Neutral Citation no.  [1999] 1940

Ref:    

COGC2867

 

 

 

Judgment: approved by the Court for handing down

Delivered:

15/06/99

(subject to editorial corrections)

 

 

 

 

                   IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                                                  QUEEN'S BENCH DIVISION

 

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

 

BETWEEN:

 

                                                             MARY O'NEILL

 

                                                                                                                                       Plaintiff;

 

                                                                        and

 

                                                       JAMES GIRVAN AND

                                                        JOHN O'NEILL AND

                                                          GRE (UK) LIMITED

 

                                                                                                                                 Defendants.

 

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

COGHLIN J

            The plaintiff in this case is a 70 year old lady who claims compensation for personal injuries, loss and damage that she is alleged to have sustained in a road traffic accident which took place on 17 August 1991 at Tymoole, Rathfeigh, County Meath in the Republic of Ireland. 

            At the material time the plaintiff was a front seat passenger in a Dormobile motor vehicle, the property of her husband, the second-named defendant, which was being driven by the first-named defendant.  The second-named defendant was the holder of a motor insurance policy issued by the third-named defendant in relation to the Dormobile vehicle and, by order dated 28 November 1996, the third-named defendant, upon its own application, was added as a defendant with liberty to exercise the rights of the first and second defendants.  The plaintiff alleges that, in certain circumstances, pleaded at paragraph 6 of the amended statement of claim, the third-named defendant is liable pursuant to Article 98 of the Road Traffic (Northern Ireland) Order 1981 to pay to the plaintiff such sums as may be payable to her under any judgment that she may obtain against the first or second-named defendant.  If the plaintiff is entitled to judgment against either the first or second-named defendant, the third-named defendant has counterclaimed against the plaintiff by way of an indemnity in respect of any judgment which she may obtain against the first or second‑named defendants pursuant to Article 98(8) of the Road Traffic Order (Northern Ireland) 1981. 

            During the course of the hearing the plaintiff was represented by Mr Brian Fee QC and Mr Michael Keogh while Mr Stevens QC and Mr Ringland appeared on behalf of the defendants. 

Facts

            The plaintiff is a member of the Irish Kennel Club and her primary leisure activity is the breeding and showing of dogs.  She normally keeps 8-16 dogs in kennels at her home in Newry and, from time to time, she travelled to and participated in dog shows all over Ireland.  On 17 August 1991 the plaintiff had made arrangements to attend a show in Navan followed by a second show at Clonmel.  She intended to show 5 dogs at the shows.  The plaintiff's husband is not so interested in dogs and the animals were entered in her name at the shows.  The plaintiff had discussed a plan of travel with her husband and they had agreed to ask a friend, James Girvan, the first defendant, to accompany the plaintiff.  The original arrangement was that each would take a car but this plan was altered in favour of her husband's suggestion that they should take the Dormobile and trailer.  The plaintiff maintained that she had never driven the Dormobile, by way of explanation stating that it had a manual gearbox and she was used to automatic vehicles. 

            Despite conceding that her husband might have put her name on the insurance policy, she emphasised that the Dormobile was the personal property of her husband and that it had "nothing to do with me".  It was agreed that Mr Girvan should drive the Dormobile although, in the course of cross-examination, it emerged that, at the material time, Mr Girvan had been disqualified from driving as a result of a drink driving conviction.  The plaintiff stated in evidence that she did not become aware of this fact until she was told by her husband some time after the accident.  She accepted that Mr Girvan was a friend and that they had met previously at dog shows although this was the first occasion upon which they had travelled to a show together. 

            On the morning of 17 August 1991 the plaintiff and Mr Girvan were joined by Tony Hill, who was then 15 years of age.  Tony Hill had travelled to Newry from Portadown with Mr Girvan intending to avail of a lift to Clonmel where he hoped to meet his girlfriend, Melanie Hanlon.  While Tony Hill had not previously met the plaintiff, the plaintiff would have known Melanie Hanlon's family through a common interest in dogs.

