O'Mahony v Kerry County Council (Approved)

Factual and Procedural Background

This action arises from a collision between two emergency services vehicles responding to an incident on a public road near the village of Ardfert, County Kerry. The Plaintiff, a member of An Garda Síochána, was driving a Garda car to a reported head-on collision. The Defendant, Kerry County Council, owns a fire tender driven by its employee, Mr Fitzgerald. Both vehicles, along with other emergency service vehicles, were traveling with sirens and blue lights activated. The fire tender encountered a slow-moving tractor on the road and attempted to overtake it. The Plaintiff attempted to overtake the fire tender and tractor simultaneously when the collision occurred.

The Plaintiff alleges that the fire tender driver moved into the right-hand carriageway unsafely and without indicating, causing the collision. The Defendant contends that the fire tender driver safely indicated and overtook the tractor, with the Garda vehicles following behind in convoy. The dispute concerns liability for the collision and the quantum of damages resulting from the accident.

The case proceeded before Mr Justice Barr who delivered an ex tempore judgment on 20 November 2024.

Legal Issues Presented

1. Whether the driver of the fire tender was negligent in moving into the right-hand carriageway without proper indication and without ensuring it was safe to do so, thereby causing the collision with the Garda vehicle.
2. Whether the Plaintiff was contributorily negligent in attempting to overtake the fire tender and tractor simultaneously.
3. The appropriate assessment of damages for the injuries sustained by the Plaintiff in the collision.

Arguments of the Parties

Plaintiff's Arguments

• The fire tender driver failed to take reasonable care by moving into the right-hand carriageway unsafely and without indicating.
• The Plaintiff had attempted to overtake the fire tender on several occasions but was unable due to road conditions and oncoming traffic.
• The Plaintiff was responding to an emergency and it was reasonable and necessary to overtake both the fire tender and tractor on a straight stretch of road with no oncoming traffic.
• The fire tender driver did not activate the right-hand indicator prior to the overtaking manoeuvre, which the Plaintiff and a fellow Garda officer did not observe.
• The Plaintiff denies any contributory negligence in the overtaking attempt.

Defendant's Arguments

• The fire tender driver slowed down to allow Garda vehicles to overtake but assumed they preferred to travel in convoy behind him.
• The fire tender driver indicated appropriately before moving into the right-hand carriageway to overtake the tractor.
• The driver took reasonable care by checking his right-wing mirror and ensuring the road was clear before overtaking.
• The overtaking manoeuvre by the Plaintiff was unsafe and contrary to established Emergency Services Driving Standards (ESDS) guidelines.
• The Plaintiff and other Garda drivers had not received refresher training on the ESDS guidelines issued in 2015.
• The fire tender driver was attentive to multiple hazards, including the tractor's potential turning and other vehicles entering from side roads, which may have distracted from checking the right wing mirror immediately prior to moving right.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Meehan v Shawcove [2022] IECA 208	Guidance on assessment of general damages for multiple injuries in personal injury cases.	The court applied the principles from Meehan v Shawcove to assist in assessing general damages for the Plaintiff’s multiple soft tissue injuries and PTSD symptoms.

Court's Reasoning and Analysis

The court began by identifying undisputed facts, including the sequence of emergency vehicles traveling with sirens and lights on, and the presence of a slow-moving tractor ahead. The court carefully considered conflicting evidence about whether the fire tender slowed and allowed the Garda vehicles to overtake at a garden centre near Liscahane.

The court found the Plaintiff’s evidence more credible regarding attempts to overtake the fire tender, concluding that the Garda vehicles did not deliberately forgo a safe overtaking opportunity. It was accepted that the fire tender was a large, heavy vehicle traveling below the speed limit, making it reasonable for the Plaintiff to attempt overtaking on a straight, clear road.

The court examined the Emergency Services Driving Standard (ESDS) guidelines but found they did not prohibit overtaking within a convoy if all vehicles are aware of the manoeuvre. The Plaintiff’s lack of formal training on these guidelines was noted but not considered highly relevant.

Critically, the court found on the balance of probabilities that the fire tender driver had not activated his right-hand indicator before moving into the right-hand carriageway. The court reasoned that if the indicator had been on, the Plaintiff would not have commenced overtaking due to the danger of the fire tender also moving right.

The court noted the absence of any mention of indicator use in the fire tender driver’s Garda statement, supporting the conclusion that no indicator was used. The court also considered the practical likelihood that emergency vehicles overtaking at speed may not use indicators to avoid confusing other road users.

The collision was caused by the fire tender driver moving into the right-hand carriageway without seeing the Plaintiff’s Garda vehicle alongside, either due to failing to check the wing mirror or misjudging the safety of the manoeuvre. The court found the fire tender driver negligent in this respect.

The Plaintiff was not contributorily negligent; his overtaking manoeuvre was reasonable and necessary given the emergency context and road conditions.

Regarding damages, the court reviewed agreed medical evidence showing the Plaintiff suffered soft tissue injuries and mild PTSD. The Plaintiff’s physical injuries, particularly to the right shoulder, wrist, and hand, caused ongoing pain and functional limitation affecting his ability to perform full operational duties as a Garda. The court accepted the Plaintiff’s honest efforts to return to work and found the disability significant despite not being severe.

The court applied the guidance from Meehan v Shawcove for the assessment of general damages, awarding €40,000 for pain and suffering to date and €20,000 for future pain and suffering related to ongoing right-hand symptoms.

Special damages were awarded to compensate for loss of overtime payments and allowances during the Plaintiff’s four-year period off work and subsequent restricted duties, totaling €31,621.90.

Holding and Implications

The court held that liability for the collision rests with the driver of the fire tender, who was negligent in moving into the right-hand carriageway without ensuring it was safe to do so and without indicating. The Plaintiff was not contributorily negligent in attempting the overtaking manoeuvre.

Judgment was entered in favor of the Plaintiff against the Defendant in the sum of €91,621.90, covering general and special damages arising from the accident.

No broader legal precedent was established by this decision; the ruling primarily resolves the liability and damages issues between the parties based on the facts and applicable standards of care in emergency vehicle operations.