Córas Iompair Éireann v Carroll

JurisdictionIreland
CourtSupreme Court
JudgeFinlay C.J.
Date01 January 1986

1985 WJSC-SC 1019

The Supreme Court

Finlay C.J.

Hederman J.

McCarthy J.

No.172/82
CIE v. CARROLL & WEXFORD CO COUNCIL

Between

Coras Iompair Eireann
Plaintiff/Resondent

and

Michael Carroll and Wexford County Council
Defendants/Appellants

Citations:

CIE V CARROLL & WEXFORD CO COUNCIL 1986 ILRM 312

DUBLIN WICKLOW & WEXFORD (ENNISCORTHY EXTENSION) ACT 1860

RAILWAY CLAUSES (CONSOLIDATION) ACT 1845

RAILWAY CLAUSES (CONSOLIDATION) ACT 1845 S49

Synopsis:

NEGLIGENCE

Motorist

Bridge - Vertical clearance - Mechanical digger transported on low loader - Low loader drawn by tractor driven by first defendant - Digger failing to clear underside of plaintiff's bridge - Bridge destroyed - Decision of High Court (14/6/82) finding defendant driver and defendant highway authority negligent - Apportionment of fault between defendants - Appeal of highway authority allowed - Notice of appeal of highway authority served on driver but no appeal lodged by him - Order of High Court amended to finding of negligence against driver only - (172/82 - Supreme Court - 28/6/85).

Coras Iompair Eireann v. Carroll

ORDER

Amendment

Appeal - Negligence - Two defendants held to have been negligent - Order apportioning fault - Successful appeal by second defendant - No appeal or appearance by first defendant - Order of High Court amended to record finding of negligence against first defendant only - (172/82 - Supreme Court - 28/6/85).

Coras Iompair Eireann v. Carroll

PRACTICE

Parties

Appearance - Absence - Amendment of High Court order - Two defendants held to have been negligent - High Court order apportioning fault - Successful appeal by second defendant - No appeal or appearance by first defendant - Order of High Court amended to record finding of negligence against first defendant only - (172/82 - Supreme Court - 28/6/85).

Coras Iompair Eireann v. Carroll

1

Judgment delivered on the 28th day of June 1985by Finlay C.J.[Nem Diss]

2

This is an appeal brought by the second-named Defendant, the Wexford County Council (the County Council) against the decision of Gannon J. in the High Court contained in a judgment delivered on the 14th June 1982 whereby he found (i) that both the Defendants were negligent, (ii) that there was neither negligence nor breach of any statutory duty on the part of the Plaintiff and whereby he apportioned the degrees of fault between the Defendants: as to the first-named Defendant, 90 per cent and to the second-named Defendant, 10 per cent. By,the same Order the Iearned trial Judge adjourned the question ofdamages.

3

The Plaintiff's claim was in respect of an accident which occurred on the 31st December 1975 when the Defendant Michael Carroll, driving a low-loader transporting an excavator whilst passing under a bridge carrying the railway over the road at Cain or Clough near Enniscorthy in the County of Wexford, struck the arch of the bridge with the top of the excavator and, in effect, tore open the bridge and made a gap in the railway track. Unfortunately, this impact occurred only minutes before the arrival of a train, the driver of which could not be warned, and a major derailment then took place. The Plaintiff sued the two Defendants, alleging against Michael Carroll negligence and breach of statutory duty in the driving, management, care and control of the tractor, low-loader and excavator and alleging against the County Council nuisance, negligence and breach of statutory duty in and about the maintenance and repair of the surface of the road, and the provision of warnings for traffic using the same.

4

It was apparently agreed by the parties that the issue of liability should be tried by the learned trial Judge sitting without a jury and that the assessment of damages should be postponed until after the determination of that issue.

5

The Appellants, the County Council, appealed both against the finding of negligence against them and of the refusal by the learned trial Judge to make a finding of contributory negligence against the Plainiff.

6

The Defendant, Michael Carroll, did not appeal against any part of the Order of the High Court and was not represented and did not appear on the hearing of the appeal by the County Council, though he was a partythereto.

7

The action was heard on oral evidence on the 6th,7th,11th and 12th May 1982. Judgment was reserved and the learned trial Judge stated the reasons for his decision on the 14th June 1982 in a careful and comprehensive judgment. It was agreed by parties represented at the hearing of the appeal that the first issue to be determined was whether there was evidence whichwould support the finding of the learned trial Judge of negligence against the County Council and that in the event of it being found that there was no evidence to support such finding that the question of the contributory negligence of the Plaintiff did not arise since the Defendant Carroll, had entered no appeal against the Order of the HighCourt.

The Facts
8

The facts surrounding both the construction of the bridge; the work carried out by the County Council in road surfacing and the happening of the accident itself are set out in full in the judgment in the High Court. Those relevant to the issues raised on this appeal may thus besummarised.

9

2 1.The bridge was originally constructed pursuant to the provisions of the Dublin, Wicklow and Wexford (Enniscorthy Extension) Act 1860 which incorporated the Railway Clauses (Consolidation) Act 1845.

10

3 2.It crossed a County road and by virtue of the provisions of Section 49 of the 1845 Act by law had to beconstructed so as to maintain the minimum clearance of 15 feet. It was in fact constructed with a minimum clearance of just over 15 feet.

11

4 3.After the construction of the bridge, successive highway authorities maintained the road underneath it and by an increase in the level of the road surface the minimum clearance gradually decreased. The last increase probably occurred in 1958 or 1959 when road surface dressing was carried out by the County Council, underneath the bridge, adding at that time approximately 7 inches to the surface of theroadway.

12

5 4.At the time of the accident the minimum clearance on the bridge was 13 feet 10 inches.

13

6 5.The Defendant, Michael Carroll, was an agricultural contractor using mechanical excavators and owning a tractor and low-loader, and lived and carried on business about four miles from the bridge.

14

7 6.On the morning of the accident he was transporting on his low-loader a mechanical excavator known as an H.44. He had not previous to that day attempted to bring thatparticular vehicle under the bridge, though he had brought it under other bridges in the neighbouring roads and he had brought under this bridge all of three other mechanical excavators which he owned.

15

8 7.He gave evidence that the excavator which he was driving on this occasion looked the same as the others and that he assumed it was the same height.

16

9 8.He did not measure the excavator when loaded on the low-loader and he did not...

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