Appelbe v West Cork Board of Health

• Jurisdiction: Ireland
• Judgment Date: 15 November 1929
• Date: 15 November 1929
• Court: Supreme Court (Irish Free State)

Appelbe v. West Cork Board of Health

MARGARET APPELBE

Plaintiff

and

THE WEST CORK BOARD OF HEALTH, Defendants (1)

Supreme Court.

Negligence - Action against local Authority - Collision between motor ambulance and pony trap - Death of injured party - Claim under Fatal Accidents Act, 1846 - Defence of Public Authorities Protection Act,1893 - How far applicable - Time limit for commencing proceedings - Application for new, trial - Setting aside jury's assessment of damages- 9 & 10 Vict. c. 93, sects. 1 and 3 - 56 & 57 Vict. c. 61, sects. 1 (a) and 2 (b).

The limitation imposed by the Public Authorities Protection Act, 1893, applies, in actions within the scope of that statute, to proceedings instituted under the Fatal Accidents Act, 1846, and the period of twelve months from the death allowed by the Fatal Accidents Act for the commencement of proceedings is cut down by the Public Authorities Protection Act in cases where those proceedings are brought against a public authority to six months from the act, neglect, or default complained of.

So held by the Supreme Court (Kennedy C.J. and FitzGibbon J.; Murnaghan J. expressing no opinion on the point).

Gawley v. Belfast Corporation, [1908] 2 I.R. 34, followed; British Electric Railway Co., Ltd., v. Gentile, [1914] A.C. 1034, distinguished.

Plaintiff brought an action under the Fatal Accidents Act, 1846, on behalf of herself and her three sons, claiming damages from the defendants, a County Board of Health, by reason of the negligence of the defendants and their chauffeur, whereby her husband received injuries from which he died. The defendants' motor ambulance, driven by their chauffeur, struck the pony trap in which plaintiff's husband was sitting, and he died from the injuries received. The ambulance at the time was not being used as such, but had been used to convey the handle of a pump to a County Hospital, and was returning home when the accident occurred. There was no obligation on the defendants so to convey the pump handle, but they did so for their own convenience. The pump handle was not required, or intended to be used, for supplying water to the inmates of the hospital, and the defendants were not the public authority charged with the obligation of supplying water to the district or to the hospital.

The jury found that the driver of the ambulance was negligent, that the deceased was not; and they assessed damages at £350 for the plaintiff and at £200 each for two of the sons of the deceased. But the trial Judge gave judgment for the defendants on the defence of the Public Authorities Protection Act, 1893, the action not having been brought within the six months' limit of time prescribed by that Act. The plaintiff appealed against the judgment so entered, and there was a cross-motion by the defendants for a new trial in the event of the Supreme Court reversing the ruling of the trial Judge as to the applicability of the Public Authorities Protection Act.

Held by the Supreme Court, reversing the ruling of the trial Judge, that the Public Authorities Protection Act did not apply, and the defendants were not protected.

Bradford Corporation v. Myers, [1916] 1 A.C. 242, applied.

Held also, that there was evidence to support the findings of the jury, and that their assessment of damages for the plaintiff and for one of her sons (but not for the other) ought not to be disturbed.

Motion on behalf of the plaintiff for an order that the judgment entered for the defendants on the trial of the action before Sullivan P. and a jury, on the 25th and 26th of April, 1928, be set aside, and that in lieu thereof judgment be entered for the plaintiff in accordance with the verdict of the jury; or, in the alternative, a new trial.

The grounds of the application were that the learned Judge misdirected himself in law in directing the jury that the plea by the defendants of the Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61), was a good defence to the action, and that the direction was against evidence, and the weight of the evidence.

The defendants served a cross-notice that, in the event of the Supreme Court determining that the Public Authorities Protection Act was no bar to the action, they would apply for an order that the verdict and findings of the jury on the questions submitted to them might be set aside and reversed, and judgment entered for the defendants; or, in the alternative, a new trial.

The grounds of this application were that the verdict and findings were without evidence, and against the weight of evidence, and that the damages were excessive.

By a summons issued on 21st March, 1927, the plaintiff, as administratrix of Henry Appelbe, late of Carrigroe, Clonakilty, Co. Cork, claimed damages for his death from injuries received by the wrongful acts, negligence, and default of the defendants and their servants in the driving and management of an ambulance motor van, the property of the defendants, at Pike Cross Road, near Clonakilty, Co. Cork, on 18th June, 1926.

