Deirdre Hayes v The Minister for Finance

JurisdictionIreland
JudgeMr. Justice Kearns
Judgment Date23 February 2007
Neutral Citation[2007] IESC 8
CourtSupreme Court
Docket Number[S.C. No.124 of 2004]
Date23 February 2007

[2007] IESC 8

The Supreme Court

Hardiman J.

Kearns J.

Finnegan J.

Hayes v Minister for Finance
Appeal Number [124/04]

Between

Deirdre Hayes
Plaintiff/Respondent

and

the minister for FINANCE
defendant/appeLlant

ROAD TRAFFIC ACT 1933 S170

ROAD TRAFFIC ACT 1961 S116

CIVIL LIABILITY ACT 1961 S59

MARSHALL v OSMOND 1983 1 QB 1034

GARDA SIOCHANA CODE PARA 35.39(2)

GARDA SIOCHANA CODE PARA 35.39(3)

DOERN v PHILLIPS ESTATE 1994 2 BCLR (3d) 349

NOEL v BOTKIN & ORS 1995 9 BCLR (3d) 21

GILFILLAN v BARBOUR 2004 SCLR 92

ROAD TAFFIC (GENERAL & ORDINARY SPEED LIMIT) REGS 1994 SI 194/1992

ROAD TRAFFIC (SPECIAL SPEED LIMITS) REGULATION 1994 SI 223/1994

CONOLE v REDBANK OYSTER CO 1976 IR 191

BRESLIN v CORCORAN & MOTOR INSURERS BUREAU OF IRELAND (MIBI) 2003 2 IR 203 2003 2 ILRM 189 2003 6 1316

GLENCAR EXPLORATION PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL 2002 1 IR 84 1998 20 7466

STRATFORD v FAGAN 1994 3 IR 265 1994 2 ILRM 349 1994 13 4063

RICE v CONNOLLY 1966 2 QB 414

ROAD TRAFFIC ACT 1961 S109(1)

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 77

KENNY v MOTOR INSURERS BUREAU OF IRELAND (MIBI) UNREP SUPREME 3.4.1995 1995/3/943

NEGLIGENCE

Causation

Duty of care - Pursuit by An Garda Síochána - Standard of care - Novus actus interveniens - Obligations of An Garda Síochána in pursuit - Whether injuries to plaintiff caused by negligence of An Garda Síochána in pursuing third party vehicle - Whether driving of third party novus actus interveniens - Rice v Connolly [1966] 2 QB 414; DPP (Stratford) v Fagan [1994] 3 IR 265; Conole v Redbank Oyster Co [1976] IR 191; Kenny v MIBI (Unrep, SC, 3/4/1995) and Glencar Explorations plc v Mayo County Council (No 2) [2002] 1 IR 84 followed - Defendant's appeal allowed (124/2004 - SC - 23/2/2007) [2007] IESC 8Hayes v Minister for Finance

The plaintiff claimed damages from the defendant for injuries sustained as a result of a road traffic accident. The plaintiff was a pillion passenger on a motorcycle driven by her then boyfriend when the accident occurred. The motorcycle failed to stop at a Garda speed check and was pursued by the Gardai until the motorcycle collided with another vehicle. The defendant appealed from the decision of the High Court, which allowed the plaintiff's claim. The defendant submitted that there was no breach of any duty of care by the defendant towards the plaintiff and that incorrect inferences were drawn from primary findings of fact by the learned trial judge.

Held by the Supreme Court (Hardiman, Kearns, Finnegan JJ) in allowing the appeal: That the failure of the motorcyclist to stop led the Gardai to form a suspicion that some sort of criminal activity had, or was, taking place and therefore the decision to pursue the motorcyclist in the performance of their duty to detect and prevent crime was not in breach of any duty to those on the motorcycle, particularly having regard to the fact that the belief was both objectively reasonable and held bona fide. The learned trial judge was in error in her inference that the pursuit was one seamless unitary process. There was no breach of duty by the Gardai, either to the driver or the passenger over the last few miles of the pursuit, even if the plaintiff was deemed to have been no more than an involuntary participant at that stage. In any event the plaintiff's injuries were caused by the motorcyclist's driving.

Reporter: L.O'S.

1

JUDGMENT of Mr. Justice Kearns delivered the 23rd day of February, 2007

2

The plaintiff is a young woman who suffered multiple severe personal injuries in a road traffic accident which occurred on the 6th day of August, 1994 at or near Kilfeakle in the County of Tipperary. The accident occurred shortly before 9 p.m. when road and weather conditions were perfect. On that occasion the plaintiff was a pillion passenger on a 500 cc motorcycle driven by her then boyfriend Ian Lynch when at a bend in the road the motorcycle crossed a continuous white line on to its incorrect side. There was at that time a motor car driven by Mr. James Kearns which was coming in the opposite direction. Mr. Kearns observed that the motorcycle was approaching at speed and was out on the white line. He slowed and pulled into the left at the entrance to a farm house and was all but stopped when the motorcycle hit the front of his car. This was a forceful impact and both the motor cycle driver and pillion passenger were thrown some considerable distance beyond the car. It is quite clear that the driving of Mr. Kearns in no way caused or contributed to either the accident or injuries sustained by either the driver of the motorcycle or the plaintiff pillion passenger.

