Opinion /Experts’ Evidence

Cases

Reilly v. Garvey

O’Dalaigh C.J.; Walsh J. [1973] IR 89
Supreme Court

DALAIGH C.J. :”
I have read the judgment of Mr. Justice Walsh and I agree with it.

WALSH J. :”
The plaintiff’s claim against the defendant was for damages which she claims to have suffered by reason of the death of her son, James Reilly, which resulted from a collision between a motor cycle which he was riding and a stationary motor lorry, the property of the defendant. The plaintiff claimed that the death was due to the negligence of the defendant. The accident occurred in Bective Street, Kells, in County Meath on the 20th January, 1969, at about 6.30 p.m. and after nightfall. The deceased worked in a garage in the town of Kells and he lived at Jamestown near Navan. He had a motor cycle which belonged to his brother Bernard and, on leaving his place of employment, the deceased called at Bernard’s place of employment and picked him up. The deceased was driving the motor cycle and Bernard, the owner, was riding as pillion passenger. This was about a quarter of a mile from the scene of the accident. The weather was very bad that night. It was described in evidence by a Civic Guard, Patrick Lavin, as being an evening on which there was”torrentially heavy rain with strong gale-force wind.” He also stated that visibility was very bad due to the heavy rain and the haze which was created in front of the lights.
The Civic Guard was driving his own private car on that evening and was proceeding along Suffolk Street intending to go up Bective Street; when he came to the junction at Suffolk Street he observed the deceased’s motor cycle. The Guard stopped his motor car and the motor cycle passed on into Bective Street. It had its head light and rear light on and was being driven, as the Guard described it, “normally, slowly” at about 20 m.p.h. It was on its correct side of the road and was close to the left margin. The Civic Guard stated that, when he came to the point where he stopped his car, he could see ahead of him “the outline of a lorry” which was parked on the left-hand side of Bective Street, on which side there were no street lights. All the street lighting on that street was on the other side. This was at a point where the street was about 291/2 feet wide. The Guard described that the motor cycle travelled on and he proceeded to move after it. He noticed a motor car coming from the opposite direction which had its lights dipped. The motor cycle moved in closer to its left and the Guard, in his motor car, slowed down somewhat so as to allow the motor cycle to pull out again. The Guard described that the motor cycle moved over to the right with the object of passing the lorry which had been parked there with no lighting of any kind upon it. The rear of the lorry was towards the motor cyclist. According to the Civic Guard, the lorry was coloured dark maroon with dust on the back of it and it had a load of earthenware drainage pipes. The lorry was parked as near as it could be to the kerb on its left. The Guard said that he could see “the outline” of the lorry “very clearly”by the aid of the light from the public lighting system on the other side of the road. It is to be noted that the Guard was moving towards the rear of the lorry when he observed it and that he saw it at a distance of approximately 140 yards. The nearest public lighting pole was across the street from the lorry and the next one was 167 feet away on the same side. According to the Civic Guard, the motor cyclist was some 40 yards from the rear of the lorry when the other motor car passed. The Guard then described how the motor cyclist began to move out gradually for the purpose of passing the parked lorry, which he had commenced to do in ample time, and the Guard described the motor cycle as being more or less in line with the right-hand rear corner of the lorry (or just about to clear that corner) when it appeared to come in contact with some portion of the rear of the lorry and fell. The motor cycle fell over on its right-hand side with both riders still astride it.
At the close of the case for the plaintiff, and on the application of counsel for the defendant, the learned trial judge withdrew the case from the jury on the ground that there was no evidence upon which the jury could find that the defendant was guilty of negligence. This was done entirely upon the evidence of the Civic Guard which has been mentioned; the pillion passenger on the motor cycle had no memory whatever of the impact. The learned trial judge took the view that the owner of the lorry was not negligent in leaving the lorry parked in that position without lights, because the lorry was visible for about 130 yards by reason of the illumination from the lamp standards on the other side of the street. The judge quite rightly held that the fact that the action of the owner of the lorry might be an offence under the road-traffic regulations did not necessarily make it negligence.
The learned trial judge went on to refer to the fact that the driver of the motor cycle began to pull out for the purpose of passing the lorry some 40 yards behind the lorry as being evidence that he had seen the lorry and that he was endeavouring to pass it out but had misjudged it in some way. I quite agree with the learned trial judge that this was evidence that the driver of the motor cycle had seen the lorry in front and that he very probably misjudged it in some way. It does not follow, however, that the misjudgment was not to some degree caused by the action of the owner of the lorry leaving it there without lights. On two occasions in the course of his evidence the Civic Guard described seeing the outline of the lorry, but on no occasion did he state that the illumination available enabled him to see it in any detail. The owners of vehicles, in particular large dark-coloured ones, who leave them parked in streets or roads at night-time without adequate lighting to indicate where precisely they are, or without indicating reasonably accurately the dimensions of the vehicle in question, are guilty of creating a serious hazard to other users of the highway.
In Tynan v. Earls (Supreme Court: 28th March, 1969) this Court held that the placing of a red lamp two or three feet beyond the commencement of an obstruction, in that case a tar boiler, was itself capable of being misleading and was sufficient to ground a finding of negligence against the person who placed it there; this was because the person approaching the obstruction and seeing the light might not appreciate, until it was too late to take evasive action, that the obstruction commenced two or three feet nearer than the warning light itself. In that particular case it was a red warning light hung on the side of the stationary vehicle two or three feet along the side from the tail.
In my view the same reasoning applies to the present case. If this lorry had been properly equipped with parking lights, the deceased would have had more than an outline to go upon. All the evidence indicates that there was a misjudgment as to the exact point where the lorry could be safely cleared and, in my view, it was on the evidence open to the jury to hold that the failure to have a proper illumination of the lorry was a causative factor of this misjudgment. The fact that the deceased himself may have been guilty of contributory negligence is beside the point. All the evidence indicates that the motor cyclist had been proceeding in a careful and slow fashion up to the very moment when he apparently failed to clear the corner of the rear of the lorry. The marks on the right rear mudguard of the lorry indicate that the motor cycle, after falling, came in contact with the right rear mudguard. There was a strong wind blowing that night from left to right as the motor cyclist proceeded and it was apparently suggested, though not relied upon by the learned trial judge, that in some way the wind caused the motor cyclist to fall.
The present case is one of that unfortunate type of case where the person involved has either been killed in the accident or has no recollection of it. The correct approach to this type of case was discussed by Lavery J. in Pettigrew v. Farrell (Supreme Court: 1st March, 1956) where he referred to the other cases which have arisen on the same point. That was a case also where the trial judge withdrew the case from the jury on the ground that there was no evidence of the defendant’s negligence. I would like to reiterate what Lavery J. said in that case:” “It is not, however, necessary for the plaintiff to show that the defendant must be found negligent. It is sufficient if the facts proved (if the jury accept the evidence) would entitle the jury to take the view that the accident, as a matter of probability was caused by the defendant’s negligence. The credibility of the witnesses, the weight to be given to their evidence and the inferences to be drawn from that evidence are, of course, for the jury and not for the judge.” I would also refer to the judgment of Maguire J. in delivering the majority judgment of the former Supreme Court in Kavanagh v. McCourt (21st May, 1958).
In my view, the evidence, as it stood at the point where the learned trial judge withdrew the present case from the jury, was such that the jury could have taken the view that the accident, as a matter of probability, was due to a misjudgment on the part of the deceased and that a causative factor in that misjudgment was the action of the defendant in leaving his motor lorry unlit on the side of a road on which there was no public lighting; and that he was negligent in so doing as the absence of light on the lorry itself might tend to deceive persons approaching it as to its exact dimensions. In my view, the order of the High Court should be set aside and a new trial directed.

