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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Duffy v. Electricity Supply Board [1999] IEHC 218 (18th February, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/218.html Cite as: [1999] IEHC 218 |
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1. The
Plaintiff is aged 61, having been born on the 23 of March, 1937. He used to
live at No 15, Phil Shanahan House, North Wall, Dublin 3 and now resides at 51
Spencer Lock, Sheriff Street, Dublin 1. He is normally unemployed, but in
reality has been a recidivist professional criminal with an impressive series
of convictions since he was ten years of age, and has served many sentences of
imprisonment both in this country and across the water in England. He is
well-dressed and gave his evidence in a straight forward manner.
He
also has a stoic resignation in respect of the serious right leg injuries which
he sustained. He is uncomplaining about these nasty and serious injuries, which
he undoubtedly sustained on the night of the 3 of October 1992. I am well aware
that he must have impressed a number of judges by his candid manner and his
quick wit in the past, as his CV of previous convictions reveals a number of
apparently light sentences for larceny and receiving for example, the two most
recent sentences are in respect of receiving when he was convicted on the 5 of
September, 1979 and was sentenced to two days in Mountjoy, which two days he
had presumably already spent in Mountjoy; and on the 5 of September, 1997 he
received a suspended sentence of one month for handling stolen property after
conviction in the Dublin District Court. This would be a singularly unusual and
light sentence in respect of handling stolen property, which was the old crime,
in different phraseology, which used to be known as receiving. He has a very
good turn of phrase and is quite clearly a plausible and personable rogue.
I
have taken the unusual step of outlining the Plaintiff's past at the outset of
this judgment as credibility is very much an issue and the veracity of a number
of witnesses has been strongly called in issue, particularly the credibility
and veracity of a number of the witnesses, who have been called on behalf of
the Plaintiff, as indeed the veracity of the Plaintiff himself has been
rigorously challenged. I have had an unusual difficulty in assessing the
truthfulness and genuineness of the recollections of a number of the witnesses
in respect of the events of the evening and night of the 3 October, 1992, when
the Plaintiff alleges that at about 10.15, that he was caused to fall by the
negligence of the Defendant Utility in respect of the poor state of restoration
of the footpath at the corner of Aungier Street and York Street in the vicinity
of the Swan Inn.
I
have carefully considered the evidence of all the witnesses, their demeanour in
the witness box, their manner of giving evidence and also their behaviour while
they have been here in court and I have taken all this into account in try
assessment of the accuracy and truthfulness of their evidence.
I
have had the benefit of an enlargement of an ordinance survey sheet produced by
Philip Brunkard, chartered engineer, together with his four photographs in the
blue folder. Album A, Photograph depicts the grid at the junction of Aungier
Street and York Street. By "grid" I mean the traffic intersection. This is
outside the front door of the Swan Bar and the photograph shows this and it
also shows the footpath outside the Swan Bar, and in the background it shows
the side door to the living accommodation of the Swan Bar with a fine golden
Labrador dog standing at the southern side of the -- well, with its head at the
southern pillar at the side of the residence door of the Swan Bar on Aungier
Street.
On
Photograph 2 in that same folder one can see the cellar covering for the Swan
Bar on the extreme left hand side. One can see the golden Labrador, which has
moved on towards York Street and one can also see tarmac following around the
corner, outside the front door of the Swan and on the footpath where the
tarmacs, awaiting the reinstatement of the pavement. The Plaintiff has marked
with a red cross the point on the tarmac, which is there or the purpose of
temporary restoration, and he has marked that red cross where he says he was
tripped or caused to fall breaking his right leg in no less than three places
and straining his right knee. mr Brunkard met the Plaintiff at the scene on the
23 March, 1993 and the Plaintiff pointed out to him where he fell. In
photographs 3 and 4 in that Album A, Mr Brunkard shows the tarmac and the kerb
in the same area as where the Plaintiff put his cross indicating where he had
been caused to fall. Mr Brunkard described the half inch depression in the
tarmac below the level F the concrete as being a danger where people can be
caused to rip and be caused to fall. He said that if there was proper
compaction of the sub base then the tarmac used for the purpose of the
temporary reinstatement, if it is put down at the proper temperature and
properly compacted to fill voids and is also put in at a level slightly above
that of the pavement, so that when it is compacted and when it sinks slightly
it ends up level with the pavement. And he said that it should not subside in
the period before the permanent reinstatement of the pavement is done by the
Roads Authority, which is responsible for the pavement. That is Dublin
Corporation in this case.
Counsel
for the Defendant Utility, Mr McGovern, very properly intervened at this point
to concede that the ESB accepted responsibility for the parts of the tarmac in
the photograph, which is depicted in Mr Brunkard's photographs two, three and
four, and which are shown in the Defendant's set of photographs, that is Album
B and in particular, Photographs 5 and 6, which show the Plaintiff in his
crombie overcoat pointing in Photograph 6 to the declivity, to the declivity in
the tarmac and pavement area at the corner and he is shown pointing at the
declivity with his crutch in Photograph 6.
The
Plaintiff has been consistent throughout this case in contending that he was
caused to trip at this point and he has never deviated from this, nor has he
ever suggested that he fell at any point further north, nor has he ever
suggested that he fell at the point where Garda Lowney noticed a six inch hole
in the pavement with jagged edges protruding, which area is down near the North
end of the cellar door or covering near the door into the residential
accommodation of the Swan Bar. That grating can be seen in Album B in
Photograph 7 and the doorway into the residential accommodation in Photograph 8
is the door which door has over it, "58".
