Donaldson v The Irish Motor Racing Club & Thompson

• Jurisdiction: Ireland
• Judge: Maguire, C.J.,Lavery, J.
• Judgment Date: 01 February 1957
• Neutral Citation: 1930 WJSC-HC 203
• Docket Number: 66/57
• Court: High Court
• Date: 01 February 1957

1930 WJSC-HC 203

66/57

Donaldson v. The Irish Motor Racing Club & Thompson

DONALDSON

v

IRISH MOTOR RACING CLUB and THOMPSON

1 1/2/57 Kingsmill Moore J.

2 On August 28th, 1954, motor races were held on the Curragh road racing circuit, organised by and under the auspices of the Irish Motor Racing Club Ltd., one of the defendants. Among the competing motor cars was one owned by John Thompson, the second defendant, which was driven by a driver named Quinn. This car, for reasons which are not clear, swerved off the track and continued, apparently still under full power, over the grass plain of the Curragh, along a course diverging from the track, till it came into contact with a line of posts connected with rope behind which a number of spectators were standing. It broke two or three of the posts and the rope, and then, swerving sharply to its left, regained and crossed the track, and finished on the far side of the road facing back in the direction from which it had come, having travelled a course of nearly ¼ mile from the point where it left the track. The car was still on all four wheels and the driver was in his seat dead, or on the point of death, apparently from injuries received when the car struck the posts. Two of the spectators were also killed and one seriously injured.

3 This action was taken by the parents of one of the dead spectators, against the Club and Mr. Thompson, claiming damages under the Fatal Accidents Act. The claim was laid both in negligence and nuisance, but, as the roads over which the race was held had beenclosed to the public by order of the Minister for Local Government acting under statutory authority, the allegation of nuisance was not pursued in this Court.

4 At the trial the learned Judge withdrew the case from the jury at the conclusion of the evidence for the plaintiff, and directed the jury to find for the defendants, holding that there was no evidence on which a jury could properly find negligence against either defendant. From this verdict and the judgment consequent thereon the plaintiffs appeal. Counsel for the plaintiffs maintained, as against the Club, that it had chosen an unsuitable course for a race, that it had failed to take proper precautions to make the course suitable, and that it had neglected to provide proper protection for the spectators; as against Mr. Thompson he maintained that his driver had chosen an unsuitable place to pass another car and that, when passing, he tried to shave the other car too closely with the result that his wheels touched it and he was deflected onto the grass margin, or, alternatively, that he went onto the grass margin in the course of giving an unnecessarily wideberth.

5 The track used for the races was about five miles long and roughly triangular. Save for a short distance, where it ran through the Curragh Camp, the road was unfenced and stretched across the open grass plain, sometimes a little higher and sometimes a little lower than the surrounding levels. From time to time road sweepings hadbeen deposited on the grass margins and had themselves become grass grown so that in a number of places low mounds rising to a height of a little over a foot, lay along the grass margins parallel to the road. Through those mounds water channels had been cut for the purpose of draining surface water from the road and these channels varied in depth according to the height of the mound, being a foot or more deep at the places where the mound was highest. A car travelling at high speed if for any reason it was driven onto this alternation of mounds and water channels, would be liable to be damaged and might for a time get out of control; but the danger was clearly visible and could not be overlooked by any driver who had examined the track or even made a preliminary practise circuit.

6 The point where the car left the road is towards the end of a long straight. About 250 yards further on the track begins to curve very gradually to the left and in another 100 yards it comes to Ballymany crossroads, one of the critical parts of the course where cars have to take a sharp corner. The road is 18 feet wide, slightly cambered, and of an excellent surface. Though important races had been held over this track on four or five previous occasions there was no evidence that a car had ever left the road surface on a straight section of the road. At corner, however, it was not unusual for a car to skid off the road onto the surrounding grass.

