Brian Forde (plaintiff) v Iarnrod Eireann / Irish Rail (defendant).

Negligence - Plaintiff injured when train moved off - Liability apportioned - Whether apportionment correct - Damages - Assessment.

The Supreme Court (before Mr Justice O'Flaherty, Mr Justice Barrington and Mr Justice Lynch); ex-tempore judgment delivered 4 November 1997.

In an assessment of damages, it is expected that trial courts provide the way damages are computed, past and future. But in the instant case, it was not necessary for the Supreme Court as the court of final appeal, to engage in that exercise. The Supreme Court so held in reversing the apportionment of liability and increasing the general damages awarded to the plaintiff by the High Court.

Conor Maguire SC, Henry Bourke SC and John Kiely BL for the plaintiff; Fergus O'Hagan SC and Christopher Meehan BL for the defendant.

Mr Justice O'Flaherty said that the plaintiff appealed from the judgment and order of the High Court (Mr Justice Barron) given at a sitting of the High Court at Galway on 6 March 1995 whereby in a personal injuries action brought by the plaintiff the trial judge found that the defendant was negligent but found also that the plaintiff was guilty of contributory negligence and he apportioned liability as to 75 per cent against the plaintiff and 25 per cent against the defendant.

Mr Justice Barron had also awarded damages to the plaintiff for what was, by common consent, a very serious injury to his right leg. The award was £30,000 general damages to the date of trial and £30,000 for the future. There were two other sums: £20,000.00 which might be categorised as damages for loss of job opportunity and a sum of £12,500.00 which might be categorised as for loss of earnings to date of trial.

The facts were that the plaintiff, who was then aged 16, was returning to Galway on the defendant's train having attended the All-Ireland hurling final in Dublin on 4 September 1988. The match was won by the Galway team. He was accompanied by three or four companions as well as a younger brother. The train was very crowded as would be expected with these special excursions on the day of an All-Ireland final, with many not having seating accommodation. Although there was some dispute as to whether the train had been held up unduly - it appeared it had to stop for some length at Mullingar - on the whole it seemed to have made good progress west. Naturally, there was an air of jubilation and triumphant celebration among the passengers on the train but there did not seem to be anything untoward otherwise in their behaviour.

The train come into the station at Ballinasloe. It had about eight passenger carriages and it appeared that the last two or perhaps one and half carriages, were parked sufficiently away from the platform, so that the people on them would not be able to alight onto the platform. It seemed clear that the defendant's personnel on the train had told people that if they wanted to get off at Ballinasloe they should move up along the train and alight from a forward carriage onto the platform. Some were ushered up and duly did so alight, but others did not. A number wanted to get off from the rear door of one of the rear passenger cars. It seemed a number poured out, perhaps ten or twelve out of one particular door, and the plaintiff found himself being carried along on the tide, so to speak. He could have held his ground and resisted the pressure from the people who were getting off but he decided that it was easier to go with them. So he got out onto the ground below.

Again, there seemed to be no doubt that the train was stationary for about five or six minutes. The judge was unable to resolve what the plaintiff was doing during that time. However, one can conjecture that he was probably engaging in a certain amount of banter with his friends and was partaking in the general air of celebration that no doubt permeated the environs of the station on the occasion.

Mr Justice O'Flaherty said that there was evidence that the guard blew his whistle twice but the plaintiff said that he did not hear it. When he went to get on the train the door out of which he had come was closed but the next door up along the same carriage was open. He ran towards that door and then climbed onto the running board of the carriage whilst grasping an overhead rail. There did not seem to be any dispute that at that stage the door was open. However, just as he was going towards it was closed from the inside. Then, unfortunately for him, the train moved off and he slipped down and his leg came into contact with the platform. He sustained very severe injuries.

