The High Court awarded Kerrill Lindsay €132,428 in damages after finding that two drivers were jointly and severally liable for injuries he suffered in two successive impacts on a dark country road near Gurteen, Ballinasloe, in August 2006.
Mr Justice Michael Peart ruled that David Finnerty and Thomas Kelly were concurrent wrongdoers under the Civil Liability Act 1961 because the injuries could have been caused by either impact or both, and the impacts occurred in close succession. The court said either defendant could be pursued for the full judgment. Kelly could seek to recover 80% from Finnerty, reflecting their respective shares of responsibility.
Lindsay was a belted passenger in Finnerty’s car after a poker game. He told the court that Finnerty’s car veered into a bank, spun across the road and struck a wall. Kelly, driving behind in his own car, came around a bend and collided head-on with Finnerty’s stationary car. The road had no lighting. The judgment records that Finnerty was uninsured and that Lindsay had already obtained judgment against him in default of appearance in 2009, with damages to be assessed.
The court found Finnerty wholly responsible for the first impact. It found Kelly 20% responsible for the second, concluding on the balance of probabilities that he had not kept sufficient attention on the road ahead. The judge found no contributory negligence by Lindsay. Medical evidence did not establish which impact caused his knee injury or abdominal injuries; the abdominal injuries could have resulted from either.
Lindsay sustained a knee laceration and abdominal injuries, including internal bleeding. He was admitted for observation, later underwent surgery to ease a small-bowel obstruction caused by an adhesion, and had a section of small bowel removed in February 2007. He recovered and regained weight but continued to experience intermittent abdominal rumbling that the medical evidence said might persist indefinitely. He was out of work for 35 weeks on and off.
The award comprised €75,000 for the knee and abdominal injuries and their consequences, €7,000 for likely future suffering, and €50,428 in agreed special damages. The court ordered Finnerty and Kelly to pay the total and Lindsay’s costs on a joint and several basis. It also ordered Finnerty to reimburse Kelly for 80% of amounts Kelly paid in discharge of the judgment and costs. The judgment separately addressed the Motor Insurers’ Bureau of Ireland’s costs and made no order between the Bureau and Kelly on their contribution and indemnity notice.