Attorney General, Minister for Finance and, v O'Brien

JurisdictionIreland
Judgment Date01 January 1950
Date01 January 1950
CourtSupreme Court

Supreme Court.

Minister for Finance and Attorney-General v. O'Brien
THE MINISTER FOR FINANCE and THE ATTORNEY-GENERAL
Plaintiffs
and
DANIEL J. O'BRIEN
Defendant.

Negligence - Personal injuries - Contributory negligence - Continuing negligence of defendant - Defective brakes - Cause of injury - Employer and workman - Workmen's compensation - Injured workman a State employee - Claim for indemnity by Minister for Finance against third party - Claim by Attorney - General, on behalf of the People, for loss of services - Workmen's Compensation Act, 1934 (No. 9 of 1934), s. 61.

Plenary Summons.

The plaintiffs, the Minister for Finance and the Attorney-General, brought an action against the defendant, Daniel J. O'Brien, claiming relief in respect of injuries sustained by one, William Kennedy, a postman employed in the Department of Posts and Telegraphs, in circumstances which, it was alleged, created a legal liability in the defendant. The action arose out of an accident in which a lorry, the property of the defendant, collided with a bicycle ridden by the postman. As a result of the injuries which he sustained, the postman was incapacitated for work and was paid wages at his full rate for a period of five months after the accident. Thereafter he was paid compensation under the Workmen's Compensation Act, 1934, on the basis of total incapacity. On the date of the accident, he had come free-wheeling down a slope on a by-road and had entered the road along which the defendant's lorry was travelling when, for the first time, he saw the lorry, which was then about twelve yards away and moving at about fifteen miles per hour on its proper side. He had entered the road on the lorry driver's left hand side at a speed estimated by the trial Judge at seven to ten miles per hour. On his realising the imminent danger of a collision he attempted to reach what would have been his proper side of the road. The lorry driver swerved in the same direction and a collision occurred near the side of the read which the postman had been trying to reach.

The first-named plaintiff claimed 1, an order declaring him to be entitled, under s. 61 of the Workmen's Compensation Act, 1934, to be indemnified by the defendant in respect of the sum of £185 12s. 6d., being the amount of compensation under the Act of 1934 paid by him to the postman; 2, an order for the payment to him by the defendant of the said sum; 3, an order declaring that he was entitled to be indemnified by the defendant in respect of all such sums as might be payable and paid by him to the said postman under the provisions of the Workmen's Compensation Act, 1934, as amended by Emergency Powers (No. 274) Order, 1943, and an order directing the defendant to pay the same to him. The second-named plaintiff, suing on behalf of the People of Ireland, claimed damages for, and on behalf of, the People for the loss of the services of the said William Kennedy which, it was alleged, was occasioned by the negligence of the driver of the defendant's lorry. The brakes of the lorry were, to the driver's knowledge, defective.

The facts have been summarised above and are more fully stated in the judgment of Gavan Duffy P.

In the course of the hearing of the appeal, the Supreme Court sent to the trial Judge questions which, with his answers, were as follows:—

Q. "1. Could the driver, by the exercise of reasonable skill and care, have avoided the collision after he became aware or ought to have been aware of the presence of the cyclist—

  • (a) in view of the actual condition of the brakes?

  • (b) if the brakes had been effective?

A. 1, (a) I think not.

  • (b) I think he could.

Q. 2. Is the answer to the foregoing question dependent upon or qualified by the condition of emergency that existed?

A. 2. These answers are independent of the condition of emergency that existed and are not qualified thereby. I think a driver with good brakes would have made a jab at the foot-brake on seeing the danger and so have averted a collision."

The principle that the contributory negligence of a plaintiff will not disentitle him to recover damages if the defendant, by the exercise of care, might have avoided the result of that negligence, applied where the defendant, although not committing any negligent act subsequently to the plaintiff's negligence, had incapacitated himself by his previous negligence from exercising such care as would have avoided the result of the plaintiff's negligence.

So held by the Supreme Court (Maguire C.J., Geoghegan and O'Byrne JJ.; Murnaghan and Black JJ. dissenting).

British Columbia Electric Railway Co., Ltd. v. Loach, [1916] 1 A. C. 719 followed.

Cur. adv. vult.

