Coleman v Clarke

• Jurisdiction: Ireland
• Judge: GRIFFIN J.,O'FLAHERTY J.
• Judgment Date: 28 February 1991
• Neutral Citation: 1991 WJSC-SC 204
• Court: Supreme Court
• Docket Number: ???query??????/89
• Date: 28 February 1991

1991 WJSC-SC 204

THE SUPREME COURT

Finlay C.J.

Griffin J.

Flaherty J.

???query??????/89

COLEMAN v. CLARKE

PEGEEN COLEMAN

Plaintiff/Respondent

v.

V. CLARKE

Defendant/Appellant

Citations:

SS GAIRLOCH 1899 2 IR 1

NORTHERN BANK FINANCE CORPORATION V CHARLTON 1979 IR 149

CIVIL LIABILITY ACT 1961

Synopsis:

NEGLIGENCE

Fault

Apportionment - Traffic accident - Collision - Emergency - Reaction of defendant driver - No fault attributable to defendant - (168/89 - Supreme Court - 28/2/91) - [1991] ILRM 841

|Coleman v. Clarke|

NEGLIGENCE

Motorist

Crisis - Swerve - Failure - Fault - Apportionment - Head-on collision - Plaintiff's car on incorrect side of road - Reaction of defendant van driver - No fault apportioned to defendant - (168/89 - Supreme Court - 28/2/91) - [1991] ILRM 841

|Coleman v. Clarke|

1 JUDGMENT delivered the 28th day of February 1991by GRIFFIN J. [Finlay C.J. conc.]

2 The accident in respect of which this action arose occurred on the main road from Dublin to Howth between Kilbarrack and Sutton. Approaching the scene of the accident going towards Howth there is a sea-wall on the right and some business premises and houses on the left. The road is 30' wide with a broken white line down the centre and is for all practical purposes straight. One of the business premises on the left-hand side facing Howth is the Blue Lagoon petrol filling station. There is then forty to fifty yards of open space in the Howth direction, and then three shops, the first being a florist'scalled "Options", next is a carpet shop, and the third is a large furniture shop owned by the defendant.

3 On the 16th July, 1985 between 2.00 p.m. and 2.30 p.m. the plaintiff was driving her motor car (yellow in colour) towards Howth with her father in the front passenger seat. A collision took place between her car and a van driven by the defendant which was travelling in the opposite direction. In the accident the plaintiff sustained very serious injuries and her father received injuries from which he died whilst being taken by ambulance to hospital. By reason of her injuries the plaintiff has no recollection of the events leading up to the collision or of the collision itself. She was, therefore, unable to give any relevant evidence in relation to the issue of liability.

4 The only witness to the accident called on behalf of the plaintiff was Mrs. Margaret Farrell. Her evidence may be summarised as follows. She went into Options shop some time before the accident, parking her car facing Dublin "right into the kerb" outside Options. When she had made her purchases she came out of the shop, opened the drivingdoor of the car, threw her purchases on to the front passenger's seat, sat into the car, and had just put the key into the ignition when she heard a horn being blown from a direction over her left shoulder. She looked up and saw the yellow car coming towards her. It went over to the other side of the road (its incorrect side) and collided with the defendant's van outside Options but just behind her, with part of the plaintiff's car in line with half of her car. The two vehicles collided head-on. The van was entirely on its correct side of the road. After the accident the van was still facing straight in the direction of Dublin, and the plaintiff's car was still facing straight in the direction of Howth. Mrs. Farrell's observation of the events leading to the accident must have been quite limited as it was only after she heard the horn being blown that she looked up and saw the plaintiff's carapproaching.

5 At the close of the evidence for the plaintiff counsel for the defendant applied for a non-suit. It is clear from the dialogue between counsel and the trialJudge in the course of that application (and from the later cross-examination of the defendant and of the witnesses called on his behalf) that the case was opened by counsel for the plaintiff and was being run on the basis that the defendant's van was, at the time of the accident, either about to enter or was leaving his premises, thus causing the plaintiff to drive in the manner in which she did.