            The Dormobile, driven by Jim Girvan, left Newry at about 8.30 am and proceeded to the dog show at Navan.  The plaintiff duly showed the various dogs which she had brought to Navan during the course of the afternoon.  It was common case that the plaintiff, Mr Girvan and Mr Hill left Navan at about 7.30 pm but there was a conflict of evidence as to the whereabouts of the various parties during the afternoon.  The plaintiff maintained that, at lunchtime, she had gone to the bar at the show for something to eat and that she had then consumed one whisky and a Perrier water.  She stated that she consumed a further Perrier water later in the day. 

            It appears that most of the dogs had left the show ring by about 5.30 pm, but that the process of judging and announcing the results took a further period of time.  According to the plaintiff's evidence, she did not see Mr Hill after the party arrived at the Navan show until he reappeared shortly before they left.  This version of events was contradicted by Mr Hill who said that, after spending the afternoon in the vicinity of the various show rings he met the plaintiff and Mr Girvan some time between 4.30 and 5.30 pm.  Mr Hill said that he was invited to accompany the plaintiff and Mr Girvan to the bar, but that he indicated that, since he had been up early that morning, he wanted to go back to the Dormobile for a sleep.  He returned to the Dormobile where he slept on one of the seats in the rear of the vehicle until he was awakened by the return of the plaintiff and Mr Girvan.  Mr Hill heard both of them laughing and described them as "smelling of alcohol".  Mr Girvan drove the vehicle out of the show grounds but, according to Mr Hill, on the main road he strayed towards oncoming traffic as a result of which another vehicle flashed its lights.  Mr Hill then became concerned and moved from the rear of the vehicle into the front seat.  There he put on his seatbelt and requested Mr Girvan to stop driving the vehicle as he, Mr Hill, did not think he was fit to do so.

            In his evidence, Mr Hill stated that, driving away from the show grounds, both Mrs O'Neill and Mr Girvan had been laughing and talking and that, at one point, Mr Girvan had put his hand on Mrs O'Neill's leg but that she made it clear that she did not approve and removed his hand.  As they travelled on, Mr Hill saw that Mr Girvan was starting to "nod off" and that his eyes appeared "glazed".  Mr Girvan did not accede to Mr Hill's request to stop driving and, shortly thereafter, the accident occurred.  Mr Hill attributed the accident to Mr Girvan's intake of alcohol, and his slow reactions resulting from "dozing off".

            Mrs O'Neill completely denied that she or Mr Girvan had been in the bar at any stage between 5.30 and when they left the show grounds at 7.30 pm, she rejected Mr Hill's description of Mr Girvan's condition and she stated that, as far as she was concerned, the accident was caused as a result of the vehicle encountering "potholes" in the road.  She reached this conclusion because she recalled feeling the vehicle "bouncing" and she had personal experience of "driving on potholes".

            As a result of the accident, the plaintiff sustained a fracture of the middle third of her left femur which was stabilised by the use of a 10 hole plate and screws.  X‑rays of her cervical spine confirmed the existence of moderate pre-existing wear-and-tear changes.  Similar changes of a minimal nature were present in the left hip joint and in both S.I. joints but there was nothing to suggest that the pelvis, knee or hip joint had been directly injured as a result of the accident.  The plaintiff also suffered some degree of head injury involving loss of consciousness as a result of which she told the court that she had no recollection of the accident or the period immediately afterwards.  She was initially taken to hospital in Drogheda and, after approximately one week, she was transferred to Daisy Hill Hospital where she remained until she was discharged on 4 October 1991.  The plaintiff had to wear a cast brace on her thigh for some months after the accident.

            The plaintiff gave evidence that, as a consequence of her injuries, her ability to perform domestic work about the house and her participation in dog-breeding and dog shows had been severely disrupted to the extent that she had been compelled to employ other persons to assist her in relation to both these spheres of activity.

