Neutral Citation no. (1999) 1871

Ref:

SHEE2740

 

 

 

Judgment: approved by the Court for handing down

Delivered:

08/01/99

(subject to editorial corrections)

 

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

QUEEN'S BENCH DIVISION

 

------------

 

BETWEEN

TIFFANY BROWN

Plaintiff

 

and

 

DAVID CAMPBELL HUGHES

Defendant

 

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SHEIL J

 

The plaintiff in this action is now aged 22, having been born on 4 May 1976. On 5 February 1996 at approximately 10.30pm she was the front seat passenger in a motor car driven by the defendant, which crashed into a wall at the T-junction formed by the Nettlehille Road with the Pond Park Road in Lisburn in the County of Antrim. The defendant subsequently pleaded guilty to a charge of dangerous driving causing grievous bodily harm to the plaintiff on the night in question. In this action the defendant admits that he was guilty of negligence causing the plaintiff personal injuries, loss and damage but alleges that the plaintiff was guilty of contributory negligence by reason of her failure to wear the seat belt fitted in the car and that her damages ought to be reduced accordingly.

The defendant, who is a fireman by occupation, had been the plaintiff's boyfriend for approximately 2 years prior to this particularly evening. That evening they had had an argument in the defendant's house when the plaintiff had told the defendant that their relationship was finally at an end. The plaintiff stated in evidence that she had wanted to telephone for a lift home from the defendant's house, 3 miles from her home, but that he would not allow her to use the telephone. The plaintiff left the defendant's house on foot to go to a nearby public telephone but stated that after she had walked a few hundred yards the defendant pulled up in his car beside her. She assumed that he was offering her a lift home and got into the front passenger seat of the car. According to the plaintiff she reached for the seat belt but, before she could put it on, the defendant suddenly accelerated forward throwing her back in her seat. She alleged that she was thrown from side to side as the defendant drove off at speed taking first a left hand turn onto the Ballymacash Road, without stopping, followed by a mini roundabout through which the defendant drove at speed onto the Nettlehille Road. The plaintiff alleged that the defendant then continued to drive at speed up the Nettlehille Road, at times on the wrong side of the road, before he eventually crashed into a wall on the far side of the road at the T-junction of the Nettlehille Road and Pond Park Road. The plaintiff stated that throughout the short journey she was screaming and shouting that she wanted out of the car and that she didn't want to die in the car. The plaintiff stated that while in the car she had no opportunity to put on the seat belt due to the erratic manner in which the defendant was driving the car and that in any event she had wanted out of the car because she was terrified.

The defendant in his evidence denied that he had refused to allow the plaintiff to telephone for a lift home from his house. He stated that he had told her that he would run her home, when he had had time to get his shoes on, but that she had replied that he could pick her up at the bottom of the road. He accepted that they had had a row over the ending of their relationship. He stated that when the plaintiff got into his car on his catching up with her, he did not see her make any attempt to fasten her seat belt then or at any stage. He stated that he himself was not wearing his seat belt and further stated that neither he nor the plaintiff was in the habit of wearing a seat belt on short journeys around Lisburn. The defendant accepted that he drove off quickly after the plaintiff had got into his car, causing her to move backwards in her seat. He stated that as he drove his driving "increasingly deteriorated". He accepted that he was upset and angry at the ending of the relationship and that he drove dangerously "to get his own back on her" clearly by terrifying her. He accepted that the plaintiff was screaming throughout the short journey about the manner in which he was driving and that she had said that she did not want to die in the car.

It is clear from the facial injuries sustained by the plaintiff that they would have been much less severe, and might have been avoided, if she had been wearing a seat belt; in that event she would have sustained rather different injuries.

Was the plaintiff guilty of contributory negligence in the circumstances of the present case? Section 2(1) of the Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1948, which is identical to Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 in England provides as follows:

"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

 

As to the meaning of the words in the section, see Charlesworth on Negligence, 9th Edition at paragraphs 3-20 to 3-31.

I accept the plaintiff's evidence that she did not get an opportunity to put on the seat belt before the defendant drove off at speed in the manner described by her, or at any later stage in the course of the short journey prior to the crash. Even if she had had that opportunity, it seems likely that the seat belt would in fact have locked due to the manner of the defendant's driving and that the plaintiff would not have been able to utilise it having regard to the evidence of Mr Wright, a consulting engineer called on behalf of the plaintiff, whose evidence I accept. I accept entirely the plaintiff's evidence as to the manner in which the defendant drove his car on this particular evening, which was outrageous. I do not find that the plaintiff was guilty of any contributory negligence in respect of her failure to fasten her seat belt.

Even if I had found that the plaintiff did have an opportunity to put on her seat belt and that it would not have locked so as to prevent her doing so, I would not in the circumstances of the present case have found that her injuries were the result of any "fault" on her part within the meaning of Section 2(1) of the Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1948; further, even if I had held that they were due to some fault on her part, I would not have held it to be just and equitable that her damages should be reduced to any extent "having regard to the claimant's share in the responsibility for the damage" sustained by her. In so stating, I am conscious of the decision of the Court of Appeal in England in Boothman v British Northrop Limited (1972) 13 KIR 112 in which Stephenson LJ, at 121-122, stated:

"Speaking for myself, I do not find that the words of Section 1(1) of the Law Reform (Contributory Negligence) Act, 1945, give any support to the view that the court can disregard negligence on the part of a plaintiff contributing to an accident if it thinks it just and equitable so to do. What the Section says is that `the damages recoverable in respect thereof' - that is, in respect of damage suffered by any person `as the result partly of his own fault and partly of the fault of any other person' - `shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage'.