In her statement of claim the plaintiff stated that the deceased, Henry Appelbe, was driving his pony and trap on the public road when an ambulance motor van, the property of the defendants, and driven by the servant of the defendants, negligently collided with the said trap, whereby the deceased was thrown from it and sustained such injuries that he died on the following day.

The persons for whom, or on whose behalf, the action was brought were the plaintiff herself (administratrix and widow) and the three children of the deceased, viz., John William Appelbe, Edward Allen Appelbe, and George Albert Appelbe, the last-named being still a minor, 18 years of age.

The defendants traversed the negligence, pleaded contributory negligence, and also pleaded that the plaintiff's alleged cause of action was barred by the Public Authorities Protection Act, 1893, sect. 1 (a).

In the ambulance van at the time of the accident was an official of the Clonakilty Home, who had been sent to Skibbereen by the Secretary of the West Cork County Board of Health with a pump-handle for use in connection with the County Hospital water supply, and who, having carried out his instructions, was then returning to Clonakilty. He was accompanied by his daughter. The van was driven by the defendants' chauffeur, Michael Santry. The remaining facts, so far as material, are fully stated in the judgment of the Chief Justice.

The action was tried by Sullivan P. with a jury. At the close of the plaintiff's case, the defendants applied for a direction on the ground that they were a public authority within the meaning of the Public Authorities Protection Act, 1893; that the act complained of was done by their servant in discharge of the public duties imposed upon them; that the deceased died on the 19th June, 1926, and the summons in the action was not issued until the 21st March, 1927, i.e., more than six months after the act complained of, and the action was therefore barred by sect. 1 (a) of that Act. Sullivan P. refused to direct without hearing the evidence for the defendants; and, at the close of their case, the application was renewed, when he stated that he would give the direction, but, to avoid a re-trial, would leave the case to the jury.

The following questions were submitted to the jury and answered as stated:—

1. Was the driver of the ambulance negligent? Answer:"Yes."

2. Was the deceased, Henry Appelbe, negligent? Answer:"No."

3. If you answer the first question "Yes" and the second question "No," assess damages. "To the widow, £350; John Appelbe,—; Edward Appelbe, £200; George Appelbe, £200."

The Judge gave judgment for the defendants, with costs, on the defence of the Public Authorities Protection Act.

Cur. adv. vult.

Kennedy C.J. :—

This action was brought under the Fatal Accidents Act, 1846, by Elizabeth Appelbe, widow of Henry Appelbe, on behalf of herself and of her three sons, John William Appelbe, Edward Allen Appelbe, and George Albert Appelbe, claiming damages. from the defendants by reason of the negligence of the defendants and their servant, whereby Henry Appelbe was fatally injured on the 18th June, 1926, and died on the 19th June, 1926. The facts may be shortly stated.

The accident occurred at the cross-roads known as Pike's Cross, in the County Cork, at a place where the main road from Roscarbery and Skibbereen to Clonakilty is intersected by a byroad leading from Carrigroe to a place called Sam's Cross. The main road at Pike's Cross is 41 feet wide, from the Carrigroe or east side, where there is a publichouse, known as White's publichouse, across to the west side, where there is a boundary wall at the angle of the road. Henry Appelbe was a farmer, whose farm lay about half a mile from Pike's Cross up the Carrigroe by-road. About 8 o'clock p.m. on the evening of the 18th June, 1926, Henry Appelbe, with his son, George, set out in a pony trap, the father going to visit a friend at Sam's Cross, and the son having some errand to do at Pike's Cross. Young

Appelbe got out of the trap to attend to his business, and the father drove on to his friend's house at Sam's Cross. Young Appelbe having performed his errand, waited at Pike's Cross with a number of youths until his father would return. Henry Appelbe, having paid his call, was driving back down the byroad from Sam's Cross to Pike's Cross. He had driven out of the by-road, and crossed to a point about 11 feet from White's public-house, when the defendants' motor ambulance drove into the pony trap, striking it on the right wheel, which it lifted off the ground, and swung the pony round until it stood alongside the ambulance. Henry Appelbe, who was sitting on the right-hand side of the trap (which was of the type known as a governess car), was thrown out of the car with great violence, and sustained a fracture of the base of his skull, which caused his death on the following day.

The defendants'...