Carr v Olas & Doran

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 15 March 2012
• Neutral Citation: [2012] IEHC 59
• Court: High Court
• Date: 15 March 2012

[2012] IEHC 59

THE HIGH COURT

[No. 794 P/2009]

Carr v Olas & Doran

BETWEEN/

DAVID CARR

PLAINTIFF

AND

JOAO OLAS

FIRST DEFENDANT

AND

JENNIFER DORAN

SECOND DEFENDANT

CIVIL LIABILITY ACT 1961 S57(1)

ANDERSON v COOKE 2005 2 IR 607 2005/2/272 2005 IEHC 221

DPP v BARNES 2007 3 IR 130 2006/17/3410 2006 IECCA 165

CONSTITUTION ART 40.3.2

HANRAHAN v MERCK SHARPE & DOHME (IRL) LTD 1988 ILRM 629 1988/5/1234

GRANT v ROCHE PRODUCTS (IRL) LTD & ORS 2008 4 IR 679 2008/27/5893 2008 IESC 35

BINCHY MESKELL THE CONSTITUTION & TORT LAW 2011 18 DULJ 339

HACKETT v CALLA ASSOCIATES LTD & ORS UNREP PEART 21.10.2004 2004/21/4749 2004 IEHC 336

WASSON v CHIEF CONSTABLE ROYAL ULSTER CONSTABULARY 1987 NI 420

GALA v PRESTON 172 CLR 243 1991 HCA 18

HALL v HERBERT 1993 2 SCR 159 101 DLR (4TH) 129

MCCOMISKY v MCDERMOTT 1974 IR 75

ROAD SAFETY AUTHORITY RULES OF THE ROAD: MARCH 2007 PARA 13

TORT LAW

Duty of care

Negligence - Personal injuries - Duty of care - Doctrine of ex turpi causa - Standard of care - Rules of road relating to road rage - Road rage action by plaintiff against defendant - Accident caused by response of defendant to road rage - Whether duty of care where plaintiff breached civil law - Appropriate standard of care - Whether response of defendant to road rage action intentional - Whether rule of road mandatory legal rule - Whether defendant negligent - McComiskey v McDermott [1974] IR 75 applied - Anderson v Cooke [2005] IEHC 221, [2005] 2 IR 607; People (Director of Public Prosecutions) v Barnes [2006] IECCA 165, [2007] 3 IR 130; Hackett v Calla Associates Ltd [2004] IEHC 336, (Unrep, Peart J, 21/10/2004); Wasson v Chief Constable, Royal Ulster Constabulary [1987] NI 420; Gala v Preston (1991) 100 ALR 29; Hall v Herbert (1993) 101 DLR (4th) 129; Hanrahan v Merck Sharpe & Dohme [1988] ILRM 629 and Grant v Roche Products (Ireland) Ltd [2008] IESC 35, [2008] 4 IR 679 approved - Civil Liability Act 1961 (No 41), s 57 - Constitution of Ireland 1937, Art 40.3 - Claim dismissed (2009/794P - Hogan J - 15/3/2012) [2012] IEHC 59

Carr v Olas

Facts: The plaintiff and defendant had become involved in a vehicle altercation where one vehicle had swerved and a motorcycle had collided into the vehicle of the second defendant. The Court had to consider how the accident had occurred, the nature of the banging of the window of the vehicle by the cyclist, whether the plaintiff had kept a proper look out, whether the continuous white line had been crossed and whether speed limits had been adhered to. The Court had to consider the actions of a competent driver in the circumstances.

Held by Hogan J. that the plaintiff could not succeed against the defendant. The accident was the product of an instinctive recoiling of Mr. Olas to the sudden actions of Mr. Carr. The swerve was instinctive and not deliberate. The claim of the plaintiff would be dismissed.

Reporter: E.F.

1 1. A split second decision made in the heat of the moment shortly after mid-day on Tuesday, 22 ^nd January, 2008, has resulted in tragic consequences for the plaintiff, Mr. David Carr, which will profoundly affect him for the rest of his life. At the time of the accident, Mr. Carr was an experienced motor cyclist who had previously worked as a musician, but who was now working in the courier business.

2 2. On that particular day, the weather in the Sandyford/Leopardstown area of South Dublin was bright and sunny. There had been some rain earlier, but driving conditions were all but perfect. The traffic was steady and relatively free flowing. Shortly after mid-day, Mr. Carr travelled down the Leopardstown Road on his Honda CVR600 motorcycle before coming to a major roundabout. The roundabout has four exits: one of these lies due north and leads on to Brewery Road. The other exit lies due east and it is at this point that the Leopardstown Road continues and leads on to join up with the N11 dual carriageway.

