Córas Iompair Éireann v Carroll

• Jurisdiction: Ireland
• Judge: Gannon J.
• Judgment Date: 01 January 1983
• Neutral Citation: 1982 WJSC-HC 1816
• Court: High Court
• Docket Number: No. 4925P/1976
• Date: 01 January 1983

C.I.E. v. CARROLL

BETWEEN:

CORAS IOMPAIR EIREANN

Plaintiffs

and

MICHAEL CARROLL AND WEXFORD COUNTY COUNCIL

Defendants

1982 WJSC-HC 1816

No. 4925P/1976

THE HIGH COURT

1 JUDGMENT of Gannon J.delivered the 14th day of June 1982

2 In this action Coras Iompair Eireann the statutory railway authority claims damages for the destruction of a bridge carrying the Dublin/Wexford railway line over a country road in County Wexford. The damage was caused by a collision between the top of a mechanical digger being transported on a low loader drawn by tractor owned and r driven by the defendant Michael Cairroll along a road which is under the care of the Wexford County Council as the highway authority. The accident occurred at about 9.25 in the morning of the 31st December 1975 very shortly before the arrival at the bridge of the boat-train from Rosslare Harbour on its way to Dublin and resulted in thederailment of the train. As many and complex claims for damages have arisen the parties have agreed that in this action preliminary issues or question of law and fact relating to where liability lies and the apportionment of blame so far as it may arise should be determined by this Court. The plaintiff's claim against the first defendant is founded in negligence in relation to the manner 0f driving the vehicle, the nature of the load, and the failure to take suitable precautions in driving so as to pass safely under the bridge. The plaintiffs sue the second defendant for negligence and in nuisance in relation to the construction and maintenance of the nature of the road and bridge clearance. The defendants both attribute blame to the plaintiffs on the basis of maintaining a nuisance by obstructing the road at a height above the road surface which is not authorized by statute, and in the failure to maintain the bridge in suitable condition to withstand impact from road traffic. As between themselves the two defendants attribute blame to each other: on the one, hand, the driver of the vehicle attributes blame to the, highway authority for altering the road levels and for failure to give suitable warning; and on the other hand, the highway authority attributes blameto the driver of the vehicle for the manner of driving and the nature of the load and that failure to take suitable precautions to pass safely under the bridge.

3 To resolve these various issues it is necessary to determine from the evidence the time place and circumstances which brought the parties into relation with each other at the time the damage was done. From these it is possible to determine the nature and extent of the duty of care which the law imposes on each of the parties for the safety of the person and the property of the other or others and for his own safety. An examination of the evidence as to the nature of the damage and the manner of its cause should lead to the inferences of what and by whom breaches of the legal duties have occurred. The relative means and opportunities available to each of the parties to control the circumstances and to avoid the damage may then be assessed as indicating the blame worthiness for the damage to be borne by such as are atfault.

4 The bridge, which was described as, Cain public road bridge in the plans used for the extension of the Dublin, Wicklow and wexford railway from Avoca to Enniscorthy was built at some stage prior to the 11th November 1863 in the course of the laying of the railway line inpursuance of the statutory authority of the Dublin, Wicklow and Wexford (Enniscorthy Extension) Act 1860 and the Acts incorporated therewith. According to those plans the bridge comprises substantial masonry abutments in foundations having a base 18 inches below road level carrying wrought iron girders across a span of 25 feet upon which timber decking was laid to carry way beams and rails of the tracks for the railway. According to the plans the height above road surface of the underside of the span was prescribed at 15 feet which is the height prescribed by the Railway Clauses Consolidation Act 1845 at section 49 for roads of this nature. The railway line approaching the bridge from the Wexford to Gorey direction is carried on a raised embankment having a straight stretch of track of about 500 yards coming off a left-hand curve. The plans show that the abutments and wing walls supporting the span of the bridge had to be constructed at an 80 degree angle of skew to allow for the line of the road. A comparison of the maps and plans used in 1860-1863 with the plans made after the accident would seem to indicate that the line of the road may have, been construction of the bridge, provided for in section 49 of the Railway Clauses Consolidation Act 1845,changes in the road level approach to produce a declination from each side of one in twenty in substitution for an inclination in the Gorey direction 6f one in thirty-three. The evidence relating to the road at the time of the accident does not indicate any significant declination of the road approaches to the bridge from either direction, and the photographs seem to indicate there is none. Because the bridge girders were displaced in the accident it was not possible to be precise as to what clearance there was between the underside of the bridge span and the top of the road surface immediately before the accident. According to the evidence the maximum clearance alongside the abutment walls was 14 feet 1 inch and the clearance over the road centre probably was no more than 13 feet 10 inches. A technical inspection and examination made at the bridge site within a month after the accident disclosed that there had been no subsidence or tilting of the bridge structure.