The legal issue

            On behalf of the defendants, Mr Stevens QC, who appeared with Mr Ringland, referred me to the relevant policy of insurance issued by GRE (UK) Limited.  This policy had been issued to the second-named defendant and extended to named drivers of whom there were only two, namely, the second-named defendant and the plaintiff.              

            Clearly, in such circumstances, the policy did not extend cover to Mr Girvan.  Mr Stevens QC then directed the attention of the court to Article 98 of the Road Traffic (Northern Ireland) Order 1981 (the "1981 Order") as substituted by Regulation 4 of the Motor Vehicles (Compulsory Insurance) Regulations (Northern Ireland) 1989 (the "1989 Regulations").  Article 98 of the 1981 Order, as substituted, establishes the circumstances in which a person entitled to judgment in respect of a liability covered by a relevant insurance policy may proceed to obtain the benefit of that judgment against the insurance company, notwithstanding that the insurer may be entitled to avoid or cancel the policy.  Sub‑paragraph (8)(b) of Article 98 as substituted, provides as follows:

 

                        "(8)      Where an insurer becomes liable under this Article to pay an amount in respect of a liability of a person who is not insured by a policy or whose liability is not covered by a security, he shall be entitled to recover the amount from that person or from any person who -

 

                                    ...

 

                                    (b)        caused or permitted the use of the vehicle which gave rise to the liability."

            Mr Stevens QC submitted that, in the circumstances of this case, it was clear that the plaintiff had caused or permitted the use of the vehicle by Mr Girvan and that, accordingly, the insurance company was entitled to be indemnified by her in respect of any judgment which she should obtain against the first or second-named defendant.  Mr Stevens QC relied upon Loyd v Singleton [1953] 1 All ER 291 in support of the proposition that permission could be given by someone other than the owner of the vehicle and upon Lyons v May [1953] 1 All ER 291 as showing that it was not necessary to establish that a person who caused and permitted the use of the vehicle knew that the driver was not insured at the material time.

            In response, Mr Fee QC, submitted that, in order to take advantage of the indemnity afforded by Article 4(8)(b) of the 1981 Order, the insurance company had to discharge the onus of establishing that, in this case, the plaintiff "caused or permitted" the use of the vehicle alleged to give rise to liability.  Mr Fee QC emphasised that there was a significant difference between the factual situations upon which the authorities relied upon by Mr Stevens QC were based and the circumstances of this case. 

            In Lyons v May the owner of the lorry had specifically asked the garage proprietor in writing to deliver the lorry to his premises.  In Loyd v Singleton the vehicle was insured in the name of the managing director of the company and the assistant manager was permitted to drive the vehicle with full discretion as to permitting use of the car and who was to drive the car provided that it was being used for the business of the company.  The relevant offence occurred when the assistant manager, who had been taken ill, permitted his brother, who had nothing to do with the company and was not insured, to drive the vehicle. 

            Mr Fee QC also referred to the case of McLeod v Buchanan [1940] 2 All ER 179.  In distinguishing the instant case from the various authorities cited, Mr Fee QC emphasised the evidence given by the plaintiff that she regarded the Dormobile as being the property of her husband, that she did not drive and had never driven that vehicle which had a gear lever attached to the steering column, preferring to drive her own automatic vehicle, and that she had adamantly rejected the suggestion that she had given permission to Mr Girvan to drive the vehicle.

            As I have already noted, the plaintiff's evidence was that the original plan had been that she and Mr Girvan would take separate vehicles, but that it was her husband who suggested that the Dormobile and a trailer should be used.  The plaintiff's husband did not give evidence and when asked in cross-examination about his whereabouts on the day of the hearing she replied that she did not know but thought that he might have gone "... to the pigeon man's house".

            Despite the serious reservations which I have as to the credibility of the plaintiff, the details of which I set out below, ultimately I have come to the conclusion that the defendant's insurance company has failed to prove on the balance of probabilities that the plaintiff caused or permitted Mr Girvan to drive the Dormobile.

