Breslin v Corcoran

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 27 March 2003
• Neutral Citation: [2003] IESC 23
• Court: Supreme Court
• Docket Number: [S.C. No. 222 of 2001],Appeal No. 222/01
• Date: 27 March 2003

BRESLIN v. CORCORAN & MOTOR INSURERS BUREAU OF IRELAND (MIBI)

BETWEEN

PATRICK BRESLIN

Plaintiff

v

NOEL CORCORAN

Defendant/Respondent

and

THE MOTOR INSURERS BUREAU OF IRELAND

Defendant/Appellant

[2003] IESC 23

Denham J.

Murray J.

Fennelly J.

Appeal No. 222/01

Record No. 9145/1999

THE SUPREME COURT

Synopsis:

TORT

Personal Injuries

MIBI - Liability - Duty of care - Novus actus interveniens - Tort - Personal injuries - Causation - Foreseeability Conflicting caselaw - Whether owner of vehicle left unattended liable for injuries arising from subsequent accident (9145/1999 & 222/2001 - Supreme Court - 27/03/2003)

Breslin v Corcoran and MIBI - [2003] 2 IR 203 - [2003] 2 ILRM 189

The first named defendant had left his keys in the ignition of his car and an unknown person jumped into the vehicle and drove off injuring the plaintiff. An issue arose as to whom the plaintiff should recover damages from and whether the first defendant was in fact liable to the plaintiff. In the High Court Mr. Justice Butler held that although the first defendant should not have left his keys in the car the chain of causation had been broken. The act of the person who had stolen the car amounted to a novus actus interveniens. Consequently the second defendant (the MIBI), a body which compensated victims of uninsured driving, would be held liable. The second defendant appealed the judgment to the Supreme Court.

Held by the Supreme Court (Fennelly J delivering judgment; Denham J and Murray J agreeing) in dismissing the appeal. It was the negligent driving and not the taking of the car which had caused the damage. There was nothing in the case to suggest that the first named defendant should have anticipated as a reasonable possibility that the car, if stolen, would have been driven so carelessly so as to cause injury to another user of the road such as the plaintiff.

Citations:

MOTOR INSURERS BUREAU OF IRELAND (MIBI) AGREEMENT

ROAD TRAFFIC ACT 1961

ROAD TRAFFIC ACT 1968

ROAD TRAFFIC ACT 1994

ROAD TRAFFIC ACT 1995

DOCKERY V O'BRIEN 1975 ILTR 127

TOPP V LONDON COUNTY BUS (SOUTH WEST) LTD 1993 3 AER 448

CONOLE V REDBANK OYSTER CO 1976 IR 191

GLENCAR EXPLORATION PLC V MAYO CO COUNCIL 2002 1 IR 84

DONOGHUE V STEPHENSON 1932 AC 532

HEDLEY BYRNE V HELLER & PARTNERS 1964 AC 465

ANNS V LONDON BOROUGH OF MERTON 1978 AC 728

CO OF THE SHIRE OF SUTHERLAND V HEYMAN 1985 157 CLR 424

MURPHY V BRENTWOOD DISTRICT CO 1991 AC 391

WARD V MCMASTER 1985 IR 29 1986 ILRM 43

CAPARO PLC V DICKMAN 1990 2 AC 605

DORSET YACHT CO LTD V HOME OFFICE 1970 AC 1004

CAHILL V KENNEALLY 1955–1966 IJR 127

DENTON V UNITED COUNTIES OMNIBUS CO UNREP 6.5.1986 CA (CIVIL DIVISION)

SMITH V LITTLEWOODS ORGANISATION LTD 1987 AC 241

CUNNINGHAM V MCGRATH BROS 1964 IR 209

HADLEY V BAXENDALE 1845 9 EX 341

ROAD TRAFFIC (CONSTRUCTION, USE & EQUIPMENT OF VEHICLE) REGS SI 190/1963 REG 87

ROAD TRAFFIC (CONSTRUCTION, USE & EQUIPMENT OF VEHICLE) REGS SI 190/1963 REG 87(1)

1 27th day of March, 2003 by FENNELLY J.

FENNELLY J.

2 It is an act of folly to leave one's motor car in the public street, even for a short time, with the keys in the ignition. There are plenty of ill-intentioned persons around to take advantage. The consequences can be tragic. But what is that liability of the imprudent car owner to a person injured by the bad driving of the thief?

3 The agreed facts of the present case are that first-named defendant left his car outside the Tea Time Express Coffee Shop in Talbot Street in Dublin unlocked and with the keys in the ignition. He dropped into the shop to buy a sandwich. As he came out, he saw an unknown person jump into the car and drive it off at speed. The car turned from Talbot Street into Talbot Lane. The plaintiff was walking across Talbot Lane. The car ran into the him and injured him. For simplicity, if not accuracy, I will refer to the person who took the car as "the thief." He may, of course, have been a joyrider or other temporary taker of the car.