 

It has been held that the principle of de minimis applies to this as to other branches of the law and that where the contribution of a plaintiff's negligence is virtually negligible it should be disregarded and the damages should be awarded him in full. If one looks at the words of Section 1(1) of the Act of 1945 they do not seem to leave much room for an application of the de minimis principle. But they certainly, in my view, do not encourage, and I very much doubt if they permit, not a reduction `to such extent as the court thinks just and equitable' but no reduction at all because the court thinks it just and equitable that there should be no reduction."

 

Davies LJ and Carminski LJ both agreed with the observations of Stephenson LJ on this point. The facts of that case were however quite different to the present case, being a master and servant action.

I now turn to the issue of damages. Special damage has been agreed between the parties at the sum of 641.16 in respect of loss of earnings. While a Smith v Manchester claim was put forward on behalf of the plaintiff in respect of a possible loss of earnings due to the lost opportunity to become "a real people model", I do not find that that claim has been supported by the evidence given in the course of the trial. The plaintiff is however entitled to a substantial sum for general damages for pain and suffering and loss of amenities in respect of the very serious facial injuries sustained by her, together with her other injuries, caused as a result of this accident. I had the benefit of seeing a photograph of the plaintiff taken approximately one year prior to this accident. It is clear that she was a very beautiful girl and, despite her serious facial injuries and permanent disfiguring scarring, still remains an attractive looking girl with the benefit of cosmetics. I had the benefit of hearing evidence from Mr Brennan FRCS, consultant plastic surgeon, who carried out a number of operative procedures to deal with the plaintiff's facial injuries. I also had the benefit of a number of medical reports from other specialists dealing with the plaintiff's other injuries. While not overlooking any of her other injuries, it is clear that the most serious injury was to the left side of the plaintiff's forehead including her left eyebrow. A skin graft was taken from her left upper inner arm and applied to the raw areas of her forehead. The fact that she was discharged from hospital on 8 February 1996, a few days after the accident, gives a wrong idea of how serious were her injuries. She subsequently had to re-attended for dressings and review of her facial injuries as an out-patient on many occasions. On 6 August 1997 she was re-admitted to hospital for a complex reconstruction of the scarring on the left side of her head by means of a tissue expander being inserted into the left side of her forehead, as seen in some of the photographs placed before the court. This was an extremely painful process, as was made clear by Mr Brennan and by the plaintiff herself in the course of giving their evidence. The plaintiff has been left with severe and permanent scarring of her left forehead; it can be masked to some extent by the skilful use of cosmetics but is still very noticeable and causes her embarrassment. The permanent loss of a segment of the centre of her left eyebrow can be concealed quite successfully by the use of an eyebrow pencil and accordingly further possible remedial surgery to deal with this problem has not been undertaken. While further surgery is available to narrow the wider scars on the plaintiff's forehead, Mr Brennan considers that such surgery would not improve significantly their appearance and he has not advised that this be undertaken.

Apart from the severe injuries to her forehead and left eyebrow the plaintiff also sustained injuries to her lower front teeth which required immobilisation with a metal splint which, after removal, was replaced by a plastic removable splint for a further period of 4 weeks. In his last report dated 26 August 1998 Mr Ramsay-Baggs, FRCS stated that the plaintiff's lower front teeth have now become firm and function properly and that it is unlikely that the plaintiff will require any further treatment and that the vitality of the teeth is likely to remain good. At the time of Mr Adair's last report dated 24 September 1998 the plaintiff was still complaining of some ongoing intermittent soreness at the back of her neck. While the plaintiff was involved in a later road traffic accident on 21 February 1998, and she has some ongoing symptoms from that accident, it did not cause any exacerbation of the existing neck problem. Mr Adair states that he cannot deny that the plaintiff does have ongoing complaints which may persist for an indefinite period in the future although he would expect some improvement. In the last report from Dr Fleming, Consultant Psychiatrist, dated 15 January 1998, based on an examination on 23 October 1997, he states that "over the course of the past year her generalised emotional reaction has largely subsided and she is now functioning at her pre-morbid level with only a few residual symptoms which will undoubtedly resolve with time". He goes on to add that the plaintiff displays "entirely understandable embarrassment and self-consciousness and the outlook for this clearly depends on the long-term prognosis for his scars".

Having considered all of the medical evidence in this case together with the evidence of the plaintiff herself with regard to her suffering and loss of amenity, I award her the sum of 87,500 for general damages for pain and suffering and loss of amenity to which there has to be added the agreed sum for special damage of 649.16. The plaintiff is entitled to interest on the sum for general damages at the rate of 2% per annum from the date of the issue of the Writ until the date of trial and interest at the rate of 6% per annum on the 649.16 special damage for the same period.

 

 

 

Dates of hearing 16/17 December 1998

Counsel: Horner QC and Dornan for the plaintiff

Elliott QC and Maxwell for the defendant


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

 

QUEEN'S BENCH DIVISION

 

 

------------

 

 

BETWEEN

TIFFANY BROWN

Plaintiff

 

and

 

DAVID CAMPBELL HUGHES

Defendant

 

 

------------

 

 

 

 

JUDGMENT

 

 

 

OF

 

 

 

SHEIL J

 

 

 

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