Two recent cases, one in the Court of Appeal and one in the High Court, serve as a reminder of the difficulties faced when defending claims arising from low speed impacts in road traffic accidents
Dunphy v O Sullivan [2021] IECA 171
In this case the defendant’s vehicle rear ended the plaintiff’s vehicle. The defendant described the impact as mild, however, the plaintiff claimed he travelled forward one car length on impact. Repairs to the plaintiff’s vehicle amounted to €563.82 and consisted of labour and paint (no parts). The damage to the defendant vehicle was more extensive and amounted to €4,128.82 and included damage to the reinforcement bar.
The plaintiff, a taxi driver, was not immediately aware of injuries and as the damage to his vehicle was so slight he continued to work after the accident and dropped his fare to her destination. Four days post accident, the plaintiff woke up as a result of pain and limitation of movement. A few days later he attended his GP complaining of pain in his chest, left shoulder and lower back. He had a MRI scan which showed multi-level disc protrusion, facet joint hypertrophy and spinal stenosis. However, he had no pre-accident back complaints other than a brief mention of backache in 2010.
The plaintiff claimed he had been off work for approximately one month post-accident. However, his vehicle travelled 2,286km during this period. When cross examined it was put to him that his earnings had not been adversely affected, something he could not dispute.
The engineer on behalf of the defendant was of the view that the impact was relatively light and that it would have had such little effect on the occupants of the plaintiff vehicle as to be barely noticeable. However, on cross examination he accepted that the impact was not minimal and was a little more than that. The plaintiff’s engineer agreed that the impact was minor but stated that it was sufficient to cause injury.
The plaintiff’s orthopaedic expert was of the view that somebody with a perfectly good spine might not have problems following a low velocity injury, but the outcome here was unsurprising in a spine that had inherent pathology. The defendant’s orthopaedic expert believed that the plaintiff’s ongoing complaints were unrelated to the accident but the consequence of the degeneration already present in his spine.
The High Court agreed that an impact can occur with minor damage which can cause injury to the occupant of a vehicle. The court also noted that construction of bumpers is such that relatively severe bumper to bumper impacts can occur where there is no visible exterior damage. The Plaintiff was awarded €50,000 for pain and suffering to date and €15,000 in the future.
On appeal, the defendant argued that the court should use its own common sense (and relied on Byrne v Ardenheath [2017] IECA 293) and look beyond the evidence of the plaintiff’s engineer. Noonan J. was not prepared to do so. He found that the trial judge was entitled to accept the evidence proffered by the plaintiff’s engineer.
In relation to the medical evidence, Noonan J. remarked that the plaintiff’s complaints had been consistent throughout and consistent with the objective imaging evidence. The plaintiff also had no back pain for seven years and within days manifested complaints. Noonan J. thought it was perfectly possible that the plaintiff might have developed symptoms at some time in the future (and commented that no evidence of this nature was put forward by the defendant) but the timing of the onset must be viewed as being caused by the accident as opposed to coincidence.
Noonan J. went on to say that credibility evidence will often be a central feature of such relatively trivial rear end impacts and that courts will consider carefully any potential inconsistencies in the evidence. He accepted that the plaintiff’s evidence was unsatisfactory about his taxi driving activity immediately after the accident and the loss of earnings situation in general but that did not undermine overall credibility in eyes of trial judge and was not something he was prepared to interfere with.
He also commented that the damage to the plaintiff’s car cannot of itself be determinative of the matter. He gave an example of an armoured car that sustains no damage in an impact and how that does not mean that the force of the impact was not transferred to the occupants.
The judgement outlines the risk of, as Noonan J put it, placing all eggs in the basket of no injury predicated on the thesis of there being no impact of consequence.
Mulcahy v Clifford [2021] IEHC 448
This was a similar low speed rear end accident. There was a dispute on liability, but ultimately the court found in favour of the plaintiff in full.
The plaintiff accepted that the impact was not severe. The cost of repairs to his vehicle was in the sum of €600 and the damage was of such a minor nature that dust that appeared on the rear bumper was not dislodged following the impact. The damage to the defendant vehicle was a little more severe. The bumper bracket was broken and there was a very small indentation to the side of the bumper.
The Plaintiff had pre-existing issues with his neck and mental health and there was considerable dispute as to the cause of his ongoing complaints post-accident.
The High Court found that the plaintiff was a vulnerable person who had minor but long standing difficulties prior to the accident and that the accident significantly worsened these difficulties. In particular, the plaintiff was vulnerable to the neck injury sustained due to the existence of pre-existing degenerative changes and the Judge commented that “the defendant must take the victim as he finds him”. The Plaintiff was awarded €50,000 for pain and suffering to date and €25,000 into the future.
It is of note that at one point the plaintiff had been what the trial judge described as “less than honest” when he told a doctor that he had no previous neck, or back symptoms. However, his solicitor remedied the situation by giving that doctor a comprehensive account of his pre-accident complaints.
The above cases outline the difficulties faced when defending low speed impact claims, in particular, where a plaintiff is somewhat vulnerable to injury due to pre-existing issues. Where a plaintiff is vulnerable, and there is a temporal link between the incident date and the onset of symptoms, there is a risk courts will find a causal link between the incident and the injury. As outlined by Noonan J., the plaintiff’s credibility will often be a central feature of these cases. He also commented that courts will consider carefully any potential inconsistencies in the plaintiff’s evidence and it is notable that while in both the above cases there was some element of dishonesty by each plaintiff, it was not enough to tarnish their overall credibility, and significant awards were made to both. This strongly suggests that any credibility evidence will need to be particularly substantial to succeed in the defence of a case where a person with pre-existing vulnerabilities alleges they are injured in a low speed impact incident.