Mr
Duffy then gave evidence himself and he said that he had been residing at the
time of the 3 October, 1992 at Phil Shanahan House in the North Wall. He had
been brought up in Railway Street off Gardiner Street and he had left school at
14. He had gone to London to live with an aunt. In 1952 to 1976 he had been in
London. He had got married over there and his wife had a vegetable stall in
Chapel Market in Islington and he said he had helped his wife and lived in
Chapel Market. They had no children. Subsequently his parents had become ill
and he had returned in 1976. They had moved to Common Street on the North Wall
where he had lived with his parents. He was drawing the dole he said, since
1976 and his parents had died, his Father on Christmas Eve of 1989 and his
Mother some six weeks later. He himself had moved to Spencer Lock apartments in
Sheriff Street after his parents had died.
He
explained that on the evening of the 3 October, 1992 he had gone with his
girlfriend, Mrs McGarry, who had come in from Coolock on the bus, and that they
had gone to the cinema and it transpired they had gone to the Savoy Cinema. The
Plaintiff made it clear that he was making no claim for loss of earnings or for
medical expenses, the latter because he had a medical card. And he said that he
and his friend, Mrs McGarry, spent some evenings out together most weekends and
that that evening the intention was to go on over to look after, what he
described as a friend's flat at 60 Bishop Street. That turned out to be a lady!
whom he also referred to as "his sister" and although she was not a blood
relation, the reference to her as a sister was, he said, because she had been
brought up by his brother as one of his own family.
He
described how he met Mrs McGarry sometime just before 8 o'clock and before this
he had had a couple of drinks, he said, in Parnell Street in the Shakespeare
Pub, a couple of pints of Guinness. And they went to the film and they had left
it before it finished and they had walked down O'Connell Street, and they had
got the bus to Aungier Street and they got off the bus just before the corner
of Aungier Street. One can see that bus stop in the photograph 2 in Album B and
again in Photograph 4 in Album B. It is opposite Whitefriars, what I think is
Whitefriars Church, very appropriate in view of the fact that I think this case
was going on over St Valentine's Day. However, that is where the Plaintiff and
Mrs McGarry say they got off the bus and Mrs McGarry stopped to talk to a lady,
I think a Mrs Warren, who was on the bus. And he walked on slowly ahead and he
passed two people by the corner and said goodnight to them and then he fell
over. The cause of this was the state of the footpath, which he realised
afterwards and he went and fell down on the road. He hadn't seen the lip on the
pavement and he got a shock. He didn't realise what damage he had done to
himself at that stage. The two men whom he had bid goodnight to, of whom he
said while he didn't know their names he knew their appearance, they moved him
in off the road and put him sitting on the pavement with his back to the pub.
Now,
he marked on Photograph 1 in Album 1 as to where they had put him. He put them
as having put him outside the main door of the pub, but I don't put any great
heed on that because there are a number of witnesses, who give evidence to the
effect that when the guard and the ambulance men came he was in fact, further
north along Aungier Street in the area where the golden Labrador dog is in
Photograph 1 in Album A, the blue album. And my conclusion is that that is
where he was after his fall and after he had been moved and I think with a
badly broken right leg, that if he was lying on the road, and I have come to
the conclusion that he was lying on the road where he said, that he would have
had to be moved by other people. I don't think he could have got himself along
to that doorway pillar beside the door himself and that the likelihood was at
that hour of a Saturday evening he was in fact, moved by the two men to whom he
had wished a goodnight, because he knew their faces from having been a fairly
frequent visitor to that area. I think that is also fairly likely because I
don't believe that you would leave a man with a broken leg sitting outside the
front door of that pub on the corner, because somebody would trip over him
either coming out of the pub or coming along York Street. Whereas where he was
with his back to near the accommodation door of the Swan Bar, that would be the
likely place that he would have been put because he would be a bit down from
the corner and he would also have some protection in that he would be clearly
visible to anybody coming along Aungier street travelling in a southerly
direction, they would see him there and wouldn't trip over him.
He
said that one of the men, who assisted him, got the guard to call the ambulance
and he was adamant they were people that he hadn't known before, but he knew
them to see but didn't know their names. And he said that he was taken down by
ambulance to the Meath Hospital. He put the time of his fall at about 10.15pm.
There is a conflict in relation to the times at which this accident occurred
and I will come back to that, but there does seem to be a discrepancy in that
the guard says that he noted in his notebook 10.55pm and he would have noted
that as he went to the scene having received a call from his control in
Harcourt Terrace.
There
is also another very grave conflict of evidence which is very difficult to
explain indeed. The Plaintiff says that Mrs McGarry came with him in the
ambulance to the Meath Hospital. The guard says that he didn't notice anybody
who seemed to be, as it were, attached to the Plaintiff at the scene and the
ambulance men are fairly categoric and indeed, the senior ambulance man is very
adamant that he closed the doors of the ambulance (and that he opened the doors
of the ambulance) after his colleague, Mr O'Brien, the attendant and the
Plaintiff had been put in, the Plaintiff on the stretcher and that Mrs McGarry
did not travel in the back of that ambulance to the Meath Hospital that night.
Mrs McGarry and the Plaintiff both say that Mrs McGarry travelled in the back
of the ambulance. I will return to that conflict of evidence.
