Insurance Update: Personal Responsibility and Common Sense In Personal Injuries Claims
30 November 2018
The recent High Court judgment in O’Mahoney v McCarthy Hanlon & Waterford and Wexford Education and Training Board (the Board), which was heard by Mr Justice David Keane on November 2018, emphasised the need to bring ordinary common sense to bear when considering what constitutes reasonable care in personal injuries actions.
In 2012, Mr O’Mahoney, who was employed by the Board as a caretaker, was riding a bicycle that collided with a car on a private access road on the Board’s premises. The car was being driven by Ms McCarthy Hanlon, also an employee of the Board. Mr O’Mahoney had entered the premises through the pedestrian pathway and, without stopping, began to emerge out onto the access road. The front wheel of his bicycle was just beyond the end of the path when he saw the car driven by Ms McCarthy Hanlon approaching from the left. He turned right onto the access road, hoping the car would avoid him by passing parallel to him on his left. However, the wheel arch of Ms McCarthy Hanlon’s car “glanced against his left thigh”, causing him to lose balance and fall heavily against the concrete curb.
The defendant claimed that the accident was caused by the negligence of Ms McCarthy Hanlon in the care, control or driving of her vehicle, and/or by the Board’s negligence in failing to ensure his safety while on its premises. He alleged that a hedgerow which ran alongside the pedestrian path obscured his view of the access road.
Mr O’Mahoney had argued that he was entitled to use the pedestrian pathway as a cycleway and that it was frequently used by other cyclists. He contended that there were no signs or markings in the immediate vicinity expressly prohibiting its use as a cycleway. Mr Justice Keane however strongly refuted this claim, stating that “foolhardy behaviour does not become reasonable behaviour merely because a number of people have engaged in it in the past”.
Even if that were not so, Mr Justice Keane determined that the proximate cause of the accident was Mr O’Mahoney’s failure to stop or dismount from his bicycle at the T-junction between the pedestrian pathway and the access road.
Mr Justice Keane found no breach of s3 of the Occupiers Liability Act 1995. Citing the Court of Appeal judgment in Byrne v Ardenheath Company Limited, he emphasised the need for a trial judge “to bring ordinary common sense to bear on his or her assessment of what should amount to reasonable care”. The common duty of care owed by an occupier was to take such care as is reasonable in all of the circumstances, having regard to the care which a visitor may reasonably be expected to take for his or her own safety.
He also found that Ms McCarthy Hanlon could not have avoided the accident.
In all of the circumstances, Mr Justice Keane concluded that Mr O’Mahoney failed to make a case of negligence against either Ms McCarthy Hanlon or the Board.
O’Mahoney v McCarthy Hanlon & Waterford & Wexford Education and Training Board marks the continuation of a trend of the application of the ‘common sense’ criteria set out in Byrne v Ardenheath Company Limited, resulting in the dismissal of the plaintiff’s claim.
Mr Justice Keane’s decision endorses personal responsibility and common sense in the assessment of reasonable care in employers’ and occupiers’ liability claims.
This decision is to be welcomed on the part of defendants and their insurance companies. It indicates a positive trend that courts are now consistently requiring plaintiffs to use common sense to avoid injuries.
For expert legal advice relating to the defence of personal injury claims made against your organisation, contact a member of our Insurance & Risk team.
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