he had one pint of Heineken. He states that he left the pub at 22.00 hours and made his way to a marquee venue known as The Pavilion which was situated some small distance from the village. He states that he stayed in the tent dancing and listening to music until the end of the dance at approximately 02.00 hours.

6. During that time, he had a further 5/6 pints of beer. At the conclusion of the dance he made his way out of the tent. He intended to walk back across some open ground which would lead directly to the car park where his Jeep was parked. However he was prevented by the security guard from entering this area which had been cordoned off as being off limits. The plaintiff accepts that he engaged in some argument with the security guard at that point. He accepted in cross examination that the Gardaí had come over and told him to move on; which he had done.

7. The plaintiff also accepted that while he was walking out of the hotel grounds, he stumbled and fell onto a group of people who were sitting on a low wall. Fortunately, they took this in good humour and there was no trouble arising out of it.

8. The plaintiff states that he turned right onto Main Street heading for the village. The court has been supplied with photographs of the locus which were taken by an engineer sometime after the accident. The locus of the accident had changed by the time the engineer came to take his photos. In photograph #1 it was accepted that the accident occurred at approximately the position of the electric telegraph pole that is shown on the left just beyond the zebra crossing. However, it is important to note that the zebra crossing was not in place at the time of the accident.

9. The court also had the benefit of photographs that were taken by the defendant on his mobile phone shortly after the accident. These photographs show both the position of the defendant’s car and his trailer straddling the road markings in the centre of the road. The photographs also give a reasonably good impression of the movement of people in the area after the accident. The court also had the benefit of two photographs taken by the plaintiff showing the locus of the accident during night hours, which were taken some days after the accident. Photograph B shows the locus at the telegraph pole. It is clear that there is effectively no footpath on the left side of the road. As we will see, this is important.

10. It is also clear from these photographs that on the right side of that road there were cars and caravans parked all along that side of the road. It was common case between the parties that on the night of the accident there were parked vehicles along the right side of the road. These are clearly visible in the photographs taken by the defendant on the night of the accident and also in those taken by the plaintiff some days later.

11. The plaintiff’s case is that he was walking along the left side of the road with many other people who had come from the dance in the marquee and who were heading back to the village either to visit another pub, or to get a takeaway meal, or to go to their accommodation. The plaintiff’s evidence was that as he was walking towards the village, the defendant’s car overtook him and the wheel of the trailer went over his right ankle causing him to lose balance. He put out his right hand and struck the trailer which the defendant was towing. He states that he then lowered himself to the ground as he was in very considerable pain in both his right ankle and right wrist.

12. Subsequent medical investigation revealed a comminuted intra-articular fracture of the right distal radius and a probable avulsion fracture of the lateral malleolus of the right ankle.

13. In cross examination, the plaintiff accepted that he had had quite an amount to drink on the night in question. It was put to him that some of the medical records from the hospital had recorded that he had between 16/18 units of alcohol in his system, which would equate to 8/9 pints of beer. The plaintiff accepted that he had drunk a considerable amount of beer during the course of the evening, but did not think that it had been that much.

14. It was put to the plaintiff that in some of the medical records it had been recorded that he had reported that a slow moving car had hit him causing him to fall and injure his right wrist and then the trailer rolled over his ankle. The plaintiff stated that he had been in very severe pain due to the fractures to his wrist and ankle and had been given some pain relieving medication. He stated that that might have accounted for the discrepancies in the accounts that he had given in the course of the various medical examinations that had taken place at the hospital that night.

15. It was put to the plaintiff that the defendant would state that he had travelled very slowly up the centre of the road on account of the fact that there were pedestrians walking back towards the village on his left side. It was put to the plaintiff that a Garda witness, who had been standing on the right side of the road further up the hill, had seen the plaintiff punch the side of the trailer with his outstretched arm. It was put to the plaintiff that that was the cause of the fracture to his right wrist. The plaintiff denied that that was accurate, stating that there had been an impact between the trailer and his right ankle which had caused him to lose balance and his arm had shot out attempting to stop him fall when it had struck the side of the trailer. He denied that he had intentionally struck the side of the trailer with considerable force.

16. The defendant is a bus driver employed by Bus Eireann. He stated that he had not had any alcohol to drink on the night in question. He stated that he had been working during the day. He had travelled to Lisdoonvarna for the purpose of attending the festival with some friends, with whom he was going to meet up later in the night.

17. He stated that he had been towing a small animal transport box which had solid sides and a domed roof. He stated that there were three sizes of transport boxes for transporting animals. He was towing the smallest type of box, which would ordinarily be used to transport sheep or pigs. On the night in question, he had a double mattress in the box, which he had intended to use along with his friends as somewhere to sleep for the night.

