Burke v Mullally

• Jurisdiction: Ireland
• Judge: Mr. Justice McGovern
• Judgment Date: 21 March 2019
• Neutral Citation: [2019] IECA 82
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 2017/160
• Date: 21 March 2019

[2019] IECA 82

THE COURT OF APPEAL

McGovern J.

McGovern J.

Baker J.

Costello J.

Record No. 2017/160

BETWEEN/

STEPHEN BURKE

PLAINTIFF/APPELLANT

- AND -

STEPHEN MULLALLY, MICHAEL MCGINN, NORTH DUBLIN MOTOCROSS LIMITED

AND [BY ORDER]

MOTOR CYCLE UNION OF IRELAND LIMITED T/A MOTORCYCLING IRELAND

DEFENDANTS/RESPONDENTS

Negligence – Direction – Non-suit – Appellant seeking to appeal against High Court order – Whether the trial judge was in error in acceding to the respondent’s application for a non-suit at the conclusion of the appellant’s case

Facts: The appellant, Mr Burke, on the 19th January, 2014, was taking part in a motor cross training or practice event at the racetrack of the third respondent, North Dublin Motocross Ltd, at Gormanstown, County Meath. Shortly before the practice session came to a close the appellant fell from his motorcycle while negotiating a double jump on the eastern side of the course. The double jump occurred where there were two banks. The appellant was struck by a motorcycle driven by the first respondent, Mr Mullally, who was travelling behind him. The second respondent, Mr McGinn, was a director of the club organising the event. The third respondent was the organiser of the event. The fourth respondent, Motor Cycle Union of Ireland Ltd, was the governing body for the sport. On the 13th January, 2017, Hanna J dismissed the appellant’s claim with an order for costs in favour of the third and fourth respondents ([2017] IEHC 1). The appellant appealed to the Court of Appeal against the order of Hanna J. The appeal was advanced on two grounds. The first was a contention that there was evidence upon which the first respondent could have been found to have been negligent and therefore the trial judge was wrong to grant a direction. The second ground was that the trial judge erred in failing to exercise his discretion to postpone his decision on the application for a non-suit until all the evidence had been heard.

Held by McGovern J that the trial judge was in error in acceding to the first respondent’s application for a non-suit at the conclusion of the appellant’s case and in failing to exercise his discretion to defer any decision on that point until all the evidence was heard. McGovern J was also satisfied that the trial judge failed to apply the correct legal test to the application having regard to the state of the evidence at the conclusion of the appellant’s case.

McGovern J held that he would allow the appeal and remit the matter back to the High Court for a re-trial.

Appeal allowed.

JUDGMENT of the Court delivered on the 21st day of March 2019 by Mr. Justice McGovern

1 This is an appeal against an order of Hanna J. delivered on the 13th January, 2017 dismissing the appellant's claim with an order for costs in favour of the third and fourth named respondents [2017] IEHC 1.

2 The appellant was born on the 25th November, 1987 and prior to an accident which is the subject matter of these proceedings he was employed as a bricklayer. On the 19th January, 2014 he was taking part in a motor cross training or practice event at the third named respondent's racetrack at Gormanstown, County Meath. The track was laid out in a disused quarry. Motor cross was described in para. 2 of the trial judge's judgment. It is an exciting but undoubtedly dangerous sport. The event involved motorcyclists travelling at speed around a dirt track containing many hairpin bends, a number of straight sections and numerous embankments, which in the course of the trial in the High Court and during this appeal were referred to as ‘jumps’ on account of the fact that many of the motorcycles using the track would become airborne at these points on the course. Some of the jumps were single and others were double jumps. At various vantage points alongside the track there were designated areas or boxes where flag marshals would be stationed in order to supervise events and give warnings to oncoming motorcyclists of accidents ahead of them or other dangers on the track. There were also two medical points from which ambulance crews could get access to the track.

3 Shortly before the practice session came to a close the appellant fell from his motorcycle while negotiating a double jump on the eastern side of the course. The double jump occurred where there were two banks. Here, the appellant fell off his vehicle and he was struck by a motorcycle driven by the first named respondent who was travelling behind him. The second named respondent in these proceedings is a director of the club organising the event. The third named respondent was the organiser of the event and the fourth named respondent is the governing body for the sport.

