Donohoe v Killeen

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 24 January 2013
• Neutral Citation: [2013] IEHC 22
• Court: High Court
• Date: 24 January 2013

[2013] IEHC 22

THE HIGH COURT

[No. 2442 P/2009]

Donohoe v Killeen

BETWEEN

EMMA DONOHOE

PLAINTIFF

AND

DAVID KILLEEN

DEFENDANT

CULLEN v CLARKE 1963 IR 368

CLARKE v GOVERNOR OF CLOVERHILL PRISON 2011 2 IR 742 2011/9/2015 2011 IEHC 199

KIELY v MIN FOR SOCIAL WELFARE (NO 2) 1977 IR 267

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 433

DOYLE v HF MURRAY LTD 1967 IR 390

TORT

Personal injuries

Determination of liability only - Inadmissible hearsay - Balance of probabilities - Contributory negligence - Whether liability established - Cullen v Clarke [1963] IR 368; Clarke v Governor of Cloverhill Prison [2011] IEHC 199, (Unrep, Hogan J, 12/5/2011); Re Haughey [1971] IR 217; Maguire v Ardagh [2002] 1 IR 385; Kiely v Minister for Social Welfare (No 2) [1977] IR 267 and Doyle v HF Murray Ltd [1967] IR 390 considered - Liability of defendant established; contributory negligence at 65% (2009/2442P - Hogan J - 24/1/2013) [2013] IEHC 22

Donohoe v Killeen

Facts: The parties had been involved in a collision in 2008 on the N1. Both parties alleged they had the right of way due to green traffic lights, and agreement on liability had not been reached. The matter now came before the High Court for determination.

Held by Hogan J, that questions put to the plaintiff concerning a missing witness were clearly prejudicial hearsay. Admission of this evidence without a witness to cross-examine would be manifestly unfair. Considering the evidence, it was deemed more likely the plaintiff was the party who had mistakenly passed through a red light. However, this did not determine the matter. The defendant, if he had been keeping fully aware of his surroundings, would have been able to take some evasive action.

On that basis, the Court found for the plaintiff on liability but reduced her damages by 65% to account for her contributory negligence.

1 1. A collision between two motor vehicles on the Malahide roundabout of the Dublin-Swords section of the N1 in the evening of 9 ^th May, 2008, has given rise to a personal injuries case of acute difficulty. Perhaps reflecting this difficulty, while the parties have nonetheless managed to agree the quantum of damages, they have not been able to agree liability. It accordingly falls to me to determine liability.

2 2. On the evening in question the plaintiff, Ms. Donohoe, accompanied by her then boyfriend, Mr. Simon Morrissey, had visited a major cinema and shopping centre, the Pavilion Shopping Centre, which is situate on the Malahide Road close to Swords. Ms. Donohoe was then aged 19 years of age, but she had obtained her full driving licence a short while earlier. In order to return home, Ms. Donohoe, was required to turn left from the shopping centre and then to enter the roundabout and make a full circuit of the roundabout before driving home in the Dublin direction.

3 3. It is important to state that the roundabout is a complex one. It is bisected by a dual carriageway at the north and south entrances, but three other roads also intersect with the roundabout at this point. There are also three sets of traffic lights on the junction. The traffic light system in operation on this roundabout is a sophisticated one which is determined by factors such as the number of queuing vehicles, so that it is not possible precisely to anticipate the light sequences. There is an 80km speed limit in operation.

4 4. The evening in question was a bright and sunny one, so weather conditions played no role in the collision. Having exited from the shopping centre, Ms. Donohoe then travelled north on the dual carriageway where she encountered the first of the traffic lights. At this point the lights were red. Following a change in the lights Ms. Donohoe then proceeded to the second set of lights which are at the Swords road exit and are some 55m. distant from the first set of lights. The second set of lights were amber and Ms. Donohoe proceeded through where she then encountered the third set of lights which -she maintains - were green in her favour.

5 5. At this point there is a dispute about what happened. The defendant, Mr. Killeen, was then driving a black Volkswagen Golf along the former Belfast road. Mr. Killeen was aged 21 at the time of the accident and was also the holder of a full driving licence. He was very familiar with the road and on that evening he was coming from training with the Fingallions Football Club.

6 6. Mr. Killeen accordingly approached the roundabout from the northern side of the dual carriageway. The road rises slightly as one approaches the roundabout from that side and Mr. Killeen was originally travelling at about 50km per hour as the particular traffic lights for that entrance onto the roundabout (which were adjacent to but separate from the traffic lights confronting Ms. Donohoe which were actually on the roundabout) came in view. Mr. Killeen decelerated, but - he says - the lights suddenly changed in his favour and he accelerated onto the roundabout. The vehicles then collided shortly afterwards. While the Garda who attended the scene of the accident, Sergeant Kevin Toner, agreed in evidence that it was probably impossible to determine the exact point of contact, there was general consensus - based in part on the very helpful sketch map which he prepared -that the collision probably took place in the outer lane of the roundabout some 8m to 9m from the respective set of traffic lights.

7 7. As I have just noted, both parties maintained that they had green lights in their favour. While I am perfectly satisfied that all witnesses gave honest and reliable evidence, their respective experts, Mr. Romeril and Mr. Terry, also agreed that one of the parties has to be mistaken in this respect. For unless the traffic light system was malfunctioning - and neither party suggested that this was so - the different sets of traffic lights could not have been simultaneously green in both parties' favour. It is also clear from the evidence of Mr. Terry that the vehicles in question were both travelling at relatively modest speeds - perhaps in the order of 40km to 50km. per hour - at the time of the impact, so that the speed, as such, did not play any role in this accident.

8 8. While this is so, the accident was nonetheless an unpleasant affair, although mercifully nobody suffered acute injuries. It was particularly frightening for Mr. Morrissey: he had been sitting in the passenger seat of Ms. Donohoe's vehicle where he had been concentrating on repairing her mobile phone. He then looked up to see the defendant's car just a moment before the collision and he assumed in that instant that he would be killed. But given that his concentration was elsewhere in the preceding few seconds, he was not in a position to have formed a clear view of the state of the lights.

9 9. The vehicles were subsequently written off. Both vehicles had careered off the roundabout and the defendant's car ended up on a traffic island, while the plaintiff's car came to a halt close to a traffic stop a few metres beyond that traffic light. An ambulance arrived and both Ms. Donohoe and Mr. Morrissey to hospital. While all parties were...