Anderson v Cooke

JurisdictionIreland
JudgeFinnegan P.
Judgment Date29 June 2005
Neutral Citation[2005] IEHC 221
CourtHigh Court
Docket Number[2002 No. 6753P]
Date29 June 2005

[2005] IEHC 221

THE HIGH COURT

RECORD NO. 6753P/2002
ANDERSON v COOKE
ALAN ANDERSON
PLAINTIFF

AND

THOMAS COOKE AND BRIAN COOKE
DEFENDANTS

CIVIL LIABILITY ACT 1961 S34

CIVIL LIABILITY ACT 1961 S34(1)(b)

O'HANLON v ELECTRICITY SUPPLY BOARD 1969 IR 75

HEGARTY v SHINE 2 LRI 273

O'CONNOR v MCDONNELL UNREP HIGH COURT MURNAGHAN 30.6.1970

NATIONAL COAL BOARD v ENGLAND 1954 1 ALL ER 546

HOLMAN v JOHNSTON 1 COOPER 341

EXPLOSIVES IN COALMINES ORDER 1934

CAKEBREAD v HOPPING BROTHERS (WHETSTONE) LTD 1947 1 ALL ER 389

HENWOOD v MUNICIPAL TRAMWAYS TRUST 1938 60 CLR 438

REVILL v NEWBERY 1996 1 ALL ER 291

SMITH v JENKINS 1970 119 CLR 397

JACKSON v HARRISON 1978 138 CLR 438

GALA & ORS v PRESTON 100 ALR 29

HALL v HEBERT 1993 101 DLR (4TH) 129

CIVIL LIABILITY ACT 1961 S57(1)

Liability

Duty of care - Illegal enterprise - Ex turpi causa - Volenti non fit injuria - Plaintiff passenger agreed with defendant driver to photograph speedometer while travelling at maximum speed - O'Hanlon v Electricity Supply Board [1969] IR 75 followed -Whether voluntary assumption of risk -Whether public policy precluded liability -O'Connor v McDonnell (Unrep, Murnaghan J,30/6/1970); Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438; National Coal Board v England [1954] AC 403 and Gala v Preston (1991) 172 CLR 243 followed -Whether appropriate standard of care could be established - Civil Liability Act 1961 (No41), ss 2(1), 34(1)(b) and 57 - Claim dismissed (2002/6753P - Finnegan P -29/6/2005) [2005] IEHC 221, [2005] 2 IR 607 -Anderson v Cooke

Facts: The plaintiff sought damages for injuries received as a result of a road traffic accident, which occurred when he was traveling as a passenger in a motor car the property of the first named defendant and then being driven by the second named defendant. The second named defendant admitted driving at an excessive speed but claimed that he had agreed, on the plaintiff's suggestion to take the first named defendant's car and see how fast it would go and enable the plaintiff to take a photograph of the speedometer which could be posted on the internet. Accordingly, the defendants pleaded that the plaintiff consented to the risks involved in traveling at excessive speed and was thereby precluded from pursuing his claim against the defendants. It was also pleaded that the plaintiff and the second named defendant were involved in a joint criminal enterprise and that also precluded the plaintiff from pursuing his claim and the defendant sought to rely on the doctrine of ex causa turpe non oritur actus. The defendants also sought to rely on the doctrine of volenti non fit injuria.

Held by Finnegan P. in dismissing the plaintiff's claim:

1. That the account provided by the second named defendant as to what occurred on the evening of the accident was accepted. There was no agreement or contract between the plaintiff and the defendants whereby the plaintiff waived any right of action he might have in respect of the negligence of the defendants and accordingly the defence of volenti non fit injuria failed.

2. That in the circumstances of the case it was not possible to determine the duty of care which the defendant owed to the plaintiff having regard to the illegal enterprise upon which they were both engaged and accordingly it was not possible to determine whether or not there was a breach of that duty.

Reporter: L.O'S.

1

Judgment of Finnegan P.delivered on the 29th day of June 2005

2

The Plaintiff resides at 4 Maypark Lane, Co. Waterford. He was born on the 11th September 1979 and at the time of the events giving rise to this action was aged 22 years. He is now aged 26 years.

3

On the 18th November 2001 the Plaintiff was a passenger in a motor car the property of the first named Defendant and then being driven by the second named Defendant at Port Road, Belview, Waterford. The motor car left the road and collided with a ditch or wall. The Defence delivered does not deny the foregoing. The Plaintiff because of his injuries has no recollection of the accident or any relevant preceding or succeeding events.

4

The Defence delivered contains the following pleas -

5

1. The Plaintiff was not at any material time a lawful passenger in the Defendant's vehicle, but was at all material times travelling in the said vehicle for the purpose of obtaining photographic evidence of it performing at maximum speed, which said material he required for submission for an internet website and he requested the second named Defendant to so drive the said car at maximum speed for the said purpose and thereby expressly or impliedly consented to the risks involved in travelling at such speed which said speed caused the loss of control and collision complained of and in the aforesaid circumstances the Plaintiff expressly or impliedly consented to the risks of being driven as a passenger at such speed and is thereby precluded from pursuing this claim against the Defendants.

