Offaly court awards damages after driver hit ditch on icy road to avoid crashed cattle truck

OVER €11,000 in damages was awarded to a driver who crashed into a ditch to avoid colliding with a cattle truck which itself had been in an accident and was blocking an icy road nearly two years ago.

Ledion Mita, The Oaks, Kilnacourt Woods, Portarlington, brought an action at Tullamore Circuit Court against Darragh Purcell, c/o Wrightway Underwriting Ltd, Wrightway House, Ardcavan Business Park, Wexford.

Judge Karen Fergus heard that Mr Mita was on his way from his home to work at a meat factory on January 4, 2021 and the accident occurred at about 9am on the road between Edenderry and the meat factory near Moyvalley.

The man's barrister, Eileen McAuley, BL (instructed by Barry Fitzgerald Solicitor), said Mr Mita had been working at the meat factory five days a week for four months and was familiar with the road.

Ms McAuley said it was a very cold morning and there was black ice on the road and the accident occurred about half a mile from the meat factory.

She said the case would be the defendant was negligent in failing to place reflective warning triangles on the road or failing to signal to traffic that there was a difficulty, particularly because there was a bend just before where the truck and car ended up.

Mr Mita suffered soft tissue injuries to his neck, back and right knee and was certified unfit to work after being taken to Mullingar hospital by ambulance. He was making a claim for 12 weeks' loss of earnings.

In his evidence, Mr Mita said his work at the meat factory involved collecting blood from animals to make serums for curing cancer.

On the day of the accident he came to a bend and saw a lorry blocking the road. It was a cold and frosty morning and he had to be very careful because of the ice.

Mr Mita said he was driving at 30kph and just after the bend he saw the truck and his first reaction was to brake and turn to the right because it would have been worse if he had gone straight into the lorry.

After the impact he found he could not open the doors of his car and the lorry driver came and opened the boot and he got out through it.

Mr Mita said he was shaking and cold and vomited immediately after the accident. He then took some photographs and got back into his car because of the cold.

After being x-rayed at Mullingar hospital he was released and then went to his GP because of the pain in his shoulder and back. He was given painkillers and advice about physiotherapy.

He had three or four physio sessions in Portlaoise and followed his GP's recommendations for swimming and gym exercises.

He did return to work but did not continue because of the pain and got a certificate to stay off from his GP.

His job at the factory had involved lifting calves of about 20 or 30kg in weight but he could not do that. Last November he began a different job, selling and fixing cars.

Mr Mita also told the court he went for acupuncture sessions in Dublin and outlined how he continued to have pain and would wake up at night to find the right position to sleep.

He used to cycle two or three times a week but could no longer do so because his knee would pain him after half an hour.

Cross-examined by William Fennelly, BL, for Mr Purcell (instructed by Reidy & Foley), Mr Mita agreed that the airbag in his car had not gone off and that he had gone to his solicitor three days after the accident.

Mr Mita also agreed that he had gone to an acupuncturist before beginning physiotherapy in July this year.

When Mr Fennelly put it to him that there was €690 worth of receipts for herbs in his claim, Mr Mita said that was a mistake and they should have been for acupuncture but he was taking herbs three times a day.

He said he was making the herb purchases and getting acupuncture at the same business and they had probably put the price of both together on the receipts.

Asked why he had not seen such a big cattle truck earlier, Mr Mita said he had been concentrating on the road and did not look at what was after the bend.

John Hayes, engineer, gave evidence of inspecting the circumstances of the accident and said the plaintiff had been driving a black Audi.

Mr Hayes said that though the truck would have been more than three metres high, because of its orientation on the road, where there was a bend and a hill, it might not have been easy for Mr Mita to discern it.

Mr Hayes also said the first thing the truck driver should have done is put his warning triangle out on the road or put a system in place to warn other drivers.

Darragh Purcell, who described himself as a farmer cum cattle agent and owner of the truck, said he was familiar with the road and would travel it about three times a week.

Mr Purcell described driving conditions on the day as treacherous and though he was crawling along with a full load the truck went out of control and onto a hedge at a garden.

He got out and looked at the lorry and then rang his wife, whereupon he heard a thud which was the impact of Mr Mita's car.

After helping him to get out he returned to try to get his truck off the road and after trying it with a JCB another tractor was required.

Replying to Ms McAuley, Mr Purcell said that though he did have a reflective triangle he never thought of using it and wanted to get his truck off the road.

Judge Fergus assessed total damages at €15,000 but she said Mr Mita was 25% negligent, resulting in damages of €11,250 to the plaintiff. This included agreed damage costs of €2,750 for the car, which was written off for salvage.

The €15,000 was made up of €8,000 in general damages and €7,000 for loss of earnings.

The loss of earnings amount was calculated on the basis that the factory had reduced its working hours to three days a week because of Covid-19.

Judge Fergus said she was not satisfied with the claims for herbs and acupuncture and was not making an award for those costs.

The judge said the first thing Mr Purcell should have done was put out his triangle and from the evidence she concluded Mr Mita was only 30 metres from the truck when he saw it.

Costs were awarded to the plaintiff at the District Court scale.