A Falcarragh woman has had a compensation award slashed by 40% after a judge said she probably knew the driver of the car was drinking before a crash in which she was injured.
Erin Gallagher, 31, a mother of two, had been awarded €190,500 in damages at a previous court hearing after suffering a serious head injury.
The ruling by Mr Justice Sean Ryan means Ms Gallagher will get €114,300 damages over injuries suffered when the car in which she was travelling went out of control on a narrow side road in Co Donegal.
The car struck a telegraph pole and overturned several times before coming to rest upside down in a field.
The court also heard that Ms Gallagher was not wearing a seatbelt at the time of the crash.
Rejecting suggestions alcohol was not necessarily responsible for the crash, Judge Ryan said the driver Oliver McGeady had said he drank seven bottles of beer over a two and a half hour period before getting into his car.
While he personally felt Mr McGeady “may have drank more”, that was the evidence, the judge said. Gardaí also reported a strong smell of drink from Mr McGeady at the scene but were unable to breathalyse him due to his injuries.
Mr McGeady had also said he took a narrow road to reduce his chance of being breathalysed by gardaí.
And the Judge said that a person does not have to be “staggering around or incapable of speech” to have their driving capacity impaired by alcohol.
It was clear from various cases there was “a much more acute understanding of the social damage brought about by drink driving” and that was reflected in the attitude of the courts.
In this case, it was “irresistible” Mr McGeady’s capacity to drive and control the car was substantially impaired by alcohol. If Ms Gallagher was unable to observe Mr McGeady because of alcohol she herself drank, that was not an answer to a plea of contributory negligence, he added.
Ms Gallagher had sued Mr McGeady, who at the time lived near her home at Cashel, Nagore, Gortahork, over the crash that happened about midnight on Saturday July 19th 2008 on the road between Falcarragh and Gweedore.
The crash happened after Ms Gallagher, Mr McGready and three others had left a bar in Falcarragh for a nightclub in Gweedore.
Mr McGeady admitted liability but alleged contributory negligence by Ms Gallagher.
In his judgment, Mr Justice Ryan ruled Ms Gallagher could see over some two and a half hours in two bars in Falcarragh that Mr McGeady was drinking throughout that time and she should not have got into a car with him. He found contributory negligence by her on that point.
He also found contributory negligence by her in not wearing a seatbelt. Ms Gallagher testified she had worn a seatbelt but the judge ruled, on foot of evidence including she was ejected from the car and the nature of her injuries, she was not wearing a seatbelt.
Given his findings, he assess contributory negligence against Ms Gallagher at 40 per cent. He assessed total damages of €190,500, less 40 per cent, after noting she suffered a significant head injury, fractures of the cheek bone and jaw and other injuries. He rejected arguments she was impaired in her capacity to work and earn as a result of her injuries.