18. The defendant stated that he had been breathalysed by the Gardaí at the scene. This had revealed that he had no alcohol in his system.

19. The defendant stated that at the locus of the accident he could see a “lively” crowd walking up the street. He stated that some of these people appeared to be quite drunk. He stated that he drove at a very slow speed up the centre of the road. He estimated that he had been travelling at approximately 10/ 15 mph.

20. The defendant stated that as he was driving up the road in second gear, he heard a loud bang and the cow box hopped or shuddered. He stated that his immediate thought was that he may have hit a hare. He brought his vehicle to a halt. When he got out of the car, he saw a man lying on the left side off the road some metres back from his trailer.

21. In cross examination, the defendant accepted that his estimate of his driving speed was accurate and that a fair estimate of his actual speed would be 12.5 mph. He denied that that was excessive in all the circumstances. He stated that he had had his dipped headlights on. He denied that he should have had his full headlights on, or that it was necessary to have his hazard lights flashing given that he was towing a trailer. He stated that it would not have been appropriate for him to have been sounding his car horn, as it was very late at night.

22. The defendant stated that as he had driven past the plaintiff and others on the left side of the road the next that he knew was that he had felt a massive thump on the side of the box that he was towing. When he looked in his rearview mirror he saw the plaintiff lying on the road.

23. Evidence was given by Garda Christopher White, who had been on duty in the village that night. He stated that he had first encountered the plaintiff when the plaintiff had been remonstrating with the security guard for not allowing him to take a more direct route back to the car park where he had parked his Jeep. The Garda stated that as the plaintiff was in an argument with the security guard and was trying to gain access to an off limits area; he told the plaintiff to move on. He stated that the plaintiff did move on as he was in the company of a man who was quite sober. Garda White stated that the plaintiff appeared to be quite intoxicated.

24. He stated that some short time later, he saw the plaintiff stumble and fall against a number of people who were sitting on a low wall. Fortunately, there was no unpleasantness arising out of that incident. Garda White stated that he then proceeded up Main St. in the company of his sergeant. They were walking on the right side of the road between the parked vehicles and caravans and the hedge on the right hand side. They came across a number of youths who were urinating against the front of a caravan. The sergeant stopped to remonstrate with them. While he was doing that,| Gda. White moved out beyond the caravan and was monitoring the movement of the crowd and traffic on the Main Street.

25. He stated that he saw the defendant driving extremely slowly up the road. He stated that he would disagree with the estimate of speed that had been given by the defendant, as he felt that the defendant was literally crawling up the centre of the road. He stated that he could have given a fixed penalty notice under section 15(1)A of the relevant Road Traffic Act, had he thought that the defendant was driving in any way that posed a danger to others on the highway. However, he had not formed any opinion that the defendant’s driving was careless or dangerous on that occasion. He stated that when he looked down the street with the defendant's car approaching him, he saw that when the trailer was abreast of the plaintiff, the plaintiff suddenly pivoted to his right so that he was facing the side of the trailer and his two arms shot out striking the trailer with considerable force.

26. In cross examination, he stated that he saw the plaintiff’s whole body turning to his right and then he struck the trailer. His whole body had pivoted to face the trailer. He stated that he saw the plaintiff then lower himself onto the ground. When he went to the plaintiff’s assistance, the plaintiff was lying on the ground, but was unresponsive. He summoned first aid from the Civil Defence members that were present and called an ambulance. He then ensured that the area around the plaintiff was left free.

Conclusions on Liability.

27. There are a number of facts that are not in dispute between the parties. The first of these is in relation to the locus of the accident. I accept that the accident occurred at or about the lamp standard as shown in photo number one of the engineer’s photographs and in photo B of the photographs taken by the plaintiff some days after the accident. I accept that the locus as shown in photograph B was more or less as it was on the night of the accident; save that I accept the evidence of both the plaintiff and the defendant that there was a considerable crowd of people walking on both sides of the road returning to the village after the dance in the marquee.

28. I accept the evidence that has been given by Gda. White and as contained in the medical records that were admitted in evidence, that the plaintiff had a considerable quantity of alcohol consumed on the night in question. In some of the medical records this is recorded as being between 16/ 18 units, whereas in others it is stated to have been between 10/ 16 units. Broadly speaking that would be a range of between 5/ 9 pints of beer. The plaintiff accepted that he had had approximately 5/ 6 pints of beer. I think on the evidence as to his level of intoxication and having regard to the content of the medical records it was more likely to have been in the region of 7/ 8 pints.