3

No claim of any sort was brought against Mr. Kearns, but the defendant/appellant was sued because it is alleged that the motorbike driven by Ian Lynch was at the time being chased at high speed by a garda vehicle " which caused the motorcyclist to go out of control and to panic as a result of being chased, being followed and being pursued" so that it is alleged that the accident complained of was caused or contributed to by the negligence and breach of statutory duty of the defendant, his servants or agents.

4

The matter came on for hearing in the High Court (Finlay Geoghegan, J.) sitting in Limerick, and at the conclusion of the hearing the learned trial judge in an ex tempore judgment concluded that the cause of the speed at which the motorbike was being driven at the time of the accident was the pursuit of the bike by the garda vehicle.

5

Before considering the judgment of the learned trial judge in more detail, it is necessary to set out the background circumstances which culminated in the accident at Kilfeakle.

6

On the evening in question, two members of the Thurles Garda Station, Garda Anne Meehan and Sergeant (then Garda) Michael Dempsey, had set up a radar speed check on the Urlingford-Cashel road. They were sitting in an Opel Vectra standard issue patrol car about a mile and a half outside Urlingford and facing towards Urlingford. The vehicle was in plain view of traffic coming from Urlingford once that traffic crested a hill. Garda Meehan was sitting behind the wheel of the patrol car and Sergeant Dempsey had the radar gun in his hand. They first heard and then saw a motorbike approaching at speed from Urlingford. Garda Dempsey noted the speed of the motorbike on the radar gun to be 80 miles per hour. The motorcycle did not stop at the speed check and in fact increased his speed. Garda Meehan turned the patrol car and followed the motorbike. While this was happening, Sergeant Dempsey radioed back to the communications control centre in Thurles seeking assistance and stating that the bike had failed to stop. They were informed that a garda presence would come to Horse and Jockey which was some six or seven miles down the road. Sergeant Dempsey also radioed ahead to Cashel for the purpose of setting up a road-block or check-point there. In evidence Garda Meehan stated it took them some time to get the bike back into view again because they had started from a stationary position. The motorcycle had anything up to half a mile of a start on the garda vehicle. The blue flashing light was operating on the garda vehicle, but the siren was inoperative at the time. While pursuing the bike, the garda vehicle at no stage caught up with it. In evidence, Garda Meehan stated she had no idea who was on the bike, beyond noting there were two people who had helmets and black leather clothing. They had received no information to suggest that those on the motorcycle had been involved in any criminal conduct, though Garda Meehan stated in evidence that her " gut instinct" was that some serious crime might have taken place and that it was highly unusual for a speeding vehicle not to stop at a speed trap.

7

No garda presence came to Horse and Jockey, but a garda road-block was set up on the Dublin side of Cashel. However, Garda Meehan stated that the motorcycle swerved to the right of the garda patrol car which constituted the road-block, driving completely on the incorrect side of the roadway for that purpose, then swerved back onto its correct side of the main roadway through Cashel. As it passed the road-block the pillion passenger was observed to throw both hands in the air, suggesting to the pursuing gardaí that the pillion passenger wanted at that point to get off the bike.

8

The garda vehicle followed in the same manner and pursued the motorcycle through the town of Cashel, though it never got close enough to permit the gardaí to identify the registration number of the bike. At the end of the town the motorcycle made a right turn and then a left turn onto the Tipperary/Limerick road. Mr Lynch and the plaintiff had earlier travelled on the bike from Limerick to Kilkenny and always intended to take this route when returning to Limerick. Once the bike went out on to the Tipperary road Garda Dempsey radioed ahead for a check-point to be set up at the next town which was Tipperary.

9

Shortly after leaving Cashel, the gardaí lost sight of the motorbike because their car came in behind an articulated truck and they were unable to overtake the truck for quite some distance. They eventually succeeded in overtaking it and, coming out of Golden and from an elevated position, they caught sight of the tail light of the bike going around a corner at a time when the bike was about one mile ahead of them. Not long after that, they came around a left hand bend and observed that the motorcycle had crashed into the front of a vehicle travelling from the opposite direction.

10

It seems clear from the evidence that the road deteriorated significantly once the vehicles left Cashel. The vehicles were no longer on a major road, but rather on a minor road. The only evidence...

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