Supreme Court increases passenger contributory negligence from 15% to 35% due to known driver intoxication.

THE SUPREME COURT

No. 145/2005

Murray C.J.

Denham J.

Finnegan J.

BETWEEN

ROY MORAN

PLAINTIFF/RESPONDENT

and

SÉAN FOGARTY

DEFENDANT/APPELLANT

Judgment of Mr Justice Finnegan delivered on the 21st day of July 2009

On the 23rd April 1999 the respondent was travelling as a front seat passenger in a motor car the property of and then being

driven by the appellant. The car collided with a wall and in consequence the respondent sustained personal injury and

suffered loss and damage. Following a hearing over five days the learned High Court judge found that there was

contributory negligence on the part of the respondent and apportioned fault to the appellant 85% and to the respondent 15%.

He then proceeded to assess damages and awarded damages under the following headings:-

Special Damages

(i) Loss of earnings to-date €195,000

(ii) Loss of earnings for the future €650,000

(iii) Agreed special damages €2,691

(iv) Care and maintenance in the past €25,000

(v) Care and maintenance in the future €267,792

Deductible benefit €2,428

General Damages

(vi) Pain and suffering to date €80,000

(vii) Pain and suffering in the future €140,000

____________________

Total €1,154,37.00

The Notice of Appeal

The appellant appeals on the following grounds:-

1. Insofar as the learned trial judge found that the plaintiff/respondent was contibutorily negligent to the extent of 15% for

travelling in a motor vehicle knowing that the driver was intoxicated:

(a) the learned High Court judge erred in law and in fact in not dismissing the plaintiff/respondent’s claim in

circumstances where the proximate cause of his injuries, loss and damage, was the crash which occurred as a

result of the driving of the intoxicated driver and where the learned High Court judge found as a fact that the

plaintiff/respondent knew at the time he got into the car the defendant/appellant was intoxicated.

2. In the alternative to 1 above, insofar as the learned trial judge found that the plaintiff/respondent was guilty of

contributory negligence to the extent of 15% for travelling in a motor vehicle knowing that the driver was intoxicated,

(a) The learned High court judge erred in law and in fact in finding that the plaintiff was only contributorily

negligent to his injury, loss and damage by knowingly allowing himself to be carried in a car when the driver was

intoxicated. The proximate cause of the plaintiff’s injury, loss and damage was the accident and the plaintiff

would not have been involved in the accident if he had refused to travel in the car where he knew the driver was

intoxicated.

(b) The learned High Court judge erred in law and in fact in failing to find that the contributorily negligence in

this regard was not at least 50% or such other amount as this honourable court deems appropriate.

3. In so far as the learned trial judge found that the plaintiff/respondent was wearing a seat belt and was therefore not to be

contributorily negligent;

(a) the learned High Court judge erred in law and in fact in making such a finding where the sole evidence

on that point came from a witness (Mary Clifford) who admitted to having had at least five alcoholic drinks,

where the uncontradicted evidence of the defendant was that she was drinking large bottles of cider, where

the said Mary Clifford admitted being unconscious after the accident and where the medical report from Mr

Kearns (Maxillofacial Surgeon) for the plaintiff/respondent) was agreed as to its contents and specifically

recorded that the plaintiff/respondent told him that he was not wearing a seat belt.

(b) The learned High Court judge erred in law and in fact in not finding, on the evidence before him, that

the plaintiff/respondent was not wearing his seat belt and in failing to find him contributorily negligent to at

least the extent of 25% in that regard or such other amount as this honourable court deems appropriate.

(c) In the circumstances the learned High Court judge failed to properly evaluate the evidence before him or

in the alternative reached a conclusion on the available evidence which no reasonable judge would have

reached on the evidence.

4. Insofar as the learned High Court judge awarded the plaintiff/respondent the sum of €195,000 loss of earnings to-date;

(a) The learned High Court judge erred in law and in fact in awarding to the plaintiff losses which did not take

into account the nature of his prior work history or incidents of unemployment in the course of his apprenticeship

as block layer. Instead the award of loss of earnings to date was predicated upon him qualifying as a block layer

and working without interruption thereafter.

(b) In the circumstances the learned High Court judge failed to properly evaluate the evidence before him or in

the alternative reached a conclusion on the available evidence which no reasonable judge would have reached on

the evidence.

5. Insofar as the learned High Court judge awarded the plaintiff/respondent the sum of €650,000 loss of earnings into the

future;

(a) The learned High Court judge erred in law and in fact in awarding to the plaintiff/respondent losses of that

magnitude. In that regard the learned High Court judge ignored the uncontested evidence before him from the

plaintiff’s rehabilitation consultant that the plaintiff/respondent had a residual earning capacity of between €275

and €400 per week. Further the award made did not take into account his prior work history or incidents of

unemployment in the course of his apprenticeship as a block layer. Instead the award of loss of earnings into the

future was predicated upon him qualifying as a block layer and working without interruption thereafter.