29. In relation to the speed of the defendant’s vehicle, while I accept that Gda. White was of the view that the defendant was travelling at a very low speed, the defendant himself has put that speed at 10/ 15 mph, which would equate to a speed of 16/ 24 kmh. As the defendant is a professional bus driver, I am of the view that his estimate of speed is likely to be reasonably accurate. Accordingly, for the purposes of this judgment, I find that the defendant was travelling at approximately 12.5 mph which equates to 20 kmh.

30. I find that having regard to the fact that there was a large crowd of people walking on the road after the dance in the marquee, which the defendant accepts was a “lively” crowd, with many of them obviously showing signs of intoxication, I have to hold that travelling at a speed of in or around 20 kmh through or near a crowd of people in that condition was too fast and was therefore negligent.

31. In cross examination it was put to the plaintiff that he had deliberately punched the side of the defendant’s trailer. That was presumably put on the basis of the evidence given by Gda White, because the defendant had not seen the plaintiff strike his trailer. He stated that he had only heard a loud thump and felt the trailer hop or shudder.

32. Garda White did not give any evidence that the trailer had impacted with the plaintiff’s right ankle. That was due to the fact that he could not have seen the plaintiff’s right ankle, as it was obscured by the body of the trailer. He could only see what occurred when he looked above the top of the trailer. I find the evidence of Gda. White key in relation to the issue of liability. He stated that he clearly saw the plaintiff pivot to his right so that he was facing the trailer, at which time his right hand shot out and impacted with the side of the trailer. In the witness box, Garda White moved his body towards the right hand side of the witness box to show the pivoting movement.

33. I am satisfied that the account given by the plaintiff, that there was an impact between the wheel at the side of the trailer and his right ankle and that it was that which caused him to put out his hands in an effort to avoid falling and he thereby struck the trailer, is supported by the observation made by the Garda witness that he saw the plaintiff pivot sharply to his right and then put out his right hand and strike the trailer.

34. Much has been made of the discrepancies that occurred in the medical records concerning the plaintiff’s account of the accident. The first recorded note was from the triage assessment carried out at 05.26 hours on the morning of the accident. It is recorded as being query fractures to the right wrist and ankle, both of which had been splinted by the emergency response team. It then stated “car trailer rolled over pedestrian’s right foot and patient fell. Alcohol on board”.

35. A later note taken at 10.30 hours that day recorded “Right ankle rolled over by car trailer (slow moving) causing patient to fall injuring right wrist. Patient claims car hit him causing him to fall and then trailer rolled over ankle.”

36. A further note taken at 14.15 hours on the same date stated that the plaintiff was very unsure of the exact details about what had happened. He thought that he had been hit by a car or trailer and that he had pushed someone out of the way of it. It noted that he had been drinking 10-16 units. It stated that he did not know whether it was a car or a trailer. He did not know if he hit his head or had lost consciousness. It noted that the paramedic report stated, “low velocity impact from trailer”.

37. A note taken at 18.00 hours that day recorded: “Patient was at music festival, a slow moving car hit patient, causing patient to fall and injuring right wrist, then trailer rolled over ankle. Pain in right ankle and slightly swollen and limited movement, but X-ray of right ankle has no sign of obvious fracture”. While there are discrepancies in the various accounts given by the plaintiff to the medical staff on the day of the accident, one has to bear in mind that he had suffered multiple fractures, one of which was serious in nature, and had consumed a considerable quantity of alcohol. Thus, it is not surprising that the accounts recorded in the various notes would differ one from the other. It is noteworthy that several of these accounts support the version given by the plaintiff in his evidence. It cannot be said that his account is one of recent fabrication.

38. While it is undoubtedly the case that the plaintiff had a considerable amount of alcohol in his system at the time of the accident, I am satisfied that on the balance of probabilities this accident occurred in the manner alleged by the plaintiff. In the scenario that was posited in cross examination to the plaintiff, that he had lashed out at the trailer for some unknown reason, this ignored the fact that he had suffered a probable avulsion fracture to the lateral malleolus of his right ankle. The court has had the benefit of the photographs taken by the plaintiff’s daughter of his right ankle in the days after the accident. These clearly show that the ankle was swollen, bruised and had abrasions to it. The court notes that the suspected fracture was treated conservatively by immobilizing the ankle joint in a boot.

39. On the balance of probabilities, I find that the accident occurred in the manner alleged by the plaintiff. As already stated, his account of his ankle being struck by the protruding wheel of the trailer is supported by the evidence given by Gda. White of having seen the plaintiff pivot sharply to his right before his hand shot out and struck the side of the trailer.