Gavan Duffy P. :—

This is a common law action dressed up as an equity suit; I think it ought to have been brought in the Circuit Court at Cork, with an application to the learned Judge for a trial by jury. I discovered the true position too late, when witnesses had come to Dublin for the trial, and in mercy to some of the persons concerned I heard the case alone instead of taking measures which would have put off the hearing of an already belated cause. The action arises out of injuries sustained as long ago as the 3rd February, 1943, in a collision on a country road in Co. Cork between a motor lorry, belonging to the defendant, and a postman on a bicycle. Taking the owner of the lorry to be in law responsible for the accident, attributed to his driver's ultimate negligence, the Minister for Finance now seeks to recover the amount of workmen's compensation properly paid, as a result of the accident, to the postman, an established servant of the State—it is admitted he cannot recover for future payments in advance— and the Attorney-General sues on behalf of the People to recover the wages paid (under Civil Service postal regulations) to the injured postman during the first five months after the collision, before the victim was relegated to his compensation under the Workmen's Compensation Act, 1934. If the plaintiffs prove the defendant to be liable in negligence, the Attorney-General can rely on Attorney-General and Minister for Justice v. Dublin United Tramways Co., Ltd.(1), to carry his right of action, while the Minister first can claim that the postman has "recovered compensation" within s. 61 of the Act on the authority of Nettleingham & Co. v.Powell & Co.(2) and on the extension of "recovery" by the section to compensation paid under a certified scheme, and secondly can assert a right of action for an indemnity on the principle of Walsh v. Electricity Supply Board(3)although the State paid compensation to the injured man of its own accord and without question and there has been no recorded agreement and no award nor any proceedings in the Circuit Court.

This action was begun two years and four months after the event; before that, the defendant had no opportunity to test in Court the allegations against his driver, with the unhappy result that witnesses have been called upon to rely on long memories to meet a multiplicity of detailed queries, which no one could hope to answer quite accurately from a blurred recollection after now more than three years. A curious feature of the case is the absence of any evidence from the Gárda Síochána, whom I infer to have visited the scene an hour or two after the accident.

I proceed to the material facts, as I find them from the examination and cross-examination of witnesses and the useful plans that have been put in. It was about three o'clock in the afternoon of a showery, sleety day in winter, but there was no rain at the time of the accident, which occurred at the Glenlara cross-roads on the highway between Newmarket and Rockchapel, the familiar, steam-rollered type of country road; the road was in fairly good condition; it is about 19 feet wide as it approaches the road known as the Taurmore Road. Coming along a gentle slope from Newmarket, on its way to Rockchapel, up to the cross of Glenlara, the lorry passed a by-road to the right and, some 10 yards beyond, it should have reached the point in the cross-roads at which the Rockchapel Road is joined by another by-road, to the left; that is the Taurmore Road, which has

a rather steep descent and a width of about 161/2 feet before it opens out on to the larger road, where it presents itself at an oblique angle to the traveller from Newmarket.

The postman was riding a bicycle down the Taurmore Road, free-wheel, on his proper side and about 6 feet out. He had finished his round and was making for his head-quarters at Newmarket, about 3 miles away, and was due there at 3.20 p.m., when his day's work would be done. Keeping the same course, he reached the Rockchapel Road at a point in the centre of the figures, 33' 0'', on the plaintiff's plan, still free-wheeling, and, still free-wheeling and without using his brakes or pausing for any on-coming traffic, and ignoring or failing to notice the clatter of the lorry, or misjudging its distance, he proceeded on the same course, slantwise across the Rockchapel Road, and at the same pace, until, when nearing the far side of the road, he was knocked down by the lorry; while he made directly across the road, I think that, towards the end of his run, he must have veered very slightly to his left under the menace of the advancing lorry, which he was hoping and trying to escape. The postman puts his speed at 6 or 7 miles an hour; as a juror, I suspect an under-estimate here, in view of his run downhill, but, as I cannot be precise, I shall take him to have been doing from 7 to 10 miles an hour.

The lorry is a 30 h.p., Ford V8 vehicle, with an admitted capacity of 40 miles per hour; it was being used to carry loads of turf; it had the driver and four other men on board, but was otherwise unladen; it was making its second trip that day to a turf bog. The driver had about seven years' driving experience and had driven the same lorry for about six...

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