(b) In the circumstances the learned High Court judge failed to properly evaluate the evidence before him or in

the alternative reached a conclusion on the available evidence which no reasonable judge would have reached on

the evidence.

6. In so far as the learned High Court judge awarded the plaintiff/respondent damages of €220,000 in respect of a brain

injury;

(a) The learned High Court erred in law and in fact in awarding the plaintiff/respondent damages for any brain

injury. The said finding was contrary to the weight of the evidence and had no regard to the fact that the first

time it was alleged that the plaintiff/respondent suffered such an injury was some years after the event.

(b) In the alternative, if he did have a brain injury then there was no causal connection, on the evidence, between

that injury and the accident.

(c) In the circumstances, the learned High Court judge failed to properly evaluate the evidence before him or in

the alternative reached a conclusion on the available evidence which no reasonable judge would have reached on

the evidence.

7. In so far as the learned High Court judge awarded the plaintiff/respondent damages in the sum of €267,792 in respect of

future care costs;

(a) The learned High court judge erred in law and in fact in awarding to the plaintiff/respondent damages for

future care costs at the level that he did in circumstances where he stated, prior to Noreen Roche, nursing

consultant, giving oral evidence that that element of the case was minimal and was being approached as such by

him. In that event Noreen Roche was not called. Having made such a finding it was not open to the learned trial

judge to thereafter make an award in respect of that head of claim in the sum of €267,792. Any award in respect

of future care costs should have formed a part of general damages in a modest sum bearing in mind the court

ruling.

(b) In the circumstances, the learned High Court judge failed to follow his own finding in the case or in the

alternative reached a conclusion on the findings made which no reasonable judge would have reached on the

evidence and the findings made.

The law

The manner in which the Supreme Court exercises its appellate jurisdiction is clearly and succinctly set out in Hay v

O’Grady [1992] I.R. 210 by McCarthy J. as follows:-

“Order 58 of the Rules of the Superior Courts 1986 provides:-

‘1. All appeals to the Supreme Court shall be by way of rehearing and (save from the refusal of an

ex parte application) shall be brought by notice of motion (in this order called “the notice of

appeal”). The appellant may appeal from the whole or any part of any judgment or order and the

notice of appeal shall state whether the whole or part only of such judgment or order is complained

of and in the latter case, shall specify such part’.

This does not mean that the Supreme Court re-hears oral evidence but, rather, the arguments based

upon the findings of fact, including arguments that the findings are unsupported by evidence, itself

a question of law. Although the jurisdiction confirmed by Article 34, s.4, sub-s.3 is, save as there

expressed and already instanced, unlimited, the Court has, in effect, limited its jurisdiction in the

manner detailed in the succession of cases cited in the course of argument. The role of this court, in

my view may be stated as follows:-

“1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does

the trial judge who hears the substance of the evidence but, also, observes the manner in which it is

given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the

atmosphere of a trial.

2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is

bound by those findings, however voluminous and, apparently, weighty the testimony against them.

The truth is not the monopoly of any majority.

3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a

position as the trial judge to draw inferences of fact. (See the judgment of Holmes L.J. in “The

Gairloch”; Aberdeen Glenline Steamship Co. v Macken [1899] 2 I.R. 1 cited by O’Higgins C.J. in

The People (Director of Public Prosecutions) v Madden [1977] I.R. 336 at p.339). I do not accept

that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will,

itself, lead to an appropriate inference which an appellate court would not draw. In my judgment,

an appellate court should be slow to substitute its own inference of fact where such depends upon

oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In

the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a

position as the trial judge.

4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper

inference – in a case of this kind, was there

negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case.

If, on the facts found and either on the

inferences drawn by the trial judge or the inferences drawn by the appellate court in accordance with the principles set

out above, it is established to the

satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the

part of the individual charged was

erroneous, the order will be varied accordingly.

5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings

of primary fact, the inferences to be drawn

and the conclusion that follows.”

I propose to deal in the first instance with the grounds of appeal which relate to the seat belt issue and quantum of damages

awarded, that is with grounds 3 to 7 inclusive. Thereafter I will deal with the grounds relating to contributory negligence

raised at grounds 1 and 2.

