Irish triathlete awarded €134,000 in personal injury claim

About this case:

• Judgment:
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Ms Woods (47) is a secondary school teacher from Gaddrystown, Slanemore, Mullingar, Co Westmeath, who was jogging on the public highway with a friend on the Ballynacarragy to Mullingar Road, when the accident occurred on January 22nd 2013.

Ms Woods set out jogging two abreast with a friend on the morning which started bright and crisp, it had been cold and frosty that January and she encountered pockets of fog.

Ms Woods was on the inside and was facing oncoming traffic when a tractor and trailer being driven by a friend passed her going in the same direction on the far side of the road and then she saw Mr Tyrell’s van which almost immediately went onto the grass margin.

Ms Woods felt her line of escape was cut off, did not know what to do but went on to the grass margin hoping that the van would go back on to the highway.

Unfortunately the van continued on the grass margin and the plaintiff was struck with the mirror of the van and suffered quite significant injuries.

Liability

Mr Tyrell accepted that some liability must be attached to him, but pleaded that the accident was in the main caused, or contributed to, by reason of the negligence of Ms Woods in her jogging two abreast (though she was on the inside) on the highway.

Mr Tyrell argued that her jogging on the highway on a foggy morning rather than being on the grass margin caused his driver to react by going on to the margin to avoid another vehicle following the tractor and being driven by a Mr Keegan.

Evidence from the engineer, Mr Glynn, was uncontested. He examined the location just over a week after the accident in which he could clearly see tyre marks of the defendant’s van on the grass margin.

He also stated that the carriageway on which Ms Woods and her friend were jogging, having been 3.1m wide would have comfortably fit the 1.63m width of the van and left approximately 1.4m on the road for the two joggers to fit comfortably.

Mr and Mrs Keegan, who witnessed the accident, gave evidence stating that they did not believe the van was travelling fast.

Counsel for Mr Tyrell criticised Ms Woods for not having worn a high visibility jacket, however Justice Cross was satisfied that her clothing at the time had been shown to him, and he was in no doubt that it was bright.

Justice Cross stated that the accident was clearly caused by Mr Tyrell’s driver miscalculating.

Had the driver continued along the road, even had Ms Wood’s not stepped into the grass margin which Justice Cross believed she would have done so, evidence given by the engineer shows that there was sufficient room for Mr Tyrell’s vehicle to pass by Ms Woods and her friend still jogging at the side of the road, even if the other carriageway was taken up by the Keegans’ vehicle.

Unfortunately the defendant drivers’ action in driving the van vehicle onto the grass margin is indicative of either that he was not keeping a sufficient lookout until the last minute; or that he was driving at an excessive speed; or in any event that he entirely miscalculated the situation thinking that he should drive onto the grass margin thus clearly cutting the plaintiff off from her natural line of escape on to the grass margin.

Justice Cross found that had the van continued on the roadway Ms Woods would have gone on to the grass margin and no accident would have occurred.

Damages

Justice Cross stated that it was ‘trite law to say that the purpose of general damages is to place a plaintiff in the same position as he or she had been before the commission of the tort’ as this was an imprecise exercise in cases of pain and suffering.

Considering Rushton v. National Coal Board 1 QB 495, Justice Cross stated that in such cases, an award of money provides ‘notional or theoretical compensation’, taking ‘the place of that which is not possible’.

In addition to consideration of literature such as McMahon and Binchy,Law of Torts (4th Edn, Bloomsbury 2013), Justice Cross carefully reflected on the principles of damages and proportionality as discussed in cases such as M.N. v. S.M. 4 I.R. 461; Sinnott v. Quinnsworth ILRM 523; Mullen v. Minister for Public Expenditure and Reform (decision 5th May, 2016); Gough v. Neary 3 I.R. 92; Nolan v. Wirenski IECA 56; and Shannon v. O’Sullivan(Unreported, 18th March, 2016).

In considering Ms Woods’ injuries, Justice Cross stated that he had been furnished with reports from ten medical experts on behalf of Ms Woods, and four experts on behalf of Mr Tyrell.

Justice Cross found that the reports from both parties were not substantially contradictory, and there was no suggestion that Ms Woods was exaggerating her complaints.

Ms Woods suffered injuries to her right hand and wrist; right elbow; shoulder; an injury to her jaw with implications for her bite; trauma to her left neck and cervical spine; trauma to her sternum, and left breast.

She also suffered psychological injuries, suffered from loss of balance or dizziness and dental pain, for which was treated with a mixture of counseling and medications, and courses in physiotherapy.

Prior to the accident, Ms Woods was a very active lady who engaged in numerous demanding physical sports including triathlons. However, since the accident Ms Woods has been unable to participate in triathlons, instead walking 8km most days into a local town.

Justice Cross stated that he was hopeful that once the trauma of litigation passed, that there would be some easing of the psychological symptoms and that whereas none of the individual symptoms caused significant debilitation to Ms Woods, the combination of all the different symptoms as outlined in the medical reports was such that her injuries must be regarded as significant and likely to persist indefinitely into the future.

Special damages for medication and medical expenses were agreed in the sum of €14,000, and Justice Cross awarded damages to date for pain and suffering to date at €80,000, with the general damages into the future assessed at €40,000.