The
Plaintiff was taken to hospital. He was operated on the next day in relation to
the two fractures in his right leg, his tibia and fibula. They were both
displaced fractures. There was one undisplaced fracture just under his knee and
that was also dealt with as was the strain of his right knee. I will come back
to the medical aspects of this at a later stage where I deal with the question
of quantum. But the Plaintiff had about a three weeks stay in hospital. He was
operated on. In his uncomplaining way he said he felt "OK after the operation."
He went in to have a screw removed. He had a plate put into his right leg. He
was only in for a long morning to have that second operation under general
anaesthetic. 1992 he went in to have a screw removed. He had a plate put into
his right leg. He was only in for a long morning to have that second operation
under general anaesthetic.
Subsequently
he had to return in March, 1993. His friend, Anthony Rowe, who would be a
relation of Mrs McGarry, called in on him and found him delirious. He was
looking after the house of the lady, whom I referred to as his sister in Bishop
Street and he had to go back into the Meath Hospital. He had been suffering
hallucinations. He was seeing friends and relations who weren't there;
apparently he would blink and they would go away. But at all events, he was
obviously very unwell and he was transferred across to the Adelaide and the
doctors did a further operation. I suspect he was transferred to the Adelaide
at the time because of the new operating theatre in the Adelaide Hospital where
they carry out revision operations in relation to orthopaedic injuries. At all
events, he was operated on there and the metal was taken out and a very strong
antibiotic, Gentamicin beads, were put in to try to clear up the infection in
his leg. Some five days later he was returned to the Meath and he was seriously
ill at that stage, and had to have dialysis treatment because of kidney
failure. However, I will return to that aspect, because the doctors don't make
a strong connection between the renal failure and his previous leg injury and
the aftermath thereof.
As
I said, the Plaintiff is of stoic disposition. When he was asked about his
health he said, "My health is fine, one leg is stiff; the leg feels stiff and I
get pins and needles down the shin bone. I can get around on the stick and
sometimes without it." And he said the right knee sometimes went from under him
but he wasn't working and he was singularly uncomplaining about a very nasty
injury.
He
was subjected to a not unexpected severe cross-examination. He explained that
he was on social welfare of £68.00 unemployment and that he had a
disability payment now. He described how he had met Mrs McGarry that night
outside the Gresham before 8 o'clock and they had been to a film in the Savoy.
He couldn't remember the name of the film, neither could Mrs McGarry and they
were criticised for that, but it seems strange on a night when he had had the
severe accident neither of them could remember the name of the film they had
been to.
He
was also criticized in relation to the name of the flat that he was going to
visit. It is in fact 6D Bishop Street, the apartment of Mrs Rose Grace and
there are quite a number of people who have taken down his address incorrectly,
16 has been taken down, I think by the, I think it was by the guard, but her
address is in fact 6D. And one can understand that people might write down 15
or 16, particularly if the Plaintiff was speaking to them while in pain and
they mightn't pick up what he was saying by reason of his accent. He said that
they got off the bus at about 10 o'clock and it is only a few yards to the
corner, so he thought the accident was probably at about five past ten or
thereabouts and he had arrived in the hospital about eleven and he said that he
was in a state of shock.
He
was adamant that he had only had two pints of Guinness and that that wouldn't
make him drunk and that had been before ever he went to the film. When it was
suggested that he was incoherent with drink, he denied this.
In
relation to the medical reports, the Plaintiff's medical reports were handed in
and Counsel for the Defendant said that he accepted the contents of both Mr
Pegum's reports and both Mr Keogh's reports. There was also a letter dated the
23 September, 1993 from Mr Pegum to the Plaintiff's GP, Dr Eithne Flood, and in
the course of that letter, and this was put to the Plaintiff, Mr Pegum wrote in
April, 1993; "he developed alcohol withdrawal symptoms and infection around the
nail." And the Plaintiff said that in no way had he had a history of a very
large intake of alcohol in the preceding months as he simply could not have
afforded it.
Towards
the end of the cross-examination it was put to the Plaintiff that he had spent
time in prison with larceny convictions, particularly in England and he was
taken through a list of convictions and he agreed with the contents of the
list; and, in reply to a question from myself, he said that he was never
charged with receiving. Now that transpired to be incorrect. He repeated that.
He said he had never been convicted or charged with receiving in his life. It
is quite clear that he has three receiving charges, if one calls the most
recent conviction for handling stolen property "receiving". But the point was
made that -- by the Plaintiff himself at a later stage when he was recalled to
the witness box -- that what he regards as receiving is the sort of large
quantities of goods that a professional fence might receive and that is what he
regards as receiving.
Now,
I am well aware that the Plaintiff is and has been very plausible on many
occasions but it does seem to me that this is a not unreasonable explanation
for his suggestion that he was never charged with receiving. He is quite
clearly wrong but his understanding of the crime of receiving, he says, is in
terms of a professional fence and that seems to me to be not entirely
unreasonable, although I am left with a concern that he has a capacity to be
just a little bit too plausible in his giving of evidence.
Catherine
McCarry gave evidence. She said how she had came into the city from Coolock on
the bus and they met outside the Gresham and they went to the Savoy, and then
they were going to go across to Rose Grace's flat in Bishop Street. When she
got off the bus in Aungier Street she was talking to a Mrs Warren and the
Plaintiff, Kevin, walked on ahead. She did not see him falling but she saw two
men lifting him in against the pub and she said that he was put near to where
the dog is, that is the golden Labrador in Photograph 1, and she pointed out
the bit of the tarmac that he was brought across from, which is the bit on the
corner where he said he had fallen. And she says, and she is quite adamant
about this, she got in the back door of the ambulance and it went to the Meath
Hospital and she thought she was sitting down in the back of the ambulance and
the ambulance man was there. She visited Mr Duffy every day that he was in the
Meath Hospital. She had known the Plaintiff all her life but they had only been
keeping company of or the last 15 years. She had lived in England. She had been
living up in Lancashire. She said that they had left the cinema about 9.30pm.
