A learner driver who claimed she suffered a back injury after a diesel spill on a road in Co Laois allegedly caused her car to crash into a bridge has lost her High Court damages action.
Mr Justice Michael Twomey concluded Kellie Quinlivan had not established, on the balance of probabilities, the diesel spill caused the accident on the morning of July 6th 2015.
The judge had “misgivings” about the reliability of Ms Quinlivan’s memory for reasons including, at a meeting in her solicitor’s office prior to her case being heard, she told an MIBI doctor she had no previous accidents.
She had in fact secured €20,000 over an accident in 2010 and her solicitor later corrected that “relevant and important” error by her, he noted. She had also given an account to a psychiatrist suggesting the accident was “more severe than it was”.
Ms Quinlivan, a healthcare assistant in 2015, of Assumption Park, Roscrea, Co Tipperary, sued the Motor Insurers Bureau of Ireland over the accident on a secondary road between Borris-in-Ossory and Rathdowney.
She claimed she was entitled to be compensated by the MIBI because the diesel spill was caused by negligent use of a vehicle by an unidentified driver.
She told the court, as she approached a bend in the road before the bridge, she felt the back of her car skid, it crashed into the left side of the bridge, spun around and stopped on the opposite side of the road. She saw a “rainbow” colour on the road and believed her car skidded due to a diesel spillage.
Second of three accidents
In his judgment published on Friday, Mr Justice Twomey said this was the second of three separate accidents in which Ms Quinlivan has suffered such injuries.
She received €20,000 compensation from Tipperary County Council in 2010 for back and shoulder injuries when the car she was in went into a pothole.
And since the 2015 accident that gave rise to this case, she was involved in an accident in 2018 resulting in a €50,000 settlement over damage to her back, neck and shoulder.
There was thus a significant overlap between those injuries and the injuries claimed in this case, he said.
He noted Ms Quinlivan was driving alone, in contravention of the law, at the time of the accident.
As there was no witness to the accident, Ms Quinlivan had to prove, on the balance of probabilities, the accident occurred as she claimed, rather than some other cause, such as excess speed.
Her evidence was she was travelling about 50kp/h when engineering evidence was that a safe speed was 40kp/h on a dry day and this day was wet.
The court must apply an “appropriate scepticism” towards ‘no witness’ claims, not because of any dishonesty on a plaintiff’s part, but because human nature is such that memories and accounts tend to become “unwittingly adjusted” because of potential financial consequences for plaintiffs on their evidence.
‘Unwittingly adjusted’
There was evidence in this case how a plaintiff’s memory can become unwittingly adjusted, as Ms Quinlivan failed to give details of a previous accident to the MIBI’s doctor but remembered to tell her own doctor.
Analysing the evidence, he said two other witnesses who came on the scene gave evidence of oil on the road and a third witness said he could see “oil or water” on the road.
He preferred evidence of a garda, who investigated the incident and took photos at the scene, of not seeing any diesel until he reached the apex of the bridge and that most of a section of diesel, about a foot or two in width, was on the opposite side of the road to which Ms Quinlivan was travelling.
The judge also preferred the garda’s evidence to Ms Quinlivan’s that she skidded on the approach to the bridge, saying that was inconsistent with her statement to gardaí 24 days after the accident when she said, inter alia, the back of her car kicked out around the middle of the bridge.
On the balance of probabilities, he found her car went into a skid as she was driving it on the apex of the bridge, there was no diesel on the road leading up to the bridge but only on the apex of the bridge, and the diesel could not have caused the crash.
While not determinative, it was relevant to note she was not a qualified driver and was driving without being accompanied by a driver with a full licence, he said.
Even if the accident was caused by a diesel spill, that could have occurred with or without negligence and there was “simply a failure of proof” in this case, he held.