There was evidence from Mr McPhilbin and Mr Martin for the defendant that passengers had been told that if they wanted to disembark they should move up so that they could get off at the platform. However, Mr McPhilbin, the defendant's inspector, saw that people had emerged from this rear passenger coach onto the ground. There was another employee of the defendant at the station, Mr Maloney, who gave the white light to indicate that it was safe for the train driver to proceed. He was not called as a witness at the trial. The judge took the view that in this state of the defendant's knowledge they should really have averted to the possibility that something untoward might happen down around where the people had got off at the rear carriage. That while they were not meant to be able to anticipate precisely the accident that the plaintiff sustained, that there was an obligation on them to have somebody on duty, such as Mr Maloney, who should have gone down from the platform and made sure that there was no one in the vicinity of the train at the time when it was pulling off. That was the essential finding of negligence made against the defendant.

Mr Justice O'Flaherty said that it was clear that if that precaution had been taken then no accident would have happened. The man, presuming it was Mr Maloney for the sake of this argument, would have made sure that everybody was clear of the door. If someone wanted to get back onto the train he might have been able to open the door for him, ushered him on board and then closed the door. One could draw on experience of one's own about stations up and down the country that that is generally the way things operate and all the more should such a system be in operation on an occasion of crowds, excitement and celebration. It was not done and that was the basic cause of the accident and that was so found by the trial judge.

Mr Justice O'Flaherty said what the trial judge found at fault with the plaintiff was that he should really have had enough time to run up to the platform and re-embark on the train from there. In contradistinction to the trial judge's finding, Mr Justice O'Flaherty held that when all was said and done what the plaintiff appeared to have done wrong was that he got on the running board, clung to the overhead rail and this was at a time when the door was open and the train stopped. Then the door was shut and the train moved off and it was said that he should have anticipated that these two things might happen: that the door would close and that the train might move off before he had a chance to re-embark. Mr Justice O'Flaherty believed that the plaintiff must be taken to have realised that he was taking some risk in going about an attempt to re-enter the train in this unorthodox manner. In addition, of course, it was said that he should not have got off the train in the first place - that in a sense went without saying - and, of course, if he had got back on in time then the accident would not have happened either.

Mr Justice O'Flaherty said that these were rather remote causes and the immediate cause of the plaintiff's mishap was that he attempted to get on in the way that he did when adventitiously the train moved off.

Mr Justice O'Flaherty said that he was convinced that the preponderance of blame must rest with the defendant in these circumstances. Therefore, he reversed the finding of putting the greater blame on the plaintiff and he proposed 70 per cent blame on the defendant and 30 per cent on the plaintiff.

Mr Justice O'Flaherty continued that there was no dispute but that the plaintiff sustained very severe compound fractures of his right leg which was mashed. The plaintiff sustained ghastly injuries to the right tibia and fibula. In addition he had had many operations and procedures and consequently had a very deformed and slightly shortened leg. The trial judge had assessed the damages at £30,000.00 for pain and suffering to date. Bearing in mind that a considerable period had elapsed from September 1988, the date of the accident to the date of trial in February 1995, Mr Justice O'Flaherty thought on the whole that the award was sufficiently low as to call for the intervention of the court. Accordingly, he substituted for the general damages a total figure of £80,000.00. He said that while it is expected that trial courts provide the way damages are computed, past and future, it was not necessary for the Supreme Court, as the court of final appeal, to engage in that exercise in the present case.

As regards the other sums, the trial judge had allowed £12,500.00 for loss of wages for a period in time. The plaintiff was a young boy at the time being sixteen years of age. He had done his group certificate and had done reasonably well. He had not quite made up his mind what to do with his life. Nobody had suggested that that figure was significantly too light. Mr Justice O'Flaherty did not think it was anyway and confirmed that figure.

The trial judge had allowed £20,000.00 for loss of vocational opportunity. The plaintiff was now working as a projectionist in a cinema. However, he had missed out on other job possibilities. This was synthesised in the evidence of Miss Anne Doherty who had an assessment training and employment consultancy and who testified that taking into account the plaintiff's age, his education, his work, training and experience, his physical mobility limitations, his geographical location, employment opportunities had been drastically reduced as a result of the accident. Mr Justice O'Flaherty thought the sum of £20,000.00 was about right for this and affirmed this figure.

Mr Justice Barrington and Mr Justice Lynch concurred with the judgment of Mr Justice O'Flaherty.

Solicitors: Sandys & Brophy (Galway) for the plaintiff; Owen Beechinor (Dublin) for defendant.