Carroll v Clare County Council

• Jurisdiction: Ireland
• Judgment Date: 18 December 1975
• Date: 18 December 1975
• Docket Number: [1968 No. 1080 P.]
• Court: Supreme Court

Supreme Court

[1968 No. 1080 P.]

Carroll v. Clare County Council

Brendan Carroll

Plaintiff.

and

The Council for the County of Clare

Defendant

Negligence - Fault - Apportionment - Allocation of blame - Blame worthiness of causative contributions to damage - Objective test - Jury - Issue paper - Damages - Civil Liability Act, 1961 (No. 41), s. 34, sub-s. 1.

Appeal from the High Court.

The plaintiff's action was commenced by a plenary summons issued on the 26th April, 1968, and it was tried by Butler J. and a jury on the 28th and 29th March, 1974. Judgment was entered for the plaintiff in the sum of £31.990, and costs. The defendants were granted a stay of execution, pending an appeal, upon their undertaking to pay to the plaintiff the sum of £7,500 immediately and to pay interest at the rate of 10% on any amount in excess of that sum recoverable by the plaintiff after the determination of the appeal. The defendants appealed to the Supreme Court from the order of the High Court, and the appeal was heard on the 28th and 29th October, 1975.

The plaintiff suffered severe personal injuries when his car, which he was driving at night, collided with a traffic island at the junction of a minor and a major road. The plaintiff had approached the junction along the minor road; he had passed a warning sign at the side of the road and some traffic markings on the road before colliding with the traffic island which had been constructed by the defendants and was not illuminated. There was evidence that the plaintiff could have been misled by some old traffic markings on the road. At the trial of the plaintiff's action in the High Court, in which he claimed damages for the defendants' negligence, the jury found that the plaintiff had been negligent in failing to keep a proper look out and in driving too fast, and that the defendants had been negligent in regard to the maintenance and lighting of the traffic island. The jury apportioned 30% of the fault to the plaintiff and the remaining 70% to the defendants. In awarding £45,700 damages (including £36,000 as general damages) the jury assessed separate sums for special damages and for general damages, but they did not make a distinct assessment under each heading for (a) the period from the date of the accident to the date of the trial and (b) the future from the date of the trial. The first question on the issue paper, which the jury answered in the affirmative, asked whether the junction was a danger to the public. On appeal by the defendants it was

Held by the Supreme Court (Henchy, Griffin and Kenny JJ.), in allowing the appeal, 1, that the first question should not have been submitted to the jury as it served no purpose and tended to mislead them.

2. That the apportionment of fault pursuant to s. 34, sub-s. 1, of the Civil Liability Act, 1961, should be effected in accordance with the jury's view of the blameworthiness of the causative contributions to the damage by each party as measured by the standard of care to be expected from a reasonable person in the circumstances; the test is an objective one and does not involve an adjudication upon the morality of a party's conduct.

O'Sullivan v. Dwyer [1971] I.R. 275 considered.

3. That the jury's apportionment of fault was grossly disproportionate in the light of the facts established by the evidence, and that 70% of the fault should be attributed to the plaintiff.

Murphy v. Cronin [1966] I.R. 699 and O'Leary v. O'Connell[1968] I.R. 149 considered.

4. That, where a plaintiff claims compensation for (a) loss of earnings and/or (b) pain and suffering in respect of periods before and after the trial, the jury should make a distinct assessment of damages under each such head of claim for (i) the period from the date of the injury to the date of the trial and (ii) the relevant future period commencing at the date of the assessment.

McArdle v. McCaughey [1968] I.R. 47 and O'Leary v. O'Connell [1968] I. R. 149 considered.

5. That the general damages awarded by the jury were excessive and should be reduced to £22,500.

Cur. adv. vult.

Henchy J.

I agree with the judgment of Mr. Justice Kenny.

Griffin J.

I also agree with the judgment about to be delivered by Mr. Justice Kenny. The question of moral blameworthiness also arose in this Court inGallagher v. Mogul of Ireland Ltd.6, but in that case no argument was addressed to the Court as to the correctness of determining degrees of fault on the basis of moral blameworthiness. In contrast, that question has been raised and fully argued and considered in this case. For the reasons to be given by Mr. Justice Kenny, I agree that moral blameworthiness is not a correct basis for deciding degrees of fault for the purposes of s. 34, sub-s. 1, of the Civil Liability Act, 1961.

Kenny J.

The principal grounds of appeal in this case are (1) that the trial judge erred in the way in which he advised the jury to apportion the fault for the accident if they held that both parties were negligent; (2) that the apportionment which the jury made was grossly disproportionate to the admitted facts; and (3) that the general damages were excessive. The case raises important questions about the construction of s. 34 of the Civil Liability Act, 1961, and as to the form of questions to be submitted to the jury in regard to general damages, when these are claimed for disability and pain suffered before the trial and to be suffered after it.

A motorist who wishes to drive from the city of Limerick to Shannon airport takes the main trunk road from Limerick to Ennis until he comes to the Ballycasey cross. There the trunk road to Ennis turns sharply to the right while the secondary road to Shannon, which was 20 feet wide before it was altered in 1966, continues in a straight line. Drivers coming from Shannon who wanted to go to Limerick tended to go from the secondary road from Shannon into the trunk road without stopping, and this caused many accidents.

In 1966 the defendants decided that they would carry out extensive road works at the junction so that drivers travelling from Shannon to Limerick would know that they had to stop. As the defendants could not get immediate possession of all the lands which they required for the work, they decided to carry out an interim scheme. They erected a large sign 6' wide and 6' high which was put on top of a pole 180 yards back from the junction and on the left-hand side of a driver coming from Shannon. On the upper half of this sign there was an illustration which showed the road to Limerick going straight on and that to Ennis going left. On the lower half the words @"Major Road Ahead"# were written in large letters. The secondary road at the junction where it entered the trunk road was widened by 7' 6''. There were three lines of traffic to be catered for, the traffic going to the left to Ennis, that going from Shannon to Limerick and that coming from Limerick to Shannon. The defendants erected two traffic islands at the point where the road from Shannon entered the trunk road. That on the left of the driver coming from Shannon was a small triangular traffic island with a large stop sign facing towards Shannon. The stop sign was on a pole and was 2' 6'' wide; it was octagonal in shape and had the word @"Stop"# in large white capital letters on a red reflectorised surface so that the lights from a car showed it up very clearly. The second traffic island was 12' on the right of the triangular one for a...