The credibility of the plaintiff's case

            During the course of the hearing I developed the view that the plaintiff was an unconvincing witness who displayed a propensity for evasion and exaggeration and who, at times, simply did not tell the truth.  I note, in particular, the following:

 

(i)         The plaintiff told Dymphna Davidson, senior occupational therapist, that she owned a business which manufactured exhaust systems.  She said that the business was based in Newry and that, prior to the accident, in the course of managing the business, she had driven in and out of Newry on a daily basis.  She also told Ms Davidson that she had been unable to work since the accident and had been compelled to employ someone else to carry out the administrative tasks which she used to perform.  In the course of cross-examination the plaintiff said:

                        "I don't own a business in Newry".

 

                        "I've worked with my husband for years".

 

                        "I am a director of a business".

 

                        "The business didn't exist before the accident".

 

                        "Prior to the accident I was a clerical officer in my husband's business which had existed since 1962".

            She also stated that, prior to the accident, the business in Newry did not have limited liability but that after the accident it was formed into a limited liability company.  She said "... somebody brought the relevant forms to me in hospital".  When she was referred by counsel to the allegation in the particulars of personal injuries in the statement of claim that she was no longer able to play an active part in the management of her family business, ON Exhaust Limited, Newry, the plaintiff stated that she had "no idea" what this meant.  I did not believe this assertion particularly in the context of the report from Ms Dymphna Davidson.

(ii)        The plaintiff was asked about a previous road traffic accident in cross-examination and she initially admitted to having sustained "a whiplash injury in the 1960s or 70s".  She was unable to remember if she had sustained a more recent accident although, eventually, when pressed about it she agreed that another vehicle had driven into the side of her car on the Dublin Road on 12 August 1991, some 5 days before the accident which is the subject of these proceedings.  When counsel later returned to this earlier accident in connection with her complaints about back/neck pain, the plaintiff stated that she had not sustained an accident on 12 August 1991.  She then conceded that she might have had such an accident and that she might have made a claim for damage to her car for which she received compensation from the insurance company.  When pressed further she said that she might have "put something in for an injury to her neck" but that she "didn't know how much".  Eventually the plaintiff was prepared to accept that she had received money for an injury to her neck resulting from a road traffic accident not long before the accident which is the subject of these proceedings.  In fact, it was quite clear from the medical reports that the notes at Daisy Hill Hospital confirm that on 10 August 1991 the plaintiff had attended the Accident and Emergency Department complaining of severe neck pain following a road traffic accident in which the car in which she had been travelling had been struck from behind by another vehicle.

(iii)       Initially, in cross-examination, the plaintiff denied that she used a stick because of her lumbago.  When her attention was drawn to the medical examination by Mr McClelland FRCS on 7 April 1995 she conceded that she might have had "a touch of lumbago" at that time.  She then claimed that she had suffered from lumbago "on and off" for 40 years and had used a stick for this condition long before the accident.  She said that when she was suffering form lumbago she was unable to do anything, that she could not even go out and that her family looked after the dogs.

(iv)       I did not believe the plaintiff's evidence in which she purported to attribute the accident to potholes in the road and I preferred the evidence of Mr Hill with regard to the condition in which both Mr Girvan and the plaintiff returned to the Dormobile.  Mr Girvan himself, who clearly should have been in a position to assist in the resolution of this conflict, was conspicuous by his unexplained absence from the witness box.  I did not think that the evidence of Garda Tansey, who was first asked about his recollection approximately 10 days before the trial, assisted either side to any material degree.

Damages

            There is no doubt that the plaintiff sustained a serious fracture to the shaft of her left femur, and I am prepared to accept that she also suffered a fairly extensive generalised "shaking up" which may have included some degree of exacerbation of pre-existing degenerative changes in her cervical spine, left hip joint and S.I. joints.  However, on the basis of the evidence, I have come to the conclusion that the plaintiff recovered from the effects of this accident some time ago and that any continuing degree of incapacity is entirely attributable to the progress of the naturally occurring degenerative conditions present in her spine and pelvis. 

