Joseph Buckley (appellant) v Patrick Maloney and Noel Gore (respondents).

Negligence - Appeal - Road traffic accident - Liability - Apportionment - Damages - Whether error in quantum.

The Supreme Court (before Mr Justice O'Flaherty, Mr Justice Barrington and Mr Justice Murphy); judgment delivered ex tempore 2 July 1996.

WHEN vehicles are travelling in the same direction and when one is a lorry travelling at some speed and there is a cyclist on the hard shoulder and when it is clear that the cyclist must move out from the hard shoulder to the main carriageway, a duty devolves on the lorry driver to give him a good clearance.

The Supreme Court so held in increasing the apportionment of liability as against the respondents.

Seamus McKenna SC and John Punch BL for the appellant; Daniel O'Keeffe SC and Michael McMahon SC for the respondents.

MR JUSTICE O'FLAHERTY said that this was an appeal brought, in the first instance, by the appellant from the judgment and order of the High Court of 3 February 1994, whereby the learned trial judge apportioned liability equally between the appellant and the respondents; the respondents cross appealed in respect of the amount of damages awarded.

He said that the case arose as a result of a collision that took place on 21 May 1988. The appellant was cycling along the public highway near Castletroy, on the outskirts of Limerick City, on a racing bicycle of some description in the direction of Limerick and the second respondent was driving a low loader on which there was a tractor in the same direction. The second defendant was very familiar with the particular stretch of road. However, this was the first occasion on which he had driven a low loader but being a member of the Garda and having been attached to the traffic corps, he had good experience of traffic conditions and regulations.

Mr Justice O'Flaherty said that it was quite a bright day and this was a straight stretch of road.

There was a hard shoulder on the left, about 8 feet wide; the main carriageway was about 25 feet wide. The second respondent testified that he saw the appellant well in on the hard shoulder, about three or four feet in, and that as he approached a garage entrance, Chalk's garage, the road was very badly potholed and it was clear to the driver, as well as to his companion, that it was likely that the cyclist would have to move out to avoid these potholes. The second respondent thought that at this stage he was about fifty or sixty yards back from him: that was when he first saw him.

They had both, obviously, come along quite a straight stretch of the road but, nevertheless, it was only at that time that he checked in his rear view mirror and this was at the same time that he moved out. Mr Justice O'Flaherty said that it may have been that he had begun to move out before checking his mirror but, in any event, it was obvious that at that stage the appellant must have moved out to some degree as well and contact was made between the lorry and the cyclist.

The second respondent was under the impression that he had moved out so as to straddle the centre line but it was hardly possible that the cyclist could have come out from as far in as he had been on the hard shoulder to make contact if the second respondent had come out as far as he thought he did.

Mr Justice O'Flaherty said that the trial judge reached the conclusion that everybody in the case had given a fair and honest account of what took place. Although when one came to read the transcript one was doing so at a remove, not having had the benefit of observing the witnesses and so forth, nonetheless, it was palpable from a reading of the transcript that the judge was quite right in the view that he formed of the witnesses.

Mr Justice O'Flaherty said that the law on this matter held that a duty devolved on the lorry driver to give the cyclist a good clearance. The second respondent felt that he had done this but Mr Justice O'Flaherty was clear in his mind that he did not do so. He felt that the second respondent could have checked further in advance that there was no traffic behind; in addition, he could have slowed down sufficiently to give the cyclist a chance to come outside the potholes and could indeed, have stayed behind him for some distance. It was clear that he had many options open to him in the circumstances because there was no traffic behind nor was there any traffic approaching. Mr. Justice O'Flaherty was satisfied that none of these options were effectively exercised.

Consequently, Mr Justice O'Flaherty held that the learned trial judge was not justified in holding that the parties were equally to blame. Although he felt that the lorry driver must bear the preponderance of the blame he could not agree with Senior Counsel for the appellant that all of the liability should devolve on the respondents. He thought that the cyclist, when he knew that he would have to move out had an obligation to check behind that it was safe to do so. However he apportioned liability against him to a much lesser degree than the lorry driver. In the circumstances he thought that what would be just and equitable was that there should be an apportionment of 80 per cent against the lorry driver and 20 per cent against the cyclist.

Mr Justice O'Flaherty said that as regards the cross appeal, the respondents said that the trial judge awarded too much in the way of damages. The appellant sustained a long fracture of the skull extending from the front to the back of his head on the right side and also crossing the midline and extending towards the base. A CT brain scan suggested contusion of the left temporal lobe of the brain. He required intensive care and his condition was critical for several days during which he required treatment to reduce his intracranial pressure. His left pupil became dilated on a few occasions as did his right pupil. He had haemorrhages in the fundus of his left eye. His condition gradually stabilised and he became alert and orientated but had marked disturbance of his speech function. Having received intensive care at Cork Regional Hospital he was transferred back to St John's Hospital in Limerick on May 26 1988. He continued to have difficulty with his speech difficulty with his memory and loss of vision in his left eye. When examined in June 1989 his situation was that his speech function had improved but he could only speak in a whisper. His balance was effected. He had episodes of walkabouts" - when he would get lost going around the city and find himself in places where he could not remember. His memory was affected.

Mr Justice O'Flaherty said that at the time of the accident, the appellant was aged 39 and had a job as a stock controller; he was unmarried. His work situation was that he had got rather sheltered employment. The trial judge treated him generously in the matter of future loss of earnings, assessed on an actuarial basis. This was calculated at the sum of £91,000. The trial judge assessed pain and suffering to date at £70,000 and pain and suffering in the future in the sum of £100,000.

It was submitted on behalf of the respondents that since the trial judge treated the appellant well in the matter of future loss of earnings this should be taken into account in looking at the totality of the award. There was also a sum of £13,000 which had been paid by his employer, which was a generous gesture on his part. The trial judge had ordered that that should be paid to the appellant in full but it was conceded that that order could not stand. It was agreed on behalf of the appellant that the £13,000 would have to be apportioned (if there was to be apportionment) in the same way as all the other sums.

Mr Justice O'Flaherty did not think the trial judge made any error in the sums that he had awarded in the circumstances of this case. He said that from being a happy, intellectually bright individual, the appellant's life had really been shattered. The award was correct and he would not disturb it. However, the apportionment was to apply to the sum of £13,000 as it did to the total of the award.

Mr Justice O'Flaherty concluded that in the circumstances he would dismiss the cross appeal. He said that there would be an order for the costs of the appeal in favour of the appellant with no order for costs on the cross appeal.

MR JUSTICE BARRINGTON and MR JUSTICE MURPHY concurred with the judgment of Mr Justice O'Flaherty.

Solicitors: Wallace Reidy & Co. (Limerick) for the appellant; John J. McDonald & Co. (Dublin) for the respondents.