MCLOUGHLIN J. :”
The matter to be determined on this appeal is whether the learned trial judge was justified in withdrawing the case from the jury by reason of there being no evidence upon which the jury, acting reasonably, could find for the plaintiff. The action was brought in respect of the death of one James Reilly, a son of the plaintiff, who met his death on the 20th January, 1969, while riding a motor cycle that night in Bective Street, Kells, and colliding with a parked motor lorry.
The salient facts are not in dispute. It was a dark night, it was raining hard and there was a very strong gusting wind. The plaintiff’s son, who had a brother Bernard on the back of his motor cycle, approached Bective Street from Farrell Street; to enter Bective Street he had to negotiate a left-hand curve. Suffolk Street also enters on to Bective Street at about the same place, but it does so more or less in a line with Bective Street or perhaps a slight bend away from Farrell Street. The only evidence as to the occurrence of the accident was that of Garda Lavin. James Reilly was killed in the accident and Bernard was so injured that he had no memory of events for some distance back from its occurrence.
Garda Lavin’s evidence was that he approached the entrance to Bective Street from Suffolk Street and that he saw the motor cycle on his left coming from Farrell Street; he stopped his car to allow the motor cycle to go ahead of him into Bective Street. It was being driven normally and at about 20 m.p.h. and had its head light and rear light switched on. At the same time he saw the outline of a motor lorry parked close to its left-hand side of the street;
the lorry was without lights but he could see it clearly by the light of an E.S.B. lamp (on the opposite side of the street) which shone on the side and partly on the back of the lorry. He was then over 130 yards back from the lorry and it showed up the lorry clearly. To traffic coming from Farrell Street, as the motor cycle was, it could be seen a distance back of approximately 110 yards. When the motor cycle moved into Bective Street, Garda Lavin drove up behind it at a distance of about 40 yards from the lorry; he saw the motor cycle move in more to its own side when there was a motor car with dipped head-lights coming from the opposite direction. That car passed on without causing any difficulty and the motor cycle, still about 40 yards from the lorry, gradually veered out again as if to pass out the lorry, and with ample time to do so. Just as it appeared to be clearing the corner of the lorry, the motor cycle came to the ground with the driver and passenger still astride it; it fell over on its right side close to the right rear wheel of the lorry which was about 6 feet forward of the tail board of the lorry.
There was other evidence given by Garda witnesses which indicated that the motor cycle was not in collision with the back of the lorry but that it had slid under the right rear portion of it and struck the right rear mudguard. After the accident the motor cycle was examined and it was found to have been damaged in that the front wheel and fork were bent to the left and the handlebars had been bent backwards and upwards to the right. The right fork had flakes of red paint on it about 2 feet from the ground. The Perspex windshield, which was shattered in the accident, did not have a view slit in it or any wiper fitted.
In these circumstances it seems to me that it would be pure speculation to come to a conclusion that the failure of the lorry to have lights on it was a cause of the accident; the cause might equally well have been the failure of the motor cyclist to see ahead on account of the rain on the Perspex windshield of the motor cycle.
There was also another possible cause. Garda Lavin was asked:”
Q. “Was the force of the wind so bad as to present a problem either driving a car or a motor cycle?
Could you feel it in the driving of your car, for example?”
A. “Yes, I could feel it that evening because I had driven from Dublin.”
Q. “Apart from being a very strong wind, was it gusting?”
A. “It was in open spaces more or less.”
It may well have been an effect of the severe weather conditions on a light motor cycle carrying a passenger as well as its rider which caused the rider to be unable to control it efficiently. In these circumstances I hold that the learned trial judge was correct in withdrawing the issue from the jury, and I would dismiss the appeal.

