The Court of Appeal has set aside a High Court decision dismissing Bill Nolan’s personal injuries claim and reduced the finding of contributory negligence against him from 40% to 20%. It proposed an award of €153,952, after applying that reduction to damages assessed at €192,440 by the High Court.
The appeal concerned a collision between Mr Nolan’s motorcycle and a car driven by Danny Mitchell, which was owned by Patrick O’Neill. The High Court had found that Mr Mitchell negligently drove onto Mr Nolan’s side of the road and caused the collision. It also found that Mr Nolan was travelling at close to 90mph and had failed to slow or stop when dazzled by the car’s lights.
The Court of Appeal said the 40% contributory negligence finding was grossly disproportionate. It noted that Mr Nolan had been riding on his own side of the road and that the defendants had not established how his speed caused the collision or worsened his injuries. The court considered that 20% contributory negligence was appropriate, partly to reflect that his injuries might have been less severe had he been within the speed limit.
The High Court had dismissed the claim under section 26 of the Civil Liability and Courts Act 2004. It concluded that Mr Nolan knowingly advanced misleading evidence about his likely earnings and his participation in car drifting after the accident. The Court of Appeal held that the defendants had not established that he knowingly put forward materially false or misleading earnings evidence. In particular, his evidence about his pre-accident net earnings had not been challenged, nor had he been confronted with an allegation that he intended to mislead the court. The court said the section 26 application had been pursued in a manner that was fundamentally unfair and that dismissing the claim in those circumstances caused a grave injustice.
The Court of Appeal accepted that the High Court judge was entitled to find that Mr Nolan had told a vocational assessor he had not participated in car drifting since the accident, despite evidence of post-accident demonstrations. But Mr Nolan had not claimed damages for an inability to take part in drifting, so the statement was not material enough to justify dismissing the claim.
The High Court’s assessment comprised €75,000 for pain and suffering to trial, €50,000 for future pain and suffering, €27,440 for past loss of earnings and €40,000 for loss of opportunity. No appeal or cross-appeal was brought against those amounts. The Court of Appeal proposed reducing the total by 20% and awarding €153,952.