High Court: 55-year-old pedestrian injured by car skidding on ice awarded €189k

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The court accepted that the woman went to the assistance of a driver whose car had crashed into a ditch, and that while doing so, another driver rear-ended the stationary car; causing it to shunt forward and roll over the woman’s ankle.

Finding that both drivers were negligent, Mr Justice Barr accepted that the injured woman was a ‘rescuer’ in the legal sense, and was therefore entitled to damages.

Background

Ms Valerie Power was permanently disabled due to a road traffic accident which occurred on a country lane in County Waterford, on the evening of Sunday 28th November 2010 – prior to which ‘the country had been experiencing extremely severe weather conditions’.

While Ms Power was assisting Ms Deirdre Eustace, whose car had crashed into the ditch after skidding down an icy hill; a vehicle driven by Mr Philip Whelan came down the same hill, collided with the rear of Ms Eustace’s vehicle, causing it to be shunted forward and to roll over Ms Power’s ankle.

Rescue Doctrine

Firstly, Justice Barr had to consider whether Ms Power was a “rescuer” in the legal sense, when she went across the road to assist Ms Eustace to get her car out of the ditch.

Justice Barr explained that at common law; ‘a person who goes to the assistance of another person who is injured or in a position of danger will be entitled to sue that other person if the rescuer is injured in the course of making the rescue attempt, as long as the initial situation in which the person being injured finds themselves, was caused by the negligence of that person’.

Justice Barr stated that the circumstances of Ms Power’s case were very similar to those that arose in Tolley v. Carr EWHC 2191.

Considering all the evidence, Justice Barr was satisfied that both drivers were negligent to varying degrees, and that in responding to the plea for assistance made by Ms Eustace; Ms Power was in the category of a “rescuer” in the legal sense.

Responsibility

Accepting that there was negligence on the part of both drivers in failing to keep adequate control of their respective vehicles, when descending the hill and attempting to negotiate the bend – Justice Barr also accepted the evidence submitted by two engineers that having regard to the extreme weather conditions at the time, ‘it was probably a combination of excessive speed, excessive turning of the steering wheel and excessive braking, which caused both vehicles to go into a skid’.

In particular, Justice Barr accepted that in travelling at 15 mph, Mr Whelan was going too fast.

In considering the respective degrees of fault between Ms Eustace and Mr Whelan, it was accepted that while Ms Eustace’s car went into a skid and ended up in the ditch, ‘no person was injured because of that event’.

Ms Eustace was therefore found to be 10 per cent liable for Ms Power’s injuries, whereas Mr Whelan was 90 per cent liable.

Justice Barr rejected submissions that Ms Power acted negligently in relation to her own safety; and declined to make any finding of contributory negligence against her.

Quantum

In assessing the quantum of damages, Justice Barr had particular regard for the continued pain and permanent disability resulting from Ms Power’s injuries; which had already required ‘extensive operative treatment’, culminating in a fusion of the ankle joint in October 2012.

The Court heard that Ms Power never drove a car, and therefore walking ‘was not only her sole means of getting about, but was also a significant part of her recreational life’.

As a result of her injuries, Ms Power was not able to walk on soft or uneven ground, such as on a field and as such, was unable to go to any matches in which her grandchildren are playing.

While Ms Power ‘did not make much of the cosmetic aspect of her injuries’, Justice Barr was satisfied that the scars constituted ‘a significant cosmetic blemish’.

Furthermore, various doctors agreed that Ms Power’s level of disability would be permanent – and the question of further surgical intervention was a factor which had to be considered when assessing her future condition.

Finally, having regard to the decision in Meehan v. BKNS Curtain Walling Systems Limited IEHC 44; Justice Barr was satisfied that the injuries in Ms Power’s case were even more severe than in Meehan; accordingly, Ms Power was awarded €90,000 for pain and suffering to date, €70,000 for pain and suffering into the future, and €29,000 for agreed special damages.

In all the circumstances, an award totalling €189,000 was made in favour of Ms Power.