It was a warm evening. He wasn't enjoying the picture and she said she was warm
and they went out of the cinema together and they had walked down towards
Cleary's and taken the bus to Aungier Street.
She
confirmed that the Plaintiff referred to Mrs Grace often enough as his sister
and she knew her. She was asked why they got off the bus stop in Upper Aungier
Street near the Swan and why they didn't get off closer to Bishop Street and
she said that she never went to the other bus stop and she always got off there
and that Mr Duffy was with her. The discrepancy about the times was pointed out
to her. The ambulance crew only got a call at 11.07, after 11 o'clock that
night, and she said that they hadn't visited anywhere else on the way and that
Kevin Duffy had not been drinking while he was with her and he wasn't falling
around the street; and that she believed he had only had the two pints he had
had when he was in the Shakespeare while he was waiting for her.
The
next witness was Joseph Halpin, who apparently was in his day a very good
footballer until he suffered an injury, and he said that on that Saturday
evening sometime around 10.30 he was walking up Aungier Street towards Digges
Street and he had met Con Caffrey, who was an older friend of his and they were
standing outside the Swan Bar chatting. The man whom he now knew to be the
Plaintiff, Mr Duffy, had passed by and said "good evening"; he didn't know Mr
Duffy, but he had seen him standing in the area and he had bid -- Mr Duffy had
bid them a good night; he had been facing south and so he saw Kevin Duffy fall.
He was looking over Mr Caffrey's shoulder and saw Kevin Duffy falling and he
fell out on to the road; he had gone over and realised that Mr Duffy was in
distress and in shock, and it was obvious that he was hurt badly. He is a man,
Mr Halpin, who had seen football injuries and he knew this was a bad leg injury
and he realised from his own experience as he had had a cruciate ligament
injury to his left knee. He had then gone to work, he had been a motor mechanic
with Archers in Ringsend for 13 years and had been unable to work since his
injury to his left knee. But at all events, he also confirmed that Mr Duffy
fell where in Photograph 2 Mr Duffy had made the red mark on the piece of
tarmac in the photograph. They lifted him in to the wall of the pub and he said
that this was in the area where the lady was standing with the crutch and the
shopping bag, that sort of area, and that Mr Caffrey had got a guard to get an
ambulance and that he had reassured Mr Duffy the ambulance was coming.
When
the two ambulance men came he, Mr Halpin, had gone off. He said that he was
aware of Mrs McGarry's presence but he had never met the lady before and then
he forgot about the incident; and he knew Mrs Warren, although it was her
husband whom he knew, but he hadn't seen Mrs McGarry and Mrs Warren talking. He
didn't know John Murphy, but he did see a man with a bicycle at the scene but
he didn't remember him talking to the guard. He thought Mr Caffrey had spoken
to the guard. He thought that the whole incident had been over in about 15
minutes and he thought it was probably earlier than 10.50 pm. It was suggested
to him that the Plaintiff had fallen in the area to the left of the dog in
Photograph 1 and he said, "Certainly not, I disagree with that completely. He
wasn't in the area of the dog when he fell." In fact, he would have been behind
Mr Halpin at that point and he, Mr Halpin, couldn't have been able to see him
as he was looking southwards and had seen him fall.
He
was asked whether the Plaintiff had alcohol on him and he said he had no reason
to think he had taken alcohol, he didn't even seem to him to be even "sociable
or merry".
Cornehus
Caffrey or Con Caffrey was the next witness. He said he went out about five to
ten. He was going along to watch "Match of The Day" in Gleeson's in Aungier
Street and he had walked up York Street towards the Swan and he turned right
and it was just after 10.00pm or maybe later when he met Mr Halpin. He had
known him for years and they stopped to chat outside the Swan and they were in
the area where the woman with the crutch and the shopping bag is, and between
her and where the golden Labrador is in Photograph 1. He was facing up towards
Georges Street and the Plaintiff had come by and the next thing was Mr Halpin
said, "Oh Jesus the chap is after falling" and he was halfway out on the road.
It is a bad corner. He was half on the street and half on the corner lying down
and he thought it was in the area in Photograph 2 where there is the broken
piece of tarmac. Both of them had gone to the Plaintiff, who was in agony and
they could see that his leg was definitely damaged and they pulled him in by
lifting him under the armpits and they put him in against the panel between the
woman and the dog in Photograph 1.
He
saw a guard on the far side of the road and called to him and he phoned an
ambulance. He waited for the ambulance to come and he thought it all happened
between 10.00 and when he went off down to the pub. He was examined about the
times. He said, "I saw Mrs McGarry there that night and saw her getting into
the ambulance", but he didn't see Kevin Duffy falling. He had helped Mr Halpin
to bring him in off the road and saw that his ankle was twisted and that he was
in severe pain.
Mr
Duffy was recalled at that stage and he explained that Mr Halpin had come in, I
beg your pardon, he knew Mr Halpin to see because he was, Mr Halpin, was
interested in football and that Mr Caffrey had come in to see him in the Meath
hospital and that from that he knew that it was Mr Caffrey and Mr Halpin, who
had helped him in off the road.
