Allen v Irish Holemasters Ltd

• Jurisdiction: Ireland
• Judge: Finnegan J
• Judgment Date: 27 July 2007
• Neutral Citation: [2007] IESC 33
• Docket Number: No. 301/2005
• Court: Supreme Court
• Date: 27 July 2007

THE SUPREME COURT

Murray C.J.

Kearns J.

Finnegan J.

No. 301/2005

BETWEEN

CATHERINE ALLEN

Plaintiff/Respondent

And

IRISH HOLEMASTERS LIMITED

Defendant/Appellant

Abstract:

Practice and procedure - Superior Courts Rules - Amendment of a statement of claim - Civil Liability Act, 1961 Part 4 -Rules of the Superior Courts.

the plaintiff’s claim arose pursuant to the Civil Liability Act, 1961 arising out of the death of the plaintiff’s husband in a car accident where his car collided with a truck and the contents of the load on the truck propelled forward causing extensive injuries. The plaintiff sought to amend the statement of claim after receiving details of particulars from the defendant. A motion was heard on that basis. The defendants opposed the motion on the grounds of delay, that the new claim would be statute barred and that an inspection of the van was carried out.

Held The amendment sought raised a new issue in the action which was not raised by the plaintiff but by the defendant in its plea of negligence and contributory negligence. Time was extended to deliver a reply which would deal in terms of the overloading of the vehicle with a plea of negligence and contributory negligence against the plaintiff.

Reporter: E.C.

1 Judgment delivered on the 27th day of July 2007 by Finnegan J.

2 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

3 "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. "

4 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.

5 The plaintiff furnished the following reply to a request for particulars

6 "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."

7 The attached schedule gave in respect of each item of equipment either the actual or estimated weight.

8 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.

9 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

10 "1. Overloaded the motor vehicle which the plaintiff was driving. "

11 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

12 "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. "

13 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 amend the statement of claim as sought. The defendant appeals against that order.

14 The plaintiff's application was grounded on an affidavit of her solicitor, Michael Quirke, who deposes that he engaged the services of an engineer Mr Jack O'Reilly. Mr O'Reilly advised on information available to him, which was incorrect, that the vehicle was not overloaded. In January 2001 another engineer was engaged and a final report was received from him dated 26th February 2004 and this concluded that the load being carried caused the vehicles GVW to be exceeded and that this would have adversely

15 affected its handling. Further as the vehicle's load was not secured or restrained this would have led to a shifting of the vehicle's centre of gravity which would also have adverse handling implications for the vehicle. A copy of this report was sent to Mr O'Reilly who in turn prepared a further report dated 24th June 2004. The effect of both these last mentioned reports is that the extent to which the van was overloaded would produce dramatically abnormal driving characteristics.

16 The defendant opposes the amendment on a number of grounds. The first is delay. It is clear from the pleadings that an inspection of the van containing the equipment was carried out on the 27th March 1999. A list of the equipment was prepared and indeed was annexed to the reply to particulars delivered dated 26th January 2000. In an affidavit filed on behalf of the defendant Susan O'Reilly solicitor deposes

17 "The proposed amendment to the statement of claim represents an entirely new case. Heretofore, the case the defendant had to meet was that the death of the plaintiff's husband had been caused by reason of the load in the back of the Vanette moving forward upon impact. It is clear that the case which the plaintiff now seeks to make is that the collision itself between the van and the oncoming truck was caused by the manner in which the vehicle was overloaded. This would require the defendant to undertake an entirely new investigation of the circumstances of the accident, including the mechanics of the collision, and I am advised that it would involve engaging the services of a consulting engineer to inspect the locus of the accident and consult with witnesses etc. At this point the accident locus has changed and it is not the same as it was at the time of the accident in May 1997 thereby making it impossible for the consulting engineer to investigate the matter properly. "

18 The next ground for objecting is set in her affidavit as follows

19 "I say that there is a further basis upon which the defendant will be prejudiced in the event that the proposed amendment is granted. The defendant was insured in respect of the claim

20 until the liquidation of Independent Insurance on the 21st June 2001. Had this new case been made before that date by the plaintiff, the defendant's insurers would have had an opportunity to investigate liability on that basis and may have handed the case in a different manner. If the proposed amendment is granted, the defendant will have to meet the new case without the benefit of an insurance company indemnifying it. "

21 The final ground of objection is that the new claim now sought to be made is statute barred.

22 As to the first ground of objection delay it is noted that the schedule of equipment furnished with replies to particulars had weights for each item of equipment but that these are estimated in a number of cases. However for the plaintiff's claim as originally pleaded this was sufficient to show that the load was indeed heavy and the weight was otherwise irrelevant. The second engineer was engaged on the 24th January 2001 on the advice of senior counsel and well in advance of notice of trial being served on the 11th August 2004. There was delay in obtaining the report the same only issuing on the 26th February 2004 following ongoing correspondence and discussions. Much of the delay was caused by difficulty in obtaining an identical vehicle upon which to carry out tests. In all the circumstances the court is satisfied that the delay of itself should not disentitle the plaintiff to the relief sought.

23 The rules of the Superior Courts, Order 28, rule 1 provides as follows:

24 "1. The court may, at any stage of the proceedings allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. "

25 Wiley on the Judicature Acts on the identical rule in the 1905 rules has this to say:

26 "By this Rule a Court or Judge is bound to allow all such amendments as may be necessary for the purpose of determining the real questions in controversy between the parties upon such terms as may seem just".

27 He cites with approval the following passage from the judgment of Bowen...