3. The Seat Belt

In direct examination the respondent said that he would usually wear a seat belt. Putting this answer in context, the

respondent had given evidence that he did not remember the accident and had no recollection of the day or days before the

accident. He did not remember who was in the car with him at the time of the accident. In cross-examination it was put to

the respondent that his injuries were consistent with his having struck his head on the dash board in the accident, and that

the reason for that is that he was not wearing a seat belt. From the documents which were before the learned High Court

judge the following appear:

a. On admission to Nenagh Hospital on the 23rd April 1999 it was recorded in the notes taken “seat belt?”

b. On admission to Limerick Regional Hospital on the 26th April 1999 it was recorded that he was not wearing a seat belt.

c. Gerard Kearns, Consultant Oral and Maxillofacial Surgeon, in his report of 26th May 1999 records that the respondent

was not wearing a seat belt.

d. Dr. Simone Carton, Clinical Neurophysiologist, in a report of July 2003 records in the history that the respondent was

wearing a seat belt.

e. In a report of Mr James M. Sheehan, Orthopaedic Surgeon, it is recorded that the respondent did not remember if was

wearing a seat belt. It is also recorded that no air bag was

fitted to the motor car.

f. The report of Dr. Kieran O’Driscoll, Consultant Neuropsychiatrist, dated 17th September 2003 records that the

respondent was wearing a seat belt.

. Other reports are silent on the question.

Mary Clifford gave evidence. She was a rear seat passenger in the car. The respondent was a front seat passenger. Her

evidence was that the respondent was wearing a seat belt. In cross-examination she said that she had passed out after the

accident and that her recollection of the accident was incomplete – she remembered bits and pieces. Her recollection prior to

the accident was not tested in cross-examination. She said that she saw the respondent putting on his seat belt and that he

was sitting in front of her.

In the course of his ex tempore judgment the learned trial judge said:-

“I am satisfied on the evidence of Mary Clifford that the plaintiff was wearing a seat belt, and that is out of

it.”

I am satisfied that there was before the learned trial judge credible evidence for him finding that the respondent was wearing

a seat belt notwithstanding the existence of some indications to the contrary. This being so I would not interfere with that

finding.

4. Loss of Earnings to-date

The learned trial judge had the oral evidence of Mr Gerard Walsh and Mr Michael Walsh who together carry on a block

laying business and for whom the respondent was working up to the date of his accident. Gerard Walsh gave evidence of

the rates paid to block layers as of the date of hearing. Since about 2000 there had been ample work and as at the date of

hearing he would not be idle for two minutes. A third or fourth year apprentice would earn €600 per week into his hand. A

qualified block layer would earn €1,000 per week upwards. Mr Michael Walsh described the respondent as in the top three

of the apprentices he had had up to the date of the accident. He described the respondent’s diminished ability since the date

of the accident on his return to work – in short the respondent is no longer up to the job. When the respondent worked for

him after the accident he paid him at most €170 to €180 per week and this is more than the respondent is worth. Sean

O’Sullivan, Vocational Rehabilitation Consultant, gave evidence. He gave evidence of the amount which the respondent was

earning at the date of the accident exclusive of overtime. As of the date of hearing the demand for block layers was such

that the respondent could easily earn over €1,000 per week and more likely in the region of €1,200 per week. There was

then virtually unlimited work.

Nigel Tenant, Actuary, gave evidence as to the respondent’s loss of earnings to date and into the future. The appellant did

not call a Vocational Rehabilitation Consultant or an Actuary.

On the evidence before him the learned trial judge awarded a sum for loss of earnings to-date within the parameters of the

evidence adduced. There was evidence to support the award made. In these circumstances I would not interfere with the

same.

5. Future Loss of earnings

In relation to the fourth ground I have already outlined the evidence available

to the learned trial judge. As in the case of loss of earnings to-date, the award was within the parameters of the evidence

adduced. In these circumstances I would not interfere with the award made. The learned trial judge expressly had regard to

Reddy v Bates.

6. General damages

The award for general damages was divided into an award for pain and suffering to-date in the amount of €80,000 and for

pain and suffering in the future of €100,000.

Central to the issue on the award of general damages is the conflict between the evidence adduced on behalf of the

respondent and on behalf of the appellant as to the nature and extent of the brain injury suffered by the respondent. The

appellant relies heavily on a divergence between the opinion expressed by Mr Michael O’Sullivan, Consultant Neurosurgeon,

for the respondent in his first report dated 19th October 2001 and his evidence given at the hearing. On this basis it is

submitted that the weight of the evidence did not support a finding that the plaintiff had suffered significant brain damage

and that accordingly the award of general damages was in all the circumstances grossly excessive. The only medical

evidence adduced on behalf of the appellant was that of Dr. Hugh Staunton, a neurologist.

The opinion of Mr O’Sullivan in his report of 16th March 2001 is that the respondent had moderate traumatic brain injury

with symptoms of poor memory and change in personality and that it was unlikely that any future recovery would occur. Mr

O’Sullivan had a second consultation with the respondent in October 2001 and furnished a report dated 19th October 2001

in which his opinion and prognosis was unchanged from that arrived at the previous March. A further report was based on a

consultation on the 19th September 2003 and again his opinion and prognosis remained unchanged.

