Trial on Indictment II
Cases
Buckley v. Musgrave Brook Bond Ltd.
[1969] IR 440
Supreme Court
O’Dalaigh C.J. :
3 Nov.
This appeal is against a ruling of the President (sitting in Cork) given on the application of the defendants at the conclusion of the evidence for the plaintiff. The ruling was that, on the evidence as adduced, the jury could not reasonably find for the plaintiff; in consequence whereof the President discharged the jury and entered judgment for the defendants.
The plaintiff was injured on the 27th August, 1967, at or near Mayfield in the City of Cork while travelling as a passenger in a motor van which was the property of the defendant company. The driver of the van, David Good, died as a result of the accident. The plaintiff and the deceased driver were both lorry drivers in the employment of Musgrave Brothers Ltd., a wholesale grocery firm. The defendants are wholesale tea merchants. Both are Cork firms and, while they have some association, they carry on business from separate premises and have separate transport fleets. Musgrave Brothers use lorries and a van; and the defendants use vans exclusively.
In the course of his duties David Good, the deceased driver, drove one of the lorries of Musgrave Brothers from Cork to Dublin and back again twice a week. It appears he was in Dublin on Saturday the 26th August, 1967. On that date the defendants permitted him to drive their motor van from Dublin to Cork, and they required him to return it to Dublin on the evening of Sunday the 27th or the morning of Monday the 28th August, 1967. The accident, out of which these proceedings arose, occurred on Sunday the 27th August when the van, which the defendants so lent to David Good, was being driven by him in the environs of Cork. Good called for the plaintiff on that afternoon, and drove first to the home of a Mr. Locke (transport manager of Musgrave Brothers) with whom Good transacted some business. Thereafter Good and the plaintiff drove to several public houses where they had drinks; and, as the plaintiff put it, it was when they had started for home that the accident happened.
The plaintiff in his statement of claim alleged that it was”owing to the negligence of the defendants, their servants and agents in the care, management and driving of a motor vehicle the property of the defendants,” that he was injured. The defendants, in their defence, admitted that the motor vehicle in question was their property, but denied that it was being driven by any servant or agent of theirs, and pleaded that it was being driven without their consent, express or implied. They also pleaded that they gave their consent to the user of the motor vehicle by Good solely for the purpose of conveying him from Dublin to Cork on Saturday the 26th August and for the purpose of conveying him from Cork to Dublin not later than the 28th, and that on the occasion of the accident Good was not using the motor vehicle in accordance with the terms of the said consent. The other pleas in the defence are not in point on this appeal.
The plaintiff served notice on the defendants asking for admissions and it is conceded by Mr. McMahon, for the defendants, that only the answers to the plaintiff’s first two questions were in evidence at the trial. As much turns on the terms of the answers to these questions I set forth both the questions and the answers:
Q. Did not the defendants permit one David Good now deceased to drive a motor van FPI 203 the property of the defendants from Dublin to Cork on Saturday 26th August, 1967?
A. Yes.
Q. Did not the defendants require the said David Good now deceased to return the said motor van from Cork to Dublin early on the morning of Monday 28th August, 1967?
A. The defendants required the deceased, David Good, to return the motor van No. FPI 203 to Dublin on the evening of Sunday the 27th August, 1967.
The only matter relied on by the plaintiff before the President was the provision of s. 118 of the Road Traffic Act, 1961. In this Court the plaintiff’s argument has been put upon a broader ground, and the Court has been invited to follow the reasoning of the King’s Bench Division (Scrutton, Greer and Slesser L.JJ.) in Barnard v. Sully. 4 That was a street-collision case in which, as here, the defendant admitted ownership of the offending motor car but denied that the driver of the motor car was his servant or agent, or acting within the scope of a servant’s or agent’s authority. The County Court judge withdrew the case from the jury on the ground that there was no evidence that the motor car was being driven by the defendant, or his servant or agent. Scrutton L.J. said at p. 558 of the report:”No doubt, sometimes motor-cars were being driven by persons who were not the owners, nor the servants or agents of the owners. As illustrations of that there were the numerous prosecutions for joy riding, and there were also the cases where chauffeurs drove their employers’ motor-cars for their own private folly. But, apart from authority, the more usual fact was that a motor-car was driven by the owner or the servant or agent of the owner, and therefore the fact of ownership was some evidence fit to go to the jury that at the material time the motor-car was being driven by the owner of it or by his servant or agent. But it was evidence which was liable to be rebutted by proof of the actual facts. The appeal must be allowed.” The other members of the court concurred.