Mr
Caffrey had been late arriving and arrived eventually in Court but that was
because he had flu and he certainly had every appearance of suffering from flu.
He was cross-examined, and he was cross-examined particularly about the times,
and he said that he was going to Gleeson's to watch "Match Of The Day", which
starts at 10.45. He had left at 9.55 or 10.00 and that it was roughly five or
seven minutes to the Swan, maybe longer, 10 or 15 minutes and that he had got
to the pub just after "Match of The Day" started. It would have started about
10.45.
Mr
Caffrey was asked if he could remember the name of his friend whom he was
visiting in the Meath Hospital and he was unable to recall the name of his
friend. That certainly was more than a little surprising. He was also somewhat
unsure on recollection as to the ailment or accident which that friend had
suffered. He gave a very vague description of the man.
Guard
Lowney was the next witness called and he described how he arrived at the scene
at 10.55 pm and he had his notebook with him, and he said he spoke to the
injured party and got his name as Kevin Duffy of 6 Bishop Street. There is a
discrepancy there of course, in that what Mr Duffy says is that he was actually
going to Rose's house, the lady he called his sister, at 6D Bishop Street.
The
only witness whose name Guard Lowney got was a John Murphy of 46 York Road
Rathmines. Mr Murphy, he said, was on a peddle cycle and he had no note or
recollection of a man on a motor cycle. That is yet another very strange
discrepancy. He didn't get the name of either Mrs McGarry, Mr Halpin and he
only spoke to the injured party, Mr Duffy and to John Murphy, who was assisting
him at this time. He said that, and this seems to be one aspect that is fairly
consistent, that the dog, the golden Labrador in Photograph 1, is in the area
where Kevin Duffy was at the residential door of the pub. But he said, and a
number of witnesses said this, that his neck and shoulders were up against the
door and his legs facing towards Aungier Street. That is in line with other
people's evidence as to where he was. The guard's view was that Mr Duffy had
consumed a large quantity of alcohol. He was quite incoherent. "I felt he was
quite aggressive towards me at the time. I was assisting him and he was quite
aggressive and annoyed that I was there."
He
wasn't aware of having spoken to Mr Caffrey and didn't make a note of his name.
He noted that the footpath was broken and uneven he had a look at it. There
were jagged pieces of concrete protruding out of the footpath. Mr Duffy told
him that he had tripped on the footpath and where he was standing beside Kevin
Duffy he could see the footpath was uneven.
Now,
I stop just to make the point that the guard doesn't suggest that Kevin Duffy
was able to get up and point out to him or describe to him where it was that he
had his fall and I infer from s that the Guard noted the dangerous bit of
pavement near where he lay and assumed that that was where he had fallen. In
fact, he confirmed this, because he said "Kevin Duffy said nothing to draw
attention to that piece of concrete" and he said, "I assumed he lay where he
fell", which is of course, not in line with the evidence given by the Plaintiff
or by Mr Halpin or Mr Caffrey. As for where the broken piece of concrete was
referred to by the Guard, he said it was some five foot distant to the north of
the dog. The Guard said he was at the scene at 10.55pm and he has a note of
that in his notebook and he says he would have filled that at the time.
The
two ambulance drivers were called. David O'Brien was the attendant and he
produced the record sheet, which he had filled in that night, and from that it
is quite clear that the radio transmission was received by him and his driver,
Ray Murray at 23.07 hours, so some seven minutes after 11 o'clock. And they
were at that time on their way from a call which had taken them to Eden Quay,
where the person they had gone to assist refused to be removed by them. They
were mobile at the time they got to the Swan, outside the Swan Bar, at nine
minutes past eleven and they pulled in, and the back of the ambulance would
have been level with the patient and so that the rear door the ambulance would
have been roughly level with the cellar door.
Now
David O'Brien's description of Mr Duffy was that he got down to introduce
himself and he asked Mr Duffy his name and he found it hard to get his name. He
was very incoherent. He thought the man had a good few drinks taken. He got his
name eventually as Kevin Duffy of 15 Bishop Street. That is what he noted.
And
I pause to say it is curious that Mr Duffy gave his address Bishop Street, but
in view of the fact that he has given a number of aliases in relation to his
conviction sheet, it would appear it is his practice to be very careful about
giving his own correct name and address, which is another reason why one is
naps sceptic, somewhat sceptical about some of his evidence. However, he was
going to 6D Bishop Street that night and perhaps that was the reason why he
gave Rose Grace's address or an address not dissimilar to Rose Grace's address
15 as opposed to 6D.
The
ambulance men could see that the right ankle was badly damaged and they put a
splint on to it and put him on the stretcher and they gave him no painkillers.
They have Entenox actually with am in the ambulance, a strong painkiller, but
they are under very strict rules that they can't give gas to anyone who has
drink taken.
Now
the significance of this is that both Mr O'Brien and Mr Murray both made an
assessment of the injured man, Kevin Duffy and in particular, they would have
been looking at him and assessing him as to whether he had drink taken, and
they were both of the view that he was under the weather -- they didn't
actually say that, that is not their phrase, that is mine -- from the taking of
drink and it wasn't just that he was in pain.
Mr
O'Brien was adamant that he was in the ambulance on his own I there was nobody
with Kevin Duffy in Aungier Street. There nobody with Kevin in Aungier Street.
There was no female who made herself known to him and he didn't get the name of
any male there other than Mr Duffy. Of course, in a way that is not very
significant, because the ambulance men would have been concentrating on dealing
with the patient and getting him comfortable and getting him into the ambulance.
