Donohoe v Browne

• Jurisdiction: Ireland
• Judge: Gannon J.
• Judgment Date: 20 March 1986
• Neutral Citation: 1986 WJSC-HC 374
• Court: High Court
• Docket Number: No. 2842P/1984,[1984 No. 2842P]
• Date: 20 March 1986

1986 WJSC-HC 374

THE HIGH COURT

No. 2842P/1984

DONOHOE v. BROWNE

BETWEEN

JAMES DONOHOE

PLAINTIFF

-v-

JOSEPHINE BROWNE AND MICHAEL McCABE

DEFENDANTS

AND

JOSEPHINE BROWNE AND MICHAEL McCABE

APPLICANTS

-v-

JAMES DONOHOE

RESPONDENT

AND

THE ATTORNEY GENERAL

NOTICE PARTY

Citations:

BRUNSDEN V HUMPHREY 14 QBD 141, 53 LJQB 476

CIVIL LIABILITY ACT 1961 S11

CIVIL LIABILITY ACT 1961 S21

CIVIL LIABILITY ACT 1961 S29(6)

CIVIL LIABILITY ACT 1961 S29(6)(a)

CIVIL LIABILITY ACT 1961 S29(6)(b)

CIVIL LIABILITY ACT 1961 S34

CIVIL LIABILITY ACT 1961 S34(1)

CIVIL LIABILITY ACT 1961 S37

CIVIL LIABILITY ACT 1961 S37(1)

CIVIL LIABILITY ACT 1961 S37(2)

CIVIL LIABILITY ACT 1961 S38(3)

CONSTITUTION ART 34.3

DUCHESS OF KINGSTONS CASE 20 HOW ST TR 355

HARGRAVE V GOLDMAN 110 CLR 40

JACKSON V GOLDMAN 81 CLR 446

MURPHY V HENNESSEY 1984 IR 378 1985 ILRM 100

ORD V ORD 1923 2 KB 432

RAMSEY V PIGRAM 118 CLR 271

ROAD TRAFFIC ACT 1961 S118

ROAD TRAFFIC ACT 1961 S3(5)

RSC O.60

SMITH'S LEADING CASES 12ED P754

TROY V CIE 1971 IR 321

Synopsis:

EVIDENCE

Estoppel

Issue estoppel - Res judicata - Traffic accident - Collision between motor-cycle and motor-car - Car owner's action in District Court against motor-cyclist - Judgment for car owner on 50% apportionment of fault - Car driver not a party to District Court action - Appeal to Circuit Court - Appellate judgment for car owner for entire claim with express findings that motor- cyclist had been negligent and that car owner had not been (vicariously) negligent - No counterclaim by motor-cyclist in District Court or in Circuit Court - Subsequent action by motor- cyclist in High Court against car owner and car driver - Held that absence of negligence of car driver already established in former action and that motor-cyclist estopped from alleging that negligence in claim against car owner and in claim against car driver - Section 37 of Civil Liability Act, 1961, invoked - (1984/2842 P - Gannon J. - 20/3/86) - [1986] IR 90

|Donohoe v. Browne|

NEGLIGENCE

Motorist

Traffic accident - Motor-car and motor-cycle - Car driver exonerated from blame in former action - Car driver not a party in former action - Motor-cyclist estopped from claiming against car driver in subsequent action - ~See~ Evidence, estoppel - (1984/2842 P - Gannon J. - 20/3/86) - [1986] IR 90

|Donohoe v. Browne|

1 Judgment of Gannon J. delivered the 20th day of March 1986

2 On the 23rd of July 1983 a Honda motor-cycle the property of and driven by James Donohoe collided with a motor car the property of Josephine Browne on the public road at Carrickabawn between Granard and Castlepollard. The driver of the motor car was Michael McCabe. In the above entitled action James Donohoe claims damages for personal injuries and loss sustained by him which he alleges were caused by the negligent driving by Michael McCabe of the motor-car owned by Josephine Browne. In addition to denying negligent driving the defendants plead that the plaintiff James Donohoe is precluded by estoppel from proceeding with his claim on the grounds that the issue of liability for the collision is res judicata and also on the ground that the claim is not maintainable by reason of sections 29 (6) (a) and (b) and section 37 (1) and (2) of the Civil Liability Act 1961. By Order of Hamilton J. made on the 23rd of July, 1984 the issue of whether the plaintiff's claim was barred by the statutory provisions and by estoppel of matter res judicata was directed to be tried by a judge without jury upon pleadings setting forth the issues. In the course of such pleadings the plaintiff raised the further issue that sections 29(6) and 37 of the Civil Liability Act 1961if effective to bar the plaintiff's claim the unconstitutional having regard to Article 34.3 of the Constitution. The plaintiff also served upon the Attorney General a notice under order 60 of the Superior Court Rules informing him of the question of the validity of the law as raised in the pleadings. The matter now for determination is the application of the defendants for a determination of the issues directed to be tried by the order of Hamilton J. of the 23rd July, 1984 and for a ruling on the constitutional validity of the statutory provisions pleaded in defence.