3 3. Mr. Carr entered the roundabout at the south-westerly entrance. Shortly afterwards, Mr. Carr had a chance encounter with the first defendant, Joao Olas, who on that day happened to be driving his father's Peugeot 306 motor vehicle. Mr. Olas is a Portuguese citizen who has been living here since 2003. He is a truck driver with Kerry Foods and he had just finished work following a 4 am start. Mr. Olas had exited the M50 motorway at junction 14 and he was in the course of travelling home to Foxrock when the incident occurred. There is some dispute as to how exactly the parties came to meet on the roundabout or whether as Mr. Carr claimed and Mr. Olas denied, the former was required to take evasive action as a result of the driving of the latter. What is not in issue is that some form of incident took place - the rights and wrongs of which have been superseded by subsequent by more serious events - which prompted Mr. Carr to make a rude gesticulating signal to Mr. Olas and Mr. Olas responded in kind.

4 4. Mr. Carr then indicated that he wished to move off the roundabout and exit on to Brewery Road. Mr. Olas travelled from a point equivalent to 8 o'clock on the roundabout until he took the 3 o'clock exit back onto the next stretch of Leopardstown Road. Mr. Olas was now heading due east, heading home to Foxrock. While this section of the road is a three lane carriageway, Mr. Olas was travelling on a single lane as he headed in the direction of the N11 and there were two on-coming lanes on the opposite side of the road. There was free flowing traffic in both directions. The single lane is a relatively narrow road, with a width of 3.2m at the point of the accident. Perhaps reflecting this fact, the relevant speed limit is 50kph. Mr. Cathal Maguire, the well known consulting civil engineer, gave evidence that lanes of this kind normally are 3.65m wide.

5 5. In the meantime, Mr. Carr had made a fateful decision. Having exited off the roundabout on to Brewery Road, he then decided to double back and to seek out the driver of the car with whom he just had an altercation. After progressing about 50m down Brewery Road, Mr. Carr turned his vehicle at a traffic island when there was gap in the traffic and went back in the direction of the roundabout to seek out the driver of the vehicle. While Mr. Carr may well have crossed a continuous white line in the course of this reversal of direction, this was probably not in itself significant, save that it is at least some evidence that Mr. Carr was agitated and cross by reason of the conduct of Mr. Olas.

6 6. In the meantime, Mr. Olas had proceeded down the Leopardstown Road. It is common case that there were vehicles both ahead of him and behind him and the traffic was moving at a speed of approximately 40kph. It is not in dispute but that Mr. Carr overtook traffic and caught up with Mr. Olas's car at a point approximately 190m from the exit point on the roundabout on to this section of Leopardstown Road. It is also common case that Mr. Carr came alongside Mr. Olas's vehicle and, keeping his right hand on the steering wheel of the bicycle, gesticulated with his left hand and - according to some witnesses, albeit disputed by Mr. Carr - then banged on the wing mirror and the driver's window.

7 7. It is not disputed but that at this point the vehicle swerved to the right and then back again. Nor is it seriously disputed but that the swerve was the proximate cause of the accident, so that either the motorcyclist was himself forced to swerve and lost control as a result or (as I rather think) the front right hand wheel of the car clipped the front wheel motorcycle, so that the latter spun out of control. At all events, the motorcycle banked sharply at about a 45 degree angle and the motorcyclist and his machine both careered into the passenger side of a motor vehicle, a red Mazda MX5 sports car, driven by the second defendant, Ms. Jennifer Doran, which was travelling on the opposite side of the road in the direction of the roundabout. Mr. Carr was thrown into the air and landed head first in the centre of a boxed junction beside the entrance to Tudor Lawns, an access road which leads to a group of houses off the Leopardstown Road. Mr. Carr was knocked unconscious as a result and his body thus lay just inside the outside lane of the two-lane carriageway which was heading in the opposite direction towards the Leopardstown Road.

8 8. The Gardaí and the emergency services were called. The investigating member, Garda Michael Murphy, arrived at 12.36pm and confirmed in evidence that he found Mr. Carr laying unconscious on the junction box, clad in ordinary motorcyclist's apparel, together with a helmet and visor. The Mazda was damaged by extensive scraping beside the driver's door. Minimal damage had been done to the motorcycle, which he described as being medium-sized. Little damage had been done to the Peugeot either, but Garda Murphy noticed scratch marks on the right hand side, which suggested a possible point of impact. He did notice that the wing mirror of this vehicle had been retracted backwards.

9 9. Mr. Carr was very seriously injured as a result of this grave accident. He was hospitalised and required extensive treatment. The entire joint of his shoulder, wrist, one of his ribs and lungs all suffered extensive injuries. There was damage to his bronchial nerve, with the result that he cannot move his shoulder and, as a consequence, he has lost the effective use of one arm. There was also damage to his frenic nerve, with the result that he has a partially frozen right lung. This leads to breathlessness and affects his ability to sing. Mr. Carr also has extensive and disfiguring scarring over his torso. These extensive injuries and disabilities in turn has lead to psychological problems such as depression and, quite obviously, Mr. Carr's quality of life has been gravely...