Patrick Wilson (plaintiff) v Raymond McGrath, Oliver McGrath, Anthony Howard, A. F. Howard Limited and Motor Insurers Bureau of Ireland (defendants).

Negligence - Road traffic - Personal injuries - Plea of contributory negligence - Onus of proof - Whether positive evidence of contributory negligence must be offered by party alleging contributory negligence - Damages Appropriate considerations in assessing damages.

The High Court (before Mr Justice Flood); judgment delivered 17 January 1996.

WHERE the defence of contributory negligence is raised by a party in proceedings assessing damages for personal injuries arising from a road traffic accident, the onus of proof lies on the party alleging the contributory negligence and he must offer positive evidence of same if he is to advance the proposition.

Mr Justice Flood so held in assessing the appropriate damages for personal injuries payable to the plaintiff arising from a road traffic accident and in determining that the plaintiff had been wearing a seat belt at the time of the accident.

Patrick Keane SC, David Byrne SC and Killian McMorrow BL for the plaintiff Garrett Cooney SC and Bernard MacDonagh BL for the defendants.

MR JUSTICE FLOOD said that the plaintiff's claim was for damages for personal injuries arising from a road traffic accident when the defendants car collided with another car in which the plaintiff was a passenger; liability was admitted by the defendants but they alleged contributory negligence on the plaintiff's part in that he had failed to wear a seat belt.

Outlining the facts of the case, Mr Justice Flood said that, at the time of the accident, in 1991, the plaintiff was a plasterer and was 26 years old. He was being driven to an appointment by a neighbour when the accident occurred in the following circumstances: the defendants' car went out of control, mounted a bank on the far side of the road and collided with the car in which the plaintiff was travelling as a front seat passenger.

The plaintiff suffered injuries including shock, fractures to his nose, right maxilla, right cheekbone, mandible and a tooth, an injury to his left shoulder, severe facial pain and pain to his right ear, severe headaches, double vision and a post traumatic stress disorder with attendant depression. He spent four days in an intensive care unit and was transferred to a hospital in Dublin into the care of a consultant oral and maxilla facial surgeon.

The plaintiff's jaw was wired up preventing him from masticating food for about six weeks; he had some difficulty breathing, his right eye watered and he suffered facial pain. His surgeon viewed his injuries as moderately severe with displacement and misalignment of the fractured areas; he felt that the plaintiff had made a good recovery but accepted that there was likely to be little future improvement in the facial pain which the plaintiff continued to suffer.

Mr Justice Flood said that the defendants took issue with the plaintiff on three points, namely, his inability to work as a plasterer due to his double vision, his claim for loss of wages for the four years since the accident and whether, in light of his injuries, he had been wearing a seat belt.

As to the first point, Mr Justice Flood noted that, before the accident, the plaintiff had no physical limitations and that his present position had to be judged against this standard. He said that the plaintiff's consultant surgeons found his eye to be grossly restricted and displaced backwards and downwards. Initially there was doubt as to the potential success of surgical intervention but surgery, which had an 80 per cent likelihood of success, was now envisaged. The plaintiff had been advised that he should not work as a plasterer, especially at heights, and that he should not drive or use machinery. A surgeon who had given evidence for the defendants had said that she would have proceeded to surgery at an earlier date but Mr Justice Flood noted that she was no longer active in surgery and was largely dependent on her view of the information given to her by the plaintiff's surgeon.

On the second point, Mr Justice Flood said that he had no doubt from the evidence he had heard that the plaintiff was entitled from the date of the accident to the present to have been off work as a plasterer obliged to work anywhere on a building site. As to the amount of earnings lost, the court had heard evidence that the plaintiff could, in 1991, have earned £35 to £40 per day after tax and that the current rate was £55 to £60 per day plus certain expenses. The plaintiff, however, had said that he tended to take a period of time off each year to avoid entering the higher tax bracket. In those circumstances, the appropriate award for loss of earnings was £210 per week for a period of 185 weeks making a total of £38,850.

In addition, the plaintiff lost some earnings in the future by reason of his need for an eye operation. The evidence suggested that he would once again be available for work, following convalescence, twelve weeks from to day's date but that his loss for this period should be calculated at £275 per week making a total of £3,300.

With respect to the seat belt issue, Mr Justice Flood accepted the plaintiff's evidence that he had been wearing one at the time of the accident. He accepted also the evidence of an independent witness, who had been in the car before the accident, that the plaintiff had been requested to wear a seat belt. The defendants, on whom the onus of proof lay in this respect, had offered no positive contrary evidence on this point and, accordingly no defence of contributory negligence could be advanced by them.

Mr Justice Flood went on to assess she amount of general damages. He said that he was obliged to take the following factors into account: (a) the severe pain suffered by the plaintiff including the intermittent pain which he still felt and would suffer in the future; (b) the curtailment of his social and sporting activities; (c) the two operations which the plaintiff underwent and the operation on his eye which still awaited; (d) his cosmetic disfigurement; and (e) the post traumatic stress disorder owing to his concern about his future prospects and his sense of guilt that the driver of the car in which he had been travelling had died in the accident.

In all the circumstances, Mr Justice Flood awarded the following together with costs: Agreed special damages £9,348-17; Loss of wages to date £38,350-00; Future special damages £1,200-00; Future loss of wages £4,500-00; General damages to date £43,000-00; Future general damages £7,500-00; Total £113,198-17.

Solicitors: Liam Lysaght & Co (Dublin) for the plaintiff; Pembroke (Dublin) for the defendants.