Cranny v Kelly

• Jurisdiction: Ireland
• Judge: Mr Justice Francis D Murphy
• Judgment Date: 03 February 1998
• Date: 03 February 1998
• Docket Number: 218/96,[S.C. No. 218 of 1996]
• Court: Supreme Court

1998 WJSC-SC 5094

THE SUPREME COURT

Hamilton CJ

Keane J

Murphy J

218/96

CRANNY v. KELLY

Between:

Patricia Cranny

Plaintiff

AND

Robert Kelly & The Motor Insurers Bureau ofIreland

Defendants

Synopsis

Road Traffic

Motor car collision; plaintiff and defendant in same car; liability; whether vehicle driven by defendant; whether vehicle driven negligently by defendant; dispute as to who was driving the car at the time of the accident; whether this should be proved on balance of probabilities; whether non-suit should be granted Held: Retrial ordered( Supreme Court: Hamilton C.J., Keane J., Murphy J.03/02/1998)

Cranny v. Kelly

[1998] 1 IR 54

1 Mr Justice Francis D Murphydelivered the 3rd day of February 1998. [NEM DISS]

2 This is a claim arising out of a fatal road traffic accident, which occurred at or near the Howth Road, County Dublin, on the morning of the 5th of February, 1989. There was only one motor car involved in the collision. It was a reconstructed blue Mini Minor understandably described by the learned trial Judge as a " hybrid",bearing the registration number 179 YYL. At the time of the accident there were two people in the motor car, Paul Cranny the husband of the Plaintiff herein and Robert Kelly the first named Defendant. Tragically Paul Cranny was killed in the accident and while Mr Kelly survived he was very seriously injured.In a hard fought case where there was little agreement on the questions of law or fact the parties were able to accept that neither the late Mr Cranny nor Mr Kelly was insured to drive the vehicle in question. The proceedings were brought by Patricia Cranny on her own behalf and on behalf of the dependants of the deceased pursuant to the provisions of the Civil Liability Act, 1961.In the proceedings as instituted, Robert Kelly was the only Defendant. The Motor Insurers Bureau of Ireland (MIBI) were subsequently added as Defendants by Order of the Master dated the 25th day of March, 1994.

3 To succeed in her action against the Defendants the onus was on the Plaintiff to establish, first, that the vehicle was being driven by Robert Kelly (and not Paul Cranny) and secondly that the vehicle was driven negligently. In the event of the Plaintiff succeeding on those issues then, for the MIBI to escape the liability which would otherwise fall on them pursuant to the provisions of the agreement between them and the Minister for the Environment dated 21st December 1988, it would have been necessary for the MIBI to prove, on the balance of probabilities, that the passenger knew or ought to have known that the driver was not insured.

4 Ample evidence was adduced by the Plaintiff to establish that the accident was caused by the negligence of the driver of the vehicle, whoever that may have been. There was compelling and uncontradicted evidence that the car was being driven at a high speed and in a dangerous fashion immediately prior to the accident. Furthermore there was independent evidence that the vehicle was equipped with untreaded or what are called " slick" racing tyres which provided little or no grip on a wet surface. As the roadway was wet at the time of the accident - although it was not then raining - the use of such tyres or the driving on such tyres clearly constituted negligence.

5 In the circumstances there was little doubt as to the negligence of the unidentified driver. Nor was there any issue before the learned trial Judge in relation to damages or compensation. That issue was postponed by agreement pending determination of the issue of liability.

6 Whilst a number of witnesses gave evidence of having seen the car before the accident and the manner in which it was driven, none of them had seen or could identify the driver. Numerous witnesses gave evidence as to what they saw at the scene of the accident and, in particular, the position of the occupants in the car immediately subsequent thereto. These witnesses included Garda Michael Wall and three teenage witnesses, Kieran Hayden, Runnai Bruen and Declan O'Connell all of whom had seen the motor car driven prior to the accident and viewed it more closely subsequently. Two other members of the Gardai, Liam Walsh and Gerard Peppard who were called to the scene of the accident likewise examined the scene. There was one further witness, Mr Patrick Hanley, outside whose house the accident took place, who gave evidence in relation to the post accident situation. Mr Hanley's evidence has a particular significance in as much as the learned trial Judge specifically accepted" the truthfulness and accuracy of Mr PatrickHanley".

7 The evidence of Mr Hanley and the other witnesses to a greater or lesser extent placed Mr Kelly behind the steering wheel of the vehicle when they inspected the scene of the accident. The car was on its side and the side closest to the ground was the passenger side. The position was such that Mr Kelly had to be removed from the car before the emergency services could reach Mr Cranny. In those circumstances though Mr Hanley spoke of " identifying" Mr Kelly as the driver of the car, he was in no better a position than the other six witnesses to say who was driving the car prior to the accident. He could merely give evidence of what he saw subsequent to the accident and draw inferences or...