4 At the conclusion of the appellant's case, the first named respondent applied for a direction or non-suit and in an ex tempore judgment delivered on the 12th October, 2016 (the fifth day of the trial) the trial judge granted the application and dismissed the appellant's case against the first named respondent. The matter proceeded against the other respondents. At the conclusion of the entire case, and having heard all the evidence, the trial judge dismissed the claim against the other respondents. The first named respondent was not called as a witness and did not give evidence in the course of the trial.

5 The trial judge gave his ruling on the application for a direction on Day 5 of the trial and, unlike the judge in the High Court who did not have the benefit of a transcript, this court has had an opportunity of reading a transcript of the hearing prepared for the purpose of the appeal. In the course of his ruling, the judge regarded it as ‘notable and important’, in the context of the application, that counsel for the second, third and fourth respondents did not seek any relief against the first respondent and did not file any notice claiming contribution or indemnity upon him. Furthermore, the other respondents did not seek to be let out of the action at the end of the plaintiff's case. Having regard to that information, the trial judge said that the mischief in letting one of a number of defendants out of the proceedings as raised in a number of cases discussed below would not arise. The trial judge concluded:-

‘…no case or complaint has been made out against Mr. Mullally either on behalf of the plaintiff or on behalf of the other defendants.’

Accordingly, he granted the first named respondent's application for a non-suit.

6 This appeal is against the entire order of Hanna J. including the dismissal of the appellant's claim against the first named respondent at the close of the appellant's case. The issue of the non-suit formed the main thrust of the appeal as the appellant argues that the liability of the other respondents was to a considerable extent dependant on the evidence which the first named respondent would have given if no direction had been given by the trial judge. In particular, the appellant argues that one of the main issues touching on liability was whether or not the first named respondent was close to the appellant at the time when the appellant came off his motorcycle. It is clear that the resolution of this issue would determine the opportunity which the first named respondent had to avoid colliding with the appellant and the opportunity of the other respondents to warn the first named respondent and other participants of the danger that lay ahead. The latter point was central to the appellant's claim against the second, third and fourth named respondents.

7 At para. 71 of his judgment, Hanna J. stated:-

‘I am satisfied that even if a flag marshal were to have been present in the given circumstances of this case in MB11 [a point on a map of the motor cross track], given the close proximity of Mr. Mullally to the plaintiff at the time the plaintiff fell, no reasonable opportunity would have arisen for a flag marshal to offer anything by way of warning to Mr. Mullally of what had occurred. No action could have been taken which would have prevented the accident. I am satisfied that what occurred was an unfortunate but unavoidable occurrence and one of the unintended but unhappy consequences of involvement in this unquestionably dangerous sport…’

8 The appellant gave evidence of how he fell and was attempting to get off the track after being separated from his motorcycle, when the first named respondent came over the mound or ‘jump’ and struck him, suggesting that the two motorcycles were not travelling together as they entered the double jump. He also gave evidence that he looked to his left when coming around a hairpin bend before entering the straight section of track where the jumps were, and he saw no one behind him. He steadfastly maintained that position under cross-examination. It was put to him that the evidence of two ambulance men at the scene established that the two motorcycles were close together just before the accident.

9 While I will deal with the evidence in more detail later in this judgment, it is clear that one of the principal conflicts of evidence to be resolved by the trial judge was whether or not the motorcycles being driven by the appellant and the first named respondent were travelling together or at least close to each other at the time when the appellant fell. This is of some significance against the background of the pleadings and the application for a non-suit.

The law

10 There was a large measure of agreement as to the relevant authorities to be considered in an application for a non-suit. The origin of the current jurisprudence on the topic is to be found in Hetherington v. Ultra Tyre Service Limited & Ors. [1993] 2 I.R. 535 and O'Toole v. Heavey [1993] 2 I.R. 544. In Hetherington v. Ultra Tyre Service Limited & Ors Finlay C.J. at pp. 541-542 stated:-

‘…it may be of assistance if I express a view with which I understand my colleagues to be in...