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Damages – Contributory negligence – Burden of proof – Appellant seeking damages for negligence – Whether trial judge erred in law in finding the appellant guilty of contributory negligence to the extent of 40%

Posted 1/11/2016

Facts: The plaintiff/appellant, Mr Nolan, brought a claim arising out of injuries sustained by him in a road traffic accident on 13th November 2015. On 20th January 2016, the High Court (Smith J) found that the second defendant/respondent, Mr Mitchell, had driven a motor vehicle owned by the first defendant/respondent, Mr O’Neill, in a negligent manner such that it had collided with Mr Nolan’s motor cycle causing him significant injuries. Concerning the liability issue the trial judge found Mr Mitchell principally to blame for the collision but made a finding of contributory negligence to the extent of 40% against Mr Nolan. As to quantum, the trial judge valued Mr Nolan’s claim for pain and suffering to the date of trial in the sum of €75,000 and for pain and suffering into the future at €50,000. With respect to his claim for loss of earnings to the date of trial, having made certain allowances for income earned post-accident and deductible social welfare payments, he considered Mr Nolan entitled to an award of €27,440. As to future loss of earnings, having concluded that, regardless of his injuries, Mr Nolan was capable of engaging in a wide variety of employment opportunities, he was satisfied that an award of €40,000 in respect of loss of opportunity would be appropriate. The High Court judge proceeded to dismiss Mr Nolan’s claim pursuant to s. 26 of the Civil Liability and Courts Acts 2004 having expressed himself satisfied that he had sought to exaggerate his claim by introducing evidence which he knew to be false or misleading and that in the circumstances of the case the dismissal of the action would perpetrate no injustice. The plaintiff appealed to the Court of Appeal against the judgment of the High Court. 
Held by Irvine J that two principal issues arose for the court’s consideration on this appeal, namely: (i) having regard to the facts found, did the trial judge err in law in finding Mr Nolan guilty of contributory negligence to the extent of 40%; and (ii) did the trial judge err in law when he dismissed Mr Nolan’s claim pursuant to the provisions of s. 26 of the Civil Liability and Courts Act 2004. Irvine J held that she was satisfied that the finding of contributory negligence of 40% on the part of Mr Nolan was excessive to the point that such finding must be set aside. Having regard to the evidence she favoured a finding of 20% contributory negligence. As to the decision of the trial judge to dismiss Mr Nolan’s claim based upon the provisions of s. 26 of the 2004 Act, Irvine J was satisfied that the trial judge erred in law when he concluded that the defendants had discharged the burden of proof required to succeed in their application to dismiss the claim under that section. Irvine J held that, having regard to her conclusions on the issue of contributory negligence, the damages sum must be reduced by 20%. She proposed an award in favour of Mr Nolan in the sum of €153,952. Appeal allowed. 
Nolan, Bill v O'Neill, Patrick and Danny Mitchell
21/10/2016 No. 2014/377 [2016] IECA 298

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