 

Supreme Court

O’DALAIGH C.J. :
15 July

I have read the judgment of Mr. Justice Walsh and I agree with it.

WALSH J. :
This is an appeal by the plaintiff against a finding by a jury of contributory negligence against him in his action in the High Court which was heard on the 25th and 26th February, 1969. The plaintiff sued the defendant for damages for personal injury. The plaintiff was a pedestrian who had been struck by the defendant’s motor car on the public highway near Ashford in County Wicklow. The accident occurred between 11 o’clock and midnight on the 21st August, 1966, on a road which was not lighted and at a time when there was drizzling rain and darkness. The jury attributed 75% of the fault to the plaintiff and 25% to the defendant and they assessed damages at a total of £3,350.
The particular act of contributory negligence which the jury found against the plaintiff was that of walking close to the left-hand margin of the road. The jury did not answer the other question in relation to the other allegation of negligence against the plaintiff, namely, that he was negligent in walking on to the path of the defendant’s car. They found the defendant negligent in failing to keep a proper look out. In his notice of appeal the plaintiff has claimed that there was no evidence, or no sufficient evidence, to support the jury’s finding of contributory negligence or of any degree of fault on his part and, in the alternative, the plaintiff contended that the degree of fault attributed to him by the jury was unreasonable and unwarranted by the evidence and that, in the further alternative, it was perverse.
In assessing the damages the jury awarded a sum of £850 for future pain and suffering and the defendant, by a letter dated the 26th March, 1969, written pursuant to the provisions of Order 58, r. 10, of the Rules of the Superior Courts, has cross-appealed against this particular finding on the grounds that it was grossly excessive and unsupported by evidence. The jury had awarded £1,500 for pain and suffering up to the date of trial. It is not contested that under that heading he had had considerable pain and suffering.
The plaintiff’s injuries included a fractured thigh which took rather longer than usual to heal and knit together. He had had a substantial operation which necessitated the insertion of a pin in the fractured thigh and he spent three months in hospital. It was 19 months before the pin was taken out and it was 20 months before he was fit to do light work and 24 months before he was fit for full work. At the date of the accident he was twenty-four years old and employed as a farm labourer. The plaintiff had not done any work up to the date of the trial and he still found it necessary, according to himself, to use a stick for the purpose of assisting him in walking on rising ground. However, he had been to two dances and he complained that he could not dance as well as he could before the accident. He also complained that he had what he described as a mild pain in the injured limb at the top of the right hip during the whole of the time since the accident. He complained that the cold weather affects the limb and causes it to stiffen up. The medical evidence was to the effect that he would be better off without the walking stick, that he is suffering from some muscle wasting which would affect him in some major effort but would not affect him for ordinary working purposes, that he had a marginal or terminal limitation in the flexion of the hip amounting to 15 or 20 degrees and also 5 degrees of internal-external rotation. These limitations are permanent, including the muscle wasting, but they should make no difference to his working capacity. The latter was obviously accepted by the jury as being correct because they found that there would be no loss under the heading of loss of earnings in the future. The medical opinion could give no explanation for the plaintiff’s claim that his leg was weak
and that it turned outwards on rough ground or that he continued to get pains. However, it was conceded that it was usual for people who had had fractures to get “odd pains now and again.”
All in all, it was not unreasonable for the jury to award some damages in respect of the prospect of future pain and suffering having regard to the comparatively young age of the plaintiff and the fact that he is a labourer. On the evidence it may be said that the jury was not ungenerous on this point but in my view, having regard to the factors involved, the sum of £850 awarded under this heading has not been shown to be so disproportionate to the injuries suffered and their prospects to warrant it being set aside and I would allow this sum stand.
