Colbert v Donnelly

• Jurisdiction: Ireland
• Judge: TEEVAN J.
• Judgment Date: 28 February 1962
• Neutral Citation: 1930 WJSC-HC 67
• Court: High Court
• Date: 28 February 1962

1930 WJSC-HC 67

Colbert v. Donnelly

JURY ACTION :

COLBERT

- Plaintiff :

DONNELLY

-Defendant

1 WEDNESDAY, 28 FEBRUARY,1962 . TEEVAN J.

TEEVAN J.

2 I find this difficulty in coming to a decision on this matter. It is sought to suggest that the concluding paragraph in the judgment of Mr. Justice Kingsmill Moore in CONNOLLY v. LYNCH indicates his view that option even in the case of proceedings brought within twelve months in virtue of the new section or amendment introduced by the 1955 Act is still available as a defence and that where there are facts which indicate a clear election to take a proceeding, in this case under the WorkmenÆs Compensation Acts, that a bar still exists notwithstanding the amendment brought in to effect by the 1953 Act.

3 Now I don't think that that is correct. I accept Mr D'Arcy's argument that the last paragraph of Mr Justice Kingsmill Moore's judgment has not the effect contended for by Mr O'Hanhahan and is not correctly reflected in the head note. As I said a moment ago Mr Pringle had conceded in the Court below, that the sole effect of the new legislation was to overrule the effect of WALSH'S decision and that in his particular case the question of whether or not his client the plaintiff had elected to proceed under the Act was a vital issue. He contended, however, that it was a matter for the jury. His appeal was on the ground that the learned trial judge was in error in withdrawing that question from the jury and deciding that it was a matter of law. He was then given leave to withdraw that argument or rather that concession and to proceed on the basis upon which the CONNOLLY case was ultimately decided in his favour.

4 Now I think what is meant - I shouldn't say I think because I'm quite clear - by the last paragraph of Mr Justice Kingsmill Moore's judgment is this and no more than this, that if Mr Pringle had not asked leave to withdraw his concession or if asking it had not been permitted by the Supreme Court to withdraw it, Mr Pringle would still have won his case; and in view of a possible conflict as to costs Mr, Justice Kingsmill Moore was making that clear. In other words, if the case had proceeded to judgment - to conclusion- in the Supreme Court as it had done in the High Court Mr Pringle would have won because the Court would have been of opinion, that is the Supreme Court, that the question of option or no option, - I suppose I should say election I forget what the appropriate word is should have been determined as a question of fact by the jury.

5 I think it is clear from the italicised citation on P.122 that Mr. Justice Kingsmill Moore agrees with the express opinion or judgment of Mr. Justice O'Daly that proceedings may be brought in negligence even after the conclusion - the successful conclusion - by the workman of proceedings under the WorkmenÆs Compensation Acts provided of course the former are taken in time - the time laid down by the Act. And I see no room for any suggestion of ambiguity in the decision at all. I'm quite satisfied that the decision clearly allows the workman to pursue first, his workman's compensation proceedings to a conclusion, to obtain an order even payment under the order and then institute proceedings in an action for negligence provided he does so within the twelve months stipulated in the Act.

6 I refuse Mr.O'Hanrahan's application.

CHARGE TO THE JURY.

7 Gentlemen you have been correctly told by counsel that the onus of proving this case rests on the plaintiff. The plaintiff must satisfy you on the reasonable balance of probabilities that his account of what happened on this occasion is the true account and that Browne's account is not correct. The onus is on him. The plaintiff is not entitled to damages unless he satisfies you that his accident was due to the negligence of James Browne. That's a statement of law and you are bound by directions in law given by the presiding judge, but you are not gentlemen, bound by the presiding judge's opinion or his view of fact. You are the sole judges of the facts. No doubt in the course of my remarks to you, you may gather that I hold certain opinions of the facts; if you do gather that, I want to warn you that you are in no way bound by that and the very reason why you were empanelled to try this case is, because it is no function of the judge to decide any issue of fact. That is a very important function. It is for you to decide which of these two witnesses is giving the more probably correct account of the accident and of any other question of fact that may arise in the case.