In his evidence Mr O’Sullivan said that he first saw the plaintiff in October 2000. At that time he had no access to reports of

any other doctor or medical specialist and had no access to hospital records. He had sight of a CT scan of the cranium

performed some four months following the accident which was normal. His opinion then was that the respondent had

suffered a moderate diffuse type brain injury. He saw the respondent again in March 2001 and furnished his report on the

16th March 2001 when the respondent had symptoms consistent with a moderate diffuse brain injury. He saw the

respondent again in October 2001 and September 2003 and on each occasion his opinion remained unchanged. On each

occasion on which he saw the respondent he carried out the Serial Seven test. On each occasion it was slow. On the first

occasion the respondent’s immediate recall were three out of four and on the subsequent two occasions two out of four.

The test entails the patient being asked to subtract seven in a serial manner from one hundred and timing the exercise. The

respondent had great difficulty in performing the test. A diffuse axonal injury can result in cognitive impairment particularly

in memory, information processing and attention span and the test is used to elicit these abilities. His opinion was that the

respondent had poor pre-morbid cognitive ability which was exacerbated and compounded by the injury which he sustained

in the accident and the combination of these two factors would make it difficult for the respondent to undertake gainful

employment. His opinion was that the respondent suffered a moderate traumatic brain injury of a diffuse axonal type.

Patients may recover from such an injury for up to two years but thereafter there is very little improvement.

In cross-examination he corrected his reference to the Serial Seven test carried out on the 16th March 2001 as the test was

normal on that date: however on an earlier test on the 11th October 2000 the test was slow and the respondent made

numerous mistakes. On other occasions the respondent did not complete the Serial Seven tests. The respondent suffered a

period of post-traumatic amnesia of three days and from the literature this will determine the outcome of a mild to moderate

head injury: the outcome is not determined by performance on the Glasgow Coma Scale. He did not attach significance to a

clear MRI or CT scan for an axonal type injury. It remained his opinion that the respondent suffered a diffuse brain injury in

the accident.

Mr O’Sullivan’s was not the only evidence. Dr. L. Fitzpatrick, Consultant Psychiatrist, gave his opinion that the respondent

was suffering from organic personality disorder with cognitive impairment resulting from the head injury sustained in the

accident. There had been a poor response to therapeutic intervention and the prognosis for recovery in his opinion was poor.

In later reports he noted significant personality change and depression. His opinion was that the deficits which he outlined

are a consequence of the injury sustained by the respondent in the accident. Finally in a report of the 14th June 2004 he had

this to say:-

“In view of Mr Moran’s established cognitive impairment and his propensity to substance abuse I would consider him an

extremely vulnerable young man and one who is unable to manage his financial affairs particularly if awarded a

significant sum of money. I also would have serious concerns regarding his vulnerability to exploitation by others. At

present Mr Moran’s parents play a very supportive role in his life; consideration has to be given to the future however

and the likelihood of Mr Moran requiring some type of care environment in the absence of his parents in the future. On

the basis of these concerns therefore I would recommend that Mr Moran should be made a Ward of Court prior to the

assessment of his compensation claim.”

Dr. Simone Carton, Clinical Neurophysiologist, detailed the very significant changes in the respondent’s life following the

accident and attributed these to significant traumatic brain injury in the accident.

The learned trial judge was greatly influenced by the reports of Dr. Brenda O’Halloran, the respondent’s General

Practitioner, who dealt in very great detail with the change in the respondent following the accident.

There was also available to the court the evidence and a report of Dr. Kieran O’Driscoll, Consultant Neuropsychiatrist. On

the basis of a three day period of post traumatic amnesia he was of opinion that the respondent suffered traumatic brain

injury of moderate severity.

For the appellant Dr. Hugh Staunton, a Neurologist, gave evidence. He examined the respondent, once only, on the 24th

March 2003. The respondent outlined his then present condition in relation to his injuries. Dr. Staunton did not think that

the accident was sufficient to cause such a long term outcome. Following that report he obtained information of hospital

attendances by the respondent prior to the accident. In the period 1985 to 1987 he attended with complaints of being bad

tempered, of headache and anxiety. He also learned of the normal MRI scan carried out in March 2002. If the respondent

had developed severe behavioural problems as a result of a brain injury he would have expected to see secondary changes

on the MRI scan at that time and accordingly a negative MRI scan is evidence against significant brain injury. In relation to

the comments in evidence of the respondent’s Neurophysiologist these were outside the realm of that expertise. He would

expect to see secondary atrophic changes in the brain on the MRI scan if the brain injury was severe. While it is difficult to

come to an integrated answer he would feel that the problems of the respondent are psychological or psychiatric rather than

neurological. In cross-examination Dr Staunton said that he could not say what was wrong with the respondent. He would

agree that the respondent has a post-accident syndrome but not that it was associated with brain damage. He accepted that

the respondent had a significant head injury. He was adamant that the significant affect on the respondent would be

apparent on an MRI scan if it was due to a severe brain injury. However he had no explanation of how the respondent

ended up in his then present condition. He accepted that in his initial report he said that the respondent experienced a

significant head injury with a significant pre-traumatic and post-traumatic amnesia.