There
is no rule in the Dublin Fire Brigade Ambulance regime, which would not entitle
the ambulance men to exercise discretion and, indeed, most nights they would
take an accompanying person with an injured party to whatever hospital they are
going. It is uncommon. It is not against the rules, so it wouldn't have any
great significance for the ambulance men. That being said, both Mr O'Brien and
Mr Murray are adamant and categoric that they did not carry Mrs McGarry in the
back of that ambulance that night.
Under
cross-examination David O'Brien said that the splint takes about a minute to
put on and that Mr Duffy was very incoherent, and he formed the view it was
because he had a good few drinks taken. He was slurring his words and he was
very hard to understand, "Often enough injured people are shouting with pain",
Mr Duffy didn't seem to Mr O'Brien to be shouting with pain. Again he
emphasized "No one travelled in the ambulance that night except the patient and
myself. I am certain because I thought Mr Duffy was on his own. There was no
one around except the Garda and those who were there were not in his company
and I didn't think that any of them knew the patient." He said he couldn't
measure the quantity of drink taken. He could ask questions and assess his
slurring of his words. There was a smell of drink. He incoherent and it was
difficult to get information, "If a man suffering from pain then he can still
answer questions as correctly and properly" and he came to the conclusion, he,
Mr O'Brien, that the Plaintiff had a fair few drinks taken.
Duffy
was recalled to clear up the aspect about "receiving" he said that he thought
"receiving" was getting lorry loads of stuff. I have already mentioned that
aspect of the matter.
The
next witness was Detective Guard PJ Conway. That was in relation to the Guard's
very efficient dealing with the arrest of the Plaintiff on the 15 July, 1997.
The guard came at short notice. He brought his record about the case, and it
was quite clear that Kevin Duffy had been charged with "handling stolen
property" under Section 33 of the Attended Larceny Act and he had pleaded
guilty on the 5 September, 1997 and received a suspended sentence.
Mr
Ray Murray, the ambulance driver, would have been the senior ambulance man and
he remembered Guard Lowney being at the scene when they got outside the Swan.
He didn't think that Kevin Duffy was accompanied. He had got the splint and the
stretcher from the ambulance and was right beside Kevin Duffy as he lay on the
footpath and he had told him what they were going to do. He didn't remember
Kevin Duffy saying anything. Both he and his colleague had assessed Kevin
Duffy. He got a strong smell of alcohol and made a decision that there would be
no Entenox given.
He
shut the back doors to the ambulance and there was only Kevin Duffy and Dave
O'Brien inside. He heard Mrs McGarry's evidence in court but he was adamant
that only Mr O'Brien and Mr Duffy came to the Meath Hospital in the ambulance.
Mrs McGarry was not in back of the ambulance and as far as he was concerned, he
never met Mrs McGarry before.
He
was cross-examined on the basis that he must have dealt with a lot of cases
that night and he said that this was a case he remembered, and the reason he
remembered it was because when he looking at Kevin Duffy he thought he was a
retired fire officer, District Officer Walker, who was out in Dolphin's Barn.
When he got down to assess the patient he realised it wasn't District Officer
Walker and he wasn't going to give him Entenox because of the smell of drink,
but he was also, that is Mr Duffy, was not talking clearly and a man in pain
would still be able speak clearly. He formed a view that it was drink, he had
had more than two pints of Guinness. He didn't regard Mr Duffy as being been
particularly aggressive to them.
Now
that is the evidence and I have gone through that at some considerable length
because there are issues of credibility of witnesses. There is the issue as to
the time of the accident and there is the issue as to the locus of the
accident, that is where it actually happened.
And
the simplest aspect of this case from my point of view, is the question of
quantum and I propose to deal with that first. Reports of Michael Pegum dated
19 August, 1994 and the 23 May, 1997 have been handed in in a booklet together
with reports from Professor Brian Keogh dated 13 December, 1996 and the 13
March, 1997. There is also the letter from Mr Pegum to Dr Eithne Flood dated 23
September, 1993, which has a reference to Mr Duffy taking alcohol. I am not
particularly influenced by that letter to Dr Flood, but I think it is worth
quoting what Mr Pegum says about this matter. In his report of the 25 August he
gave a description of the accident in that:
"Mr
Duffy said that he had tripped and fallen. He was brought to the Accident and
Emergency Department of the Meath Hospital by Dublin Fire Brigade Ambulance at
11.12 pm on the 3 October 1992. He was admitted under my care. The injuries
sustained:
1.
The Right Lower Leg. There were fractures of the shafts of the right tibia and
fibula.
2.
The Right Knee. There was a sprain of the right knee and a fracture of the head
and neck of the fibula just below knee joint level.
A
plaster splint was applied and Mr Duffy was admitted to hospital. At operation
the following day the fracture of the tibia was reduced and fixed with a steel
intramedullary nail with locking screws at both ends. On the same occasion,
following stabilization of the tibial fracture, the knee joint was examined and
was found to be stable, with no significant damage to the ligaments.
Arthroscopic inspection of the interior of the knee found that there was some
blood within the joint but that the cartilages and bone services were intact.
(I read this as "bony surfaces")
Mr
Duffy made good post-operative progress and was allowed to begin walking with
crutches on the 6 October. The wounds healed well and he was discharged home on
the 13 October and attended the Out-Patient Clinic for review. At a day case
operation on the 26 November 1992 one of the screws was removed from the upper
end of the tibia to allow some pressure at the fracture site on weight bearing
(dynamisation of the fracture). The wound of this little operation healed well
and he continued to attend the Fracture Clinic as requested, with x-rays owing
progressing union of the fracture.
