Anderson v Cooke & Anor, [2005] IEHC 221 (2005)

Docket Number:2002 6753P
Judge:Finnegan, P.
 
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[2005] IEHC 221THE HIGH COURTRECORD NO. 2002/6753PALAN ANDERSONPLAINTIFFANDTHOMAS COOKE AND BRIAN COOKEDEFENDANTSJudgment of Finnegan P. delivered on the 29th day of June 2005The 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.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.The Defence delivered contains the following pleas -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.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".3. The Defendants will, inter alia, rely on the defence of volenti non fit injuria.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.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.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...

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