Arnott v O'Keeffe

CourtSupreme Court
JudgeParke J.,Walsh J
Judgment Date30 March 1977
Neutral Citation1975 WJSC-SC 76
Docket Number143/1976,[1975 No. 2219 P]
Date30 March 1977

1975 WJSC-SC 76

The Supreme Court

Walsh J.

Kenny J.

Parke J.



Gerard Arnott


John O'Keeffe

Judgment delivered on the 30th day of March 1977by Walsh J.


This is an appeal against the order and judgment of the High Court made on the 27th July, 1976, in the action between the parties which was heard in Cork before Mr. Justice Murnaghan and a jury. The plaintiff had sued the defendant for damages for personal injuries arising out of a road accident which he alleged was caused by the negligence of the defendant. The jury found each party negligent and apportioned the degrees of fault between the parties by attributing 60% of the fault to the defendant and 40% of the fault to the plaintiff. The plaintiff was awarded the sum of £20,762.52, which represented 60% of the total of damages assessed by the jury at £34,604.20. The plaintiff has appealed against this judgment on the grounds that the trial judge misdirected himself in law in permitting the issue of contributory negligence to go to the jury and that he failed todirect the jury's attention adequately to the evidence, or lack of evidence, referable to the alleged contributory negligence of the plaintiff. The appellant further submits that the trial judge misdirected the jury in relation to the apportionment of fault and that he misdirected himself in law in not informing the jury that a majority verdict must be at least the same nine on each question submitted to them. It is also claimed that the apportionment of fault between the parties determined by the jury was against the evidence and wasperverse.


I think it is more convenient to deal firstly with the question of the judge's directions to the jury relating to a majority verdict. This matter is dealt with in section 95 of the Courts of Justice Act, 1924, which was re-enacted and continued in force by section 48 of the Courts (Supplemental Provisions) Act, 1961. The section reads as follows:

"In every trial whether in the High Court or the Circuit Court of a civil case before a judge and jury, the jury shall consist of twelve members and a majority vote of nine of those twelve members shall be necessary and sufficient to determine the verdict. The judge shall so inform the jury and the verdict of such nine members upwards shall be taken and recorded as the verdict of the jury, without disclosure of the dissentients, if any such there be."


Jury trial in civil matters in the Circuit Court was abolished by section 6 of the Courts Act of 1971so consequently section 95 of the Act of 1924 is applicable now only to High Court actions. Section 95 was an innovation in two respects. Firstly, it introduced the concept of majority verdict in civil jury trial in this country and, secondly, it introduced trial by a jury of twelve members in civil matters into the newly established Circuit Court. Prior to the foundation of the State the former traditional system provided for civil jury trial in the County Courts by juries of six in which unanimous verdict was required.


In the present case the trial judge's instructions to the jury on the question of majority verdict, which he is by virtue of the statute obliged to give them, are contained in the following extract from his charge to the jury:

"You may all be unanimous in the answers you give to each question but if you cannot get all of your colleagues unanimous, you must get at least nine of the one opinion before you can write down the answer to any question. There must be at least nine, and just to introduce what I don't intend to be an incongruous note, if it should happen - I hope it won't - that you cannot get nine, having considered the matter, don't spend all day on it. Come out and say you cannot agree, but I'm sure you'll be able to get agreement. Sometimes I find that juries don't know what their rights are and they are apt to stay in longer than is necessary, but if you find that after due consideration you cannotagree,come out and say so. That is your right. I'm not saying that by way of encouragement or suggestion that you should do that - quite thecontrary."


The learned trial judge made no further reference in his charge to this question. Nine separate issues were left to the jury to be decided. Five of these related to the ingredients of the damages, two to the questions of negligence, and two to the questions of fault. The jury answered each of the questions. These answers were the component parts of the verdict of the jury.


When the jury had retired to consider their verdict counsel for the plaintiff made a number of requisitions to the trial judge, one of which was in the following terms:

"Then, the final matter – I don't think you told the jury in relation to a majority that if they are a majority, it must be the same majority right through.

Mr. Justice Murnaghan: No, I don't accept that proposition.

Mr. Sheridan: It is a matter for your Lordship. I am merely drawing it to your attention in case it was overlooked."


The learned trial judge did recall the jury to re-direct them on two matters on which he had been requisitioned but this particular point was not one of them.


In my opinion, the judge's directions to the jury on this question did not fulfill the requirements of section 95 of the Act of 1924. Thesection expressly requires the judge to inform the jury that a vote of nine of the members shall be necessary and sufficient to determine the verdict. Nobody save the jury knows whether in the present case there was a lack of unanimity in respect of any matter. Nevertheless one must approach it on the basis that there may have been and before a jury discharges its function in relation to the verdict it must be correctly instructed in accordance with the statute. If the sole question before a jury was the simple and single one of whether the jury finds for the plaintiff or finds for the defendant then a simple statement to the effect that at least nine of the members of the jury must be of the one opinion before the question can be answered would be sufficient. That was not this case and nowadays would rarely if ever be the case in view of the practice insisted upon by this Court that the specific and separate issues falling for decision must be left to the jury. The learned trial judge was correct in telling the jury that if upon any question a majority of nine could not be obtained that a disagreement would result. However, it appears to have been his intention, as one may deduce from the words used to the jury corroborated by his reply to the requisition on the point raised by counsel for the plaintiff, that any nine members of the jury was sufficient to constitute the necessary majority for the purpose of answering any question. Ifthis were correct it could lead to some very curious results. For example, a particular nine might be of the view that a defendant was guilty of negligence but only six of that nine were of opinion that the plaintiff was guilty of negligence. If that six could be reinforced by the three who were in the minority on the first question then in effect the questions would be decided by two different groups. If the first nine had prevailed the verdict would have been one in favour of the plaintiff with no finding of contributory negligence against him. If the second group prevailed the result would be different. But when both the separate groups are operating simultaneously the question is what is the result. In the days prior to 1961 when contributory negligence was an absolute defence the plaintiff would have lost his action if the second group prevailed whereas the result would have been a finding in favour of the plaintiff on the negligence issue and a disagreement on the contributory negligence issue if the view of the first group prevailed. When one translates such a situation into a case where there are several questions the possibility of such cross-voting could give rise to such a bewildering variety of combinations and permutations that it would be utterly impossible to determine what was, in the words of the statute, "the verdict of such nine members." It is "the verdict of such nine members" which shall be "sufficient to determine the verdict", to use the words of thestatute. It appears to me that the statute clearly intended that when the jury was operating on a majority vote of nine of the twelve members the verdict should be that of a particular nine and that when the verdict depended upon the answers to several components of the verdict the answers must be in all cases those of the same nine. The Act did not preclude other members of the jury joining in the verdict, that is to say, adding their voice in support of the answers agreed upon by the particular nine on any question on which there was not unanimity. The correct direction to a jury on the matter which section 95 of the Act of 1924 requires the trial judge to explain to them is one which informs them that in the absence of unanimity the verdict should be that of at least nine members of the jury and that when there are several questions to be answered if there is not unanimity on the way each of them is to be answered then there must be a majority of at least nine and that the same nine must concur in the answer to be given to each of the questions where there is not unanimity in respect of such question even though the number agreeing upon the answer is greater than nine. In this way, and in this way only, can a verdict of a jury which is dependent upon the answers to several questions be said to be the "verdict of such nine members or upwards."


In my view the failure of the trial judge to correctly inform the jury in accordance with the requirements of section 95 of theAct of 1924 resulted in a mistrial of the action.


The second point of substance in the appeal is the question of...

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