Mr
Duffy was brought to the Accident and Emergency Department of the Meath
Hospital on the 5 April 1993 suffering from hallucinations. He also said that
he had had pain in his right leg for the previous five days. His right foot
appeared bruised and swollen.
He
was admitted to the Adelaide Hospital under the care of Professor Ian Graham
and became very ill, developing acute renal failure. This was associated with
evidence of infection around the nail in the right tibia and with necrosis
(localised tissue death) muscles in the right thigh and lower leg. At operation
the various muscles groups were decompressed by fasciotomy and the nail and
screws were removed. A string of beads of bone cement impregnated with
Gentamicin (a powerful antibiotic) on a steel wire was inserted into the
medullary cavity of the tibia.
Mr
Duffy was transferred to the Meath Hospital on the 10 April where he was
treated for his renal failure by Professor Ian Keogh with dialysis. He remained
very ill for several days, but the various wounds healed well following suture
of the fasciotomy wounds on the 15 April. The leg was stabilized in cast at
this stage.
Renal
function returned and dialysis was stopped on the 1 May 1993 and Mr Duffy was
allowed up on crutches on the 4 May. He was discharged home on the 13 May and
continued to attend the Fracture Clinic in the Meath Hospital as well as
Professor Keogh's Out-patient clinic.
The
fracture went on to heal soundly and all signs of infection in the tibia
subsided completely. Mr Duffy was examined for the purpose of preparing this
report on the 19 August 1994. Symptoms:
1.
The Leg. He said that his leg felt stiff in the mornings, the symptoms being
concentrated in the lower shin. It would loosen up the day went by. It was
neither improving nor deteriorating. The Right Knee. It felt a little stiff but
there was no feeling instability."
Mr
Pegum's findings on examination were, "The right leg had a normal shape and
alignment. There was a scar 70 millimetres long in the midline just below the
knee, through which the nail had an inserted and removed. There were two scars,
40 millimetres and 60 millimetres long on the inner side of the leg just below
the knee and just above the ankle, through which the locking screws had been
inserted and removed. There was a scar 140 millimetres long on the inner side
of the calf and another 120 millimetres long on the outer side, together with a
scar 80 millimetres long on the front of the thigh. These remain from the
fasciotomy operations to relieve pressure on the underlying muscles. All of
these scars were well healed but quite easily seen. There was no wasting or
selling of the leg or ankle. The ankle joint had a full range of movement and
the knee had full straightening but slight limitation of bending. Mr Duffy
walked using a stick but not leaning heavily upon it.
X-rays
of the right leg taken on 19th of August 1994 showed that the fractures had
united soundly with about 5 millimetres of shortening. The gentamicin beads in
the upper tibia were still in place, and there was no sign of infection."
And
in his prognosis Mr Pegum said, "In his accident Mr Duffy sustained a minor
injury to his right knee and severe fractures of the right lower leg. This was
treated in a standard way and did very well initially. However, in April 1993
he became very ill with necrosis of muscles in the leg around the nail and
developed renal failure as a result. This needed major medical and surgical
treatment but his kidney function returned and his fractures united. He is left
with relatively minor symptoms which he does exaggerate. However, he does have
some discomfort in the leg and needs a stick for walking. He would be fit only
for work in which he could spend most of the time sitting down and is unlikely
improve in this respect. There is no risk of the development arthritis in the
future, but there is a definite small risk that infection may flare up. This
can happen at any stage over 20 years or more." (Quoted)
I
also have the reports from Professor Brian Keogh, who deals with the renal
failure and he says in his report of the 13 December, 1996 that he had a
history of a very large intake of alcohol in the preceding months, that is
before he came in in April suffering from the hallucinations. They had to give
him dialysis and he had a very stormy passage and then had an excellent
recovery of his renal function.
He
was written to again and replied on the 13 March, 1997 and extract from his
letter the passage, "I also stress that this person's social circumstances were
such that his intake of alcohol was considerable". And he describes in that
report the renal failure, the acute renal failure and he says in the
penultimate paragraph of the letter, because he was being asked specifically
whether there was a link up with the old injury, "Certainly it is fully
acceptable that Mr Duffy's fall was followed by insertion of pins into his leg
and that he would make a slow but protracted recovery. In many respects it
might be very difficult to argue given his social circumstances that his renal
failure would under normal circumstances be part of that chain of events. With
respect I would suggest it is probably stretching the possibility little far."
It
is a somewhat circumlocutory phrase, but my impression of what Professor Keogh
is saying, is that it is stretching the matter to suggest that the leg injury
can be held responsible for, and linked to his renal failure and he used the
phrase "social circumstances" meaning "circumstances" as one of the factors in
relation to the renal failure.
Well
it seems to me that the infection at the pin in the leg certainly can't have
helped the Plaintiff's condition, but it would seem from what Professor Keogh
says that one can't make any direct link at all between the infection at the
pin and the subsequent renal failure.
Mr
Pegum in his further report says that the prognosis is as he has already given
it to be and when he examined the Plaintiff on the 23 May 1997 he found that,
as to the right lower leg the scars were very visible, and were as he had
reported before; and there was no sign of infection in the underlying bone and
ankle joint and he had a full range of movement. So, that is a happy matter
from Mr Duffy's point of view.