4 The plaintiff brought an action in the High Court against Mr. Corcoran, first-named defendant, alleging negligence in leaving the car unattended in the manner described. He joined MIBI, as second defendant, "pursuant to the terms of an agreement dated the 21 ^st day of December 1988 and made between the Minister for the Environment and the Second Named Defendant and in particular Clause 2(2) and 6 thereof." The plaintiff succeeded before Butler J against MIBI only. The damaged were agreed at £65,000. The learned High Court judge apportioned all the liability to the MIBI and gave a decree against it with costs.

5 The MIBI is sued directly in this way, not as representing or standing in for the thief, but because it has agreed to compensate victims of uninsured driving, subject to the terms of the agreements. The real issue before the Court is whether there was any negligence on the part of the first named defendant. If there was, the MIBI has no liability. If not, it is bound by the agreement. The form of the proceedings is unsatisfactory in one respect. The plaintiff had a clear case against whoever was responsible for the driving of the car. There were no pleadings between the defendants. Thus MIBI was left to argue the liability of the first named defendant, in order to escape its own. In particular, the extent, if any to which the regulations, made under the Road Traffic Acts were part of the argument is unclear.

6 Counsel for MIBI argued in the High Court that the first named defendant was negligent. In the circumstances, he said, it was probable that the car was going to be stolen and that it was reasonably foreseeable that the thief would injure someone. The concept of novus actus interveniens was central to the argument as were two cases, one Irish, a Circuit Court decision of McWilliam J (Dockery v O'Brien [1975] ILTR 127,"Dockery") and one English (Topp v London Country Bus (South West) Limited [1993] 3 All ER 448, " Topp". Reference was also made to the well-known Supreme Court decision in Conole v Redbank Oyster Company [1976] I.R. 191. Butler J had no doubt that the act of the thief amounted to a novus actus interveniens, which broke the chain of causation. He thought that, to impose any liability on the first named defendant, it would be necessary to have evidence that the car was left in an area where it should be known to the owner that people routinely stole cars for the purpose of driving them around in a reckless and dangerous fashion.

7 MIBI contest these views of learned High Court judge. In particular MIBI says that he was wrong not to find that the " admitted negligence" of the owner of the car was the cause of the plaintiff's injuries and that the chain of causation.

8 The contending positions may be expressed as follows. The appellant would say that the act of leaving a motor car, unattended and unguarded, for any length of time in a public street with the keys in the ignition is clearly an act of carelessness. There is an obvious and serious risk of the car being taken, whether by way of theft, in order to commit some crime or, merely for joyriding. The culprit must necessarily be a person who does not respect the law and who is likely to be a danger to others whether by reason of general irresponsibility or while trying to get away. The first defendant would say that the taking of the car is a novus actus interveniens.. It is an independent, illegal act of a third party. The car owner is not responsible for the manner of driving of the thief, He cannot control it. He should not be treated as if he had authorised the driving of the car. He is not vicariously liable.

Analysis

9 In order to resolve this dispute, it is necessary to consider both the scope of the duty of care in negligence and the cause of the damage. Specifically, does, the person injured by a stolen motor car come within the range of persons who can complain? Once more, the case raises the sufficiency of the test of foreseeability and hence the range of damage for which the person performing a careless act is liable.

10 It is particularly helpful that Keane C.J. has, in his recent judgment in Glencar Exploration plc v Mayo County Council [2002] 1 I.R. 84, reviewed in a considered manner the very vexed question of the proper test for the imposition of a duty of care. In doing so, he went a long way to resolving the apparent divergence which had manifested itself from the mid nineteen eighties between the approaches of our courts and those of other common law jurisdictions, in particular those of England and Wales. The merely persuasive status of the decisions of other common law jurisdictions has not dissuaded our courts from taking its inspiration from contemporaneous new steps in the development of the common law. The decisions of the House of Lords in Donoghue v Stephenson [1932] A.C. 532 and Hedley Byrne v Heller and partners [1964] A.C. 465 are the best known examples.

11 The famous two stage test enunciated by Lord Wilberforce in what was once regarded as the landmark case of Anns v London Borough of Merton [1978] A.C. 728 at 751, was, however, open to being read as postulating foreseeability as the single governing test. In truth, it led to much confusion both here and in England. After a period of some doubt both in the English and Commonwealth courts, the House of Lords, taking its lead in part from the High Court of Australia, (Council of the Shire of Sutherland v. Heyman (1985) 157 C.L.R. 424), departed from Anns (Murphy v Brentwood District Council [1991] A.C. 391). Keane C.J., In Glencar, citing Council of the Shire of Sutherland v. Heyman, referred to the need to maintain the distinction between duties on the moral plane and those whose breach could be invoked in the law of negligence. He went on:

"It is precisely that distinction between the requirements of altruism on the one...