8 Now the issue has been reduced to one single question, or one simple question - simple to state, it may not be so easy to decide - and that is : whether Colbert the plaintiff told Browne to disentangle the wire. If that entailed his (Browne's) going away from the foot of the ladder then, even if he got no express direction to do so the plaintiff loses his case. That's not quite as Mr. Clark put it to you coming to the end of his address but I hope to come back to that and explain it to you more fully later on. I want to say this, I'm inclined to agree with Mr McKenna that one or other of these accounts is false; one or other of these witnesses is telling a falsehood. But Mr. Clarke is putting it too strongly when he told you that Mr. McKenna invited you to hold one or other of them to be perjurors. I never heard Mr McKenna using the word perjuror from the beginning to the end of his address. Either Colbert is true and Browne false in the account of the accident or Browne is true and Colbert false. I can't see any way out of that because, both of them are very definite, no matter what else they may be in doubt about, they are both very definite on the central facts of the case, the kernel of the case - the central issue. That being so and as there is some question about what the evidence is, I'm going to read some of that evidence back for you or rather I'll read my note of it. It is a very important matter & I have to do it - perhaps it is not quite fair to counsel - because this will I suppose in the circumstances be the only record of it. I stopped Mr Clarke twice on this question of fact or what the evidence was and I think that being so, in the interest of both parties, gentlemen, that should read the plaintiff's account, and Brown's account. Now if I don't go far enough; for instance if I leave out part of the examination or crose-examination, that counsel on either side think I should read I'll have you back if they request me and if I consider it material and put it to you.

9 Now what the plaintiff himself said at the material parts of his evidence was as follows :-’........................................ ’.

10 I took over the questioning of this boy after lunch. The case had closed - both the plaintiff's and the defendant's case - and I called back the plaintiff for I thought that the essential in this case that would prove beyond yeah and nay to you who was right or might be, was the position of then wire after the accident. Thy ? Because if the wire was tied already to the stay there would be no need to disentangle it. There'd be no need to bring up any more of it. And therefore if that were the position had that stage was reached it would justify the plaintiff; because why should the plaintiff ask the boy to disentangle the wire when he already had out enough and had it actually tied in position. But that point would have made the plaintiff's case. Singularly enough there was no evidence on it - no direct evidence. The ladder crashed to the ground; there was the confusion; fuss of an accident; the necessary attendance to the injured man, of course; the young boy Browne was upset He didn't go himself but sent one of the onlooker's that came to help to go for a doctor and they went for a doctor; meanwhile some of the people who came on the scene assisted the injured man in to a house nearby and at that stage Browne went off to report to his master. Later he and Mr. Cahill - who unfortunately we had not before us - came back to take away the ladder and presumably the coil. We don't quite know. Now if the coil was down on the ground, then of course clearly Mr Colbert had not got to the stage of completing his tying of it. And it left then a possibility that he may have called out to the boy to pay out more cable. It wouldn't prove that he did call out. The fact that it was lying on the ground would not necessarily prove or establish that Browne was the more correct of the two witnesses, but certainly if it were hooked up there it would justify Colbert.

11 But it is against Mr Colbert in another way if it was not hooked up there after the accident, if it was lying on the ground then can Colbert's evidence be correct ? That he'd completed the tying of it, can that part of his evidence be correct ? You see it's an extremely important point for this reason that, if it is not repetition, if the wire were already attached to the clip there would be np point in asking for it to be paid out.

12 Now what the boy said to me as best I could get it -it wasn't easy because I was asking the questions myself :-

13 ‘ I stayed at the site until the plaintiff was removed. He was ‘ brought in to a house. I was not there when he was brought ‘ to the hospital. When he was brought to the house I went ‘ back to my employer's shop which was 150 further up the street. ‘ I think the piece of wire the plaintiff brought up with him ‘ was on the ground.’ ( I think, he was not certain of that.) ‘ I went back with Mr Cahill later. We took away the ladder. I'm ‘ not sure who took away the coil of wire.’

14 But we know it was taken away. It wasn't just left there to be affixed to the other side when ever Mr Lambert could get time. I suppose that would be a natural thing to take it away in any event. I asked him:- ‘ Was the ladder put back up against the ’ wall ? My...