As
to the right knee, Mr Pegum says, "There was no swelling or deformity. The knee
had a range of movement from 0 degrees to 130 degrees (full straightening and
slight limitation of bending)"
Now,
I am about to give my view as to quantum but I don't want to raise anybody' s
expectations or hopes by doing that. It seems to that the appropriate amount
for quantum, and I take into account the Plaintiff's very stoic characteristics
and attitude and his complaining disposition, and his obvious capacity to cope
with a nasty injury and to adapt his life style to it, all of which are very
much to his credit. It seems to me that the pain and suffering to date;
including the operations on his leg, the three fractures, two of them displaced
fractures, the third undisplaced fracture at the top of the right tibia, the
sprain of the right knee and the scarring, which is very obvious and nasty,
though in a person of his age, perhaps not so significant as it would be in a
younger person, I think the appropriate figure in relation to that is
£27,500.00 to date.
As
for the future pain and suffering; he is going to have to walk probably with a
stick for the rest of his days. He has the scarring for the rest of his days
and he is open to some vulnerability of risk of further problems with that leg.
I think a figure of £8,500.00 is appropriate, making a figure of
£36,000.00 in total and there are no specials, so that in the ordinary way
if this was a case on full liability, that would be the quantum.
However,
I have come to a number of conclusions in relation to credibility and veracity
and as to what actually happened on this night and I make a number of findings
insofar as I have to in relation to these matters.
The
first point to make is that Mr Duffy is a citizen of this State and is entitled
to bring a civil action. The nature of his background and his curriculum vitae
is such that one has a natural scepticism about his evidence and indeed, about
a number of the witnesses, who have been called on his behalf. But there is one
thing absolutely certain in this case and that is that Kevin Duffy on the night
of the 3 October of 1992 sometime before that ambulance arrived on the scene
had suffered a very nasty injury to his right leg. There is a conflict as to
the credibility of the witnesses. There is conflict in relation to the time of
the fall and there is a conflict as to the location of the fall.
Now
on the question of liability, the onus of proof to satisfy me on the balance of
probabilities, rests on the Plaintiff and I have come to the following
conclusions based on my observance of the witnesses, my observations of them as
they have sat in court and their general demeanour, and on a careful
consideration of the evidence that I have been given. And the first conclusion
that I have come to is that I should accept the Plaintiff's evidence that he
did fall at the point marked X on Photograph 2 in Album A. That is that he did
fall on the piece of tarmac, which he is seen pointing to with his crutch in
Photograph 6 in the Defendant's Album, that is Album B and that the ESB in my
view, are responsible for the state of the pavement in that location. And I
accept Mr Brunkard' s evidence about tarmac and reinstatement of pavements and
the fact that the ESB was responsible for the creation of a dangerous hazard on
that corner. And so, I have come to the conclusion that the Defendant is liable
in relation to the Plaintiff's fall because of their having left that pavement
in hazardous condition and that this hazardous condition was caused by the way
in which the Defendant Utility left the tarmac, the temporary restoration of
the pavement, at that spot. If nothing else, they should have came back and
levelled up the tarmac so that there wasn't a declivity leaving an edge, which
people were likely to catch their foot in.
As
to the time of the fall, I believe that I should accept that the time of the
fall was probably sometime later than 10.15 pm in view of the Guard's evidence
that he received a call and got there at 10.55 pm. I think that the fall was
probably a bit later than 10.15 pm. I am dubious about the Plaintiffs evidence
on this aspect of time and I have come to the view that on the evidence of the
guard, who would have considerable experience in assessing people's states of
inebriation and on the evidence of the two ambulance men, who had to make a
positive assessment about the Plaintiff's condition, I have come to the
reasoned conclusion that the Plaintiff had very much more drink on board than
two pints of Guinness. Accordingly, I do not accept that he came straight from
the cinema to the point outside the Swan Bar. I also accept the evidence of the
guard and the ambulance men with regard to his incoherency to the effect that
his speech was difficult to understand and that this was not, as one of the
ambulance men put it, what you would expect if a person was simply in pain but
that in the ambulance man's view, he was suffering from having too much drink
taken.
So,
in respect of liability I find that the Defendant is liable.
But
I now turn to the aspect of contributory negligence. In view of any acceptance
of the evidence of the Garda and of the two ambulance men and their positive
assessment about the Plaintiff's state of inebriation and his incoherence, it
seems to me that a very large contributory factor in the Plaintiff's falling on
this piece of hazardous reinstated pavement due to the negligence of the ESB,
was nevertheless because the Plaintiff failed to take care for his own safety.
He failed, despite the reasonably good lighting in the vicinity outside the
pub, to note the generally poor state of the pavement in that area. This was an
area which he traversed fairly frequently. He visited his sister, Rose Grace in
Bishop Street. He must have known that the pavements in that area, I think of
Aungier Street/York street are very poor and despite this, in my view, probably
because of his state of inebriation, he wasn't keeping a proper look out. I
accept the evidence of the garda, Garda Lowney, and the two ambulance men with
regard to his intoxicated state. I regard his condition as being very much a
contributory factor in his having fallen and suffered injury that night. I
believe that he failed to keep a proper look out and I regard him as being 75
percent negligent and culpable in relation to his fall. I apportion liability
as to one quarter, 25 percent on the Defendant Utility, the ESB, and 75 percent
against the Plaintiff.
And
since I regard the quantum as being £36,000.00, I divide that by four and
accordingly, providing I have the mathematics right, the finding is
£9,000.00 to the Plaintiff.