The High Court has rejected a man’s personal injuries claim against South Tipperary County Council and Clonmel Borough Council over an alleged bicycle fall on a Clonmel road in July 2013.
In an ex tempore judgment delivered on 15 November 2017, Mr Justice Twomey said the plaintiff had failed to prove, on the balance of probabilities, that the accident happened as he alleged. The judgment records that the claim was dismissed; it does not specify a separate order on costs.
The plaintiff claimed he fell from his bicycle on Cooleens Close on the afternoon of 12 July 2013, after cycling into a hole that he said had been negligently repaired. The court described the hole as 1 foot 9 inches long, 1 foot 3 inches wide and 3½ inches deep. He said he suffered concussion and head injuries.
The judge said photographs showed the hole in the middle of the road and that it was so obvious that a cyclist would have to be looking the other way to miss it. He said that, if the plaintiff had cycled into it, responsibility for the alleged injury rested entirely with the plaintiff.
The court also questioned the plaintiff’s account of his injuries and their effects. It said it could not see the scars he pointed out and noted that, despite his claim that the accident ended his sporting career, he played for his local soccer team within about a week and for several months afterwards. The judgment records that his testimony was the only evidence of the alleged accident.
The judge referred to an earlier head injury the plaintiff said he had suffered in a fall down steps three weeks before the alleged bicycle accident. The plaintiff had made a separate claim concerning that injury to the Personal Injuries Assessment Board, using a different name, but later withdrew it.
In addressing credibility, the judgment referred to the plaintiff’s convictions for theft and drug dealing, a pending assault charge, and his use of the names Dwaine O’Donnell and Dwaine Burns. It stated these matters were not determinative of the case. The court’s conclusion was that the plaintiff had not discharged the burden of proof.
The judgment also discussed Court of Appeal guidance on reasonable care and proportionality in personal injury awards. Those observations addressed the handling and appropriate level of similar claims; the decision in this case rested on the court’s findings about proof, credibility and responsibility for the alleged accident.