Barry Kelleher: Courts expect common sense from personal injury plaintiffs



Barry Kelleher
Barry Kelleher

Barry Kelleher, solicitor at Comyn Kelleher Tobin, analyses a recent High Court judgment proposing greater personal responsibility and common sense in personal injuries claims.

In the personal injuries proceeding of Vincent O’Mahoney v Nicola McCarthy Hanlon and Waterford and Wexford Training and Education Board [2018] IEHC 657 (Keane J.), the plaintiff and first named defendant were employees of the second named defendant, where the incident giving rise to the claim occurred.

The plaintiff was cycling to work and, as he always did, cycled along a pedestrian pathway, through a pedestrian point of entry onto the second named defendant’s property. On this occasion, as he entered onto a road at an intersection from the pathway, without stopping, he collided with the first named defendant’s vehicle, which was being driven at a “relatively low speed”.

The plaintiff claimed the injuries were caused by the first named defendant’s manner of driving. Secondly, the plaintiff claimed that the second named defendant was liable, and in breach of his employment contract, for the injuries arising from the failure to ensure his safety while on its premises.

Judgment

Mr Justice Keane dismissed the plaintiff’s claim against both defendants and found that the incident was caused by the plaintiff’s failure to stop and dismount at the intersection of the path and the road. The court found that the regular use by the plaintiff and others of the pathway as a cycleway and the absence of signage indicating that cycling was not permitted was irrelevant. Mr Justice Keane noted that “foolhardy behaviour does not become reasonable behaviour merely because a number of people have engaged in it in the past”.

Importantly, the judge ruled that the common duty of care owed by an occupier was to take such care as is reasonable in all of the circumstances, having regard to the care which a visitor may reasonably be expected to take for his or her own safety.

Analysis

The judgment delivered in this case follows other recent judgments in applying a “common sense” approach to the duty of care owed to individuals. The judgment sets out that personal responsibility and the reasonableness of one’s behaviour will be applied to both parties whether that be the occupier, visitor, employer or employee.

The decision is to be welcomed on the part of defendants and their indemnifiers. This judgment is part of a trend of decisions in which the Courts are requiring Plaintiffs to use their own common sense to avoid injuries.

Comyn Kelleher Tobin

  • Barry Kelleher is a solicitor at Comyn Kelleher Tobin. You can view his profile here.