Allen -v- Irish Holemasters, [2007] IESC 33 (2007)

Docket Number:301/05
Party Name:Allen, Irish Holemasters
Judge:Finnegan J.

THE SUPREME COURTNo. 301/2005Murray C.J.Kearns J.Finnegan J.BETWEENCATHERINE ALLENPlaintiff/RespondentandIRISH HOLEMASTERS LIMITEDDefendant/AppellantJudgment delivered on the 27th day of July 2007 by Finnegan J.The plaintiff's claim in this matter is brought pursuant to the Civil Liability Act 1961 Part 4 and arises out of the death of the plaintiff's husband on the 8th May 1997. In the course of his employment he was driving a Nissan Vanette Cargo the property of the defendant his employer. The accident is described in the statement of claim as follows -"On or about the 8th May 1997 a Nissan Vanette Cargo owned by the Defendant and driven by Liam Allen in the course of his employment collided with a truck registration number 96C 10433 driven by Paddy O'Riordan and owned by Horgan Brothers of Macroom, County Cork. In the course of the collision the heavy load carried by the Defendant's van which, which was unsecured, was propelled forward causing extensive personal injuries from which Liam Allen died."While the particulars of negligence are in general terms they are directed to a plea that the defendant failed to ensure that the heavy load in the van was properly secured.The plaintiff furnished the following reply to a request for particulars -"All of the equipment carried in the cargo compartment moved forward at the pre-impact speed of the van. All of the equipment listed in the schedule attached hereto struck the driver and the passenger seats at a speed in the order of 40 miles per hour. Some of the items carried weighted in excess of 25 kilograms. This weight moving at speed killed the deceased."The attached schedule gave in respect of each item of equipment either the actual or estimated weight.The defence delivered consisted largely of denials: it was specifically denied that the van contained a heavy load. It was pleaded that the injuries sustained by the deceased and which resulted in his death were caused by his sole negligence and in the alternative that he was guilty of contributory negligence with the following particulars -(a) Driving his vehicle at an excessive speed in the circumstances;(b) Failing to apply his brakes in sufficient time or at all;(c) Failing to have due regard to the nature of the roadway in question;(d) Taking a bend at an excessive speed;(e) Failing to have due regard to the prevailing road and weather conditions;(f) Driving on his incorrect side of the road;(g) Failing to keep any or any proper control over his vehicle;(h) Failing to observe the approach of a motor truck in the opposite direction.The plaintiff did not deliver a reply. Notice of trial was served on the 11th August 2004. On the 14th February 2005 the plaintiff furnished further and better particulars of negligence adding an additional plea as follows -"1. Overloaded the motor vehicle which the plaintiff was driving."The defendant objected to this by letter dated 24th February 2005. By letter dated 23rd March 2005 the plaintiff sought consent to amendment of the statement of claim and by letter dated 31st March 2005 the defendant refused to consent. Accordingly a motion was issued returnable for the 20th June 2005 seeking leave to amend the statement of claim. The plaintiff sought to add to the paragraph on the statement of claim quoted above the following sentence -"The said collision was caused because the said Vanette vehicle was grossly overloaded by the defendant rendering it unstable and incapable of being properly controlled."In addition further particulars of negligence relating to the amendment were sought to be added. On the hearing of the motion the learned High Court judge granted leave to the plaintiff to...

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