3 The facts giving rise to the issues of res judicata and estoppel and the effect of sections 29 and 37 of the Civil Liability Act 1961are admitted and may be summarised as follows. Josephine Browne the owner of the motor-car and the first defendant herein commenced proceedings in the District Court on the 22nd of August, 1983 against James Donohoe the plaintiff herein alleging damage to her motor-car in the collision by reason of the negligence as alleged of James Donohoe. In those proceedings heard at Ballyjamesduff on the 17th of November, 1983 the defendant herein Josephine Browne as plaintiff was awarded a sum of £633.64 damages for the negligence of James Donohoe. The amount of the award was 50% of the agreed value of the damages sustained by Josephine Browne in the collision. There was no counterclaim by James Donohoe in the District Court. The amount of an award of damages which James Donohoe might expect to recover in a claim by him if successful would exceed the range of the limited jurisdiction of the District Court. The matter of damages having been agreed previously the only matter contested before the District Justice was whether the motor cyclist was liable for negligence, and the degree of fault attributable to the contributory negligence of the driver of the motor car if so found. Against this award and apportionment of damages at 50% Josephine Browne the owner of the motor-car appealed to the Circuit Court sitting at Bailieboro, Co. Cavan, where the hearing took place before His Honour Judge Sheehy on the 14th of March, 1984. Although the Circuit Court Order states that further pleadings were filed it appears that there was no further claim or counterclaim by James Donohoe in the Circuit Court and the full value of the damages to which Josephine Browne might be entitled was agreed at £1,267.28. It appears that the only matter contested in the Circuit Court on the appeal was whether the motor cyclist was liable to the owner of the motor car in damages for negligence and the degree of fault, if any, attributable to the driver of the motor-car. Both parties were represented by solicitor with counsel. The Order of the learned Circuit Court Judge is:-

"AND THE COURT DOTH FIND that the defendant was negligent and that the plaintiff was not negligent AND IT APPEARING TO THE COURT that the plaintiff was entitled to the sum of £1,267.28 on foot of the amount claimed in his civil process THE COURT DOTH ORDER that the plaintiff do recover from the defendant the said sum of £1,267.28".

4 The plaintiff referred to in that Order of the Circuit Court Judge is the first named defendant in this High Court Action and is the owner of the motor car. The plaintiff in the High Court proceedings is James Donohoe the defendant referred to in the Order of the Circuit Court and the owner of the motor-cycle. The second named defendant in these High Court proceedings is the driver of the motor-car and was not a party to the claim brought in the District Court nor on appeal in the Circuit Court. The liability of Josephine Browne for contributory negligence if any in the hearing in the Circuit and District Court and for negligence as alleged in the High Court proceedings can be only the vicarious liability for the participation of Michael McCabe her driver the second named defendant. In her proceedings against James Donohoe in the District Court and on appeal in the Circuit Court Josephine Browne could have sued Michael McCabe as a defendant with James Donohoe but did not do so. In those proceedings and the appeal James Donohoe was entitled under the Civil Liability Act of 1961to have joined Michael McCabe with him as a third party and concurrent wrongdoer to make contribution towards any award which Josephine Browne might recover against him but he did not do so. The evidence of Michael McCabe was essential at the hearing in the Circuit Court and in the District Court on the issues of fact and the inferences therefrom to determine the questions relating to the negligence between the disputing parties namely Josephine Browne and James Donohoe. Although a party as a defendant with Josephine Browne in the present High Court proceedings commenced by James Donohoe Michael McCabe makes no claim on his own behalf. His position as defendant derives only from his participation in the driving of Josephine Browne's car with her authority such that by virtue of sections 118 and 3 (5) of the Road Traffic Act 1961his and her interests in the proceedings relative to James Donohoe's claim are identical. Under section 11 of the Civil Liability Act 1961both Josephine Browne and Michael McCabe may be, and in these High Court proceedings are, sued by James Donohoe as concurrent wrongdoers. In the proceedings in the High Court the interests of Michael McCabe and Josephine Browne are identical having regard to the provisions of section 34 (1) and section 38 (3) of the Civil Liability Act of 1961.

5 The defendants claim that the provisions of sections 29 (6) (a) and (b) and section 37 (1) and (2) of the Civil Liability Act 1961apply so as to preclude the plaintiff James Donohoe from proceeding in this action by reason of the judgment of the Circuit Court upon the appeal against the District Court apportionment of blame at 50% as to the defendant Josephine Browne. Section 29 (6) of the Civil Liability Act 1961is as follows:-

6 a "(6) (a) A decision on the proportion of fault between claimant and contributor on a claim for contribution shall be binding upon the same persons in a subsequent claim in respect of damage suffered by one or both of them arising out of the same facts, and, converse...