Davey v Sligo County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan,Ms. Justice Ní Raifeartaigh |
| Judgment Date | 23 February 2023 |
| Neutral Citation | [2023] IECA 39 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record Number: 2022/10 |
[2023] IECA 39
Costello J.
Noonan J.
Ní Raifeartaigh J.
Court of Appeal Record Number: 2022/10
High Court Record Number: 2016/781P
THE COURT OF APPEAL
Negligence – Apportionment of liability – Novus actus interveniens – Second and third defendants appealing against the High Court’s determination that they bore sole responsibility for the plaintiff’s injuries – Whether liability ought to have been apportioned between the second and third defendants and the first defendant
Facts: The plaintiff, Mr Davey, an employee of the first defendant, Sligo County Council (the Council), was part of a group working on the road when the group was hit by a lorry whose driver had fallen asleep. One person was killed and others, including the plaintiff, were injured. The High Court (Coffey J) determined that as between the second and third defendants, MDS Distribution Ltd and Mr Zachar (MDS), and the Council, MDS bore sole responsibility for the plaintiff’s injuries. MDS appealed to the Court of Appeal against that finding and contended that liability ought to have been apportioned between it and the Council. MDS identified two issues arising in the appeal. First, it was said that neither party pleaded nor argued novus actus interveniens, and in determining the case in the way in which he did the judge deprived MDS of the opportunity to make submissions on that question which, in any event, the judge decided incorrectly. Secondly, it was said that the judge failed to properly consider and engage with the expert evidence and had he done so, he would have apportioned liability. It was said that this was the result that ought to have ensued from the judge’s finding that the Council had been negligent.
Held by Noonan J that while MDS was correct in asserting that the novus actus issue was not flagged by the judge, this did not deprive it of a fair hearing. Noonan J held that novus actus is concerned with causation and causation was exhaustively debated in the High Court both in evidence and submissions. It did not therefore appear to him that attaching a particular label to that issue in any way affected the course of the case. He failed to see how the case would have been presented or argued differently even if the judge had asked the parties to address novus actus. Noonan J was not satisfied therefore that MDS had established any unfairness arising as a result, particularly as he did not believe that this was in fact a case where liability fell to be determined by the application of the doctrine. Although the judge considered that novus actus was a relevant consideration and that the negligence of MDS “overwhelmed” the negligence of the Council, Noonan J took a different view. It seemed to Noonan J that the real issue was whether, given the fact that Mr Zachar fell asleep at the wheel of his lorry, there was in fact any causal connection between the negligence of the Council, whether as found or otherwise, and the damage that occurred. Noonan J did not believe that there was any such causal connection and that being the case, he was of the opinion that this was not a true case of novus actus at all. In his view, the sole cause of the damage was the negligence of MDS and any negligence on the part of the Council was not causative in the legal sense. Thus, even though the judge reached his conclusions by reference to the doctrine of novus actus and Noonan J would not analyse the case in that way, Noonan J held that this did not mean that MDS should succeed on the appeal. For the same reason, he rejected the complaint of MDS that it followed from the judge’s finding of negligence against the Council that there should have been an apportionment of liability. Noonan J held that the conclusion of the trial judge was one that was open on the evidence and correctly arrived at. Noonan J held that the appellant had failed to establish any operative error leading to that conclusion and therefore the appeal must fail.
Noonan J dismissed the appeal and affirmed the order of the High Court. With regard to costs, his provisional view was that as the Council had been entirely successful, it should be entitled to the costs of the appeal against MDS.
Appeal dismissed.
JUDGMENT of Mr. Justice Noonan delivered on the 23 rd day of February, 2023
. Mr. Davey, a Council employee, was part of a group working on the road when the group was hit by a lorry whose driver had fallen asleep. One person was killed and others, including Mr. Davey, were injured. The dispute in this appeal is between those responsible for the lorry and the Council. The High Court (Coffey J.) determined that as between the second and third defendants (collectively “MDS”) and the first defendant (“The Council”), MDS bears sole responsibility for the plaintiff's injuries. MDS appeals that finding and contends that liability ought to have been apportioned between it and the Council.