            In January 1996 the plaintiff told Ms Davidson that the "main reason" for her inability to drive was because of a restricted range of neck movement and she freely admitted to Mr McClelland FRCS in April 1995 that the reason that she used a stick was because of a re-occurrence of lumbago which had "troubled her on and off for years".  Taking into account the severity of the fracture to the femur, the associated scarring and the exacerbation of the pre-existing degenerative change, it seems to me that the appropriate sum in respect of personal injuries and loss of amenity is one of £27,500.

            By way of special damage the plaintiff claimed to be compensated in respect of sums which she had paid to individuals who had provided assistance both in respect of housework and in relation to her dog breeding and showing activities.  Overall her evidence was far from clear and, by way of explanation, she said that she had recorded sums that she had paid to the "family" in notebooks, that she had then extracted the figures for her lawyers and "put the original notebooks on the fire".  The statement of claim included an allegation that the plaintiff had received "Home Help" from family members but, in the course of her evidence, she admitted that her daughter had applied for and received State Benefit for this task.  In addition to this benefit, the plaintiff maintained that she gave her daughter "a few pounds for herself" once a month.  This was said to amount to roughly £30 a month. 

            The plaintiff gave evidence that a number of people assisted her in relation to the dog breeding and showing business including Gus McIvor, Gerard Larkin, Colin Larkin and her son, Rory.  Of these individuals only Gerard Larkin and Rory O'Neill gave evidence.

            Gerard Larkin is a friend of the plaintiff and it appears that he also attended the Navan show subsequent to which she was injured.  Mr Larkin maintained that, at that show, he had met Mr Hill whom he described as being "full drunk and acting the buck eejit".  I have no doubt that if this observation was accurate a similar type of assertion would have been included in the plaintiff's evidence and, in my view, it was made simply in the hope of "bolstering" the plaintiff's case.  In such circumstances, I reflected carefully upon the veracity of the rest of Mr Larkin's evidence but, having done so, I am prepared to accept the substance of what he said about assisting the plaintiff in relation to the dogs and the sums which he received therefor. 

            In the circumstances, I am prepared to allow the following in respect of financial loss:

(i)         Treatment at Lourdes Hospital, Drogheda - £335

(ii)        Home Help

            £30 a month to the plaintiff's daughter for a period of 2 years from the date of the     accident - £720

(iii)       Help with dogs, kennels and shows

            Gus McIvor - 17 weeks @ £20 per week - £340

            Gerard Larkin, December 1992 to November 1993 - 52 weeks at £50 per week        - £2,600

            Family members, August 1991 to July 1992 - 50 weeks at £20 per week - £1,000

 

            Total financial loss - £4,995

 

            Thus, the gross damages to which the plaintiff is entitled comes to a figure of £32,495.  In view of the evidence of Mr Hill relating to Mr Girvan's condition when he returned to the Dormobile at the conclusion of the Navan show, I find the plaintiff guilty of contributory negligence in accordance with Owens v Brimmell [1976] 3 All ER 765 and I propose to reduce her damages by 20% thereby producing a net figure of £25,996.  The plaintiff is entitled to interest at the usual rates.  There will be judgment against both the first and second defendants and against the third defendant in so far as may be necessary.


                   IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                                                  QUEEN'S BENCH DIVISION

 

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

 

BETWEEN:

 

                                                             MARY O'NEILL

 

                                                                                                                                       Plaintiff;

 

                                                                        and

 

                                                       JAMES GIRVAN AND

                                                        JOHN O'NEILL AND

                                                          GRE (UK) LIMITED

 

                                                                                                                                 Defendants.

 

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

 

                                                                JUDGMENT

 

                                                                         OF

 

                                                                 COGHLIN J

 

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