6 The application for a non-suit was refused. In evidence the defendant said that he was driving his Toyota van in the direction of Dublin bringing furniture from Sutton to a factory premises he had in Artane. He was travelling at between 30 and 35 miles per hour. As he was coming towards his shop there was a line of cars coming towards him on the opposite side of the road, and he saw the yellow car coming out of the line of traffic on to the wrong side of the road and coming straight towards him being driven slowly. He applied his brakes very severely and blew on the horn to attract the attention of the driver of the car, but it did not seem to make any difference, as "the car kept coming and straight into the van". It washard to say if he had actually stopped - he might have been just stopped at the time the collision occurred.

7 In cross-examination (Q. 53) he was asked where he was driving in relation to the white line before the accident happened, and he said he would say "slightly nearer the path rather than the centre of theroad". At Qs. 58–62, he was asked about his intentions and his position in relation to the white line. These questions are asfollows:

"58. Q.	Yes, in relation to the broken white line, I have to put it to you that that was where you were, you were quite close and it was consistent with intending either to go into the other lane in front or to pull over to the other lane to get to your shop or to get to the front of your shop.
A.	I can only repeat myself, my intention was to go on straight, I had no intention of turning at the time.
59. Q.	I rather gather from your evidence and indeed

	from the statement that you made to Sergeant Kennedy that you say that this car veered across the roadway in a diagonal veer and that is what you said.
A.	Yes, it veered.
60. Q.	It did not; you pulled out suddenly into her path and if you did, it would have hit the side.
A.	It came straight at me.
61. Q.	If you say yes, did you not go left, you had 15 feet ofroadway.
A.	Well, I didn't really - it came on me very suddenly, I had not a lot of time to think would I go left or right. If I had gone left I would have gone on the footpath and if I had gone right I would have been in a line of cars that were coming towards me.
62. Q.	What I have to put to you is this; you were travelling close to the centre of the white line for the reason I suggest,(emphasis added) and that you saw this car some little distance

	away from you and that all you had to do was to blow your horn and jam your brakes harder than perhaps you had them on before, but you just kept on a straight course and you made no effort whatsoever to pull away from an oncoming car that was veering over towards you. Although, you had 15 feet of roadway to operate on, would you explain to My Lord why you didn't.
A.	I really expected the car to get back on its own side of the road at any moment."

8 Mr. Desmond Lawlor, whom the learned trial Judge described as"impressive", was called by the defendant. He was travelling behind the plaintiff who, like himself, was travelling at approximately thirty miles per hour. Approximately at the Blue Lagoon garage he noticed the yellow car slowly and gradually move out of the line of traffic and "drift", or as he later put it"veered", across the road until it collided with the van driven by the defendant going in the opposite direction. At the time of the collision both vehicles were on the defendant'sside of the road and "collided head-on in front of each other". To the trial Judge he said that the defendant's van was in the middle of his side of the road between the broken white line and the kerb on his side. The defendant had braked very severly and he saw skid marks on the road behind the van after the accident. As to whether the defendant was completely stopped or not at the time of the accident it was very hard to say. It was put to him by counsel for the plaintiff that after the accident the defendant's van was stopped in front of his (the defendant's) premises. Mr. Lawlor said it was not stopped there but outside the small shop which he thought was a florist's.

9 Garda Daly was in a patrol car getting petrol at the Blue Lagoon filling station at the time of the accident and went to the scene. The plaintiff's car was on the right-hand side of the road facing Howth, and the van was on the same side facing Clontarf (Dublin). The fronts of the two vehicles were embedded in each other on the Dublin side of the door to the second shop (the door beingat the Dublin end of the frontage of that shop). The two vehicles were roughly halfway between the footpath and the centre line. They collided head-on; it was an absolute head-on collision, "full front to full front". There was a skid mark leading up to the rear of the van. He did not measure how far that mark was from the white line or the kerb but so far as he could remember it was in the centre of the defendant's side of the road.

10 In his judgment, the learned trial Judge said that the distance from the filling station to the florist's was probably fifty to sixty yards. He thought that the evidence was coercive that, at thirty miles per hour, it was at the filling station that the plaintiff veered out towards the centre of the road. The defendant was not intending to turn into his business [shop] nor intending to turn or park on the right-hand side. But he thought this gradual slow veering across the road should have been seen by him [the defendant]. No evasive action whatever was taken [by the defendant]. On the facts he thought the defendant was about the middle of his lane, possiblycloser to the broken white line.

11 At p. 89 of the transcript he said:-

"Now the Defendant did, I suppose, what...