Clearly there was a conflict in the evidence. However Dr. Staunton’s evidence was to the effect that the respondent did not

suffer a severe brain injury but did suffer a significant head injury. The respondent did not claim a severe brain injury but

rather a moderate brain injury which impacted on the respondent’s pre-morbid cognitive ability. There were, however, other

matters in conflict in the medical evidence. It is the function of the learned trial judge who heard the witnesses, and indeed

had the opportunity of hearing and observing the respondent, to resolve these conflicts. There was ample credible evidence

to support the learned trial judge’s findings and accordingly I would not interfere with the same.

7. Future Care Costs

This aspect of the respondent’s claim was based on a report of Noreen Roche, Nursing Consultant, dated 21st June 2004

and actuarial evidence. Ms Roche’s report was duly disclosed to the appellant. Notwithstanding this the appellant did not,

pursuant to the Rules of the Superior Courts, Order 39, Rule 45 disclose an intention to call a nursing consultant as a

witness nor did he disclose any nursing consultant’s report of his own. The finding of the learned trial judge as to the

support which the respondent required up to the date of hearing and would require into the future is supported by the

medical evidence and Ms Roche’s report.

On day 3 of the trial counsel for the respondent informed the court that he wished to call Ms Roche out of sequence as she

could not be present after that day as she was travelling to China. For the appellant counsel submitted that there was no

evidential basis for evidence of care requirements at that stage. The respondent relied upon the evidence of Dr. O’Driscoll,

the only medical witness who had up to then given evidence. His reports had been seen by the learned trial judge and were

admitted in evidence. The effect of Dr O’Driscoll’s evidence, according to the trial judge, was that the respondent would

require minimal supervision. Counsel for the appellant admitted Ms Roche’s report “on that basis”. Then followed the

following exchange:-

“Mr Tynan (for the respondent) – I will call her briefly. If my friend will permit the report then there is no

difficulty.

Mr Justice Johnson – Make such use of it as you will but as far as I am concerned it is of minimal

significance. Make whatever you want.

Mr Tynan – We can do it on that basis, My Lord. You consent to that? Do it on the basis of the report.”

Dr. O’Driscoll’s report is comprehensive and sets out the documents which

were provided to him for the purposes of the report. The documents included reports of the other medical witnesses called.

From the report it is clear that the respondent as a result of moderate traumatic brain injury suffers inter alia from

symptoms of poor memory to a significant degree. From Dr O’Driscoll’s report it appears that the respondent cannot

remember conversations. He cannot remember what his doctors tell him. He is a musician but has difficulty remembering

tunes which he knew from before the accident. He has forgotten people from his class at school, including their names. He

cannot either add or subtract or deal with money. He rarely knows what day it is. A collateral history taken by Dr.

O’Driscoll from the respondent’s father makes clear that while the respondent had shown improvement he had difficulty in

attending to his personal appearance in terms of shaving and cleanliness. His medical advisers, to whose reports Dr

O’Driscoll had access, disclose that his compliance with medication and attendance on doctors was poor and that he forgot

to take his medication. He suffered from poor concentration and slowness in mental activity. In his evidence Dr. O’Driscoll

said that the respondent was neglecting himself and not washing or shaving properly. He was very sluggish mentally. Dr.

O’Driscoll was asked if in his opinion the respondent required a certain amount of care or attention from outsiders and how

the respondent would cope if living on his own. His reply was as follows:-

“I think he would struggle. He would certainly struggle in complying with medication, not necessarily because of him

being obstructive, but I think his memory is so poor I doubt he would remember if he had taken his medication. For that

reason alone he would require supervision. I think he would also potentially withdraw and neglect himself. He has a

tendency to isolate, and with the apathy, he would need someone there to stimulate and encourage him. I think he is

going to need his life, in a sense, organised for him with specific tasks and goals to which he could direct himself. In the

short term with encouragement and motivation I think he could achieve a certain amount.

Dr. O’Driscoll was asked if the respondent could handle his own money and he replied as follows:-

“No, for a few reasons. One is, he says himself that he has difficulty in actual calculations, so I think he would have

difficulty on that simple level. But I think he would struggle to remember what decisions he had made, be able to plan

ahead and anticipate the consequences what he did with his money. So I think he would be quite vulnerable.”

Finally Dr. O’Driscoll was asked what the respondent’s position would be when his parents are no longer there to look after

him and his reply was as follows:-

“He will need more help. The difficulty would be, also, in respect of relationships, building up a social network, having

a partner, married, children, friends, work colleagues. I would worry about his social network. He does not display an

ability to construct that safety net around him.”