. The accident happened at 11:18 am on Thursday, the 13 th August, 2015 on the main Dublin to Sligo road, the N4, near Castlebaldwin. The Council was doing works on the hard shoulder of the northbound single carriageway road and was carrying out three operations at the same time, namely cutting the verge and the hedges, picking litter and clearing out road drains. The working group on the hard shoulder consisted of a small moving convoy of vehicles and workers on foot. First came two tractors with hedge trimming attachments, one behind the other which were trimming the verge at different depths.
. Behind the tractors were three Council employees on foot picking up litter. These included the plaintiff, Mr. Davey, and Mr. Padraig Noone. Behind them came a JCB type digger which was being used for cleaning out road drains. Behind the digger was a Mitsubishi 3 ton pickup truck with a large illuminated sign on the back with flashing lights and a right-pointing arrow. The convoy was moving slowly north at a rate of approximately 333 metres per hour. All of the vehicles were inside the broken yellow line demarking the hard shoulder of the road but only slightly so and at a short distance of between 100 and 500 mm from the yellow line.
. The MDS lorry was driving north with Mr. Zachar at the wheel, and was, at the material time, the only vehicle on the northbound carriageway. It was a Scania HGV tractor unit weighing 15 tons of the kind one normally associates with hauling container trailers and the like. It was common case that some time prior to the accident, Mr. Zachar had activated the cruise control system on the lorry and set it at 88kmh, which was the limited maximum speed of the vehicle. The national speed limit of 80kmh applied to the lorry.
. As the lorry approached the convoy, it veered, apparently gradually, off the road and collided with the right rear of the Mitsubishi pickup, spinning it round, and then with the digger which in turn struck the pedestrian workers. Mr. Noone was tragically killed in the impact and Mr. Davey and his other colleague suffered injuries. In fact, the court was informed that there are some eight personal injury/fatal injury claims arising from this accident. The parties agreed that the determination of liability in this matter would govern all claims.
. The trial of the liability issue between the Council and MDS ran over 14 days in the High Court and on day 3, MDS admitted that Mr. Zachar had fallen asleep at the wheel. The trial before the High Court was in effect a claim by MDS for contribution from the Council on the basis that the set-up of the roadworks put in place by the Council failed to take adequate precautions for the safety of the Council workers. Much, if not most, of the trial of the issue was taken up by expert engineering evidence given by three consulting forensic engineers, Dr. Mark Jordan for the plaintiff, Mr. Tom Rowan for the Council and Mr. Paul Romeril for MDS.
. The accident was investigated by the Health and Safety Authority, arising out of whose findings a criminal prosecution against Mr. Zachar was brought and the HSA inspector, Mr. Greg Murphy, in his report made no adverse findings against the Council and considered that the precautions they had taken were reasonable. Following a trial in the Circuit Criminal Court, Mr. Zachar was convicted of careless driving causing the death of Mr. Noone and causing serious bodily injury to two others. Mr. Zachar did not appeal his conviction.
. The accident occurred on a sunny summer's day with ideal driving conditions. The topography of the locus was that as Mr. Zachar approached the scene of the accident, he negotiated a gradual bend coming on to a straight stretch and encountered the working group some 100 to 150 metres after the bend. Evidence was given of the relevant traffic count at the locus, to which I will return. This is relevant to another point upon which emphasis was placed by MDS, namely that the Sligo Fleadh was taking place during this week which increased the traffic on the N4.
. As I have noted, very detailed and lengthy engineering evidence was heard by the trial judge, most of which was concerned with the precautions which MDS alleged that the Council ought to have taken in relation to these roadworks. I propose to summarise some of the main headings in this regard, without attempting an exhaustive list of the many issues that arose:
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(1) It was said that the Council ought not have been undertaking these works at all in circumstances where the road was unusually busy, and they should have been arranged for another date when the Fleadh was not taking place.
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(2) The Council failed to carry out any or any proper assessment of the risks involved in this work.
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(3) The Council overseers supervising this work were absent...
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