Asquith J. in Laycock v. Grayson 5 followed the same principle. It was admitted that the driver of the defendant’s motor car was employed by the defendant and was authorised by the defendant to drive the motor car for some purpose, but it was denied that he was acting within the scope of his authority at the material time. Asquith J. ruled the point as follows at p. 699 of the report:”The plaintiff established, or it was admitted, first, that the second defendant was driving a car belonging to the first defendant; and, secondly, that the second defendant had the first defendant’s authority to drive such car for some purposes at any rate. In my view, this raises a presumption that the second defendant was acting within the scope of his employment at the material time, and the onus is shifted to the first defendant to prove that the second defendant was, in the present case, acting outside it. The first defendant, in my view, has not rebutted the presumption or discharged the onus so transferred to him.”
The reasoning of Scrutton L.J. in Barnard v. Sully 6 fully commends itself to me. The generalisation with regard to authorised and unauthorised user of motor vehicles is as valid now as it was in the year 1931. Unauthorised user will be a very small part of the total user. Proof of ownership will therefore be some evidence that the motor vehicle at the material time was being driven by the owner or his servant or agent and, as Asquith J. indicated, a like presumption arises that the servant or agent was acting within the scope of his employment or authority, as the case may be. The onus is therefore shifted to the owner to establish the contrary. All this, in my opinion, is sound in principle and eminently just; indeed, if the law were otherwise it would promote injustice.
The defendants’ counsel relies upon the terms of the two admissions put in evidence by the plaintiff as establishing that Good was not authorised to use the van for any purposes other than to drive to Cork and to return again to Dublin. If one contrasts the terms of para. 4 of the defence with the terms of the admissions, in my opinion it is made clear that the admissions fall short of the effect which counsel attaches to them. In the defence it was properly pleaded that the consent to the user by Good was solely for the purposes specifiedto convey himself from Dublin to Cork and back again. The admissions sought and made significantly omit the word “solely”. The effect of the admissions is not to exclude user for social purposes in Cork. On the contrary, the position is left at large and quite vague; and therefore it cannot be said that the admission necessarily rebuts the presumption of lawful user. For such purpose much clearer language would be required.
There was evidence that, on two occasions at week-ends, Musgrave Brothers allowed employees to have the firm’s van for their private use, but this was by permission of the employer; there was also evidence that the plaintiff never used a van or lorry belonging to Musgrave Brothers outside of business hours. There was also evidence that the plaintiff had been disciplined by his employers for taking drink while in charge of a lorry. In my judgment, however, none of this evidence bears upon the terms of lending of the defendants’ van.
Section 118 of the Road Traffic Act, 1961, is in these terms:”Where a person (in this section referred to as the user) uses a mechanically propelled vehicle with the consent of the owner of the vehicle, the user shall, for the purposes of determining the liability or non-liability of the owner for injury caused by the negligent use of the vehicle by the user, and for the purposes of determining the liability or non-liability of any other person for injury to the vehicle or persons or property therein caused by negligence occurring while the vehicle is being used by the user, be deemed to use the vehicle as the servant of the owner, but only in so far as the user acts in accordance with the terms of such consent.” That section differs from s. 172 of the Road Traffic Act, 1933 (which is now repealed) in two respects, one only of which needs be noticed here. After the word “consent” in the Act of 1933 the words “whether expressed or to be implied from the circumstances” follow in brackets. The absence from the Act of 1961 of these additional words is, in my opinion, of no significance. The consent referred to in s. 118 of the Act of 1961 may be either an express consent or a consent to be implied from the circumstances.