What is clear from Dr. O’Driscoll’s evidence is that at the date of the hearing the respondent required the assistance of his

parents and that when they are no longer available to him he will require even more assistance. On the evidence of the

respondent’s general practitioner Dr. O’Halloran, which was given later in the hearing, the respondent’s deficits and needs

became much clearer. Her evidence was in accordance with her disclosed correspondence and reports which were available

to the appellant in advance of the hearing so that nothing in her evidence could have come as a surprise to the appellant.

Thus in a report of 15th September 2003 she records that the respondent lived mainly on sandwiches and whatever meals

his parents deliver out to him. She concludes her report as follows:-

“I am concerned for his future in that I don’t know how viable he will (be) on his own in the long run or how

capable he will (be) at looking out for himself and basically his employment prospects are bleak.”

In a report of 26th May 2004 Dr. O’Halloran records a collateral history from the respondent’s father as follows:-

“He also confirmed that there were major problems in dealing with Roy on a day-to- day basis. He could

forget to eat. He did not seem capable of caring for himself, he could forget his medication and he could

forget doctors’ appointments. All in all Roy’s mother and father (have) spent quite a bit of time looking out for

him and organising his life.”

Dr. O’Halloran expressed the opinion that the respondent is someone who as he gets older will find it increasingly difficult to

look after himself.

In his reports, which were available to the appellant, Dr. L. Fitzpatrick, Consultant Psychiatrist, refers to the very supportive

role the respondent’s parents play in his life and states that in the absence of his parents he would require a care

environment and should be made a Ward of Court.

Dr. Simone Carton, Clinical Neuropsychologsit, in her report of July 2003, which was available to the appellant, records the

following:-

“At the moment Mr Moran requires daily support in terms of ensuring that he is taking his medication and that he has

safely undertaken basic activities of daily living.”

But for the intervention of the trial judge, it is submitted, that Ms Roche would have been cross-examined.

From the documents before the court the following matters are clear:-

1. By virtue of the respondent’s disclosure the applicant was aware of the witnesses to be called on behalf of the respondent

and had available his expert’s reports.

2. The appellant had available the report of Ms Roche. From the appellant’s disclosure it is clear that he did not propose

calling any witness to counter the same.

3. The report of Ms Roche discloses the expert reports upon which it is based. With one exception the witnesses gave

evidence. The exception related to the respondent’s orthopaedic injuries.

4. The learned trial judge accepted the medical evidence adduced on behalf of the respondent.

5. At the time of admitting Ms Roche’s report the respondent was aware of the further medical evidence to be adduced on

behalf of the respondent. The appellant called only one medical witness who did not dispute the evidence on behalf of the

respondent as to his care needs.

Ms Roche’s report gave the cost of retrospective care for the respondent on the basis of the medical reports and of her own

interview with the respondent and likewise cost of future care. Her opinion was that the respondent would require three

hours care per day for fifty weeks of the year Monday to Friday and three hours care each Saturday and Sunday. For two

weeks each year he would require additional care in relation to holidays. She gave evidence that the cost of care on days

other than Sunday would be €10.45 per hour but on Sunday €20.90 per hour. From age sixty five her opinion was that the

respondent would require sleepover care in addition. Excluding such sleep-over care the annual cost as estimated by Ms

Roche was €22,723.49.

The learned trial judge dealt with Ms Roche’s evidence as follows:-

“Now, with regard to the future – and this is where I need the assistance of you gentlemen – it is a difficult

case to assess, regarding the maintenance and care he needs in the future; but it was accepted by – Noreen

Roche’s report was handed into me, and I am taking the lowest presenter of maintenance care set out in that.

And I will allow the following hours, which can be worked out, then: for the next twenty years, two hours a day

– and that is on the basis that hopefully his parents will continue to be in a position to have an eye out for him

for the next twenty years. Thereafter I will allow three hours a day. And you gentlemen can do the calculations

on that.”

Mr Brendan Lynch, an Actuary, was then called and he gave evidence that the cost for the first twenty years is €138,212

and thereafter €129,580 making in total €267,792.00.

It is clear that the learned trial judge carefully analysed the evidence of Ms Roche in the light of the evidence as a whole. He

reduced substantially the care requirements suggested by her for the first twenty years from three hours per day to two

hours per day thus giving to the appellant free of cost the care afforded to the respondent by his parents for that period of

twenty years. Having regard to all the circumstances I am satisfied that in making this award no injustice to the appellant

occurred, notwithstanding that the respondent may have been lulled into a false sense of security by the learned trial judge’s

intervention immediately prior to the report of Ms Roche being admitted. I would not interfere with the award under this

heading.

Having regard to the foregoing I would disallow the appeal on each of the grounds 3 to 7 inclusive and which relate to the

quantum of damages awarded and would affirm the judgment and award of the learned High Court judge in respect of the

same.

