Court of Appeal finds judge’s decision in Galway Motor Rally case ‘perverse’
The Court of Appeal has set aside an order of the High Court in relation to an accident which left a man requiring to have his leg amputated, finding that the trial judge’s assessment of the damages was “perverse”.
The plaintiff, Blaine Murphy, was struck by a car while attending the Galway International Motor Rally, as a result of which he had to have a leg amputated and was fitted with a prosthesis. He had been sitting beyond a “blind crest” in order to take pictures of the event.
The plaintiff had sued County Galway Motor Club Limited, Irish Motor Sport Federation Limited (Motor Sport Limited), Motor Sport Safety Team, and Brian Melia, the driver of the car. However, the claim against Mr Melia was dismissed.
The trial judge accepted that the plaintiff would suffer a life long disability. He had awarded a total of €597,498 in damages, but apportioned 66.66% of the liability to the plaintiff, and therefore granted judgment against the three remaining defendants for €199,166 together with costs, to be taxed in default of agreement.
The plaintiff appealed this finding, arguing that the finding of 66.66% contributory negligence was perverse, that the sums awarded in respect of damages were lacking in proportionality, and that his potential net earnings had been incorrectly calculated.
Ms Justice Irvine noted that the Court of Appeal has jurisdiction to overturn an award of damages if it is satisfied that no reasonable proportion exists between the sum awarded by the trial judge and what the appellate court itself considers appropriate in respect of the injuries sustained. She cited Foley v. Thermos Cement Products Limited 90 ILGR 92 and Rossiter v. Dun Laoghaire Rathdown County Council 3 I.R. 547 in support.
She found that principle and authority require damages to be fair, objectively reasonable, and proportionate, and cited Kearney v. McQuillan and North Eastern Health Board IESC 43 M.N. v. S.M. IESC 17.
Damages would only be considered fair and just if they were proportionate, not only to the injury, but when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude.
In the present case, Ms Justice Irvine disagreed with the trial judge in his assessment of the general damages for pain and suffering in the future. The trial judge had awarded €100,000 under this category.
However, Justice Irvine observed that the age at which the plaintiff had suffered this injury was relevant. She noted that at only 19, the plaintiff was entering what ought to have been the most dynamic and thrilling period of his life in terms of work, leisure and social activity.
Instead, his injuries were such that he would be unable to pursue his chosen career as a plumber, would be unable to participate in most sports, would suffer discomfort and disability, and was at risk of further complications in terms of his mobility as he aged.
Of even greater significance was the fact that the plaintiff would start every day of his life with the task of attaching a prosthetic limb and would end each day with the reverse process.
The judge therefore substituted a sum of €175,000 for the original sum awarded.
She also corrected an error on the part of the trial judge, who had mistakenly identified loss of earnings to date as €115,000, rather than €159,800.
The judge also disagreed with the High Court judge’s calculation of future earnings, finding that it was perverse for the judge to calculate future earnings on the basis of him working for 39 hours per week at minimum wage.
The evidence suggested that the plaintiff was an intelligent, industrious and capable young man, and to consign him to minimum wage for his whole life did not make sense.
The judge therefore proposed uplifting the differential of €122 per week which was selected by the trial judge and replacing it with €165 net to allow for the fact that the plaintiff would as his career advanced move somewhat beyond the minimum wage in the construction industry.
Thus, the initial award before consideration of contributory negligence was amended to €752,909.
In relation to the trial judge’s decision in relation to contributory negligence, it was noted that the trial judge had found that common sense should have suggested to the plaintiff that he should not position himself in a position close to the road just beyond a “blind crest”, that he had the benefit of the event’s programme which contained a safety statement, and that by sitting down he had allowed himself less time to react in an emergency.
However, Justice Irvine, while acknowledging that the plaintiff had been to similar events before, and was therefore not completely ignorant of the risks, he could hardly be described as somebody who did not need to be warned about which areas were hazardous.
The plaintiff’s blameworthiness for not positioning himself further back from the road could not be equated to the failure of the defendants, who were experienced professionals, to identify the hazardous area for the purposes of ensuring that spectators did not gather at that point.
In relation to the fact that he had purchased a programme containing a safety sheet, the judge noted that the programme was 100 pages long, that the safety sheet was not obvious, and that the safety sheet stated that there would be marshals to guide spectators away from dangerous areas.
However, this had not been done. Further, while there was a diagram depicting a flat image of a crest or jump it gave no guidance to the reader as to how far away from the roadway or the crest they would have to stay to avoid any potential risk.
Thus, while the plaintiff may have seen the statement, it would not have been blindingly obvious that he could not stand where he had stood when he was hit, and that indeed, he might have thought it was safe to stand there, as there were no marshals telling him otherwise.
In relation to the fact that the plaintiff had sat down, it was accepted that whether or not he had been standing, he would not have been able to get out of the way of the car in time.
Thus the judge concluded that:
“For the aforementioned reasons I believe that the apportionment of liability by the trial judge was indeed perverse. Of course I use that word in the legal sense only. For the reasons I have earlier outlined, I would apportion liability as to 75% against the first, second and third named defendants and 25% as against the plaintiff. Accordingly, I would set aside the order of the High Court and in its place I would make an award of €564,682 (€752,909- €188,227).”