The operation of s. 172 of the Act of 1933 was discussed in Maher v. Great Northern Railway Co. and Warren. 7 The plaintiff’s claim under the Fatal Accidents Act, 1846, was in respect of the death of his son who, together with all the other occupants, was killed when a motor car, belonging to the second defendant, was in collision with a G.N.R. bus. The second defendant’s son, John Warren, was also one of the occupants of the car. He was found dead in the seat beside the driver’s seat; in the driver’s seat was the body of another of the occupants of the car, one Thomas Mohan, who it was inferred was driving at the time of the collision. An application for a direction was made at the close of the plaintiff’s case, but it was refused. The defendant, Warren, then went into evidence. At the close of the evidence Mr. Justice Hanna, however, gave a direction and entered up judgment for the defendant Warren. Warren’s evidence, taken on commission, was that his son asked him if he could have the car for the day and that he said “Yes, but on no account lend it to any one.”Mr. Justice O’Byrne (with whom Meredith and Geoghegan JJ. agreed) held that it was for the jury to say upon the evidence whether they were satisfied that there was an express prohibition against lending the car, as deposed to by Warren, and, if so what meaning should be attributed to the said prohibition. He said he was not prepared to say that upon the evidence that they were bound in law to hold that the defendant had discharged the onus of proof which, in his opinion, rested upon him and accordingly he ordered a new trial: see p. 223 of the report. Earlier, O’Byrne J. had this to say at p. 222 of the report:”So far I have dealt merely with the evidence before the jury, without any reference to the question of the onus of proof; but a consideration of that question seems to me to strengthen the view at which I have arrived. An application for a direction, on behalf of the defendant, was made at the end of the plaintiff’s case. This application was refused, and, in my opinion, very properly refused, at that stage. It could hardly be contended that there was not, at that stage, prima facie evidence to go to the jury, which would have justified them in holding that there was implied consent to the car being driven by Mohan.”
These observations of O’Byrne J. in my opinion mean that, where a consent can be implied, the onus of establishing that it did not apply to the particular user in question in the action shifts to the defendant. Applying that principle in this case my judgment is that the evidence of the admissions which were put in at the trial falls short of establishing that the user of the van for private or social purposes on the week-end by David Good was prohibited. I would, accordingly, allow this appeal, and direct a new trial.
BUDD J. :
I agree.
BUTLER J. :
I agree.
People (DPP) v Reid
[2004] 1 I.R. 392
JUDGMENT of the Court delivered by Mr. Justice Hardiman on the 12th day of February, 2004.
Each applicant seeks leave to appeal against his conviction on a charge of affray contrary to s.16 of the Criminal Justice (Public Order) Act, 1994.
It appears that applicants were jointly tried on this charge before the Dublin Circuit Criminal Court (His Honour Judge Lynch and a jury) between the 28th March, 2001 and the 3rd April, 2001. Each applicant was also charged with assault: Owen Reid was charged with assault on a peace officer, Garda Mark Dempsey, contrary to s.19 of the Criminal Justice (Public Order) Act, 1994. Christopher Kirwan was charged with assault on a different peace officer, Garda Mark Benson, contrary to the same Section. Each of the applicants was acquitted on the charge of assaulting a peace officer.
The offences were all alleged to have occurred at Georges Place, Dublin 1 immediately beside St. George’s Church which was then in use as the “Tivoli Theatre”, on the 13th December, 1999.
Grounds of appeal.
Each applicant advanced a number of grounds of appeal. It is, however, convenient to deal first with grounds which raise a number of points in common. These contentions may be summarised as being: that the learned trial judge should have withdrawn the count of affray from the jury when requested to do so by counsel for the applicants; that the convictions of the count of affray are inconsistent with the acquittals on the assault counts; that the learned trial judge ought to have instructed the jury that, if the accused were acquitted on the assault charges, there was no case against them for affray; and that the convictions were perverse.
The evidence.
The evidence disclosed that the Gardaí were called to the area of St. George’s Church, where, apparently, a crowd coming out of that building had become disorderly. It appears that as a number of gardaí, including a Garda Murray, approached the disorderly group, his attention was drawn to another and separate group which had become disorderly and apparently included the accused Mr. Kirwan. A Garda Benson alleg