1 and 2 Contributory Negligence

The evidence before the High Court was as follows. The respondent had no recollection of the evening in question. As to

the events of the evening the respondent led evidence of Mary Clifford. On the 23rd April 1999 she met with the respondent

and the appellant. They went to a bar which was some twenty minutes from Nenagh where she was living. They arrived at

the bar at about 9 p.m. and left at closing time. All three got into the appellant’s car the appellant driving, the respondent

being the front seat passenger and the witness the rear seat passenger. She was not worried about the capacity of the

respondent to drive. She noticed nothing strange about him and considered him “fine”. The accident occurred when they

were approximately half way home and during the period of driving she had no concerns as to the ability of the respondent

to drive because of his consumption of drink. She thought the accident occurred around midnight. She had perhaps five

drinks during the course of the evening. If there was evidence that the respondent was drinking cider and shorts she would

be surprised as he normally drank pints. She did not now how much the appellant or the respondent had to drink as she was

not with them all the time throughout the evening.

Sean Hogan a fellow musician of the respondent gave evidence to the effect that on occasion he drank with the respondent

and that on a night out the respondent would normally have five, six or at most seven pints.

Garda Graham Rollie, the investigating Garda, gave evidence. He arrived at the scene of the accident at 2.40 a.m. Both the

appellant and the respondent were standing beside a crashed car. Ms Clifford was in the rear seat of the car. He spoke to all

three and got a smell of intoxicating liquor. The respondent admitted driving and was arrested for drink driving. A sample

taken at the Garda Station was returned with a reading of 155 milligrams of alcohol per 100 milligrams of urine. The

respondent was charged and pleaded guilty. The legal limit at the time of the accident was 80 milligrams of alcohol per 100

millilitres of urine.

The appellant gave evidence. He, together with the respondent and Ms Clifford, arrived at the bar at approximately 8.30

p.m. and remained there until closing time, that is about 1.30 a.m. the following morning, the 24th April 1999. He had seven

or eight pints. The respondent most likely had the same amount. The respondent was drinking large bottles of cider and had

a short as well. Ms Clifford was also drinking large bottles of cider but had somewhat less perhaps five or six large bottles.

The learned trial judge’s finding was succinct:-

“On the question of drink, yes, he undoubtedly travelled in the car, and I think, in this day and age with the

kind of publicity attached, there must be a finding of contributory negligence regarding that, and I will so find

to the extent of 15%.”

On the basis of this evidence, on behalf of the appellant, it is submitted that as a matter of probability the appellant and the

respondent having been in each others company in the bar all evening the respondent must have known that the appellant

was incapable of driving safely. Reliance is placed on the decision in Judge v Reape [1968] 1 I.R. 226 where the plaintiff

and the defendant had been in each others company for twelve hours during which time the defendant consumed a gallon

and three pints of beer and a small whiskey. The plaintiff’s evidence as to the defendant’s condition was that he did not

notice anything about him and that he was not drunk. O’Dálaigh J. at page 229 said:-

“It has not been questioned by counsel for the plaintiff – nor, indeed, could it be - that a person who

knows, or should know, that a driver is by reason of the consumption of alcohol not fit to drive, and who

nevertheless goes as the driver’s passenger is not taking reasonable care for his own safety and must,

therefore, be found guilty of contributory negligence.”

It was held that the jury’s finding of no negligence on the part of the plaintiff was made in the face of the plainest evidence

to the contrary and a re-trial was ordered.

The appellant also relied on the decision in Hussey v Twomey and Ors, the High Court, unreported 18th January 2005

where the learned High Court judge assessed the plaintiff’s contributory negligence at 40%. The decision was upheld by the

Supreme Court on appeal: the Supreme Court, unreported, 21st January 2009.

For the respondent the correctness of the decision in Judge v Reape is accepted. However, it is submitted that this court

should only interfere with the determination of the trial judge on apportionment if it is satisfied that there was a gross want

of proportion in the apportionment of fault between the parties which amounted to a gross error on the part of the trial judge

and that on the evidence before the court no such gross want of proportion exists in this case. Reliance is placed on a

passage from the judgment of Walsh J. in O’Sullivan v Dwyer [1971] I.R. 275:-

“(A) judge, in directing a jury, must direct their minds to the distinction between causation and fault and that they

should be instructed that degrees of fault between the parties are not to be apportioned on the basis of the relative

causative potency of the respective causative contributions to the damage, but rather on the basis of the moral

blameworthiness of their respective causative contribution. However, there are limits to this since fault is not to be

measured by purely subjective standards but by objective standards. The degree of incapacity or ignorance peculiar to a

particular person is not to be the basis of measuring the blameworthiness of that person. Blameworthiness is to be

measured against a degree of capacity or knowledge which such a person ought to have had if he were an ordinary

reasonable person…Fault or blame is to be measured against the standard of conduct required of the ordinary

reasonable man and the class or category to which the party whose fault is to be measured belongs.”

