A motorcyclist who was injured when he came off his bike after hitting a crowd-control barrier allegedly left on a roadway for a community festival is suing the local council, the festival managers, and local organisers in the High Court.
Des Kearns (57), of Wooddale Road, Rush, Co Dublin, is suing Fingal County Council, event managers ALA Markets and Events Ltd, of Glasnevin, Dublin, and by order of the court, CFTB Rush Harbour Festival, the locally based volunteer organisers of the event.
The defendants deny negligence and argue contributory negligence on the part of Mr Kearns for travelling too fast and failing to keep a proper lookout.
Mr Kearns, who had been a baggage handler at Dublin Airport at the time of the accident, says he fractured his elbow when he came off his motorbike after hitting the three foot high barrier at around 5am on July 31, 2016, as he was on his way to work.
He claims the barrier had been left at an oblique angle at the mouth of Kilbush Lane in Rush town where the Harbour Festival was on for the bank holiday weekend.
His counsel, Declan Doyle SC, instructed by Stuart Gilhooly, told the court as a result of the accident his client suffered serious and traumatic physical and psychological injury.
He eventually had to give up his job as a baggage handler because it was physically too difficult, counsel said. He had not gone back on the motorbike as a result of the psychological effect and physical difficulty in using the clutch on the bike.
He was also an enthusiastic amateur guitar player who now found it difficult to play any more as a result of his injury.
Mr Kearns, who is married with a teenage daughter, told the court the barrier on the road was at an angle as he came around a bend on the road. He clipped it as he tried to avoid it and this threw him off the bike, a 600cc Kawasaki.
He said was doing about 35kph and he believed it was the legs of the barrier he hit but it happened so quickly it was hard to know.
He was taken by ambulance to Beaumont Hospital where his fractured elbow was plastered and told to return a few days later where surgery was carried out on his elbow.
He said as a result of the accident he continued to suffer pain in his arm, found it hard to sleep and felt low and anxious. Eventually, he had to go see a counsellor to deal with the psychological effects and was very anxious and nervous.
He was out of work for 11 months and when he returned to work the job had changed and he was required to do very physical heavy baggage handling and it was very stressful. He found he could not handle it any more and was told by his new boss in his employers, Swissport, that he could not be treated any differently from others.
He got a new job with Aer Lingus in airplane catering which he kept up until the pandemic hit and, as his year long contract had run out, he was let go in early 2020. When the job was available again he had to turn it down because he felt he could not do it.
Under cross-examination by Micheál Ó’Scanaill SC, for the council, he denied he was either not keeping a proper lookout or travelling too fast. He disagreed the barrier was clearly visible.
Cross-examined by David Nolan SC, for the Rush Harbour Festival defendant, he disagreed he was going at “one hell of a speed” and “hit it at some whack” given the damage to the barrier shown in a photograph provided to the court.
“I can guarantee you I was not speeding, you are trying to suggest I was speeding and I was not”, he told counsel.
Mr Nolan said his side would give evidence that all the barriers hired for the festival had been collected and returned.
The case continues before Ms Justice Mary Rose Gearty.
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