40. It is undoubtedly the case that the plaintiff struck the side of the trailer with very considerable force because this caused a comminuted fracture to his right wrist which required the insertion of a plate. I am satisfied that the injury to the right wrist was caused in the wake of the injury to the right ankle and in an effort to stop him either falling against the trailer or falling to the ground.

41. I have to find that in all circumstances, given that the defendant knew that he was driving through a large crowd; that he knew was in his words “lively” and when he knew that some of those in the crowd were clearly intoxicated; to have driven through that crowd at somewhere in the region of 20 kmh towing a trailer, was somewhat dangerous. I have to hold that the defendant was negligent in the driving of his vehicle on the night in question.

42. That does not end the issue of liability. I accept that it is reasonable for people on certain occasions to walk on the road. I am satisfied that given that there was no footpath on the left side of the road, nor does there appear to have been any meaningful footpath on the right hand side of the road, it was reasonable for pedestrians to have walked up the left side of the road.

43. That pedestrians walk on a road is a common feature in Ireland. It is necessary in the country areas where there are sometimes no footpaths provided. It occurs on many Sundays throughout the year when supporters are going to and from inter county football and hurling matches. It also happens when there are crowds attending other sporting fixtures such as rugby and football matches. It also occurs where there are crowds of people attending music or other festivals. However, the fact that pedestrians may walk on the roadway does not mean that they are in the same position as a pedestrian using the public footpath. If a person elects to walk on a road, they must exercise extra special care for their own safety, given that they are encroaching onto the space on the highway that is reserved for vehicles

44. Accordingly, I hold that while liability for the plaintiff’s injuries rests with the defendant, there must be a significant finding of contributory negligence on the part of the plaintiff for failing to keep a proper lookout for motor vehicles that were lawfully using the highway at the same time. I find that the plaintiff was 40% responsible for his own injuries that night.

Quantum.

45. It is not necessary to set out the plaintiff’s injuries in great detail. This is due to the fact that the medical evidence in this case was agreed. The parties agreed to the admission of the medical reports as evidence without the need for formal proof. On behalf of the plaintiff two reports were submitted, being the report of Dr. O' Donoghue dated 7th April 2021 and the report of Dr. Khan dated 14th February 2025. On behalf of the defendant, two reports were furnished by Mr. Cormac J. Tansey from an examination on 11th October 2022 and a further report when he had had sight of the X-rays dated 30th March 2026.

46. The plaintiff suffered a probable fracture to his right ankle in the form of an avulsion fracture to the lateral malleolus. This was treated conservatively by placing his ankle in a boot which he wore for a number of weeks. Thereafter, the plaintiff gradually returned to full weight bearing on the ankle. He has gone on to make a good recovery from this aspect of his injuries, although he continues to complain of pain and swelling in the ankle, particularly after prolonged walking.

47. The more significant injury was a comminuted intra articular fracture of the distal radius of the right wrist. This was treated by operative treatment in the form of open reduction and internal fixation with a plate. Post-operatively the plaintiff had 5/6 sessions of physiotherapy treatment.

48. The plaintiff was unfit for work for a number of months post-accident. Thereafter, he returned to working in his company on a gradual basis; first in an administrative or office based capacity and thereafter returning to full duties. There is no claim for loss of earnings, as the plaintiff’s son was able to look after all the contracts that the company had at that time.

49. The plaintiff has some ongoing difficulties at work, such as lifting bags of concrete, raking concrete, or working with a compactor for levelling concrete. Other than that, he states that he is capable of the demands of his work. There is some limitation of movement in the wrist. As it was an intra articular fracture, the prognosis for future recovery remains guarded and it is possible that he will have some chronic symptoms on a permanent basis.

50. As already noted, there is no claim for loss of earnings; nor are there any other items of special damage claimed in these proceedings.

51. In those circumstances, where this action has to be considered having regard to the content of the Book of Quantum and allowing for the fact that that has since been superseded by the personal injuries guidelines, which themselves have been updated by the Judicial Council though not yet implemented in terms of proposed valuations to take account of inflation, and in the absence of any specific submissions in that regard from the parties, I am satisfied that having regard to the plaintiff’s post-accident treatment, his level of recovery to date and the possibility of chronic symptoms, it is appropriate to value general damages at full value at €65,000.

52. Allowing for the deduction due to contributory negligence on the part of the plaintiff, I award the plaintiff judgment in the sum of €39,000 against the defendant.