Twomey –v- Crean & Anor [2005]
In this case, the plaintiff, a pillion passenger on a motorbike was injured in collision with the second-named defendant’s car and made a claim for personal injuries. The plaintiff gave evidence that the motorbike he was travelling on was struck by the car when the driver made an illegal U-turn into the bike’s path, causing the collision and his personal injuries. He also gave evidence that both he and the driver of the motorbike were wearing helmets at the time of the accident. His claim against the driver was ultimately dismissed because the Judge did not believe his account of the accident or that he had been wearing a helmet at the time of the accident. The plaintiff did however recover €50,000 in damages against the driver of the motorbike.
The Judge said:
Finding for the plaintiff in this case would involve me being satisfied that the accident happened more probably the way the plaintiff says it happened than the way in which the second named defendant says it happened. Of course the plaintiff does not have the benefit of the evidence that the first named defendant might have been able to give. Such a finding would inevitably mean that among other things I would be satisfied that the accident happened beyond the entrance into Holyville and outside the Statoil Station. Such a conclusion in turn would mean that I rejected the evidence of the second named defendant that it happened opposite the mouth of the junction, in favour of the plaintiff’s account, and also the evidence of Sergeant Kelliher who was quickly on the scene after the accident, and who made notes at the scene of the position of the vehicles on the road after the impact, and he prepared a sketch from those notes. Such a rejection of that evidence would involve a finding that the second named defendant was not just mistaken in his recollection, but in all likelihood was deliberately lying under oath, and that his lie was being wilfully corroborated by Sgt. Kelliher by a deliberate concoction of a sketch designed to mislead the Court…
My assessment of the evidence is affected also by what I find to be a lack of credibility on the part of the plaintiff, and while not setting out in full a number of matters which have caused me to doubt the accuracy and correctness of his evidence, I will point to a couple of matters. Firstly, the plaintiff told Mr Curtin soon after this accident happened that he was not wearing a crash helmet, whereas now he swears in Court that he was. Neither was any helmet found at the scene even though the plaintiff says now that it came off his head in the collision due to the absence of a strap. Secondly, his evidence about going to the off-licence for cigarettes was lacking in candour since he later explained in cross-examination that the presence of a number of cans of beer on the road after the impact was explained by the fact that it was the first named defendant who was getting the beer while he himself was only buying cigarettes. I was also not happy about the manner in which this plaintiff was at the least economical with the truth in relation to some of the previous injury evidence. Generally speaking, I did not find the plaintiff to be someone whose evidence could be relied upon in material respects, and certainly not such as could be relied upon to displace evidence given by the second named defendant and Sgt. Kelliher.
Since I am not satisfied that this accident happened in the manner in which the plaintiff says it happened, he has not discharged the onus of proof which is upon him, and I therefore dismiss the claim as against the second named defendant.
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