5 A technical survey and examination was made of the road on the 6th April after the accident to discover the probable cause of diminution of the clearance of the bridge span and the surface of the road. A trench was cut across the road in line with the exit from under the bridge going towards Gorey, and levels were taken withreference to a bench mark on the abutment wall on the Wexford side of the bridge. Prom an examination of the soil and the road making materials found beneath surface level it was possible for the consulting engineer who made the examination to determine the position of the road which was laid in or about the year 1856 or when the bridge was under construction and subsequent variations. The original road was slightly over one foot nearer the base of the abutment on the Wexford side of the road than found in 1976 and on the other side was about 2 foot 9 inches further from the base of the abutment than in 1976 and the width of that original road surface was 13 feet. On the Wexford side the clearance between the top of the road surface and the bridge span was 15.03 feet and on the Gorey side the clearance was 15.73 feet. From periodic road maintenance since 1863 the level of the road surface became built up between 7 inches and 8 inches by applications of clay and gravel mix until the 1920 period when steam-rolled tar and bitumen began to be applied. I accept the evidence of the consultant that in the period 1958-1959 a new road surface was laid upon the then existing levels but having a width of 14 feet 6 inches with a 6 foot 5 inch margin on the Wexford side and a margin of 3 foot 6 inches on the Gorey side which raised thelevel of the surface by about 5 inches or 6 inches above that developed over the period from the} construction of the; bridge. As from 1959 the clearance between the road surface and the underside of the railway bridge spanning the 14 foot 6 inches carriageway of the road appears to be 13 feet 10% inches at the Wexford edge of the carriageway, 14 feet 3 inches at the Gorey edge of the carriageway and the minimum clearance of 13 feet 10 inches about 8 foot 9 inches in from the Gorey margin of the carriageway. I assume these clearances were the same for the full 17 foot 10 inch width of the overhead span carrying the rail track between the abutments of the bridge. Over a distance of about a quarter of a mile on the Wexford side of the bridge the road has a carriageway for traffic of between 13 feet and 14 feet 6 inches, being at its widest of 15 foot 4 inches under the bridge. In the approach to the bridge from the Wexford side the road is straight for about 80 yards coming out of a left-hand bend which is preceded by a stretch of over 300 yards straight roadway. Because of hedging and trees the driver of a vehicle on the road would not see the bridge until at most 80 yards from it, but as the railway is on an embankment the driver would know that the railway would cross over the road. The road had a well maintained good surfacebut was a local country road hot within the classified grade of primary route, or main road, or secondary road. I It had no advance warning signs notifying approaching traffic of the existence of the overhead bridge nor of the clearance between road surface and bridge. The road is a public road for the maintenance of which the second defendants by statute have the responsibility as the highway authority.

6 The first defendant is a drainage contractor who lives not more than 4 miles away from the bridge and is familiar with this road and bridge. For his work he has four mechanical diggers on caterpillar tracks which he transports by low loader drawn by a motor tractor cab as used by articulated vehicles. On the morning of the 31st December 1975 the first defendant was driving the cab drawing the low loader with a Ford H 44 digger on the low loader from the Wexford direction towards the bridge. He had had this digger about three months, and although he had driven under this bridge before with other diggers on his low loader he had not previously done so with this H 44 digger. The overall length of the towing cab and low loader was 43 foot 6 inches. The floor of the well of the low loader was from 19...