Anthony Murphy v Cement Roadstone Ltd and Another
 IECA 35
THE COURT OF APPEAL
119/2014 - Kelly Irvine Mahon - Court of Appeal - 19/2/2015 - 2015 IECA 35
Appeal - Res Judicata – Legal Error – Practice and Procedures – Personal Injuries – Damages – Negligence – Court Participation
1. This is an appeal by the plaintiff, Anthony Murphy, ("Mr. Murphy") against an order made by the High Court (De Valera J.) on 30 th June, 2008. On that date the learned High Court judge dismissed Mr. Murphy's claim against the second named defendant in the proceedings ("Mr. Flynn") on the ground that the issue between those parties was res judicata.
2. According to the agreed note of the judgment, the decision of the trial judge was based upon the circumstances in which Mr. Flynn, as plaintiff in Circuit Court proceedings (record number 2003/03270) had, on 16 th July 2004, obtained judgment as against Mr. Murphy who was the second named defendant to those proceedings
3. Given that it is submitted on this appeal that the trial judge erred in law in determining that the plaintiffs claim should be struck out by reason of res judicata, it is necessary to set out in some detail the factual background as it pertained at the time the Order the subject matter of this appeal was made.
4. Mr. Murphy, who is a lorry driver, was injured on 6 th May, 2000 when driving a truck the property of his employer, Philip Doyle, through an underpass beneath the Naas Dual Carriageway. At the time, Mr. Doyle was carrying out certain haulage works for the first named defendant, Cement Roadstone Limited ("CRH"). Mr. Murphy contends that his vehicle was caused to collide with a truck driven by Mr. Flynn and that the very severe injuries which he sustained, comprising multiple leg fractures requiring surgical intervention, were the result of negligence on the part of CRH and/or Mr Flynn..
5. A plenary summons was issued on 1 st March, 2001 by Mr. Murphy's solicitors, O'Meara and Company. Shortly thereafter a statement of claim was delivered outlining his claims against both defendants.
6. As to the negligence alleged against CRH, Mr. Murphy maintained that he had not been provided with a safe place of work, in that the under pass through which he was travelling at the time of the collision had a dangerously sharp bend and an excessively steep slope. He further maintained that its design provided him with insufficient site distance to allow him navigate it safely.
7. As to the negligence alleged against Mr. Flynn, Mr. Murphy maintained that he had stopped his vehicle in a dangerous location thus obstructing the roadway and causing the collision.
8. A defence was delivered on Mr. Flynn's behalf on 24 June, 2002, wherein he denied all allegations of negligence. He pleaded that the collision occurred due to the plaintiff's negligence or contributory negligence in driving too close to his vehicle as a result of which he had run into the back of his truck.
9. CRH in its defence of 26 th August, 2002 denied all allegations of negligence, pleaded contributory negligence as against the plaintiff and in the alternative alleged negligence on the part of the second named defendant.
10. In March 2003, Mr. Flynn issued Circuit Court proceedings against Philip Doyle and Mr. Murphy in which he claimed damages for personal injuries, loss and other damage sustained by him in the collision the subject matter of the proceedings which were then pending before the High Court.
11. The civil bill was served on Mr. Doyle and Mr. Murphy. Neither entered an appearance. Consequently, on the 16 th July, 2004, Mr. Flynn obtained judgment in default of appearance against both of them. The Circuit Court judge on that date also made an order that the MIBI be joined to the proceedings as a co-defendant.
12. On 8 th February, 2005, Mr. Flynn amended his defence in the High Court proceedings to plead that the issues as between himself and Mr. Murphy were res judicata by reason of the Circuit Court order of 16 th July, 2004.
13. On a date subsequent to 16 th July, 2004, but before 15 th May, 2006, O'Meara's, the solicitors on record for Mr. Murphy and his High Court action belatedly came on record on his behalf in the Circuit Court proceedings.
14. On 15 th May, 2006 the Circuit Court, at a hearing at which Mr. Murphy was represented by his solicitor, assessed the damages to which the plaintiff was entitled on foot of the earlier court order and duly granted judgment against all three defendants in the sum of €18,245.00.
15. By motion dated 16 th June, 2008, Mr. Flynn applied to the High Court seeking to dismiss Mr. Murphy's claim on the following basis-
(i) that he had been guilty of inordinate and inexcusable delay in the pursuit of his action, and/or
(ii) on the grounds that the judgment in the Circuit Court rendered his claim res judicata as against the interests of Mr. Flynn.
16. For the purposes of that application the parties each swore affidavits setting out the facts that they considered material to the relief sought. From those affidavits a number of additional material facts emerged, which I will briefly summarise.
17. Mr. O'Meara advised that the plaintiff had given him a copy of the ordinary civil bill after it had been served on him in 2003. His said that his client had led him to believe that his employer, Mr. Doyle, who was the first named defendant in the Circuit Court proceedings, had insurance cover in respect of his driving of the truck and that he would be looking after his interests in the proceedings.
18. Mr. O'Meara stated that it was his understanding that Mr. Doyle's solicitors would come on record on behalf of Mr. Murphy and that it was for this reason he sent the civil bill to Kevin O'Gorman, solicitor, whom he understood was representing Mr. Doyle's interests, by letter dated 14 th...
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