A twenty nine year old man who claimed he fell off his bicycle in a Clonmel housing estate because of a hole in the road has had his case for personal injury dismissed by the High Court.
The case was brought by Dwaine O'Donnell, also known as Dwaine Burns, of Cooleens Close, Clonmel who claimed he had been deformed as a result of the accident, that he could not go to the pub anymore and it had put an end to his sports career.
At a sitting in Kilkenny, Mr. Justice Twomey, in a judgement, said it would be impossible for anyone cycling on the road not to see a hole of such a size and ruled that it was the court's view that if the the man cycled into the hole, as he alleged, it was entirely his responsibility for the alleged injury caused to him.
The case was brought against South Tipperary County Council and Clonmel Borough Council. O'Donnell claimed he fell off his bicycle at Cooleens Close on the afternoon of July 12th, 2013 as a result of the negligent repair by the defendant of a hole in the road.
The plaintiff sustained injuries to his head and face. The hole was significant in size - it was 1'9" in length,1'3" wide and 3 and a half " deep.
"In this court's view it would be impossible for anyone cycling down this road not to see a hole of this size in view of the photographic evidence provided to the court and in view of the fact that the hole is in the middle of the road.
"Indeed, it is hard to avoid the conclusion that the hole is so obvious that a cyclist would have to be consciously looking the other direction to miss the hole", said Justice Twomey.
Justice Twomey said that even if the plaintiff was looking where he was going, the court did not find him a credible witness regardiing how the injuries were incurred.
"To support his claim he alleged that he was deformed as a result of the accident and so would not go to the pub anymore, yet this court could not see the scars to which he was referring, when the plaintiff pointed them out.
"He also alleged that the accident had put a stop to his sports career,yet within a week or so of the alleged incident and for several months afterwards he was playing for his local soccer team", said Justice Twomey.
Referring to the plaintiff's credibility, stating that while it was not a determinative factor in the case, Justice Twomey said the court could not ignore the fact that he has been convicted of an offence which involved dishonesty, namely theft, he has been found guilty of drug dealing, was currently charged with assault and he has two names, Dwaine O'Donnell and Dwaine Burns, for no good reason and has been convicted under the latter name .
Mr. Justice Twomey said the only evidence of the alleged incident was that of O'Donnell himself.
The court concludes, said Justice Twomey, that the plaintiff had failed to discharge the onus of proving on the balance of probalities that the accident occurred as alleged.
"The only positive note is that although the case was listed for two days, it lasted less than one day in total and so did not waste the court's resources as much as initially anticipated." said Justice Twomey.