7 At Ballymanny corner a stand had been erected, for the use ofwhich a charge was made, and it was protected from skidding cars by a heavy barrier. On other parts of the circuit the public were free to watch the racing without payment. They were kept from encroaching too closely on the track by stewards and by the line of posts, joined by a rope, to which I have referred. This was sited roughly parallel to the road and about 20 yards from its edge. The barrier made by the posts and rope was not intended in any way to protect spectators from a car which had got out of control but was to facilitate the stewards in keeping spectators at a distance which was considered to be safe. At a bend or a corner a car which had got out of control in any way would tend to go off at a tangent to the curve, but if the accident occurred on a straight portion the tendency would be to continue along the track without diverging from it.

8 How the accident originated was left somewhat obscure. The car driven by Quinn was following another car which one witness thought, somewhat hesitantly, was on the crown of the road. Other witnesses put it further to its left. Quinn attempted to pass and, just as his front wheels were level with the car in front, his car appeared to swerve suddenly onto the grass margin and to continue over the series of bumps and water channels which are present at this point. The irregularities buffeted the car and caused it to bounce into the air, but it remained on its wheels and passed over the bumps onto the slope which leads down to the plain, and over the plain at high speed, diverging from the line of the road, until at a distance of 220 yards from where it left theroad it touched one of the posts. This it broke, and the rope seems to have become entangled in some way with the car for although the car swerved away immediately from the line of posts (as was shown by the tracks left on the grass) three more posts were found broken after the car had passed. Somehow in the collision the driver sustained the injuries from which he died, and the Plaintiff's son who was standing behind the rope was also fatally injured.

9 No evidence was given of any defect in the car and no expert evidence was offered as to the nature of the risks which were normally undertaken by racing drivers. There was however some evidence that the place chosen for passing by Quinn was a normal place for passing and that cars had passed each other safely at this place during the course of the race, and there was also evidence that there was room for Quinn to pass the car in front of him. While all the witnesses agreed that the overtaking car had made a sharp swerve as it was coming up on the car in front, one witness thought there had been a glancing contact between the two cars. On this somewhat meagre evidence the case was presented.

10 There was considerable argument as to the legal category into which a spectator, who had paid nothing for his right to look on, should properly be placed. Was he merely a "neighbour", in the sense ascribed to that term by Lord Atkin in Donoghue v. Stevenson? Or was he a licensee? or an invitee? or entitled to require the same standard of care for his safety as a person who had paid money foradmissionand who could base his claim on contract? I find great difficulty in holding that a spectator who has not paid anything should be entitled to the higher standard of care which is required toward those who have paid for their right to be on premises, nor do I see how the relationship of invitor and invitee can be established unless there is a common interest between the occupier of the premises and the person who comes upon them, and no such common interest was suggested, (though I am not sure that one could not be discovered). The true relationship seems to me probably to be that of licensor and licensee. It is not, however, necessary to give a concluded opinion for two reasons. First the case is capable of being decided on considerations which are equally applicable to a "neighbour", a licensee, an invitee, or a person who has paid for admission: and secondly Mr. McGonigal, accepting for the purpose of argument that the spectator who had not paid might have the same rights as one who had, maintained - successfully in my opinion - that even applying this standard the Club was not liable.

11 Whatever be the category the Club are not insurers against any injury however improbable. "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour" said Lord Atkin in Donogue v. Stevenson 1932 AC 562 at 580. "To determine whether an act is negligent it is relevant to determine whether any reasonable person would forsee that the act would cause damage." Polemis & Furness Withy 1921 3 K.B. 560.Scrutton L.J. at 577 "The mere possibility of accident is not enough to establish liability" Searle v. Wallbank 1947 AC 341. Lord Maughann at 351. "Two elements appear to be necessary to create liability, foreseeability of the risk and the possibility by reasonable care and skill of guarding against it." Coleman v. Kelly 85 ILTR 48. Maguire C.J. at 51. See also Glasgow Corporation v. Muir 1943 AC 448. Bolton v. Stone 1954 A.C. Lord Normand at 861, Lord Porter at 858 and Lord Reid at 867.

12 Just as there is no absolute liability to protect against every danger however improbably, so there is no absolute...