I turn now to the main point of the case, namely the question of the finding of contributory negligence against the plaintiff and the attribution of 75% of the fault to him. In his evidence the defendant alleged that when he was driving along the road the plaintiff suddenly appeared out of a gap in the fence. That was the basis of the first question left to the jury in respect of the plaintiff, namely, whether he was negligent in “walking on to the path of the defendant’s car.” The question may not have been very happily phrased but in the context of the trial it was quite clear that the jury was being asked to find whether the plaintiff suddenly appeared out of the side from the fence into the path of the defendant’s car. The jury did not answer that question. Counsel for the plaintiff has submitted that the jury’s failure to answer that question made the trial unsatisfactory when in the result they found the plaintiff guilty of 75%, of the fault. The other question, on which they did find against the plaintiff, was whether his negligence was in being on the left-hand side of the margin of the road at all in the particular circumstances of the case. In the first instance, it is clear that he was walking on the incorrect side for a pedestrian as he and the car were moving in the same direction and, therefore, he should have been walking on the other side of the road. The second and, perhaps, the most telling point against the plaintiff was the fact that there was no necessity for him to walk on the road at all because there was a footpath on the far side of the roadway, and the footpath was separated by a grass margin from the roadway itself. There was ample evidence on which the jury could hold that that particular portion of the road was dangerous for pedestrians, particularly on a night such as the night of the accident which was a dark and wet night, because there is no public lighting and there is a high dense hedge and many trees which project over the road and tend to throw a shadow upon it. Therefore, the case made against the plaintiff was that he was negligent in walking on the road on the left-hand side of it and, indeed, in walking on it at all when there was a footpath available upon which he could have walked. In answering the question on contributory negligence against him in the manner already indicated, the jury clearly took the same view. There was ample evidence which would entitle them to take that view and their finding of contributory negligence against the plaintiff cannot be disturbed.
The question remains whether the apportionment of the fault was disproportionate. It has been established by a series1 of decisions of this Court that this Court will not disturb the jury’s findings on the apportionment of fault unless the apportionment is shown to be grossly disproportionate on the evidence.
In the course of his directions to the jury, the learned trial judge told them that if they found both parties negligent they would then “have to consider the respective blameworthiness of each of the parties, and divide up the blame between them, treating the accident as 100% so that it would be X% for the plaintiff and Y% for the defendant.” Later on he said to them:”If you decide that the plaintiff walked out from the hedge in the pathway of the oncoming car, then I would have no hesitation in saying that you should put a very high degree of fault on the plaintiff, and a small degree of fault on the motorist. On the other hand, if you think that the cause of the accident was the fact that the plaintiff was walking on the left-hand side of the road and that he was concealed in the darkness until the motorist saw him, just when it was too late, and that the motorist was inattentive in not seeing him sooner to swerve, who would you say would be more to blame for the accident? It is not an easy problem.”
The introduction by the judge of the test of blameworthiness was the correct test as has since been decided by this Court in O’Sullivan v. Dwyer .2 The learned trial judge was certainly not unfavourable to the plaintiff in suggesting to the jury that, even if the plaintiff walked straight out of the hedge into the path of the car, some blame might yet fall upon the defendant. As it was, the jury did not fully accept that picture of the accident given by the defendant. However, the judge did pose the problem directly to the jurythat on the assumption that the motorist was inattentive, which is what the jury found, and that the plaintiff was walking on the left-hand side of the road and was concealed in the darkness until the motorist saw him when it was too late, which was also found by the jury, they would then have to ask themselves who was the more to blame for the accident.
In the result the jury found that the plaintiff was more to blame for the accident. While the jury attributed a high degree of fault to the plaintiff, in my view it can be said that, having regard to the particular findings they made, the picture of the accident which emerges is one in which the evidence amply justifies them in placing the greater share of the blame on the plaintiff and the particular apportionment of the fault which they made cannot be said to be so disproportionate as to warrant being set aside. In the result I would dismiss the plaintiff’s appeal and, for the reasons I have already stated, I would dismiss the defendant’s cross appeal on the issue of damages.

BUDD J. :
I agree.

FITZGERALD J. :
I agree.

MCLOUGHLIN J. :
I also agree.