6

2. The Plaintiff and the second named Defendant were at all material times engaged in a common or joint criminal enterprise, namely the driving of the said car at maximum speed and in excess of the prevailing speed limit and the collision complained of was caused by and consequent on the said enterprise and the Plaintiff is thereby precluded from pursuing this claim and the Defendant will rely in support of such contention on the doctrine of "ex causa turpe non oritur actus".

7

3. The Defendants will, inter alia, rely on the defence of volenti non fit injuria.

8

The Defence further pleads that the Plaintiff was negligent and contributorily negligent in respect of the matters set out in paragraphs 1 and 2 of the Defence and also guilty of contributory negligence in failing to wear a seatbelt. There is an admission of driving at an excessive speed and other particulars of negligence pleaded are denied.

9

Garda John Killeen the investigating Garda gave evidence on behalf of the Plaintiff. The road on which the accident occurred is a new road servicing the new port of Waterford. He was called to the scene of the accident at about 8.05. The evening was dry. When he arrived at the scene he found that a car had crashed into a pole on the right hand side of the road as one goes towards the port. The car was facing away from the port. The road inclines slightly towards the port. Skid marks on the road indicated that the car was travelling towards the port and commenced on the incorrect side of the road for a car travelling in that direction. The Plaintiff was trapped in the car and was mostly on the driver's side. As the second named Defendant was being placed in the ambulance called to the scene he said he was sorry, that he was showing off and that he had been travelling at 90 miles per hour. At the scene of the accident there was a slight bend to the right as the car was travelling. The nature of the impact was such as would push the passenger over to the driver's side of the car and the position of the Plaintiff in the car was consistent with his having been a passenger. The car was a high powered vehicle. Arising out of the accident the second named Defendant appeared in the District Court and the Circuit Court pleading guilty to careless driving in each case. At no time in these proceedings was any mention made of a joint enterprise between the Plaintiff and the second named Defendant. The speed limit on the road is 60 m.p.h. There are three gentle curves the length of the road. The witness was unable to say whether or not the Plaintiff was wearing a seatbelt. Skid marks at the scene stretch for 230 feet after which the car made a high speed impact with the pole. The skid mark indicated that the car had pirouetted close to the impact with the pole.

10

John Tierney gave evidence on behalf of the Plaintiff. He is an employee of the South Eastern Health Board Ambulance Service and accompanied the ambulance to the scene of the accident. Part of his duty was to complete a form. In this form he recorded that the Plaintiff was wearing a seatbelt at the time of the accident. This he did from his observations at the scene.

11

The second named Defendant gave evidence. The car in which he was driving is a Toyota Corolla Twin Cam GTI model manufactured in 1989/1990. It has a far more powerful engine than the normal 1.6 Corolla and would be used for motor sport purposes. He had known the Plaintiff for a number of months. They had originally met in a car park where motor enthusiasts meet and discuss cars. At the time of the accident he was familiar with a website called MAXED.ie.net and both he and the Plaintiff had user names and passwords for that site. He had been using the site for some six months prior to the accident during which time he had communicated with the Plaintiff on the site. They had met at car parks on several occasions and had exchanged phone numbers. On the day of the accident he received a phone call from the Plaintiff and they agreed to meet. The Plaintiff suggested that they take the first named Defendant's car and see how fast it would go and enable the Plaintiff to take a photograph of the speedometer which could be posted on the internet. He agreed. The Plaintiff had a camera with him. The Port Road was practically if not entirely empty. The Plaintiff prepared his camera and the first named Defendant then set off at high speed with a view to reaching the highest possible speed in the car. On the first run the Plaintiff took his seatbelt off so that he could lean over and take a photograph of the speedometer and he did take such a photograph. On that run the car travelled in excess of 125 m.p.h. They made a second run starting somewhat down the Port Road and did not achieve the same speed. As they came to the end of the Port Road he was slowing down when the accident happened. He did not know the speed...

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9 cases
  • English v O'Driscoll
    • Ireland
    • High Court
    • 25 October 2016
    ...submissions were exchanged. This Court has no hesitation in raising the issue itself, since as noted by Finnegan P. in Anderson v. Cooke [2005] 2 IR 607 at p. 615, the Court may itself raise this issue for the following reason:- ‘As the issue historically was policy based I consider it appr......
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    ...4th edn, (Dublin, 2013) at paras. 20.108 to 20.125. 166 The leading decision in the area is that of this court in Anderson v Cooke [2005] 2 IR 607. In addressing the defence (at 613), Finnegan P first pointed to the limitation contained in s. 57(1) of the Civil Liability Act 1961, whereby ......
  • Shaughnessy v Nohilly
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    ...in an appropriate case the Court itself may raise the issue even if it is not expressly pleaded by the defendant. See Anderson v. Cooke [2005] 2 I.R. 607 at p 615. The onus of proof rests on the defendant. Even where the defence is established it does not follow that public policy requires ......
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1 books & journal articles
  • The defence of joint illegal enterprise.
    • Australia
    • Melbourne University Law Review Vol. 34 No. 2, August 2010
    • 1 August 2010
    ...484; Winnik v Dick 1984 SC 48; Weir v Wyper 1992 SLT 579; Taylor v Leslie 1998 SLT 1248; Currie v Clamp 2002 SLT 196; Anderson v Cooke [2005] 2 IR 607. (4) Miller v Miller (2009) 54 MVR 367. Special leave to appeal was granted in Transcript of Proceedings, Miller v Miller [2010] HCATrans 13......

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