In relation to the decision of the Supreme Court in Hussey v Twomey the Supreme Court’s conclusion that the

apportionment of 40% for contributory negligence to the plaintiff should not be disturbed does not represent a wholehearted

endorsement of that apportionment but rather a principled approach whereby the court declined to interfere on the basis that

the apportionment against the plaintiff was not so grossly excessive as to justify interference in the circumstances of that

case.

Conclusion on the Law

The Civil Liability Act 1961 section 34 insofar as relevant provides as follows:-

“34(1) Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that

the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or one for whose

acts he is responsible (in this part called contributory negligence) and partly by the wrong of the defendant, the damages

recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having

regard to the degrees of fault of the plaintiff and the defendant.”

Section 34 was considered by the Supreme Court in O’Sullivan v Dwyer [1971] I.R. 275. It was there held that fault in

section 34 is not equated to causation but flows from causation in the sense that if there is no causation there can be no

fault: “fault” in section 34 is equated with blameworthiness and the blameworthiness of the plaintiff is the measure for the

reduction of damages recoverable by him and not the potency of his causative contribution to the damage.

This court when asked to interfere with an apportionment of liability should only do so if there has been an error of law or

having regard to undisputed facts and findings of fact there is a significant disproportion.

In general it can be said that the blameworthiness of the driver will be greater than that of a passenger permitting himself to

be driven. The decision to drive is that of the driver and it is he that poses the risk to his passengers and to other road users.

Accordingly an apportionment to such a passenger will normally be less than that to the driver. However there may be other

elements of fault, for example failure to avail of a seat belt. In such circumstances the correct approach for the court is to

take an overall view of the blameworthiness of the passenger and arrive at an apportionment which is just and equitable.

Should there be two or three elements of fault it is not necessary that the court should ascribe a percentage to each but

rather on an assessment of the blameworthiness as a whole an apportionment should be made.

The law on this topic was most recently considered by this court in Hussey v Twomey and Ors, the Supreme Court,

unreported 21 January 2009. In the course of his judgment Kearns J. said:-

“Finally, in relation to the extent of the apportionment, the same must be seen as one made against the back drop of

changed societal perceptions as to how issues of this sort are to be regarded…In the context of a passenger travelling

with an intoxicated driver the fault lies in the decision to travel with such a driver in the first instance. The more the

passenger should have realised, or did realise, the risk being undertaken the greater the degree of contributory

negligence. There is thus scope for a much higher finding of contributory negligence in this context than in the case of a

failure to wear a seat belt. It is inescapable in my opinion to think other than that the plaintiff was well aware of the

defendant driver’s inebriated condition, having spent an hour in his immediate company and having also had plenty of

opportunities of seeing the defendant driver during the time spent in these licensed premises. On her own evidence she

made no effort to ascertain whether he was fit to drive. I am satisfied, as was the trial judge, that she must have been

aware his driving was likely to be impaired and the circumstances were clearly such as to put her on inquiry. In all of

the circumstances I believe the apportionment of 40% for contributory negligence should not be disturbed.”

Conclusion

The following circumstances seem to me to be relevant to the apportionment of liability in this case:-

1. The evening was in the nature of a joint venture in that the appellant and the respondent travelled together by car on a

twenty minute journey to a bar. On the evidence it is clear that their intention was to travel on the return journey having

consumed alcohol.

2. They spent a period of time from approximately 8.30 p.m. to at least 1 a.m. the following morning in a bar in each others

company.

3. They, in each others presence, consumed between six and nine alcoholic beverages in that period: on the respondent’s

case he consumed between five and seven pints of cider and one short while in his presence the appellant had at least six

pints..

4. The respondent knew, or certainly ought to have known, that the appellant’s ability to drive was impaired by drink and

quite clearly ought not to have driven. This is so regardless, in the circumstances of this case, of whether or not the

appellant’s appearance indicated the extent of his impairment as the appellant and the respondent were in

each others company throughout the evening and the respondent had actual knowledge of the

appellant’s consumption of alcohol.

5. The accident, the car having left the road, was entirely attributable to the appellant’s driving.

6. However the greater blameworthiness is that of the appellant. It was his decision to drive to the bar and to drive home

notwithstanding his consumption of alcohol. It is he who had control of the car and its driving and it was he who represented

a danger not just to the respondent but to road users and the public in general.

Having regard to the foregoing circumstances I am satisfied that the apportionment of 15% of fault to the respondent

represents a significant disproportion between the respective blameworthiness of the appellant and the respondent.

Accordingly I would set aside that part of the judgment and order of the High Court dealing with apportionment of fault and

substitute for the same an apportionment of 35% to the respondent and 65% to the appellant.

Roy Moran v Séan Fogarty