Ennis v Great Northern Railway Company (Ireland)

• Jurisdiction: Ireland
• Judgment Date: 01 December 1931
• Date: 01 December 1931
• Docket Number: (1930. Nos. 358, 379, 383, 384, 446, 478.)
• Court: Supreme Court (Irish Free State)

Malone v. Great Northern Railway Co. (Ir.); Ennis and Others v. Same

JOSEPH GERARD MALONE, an infant, by his mother and next friend, MARY JANE MALONE

Appellant

and

GREAT NORTHERN RAILWAY COMPANY (IRELAND)

Respondents

JAMES ENNIS and Others

Appellants

and

Same, Respondents (1)

(1930. Nos. 358, 379, 383, 384, 446, 478.)

Supreme Court.

Practice - Trial - Several actions for negligence brought against the same defendant - All the actions arising out of the same accident - Contributory negligence pleaded as a defence in some of the actions, not in others - Order of High Court directing that all the actions be tried together - Objection by plaintiffs to such order - Order set aside on appeal - Two test actions substituted, one in which contributory negligence was pleaded and the other in which it was not - Other actions stayed - Conditions imposed - Order of High Court not a consolidation order - Supreme Court of Judicature Act (Ir.), 1877 (40 & 41 Vict. c. 57), sect. 27, sub-sect. 5 - Rules of the Supreme Court (Ir.), 1905,Or. XLIX, r. 9.

The Supreme Court held that a Court has no jurisdiction to order that a plaintiff in an action of tort shall be bound, without his assent, by the trial of an issue in another action by a different plaintiff, even though it be against the same defendant and arise out of the same transaction; but the Court can intervene to protect a defendant from oppression through a multiplicity of suits by staying all but one until the decision of a test

case, the defendant undertaking to abide by the result of a finding against him in the test case as a consideration for the staying of the proceedings by the other plaintiffs. In the event of an adverse verdict in the test case, the defendant can escape the expense of further litigation by consenting to judgment in the other actions if the damages were liquidated or agreed, or by admitting liability and taking an issue on the amount of damages only.

A train belonging to the defendants collided at a level crossing with a motor car. Nine actions were brought against the defendants, one by the driver of the car, seven by the seven passengers in the car, and one by the owner of the car, who was not in it at the time of the accident. In five of the actions a defence of contributory negligence was raised, but not in the other four. Notice of trial having been served in one of the actions brought by one of the passengers in the car, on the application of the defendants, Hanna J. made an order that all the actions be tried together, the question of liability to be decided in the action brought by the driver of the car, all the plaintiffs and the defendants in all the actions to be bound by the finding on the issue of liability, and the damages (if any) in each action to be separately assessed. On appeal from this order:

Held by the Supreme Court that the order must be discharged, the Supreme Court directing that two actions only should be tried, as test actions, one in which a defence of contributory negligence was raised and the other in which there was no such defence, the defendants to undertake to be bound by the findings of the jury, all the other actions being stayed pending the trial of these two actions, and liberty being reserved to the parties in the actions which were stayed to apply to the Supreme Court for a removal of the stay, should occasion therefor arise.

Two Appeals from an order of Hanna J., directing that nine actions for negligence, brought against the defendants, be tried together, and that the question of liability be decided in the action brought by one of the plaintiffs, the defendants to be bound by the finding on the issue of liability, and the damages (if any) to be separately assessed.

Nine actions were brought against the defendants, the Great Northern Railway Company (Ireland), arising out of a collision at a level crossing between a train belonging to the defendants and a motor car, which occurred between Sutton and Howth, County Dublin, on the 3rd July, 1930. The first action was brought by Maureen Ennis, a minor, suing by James Ennis, her father and next friend, and the said James Ennis; the second action was brought by Thomas Ennis, a minor, suing by James Ennis, his father and next friend, and the said James Ennis; the third action was brought by Patrick Ennis, a minor, suing by James Ennis, his father and next friend, and the said James Ennis; the fourth action was brought by Jane Leavy, a minor, suing by Patrick Leavy, her father and next friend; the fifth action was brought by Kathleen Donovan, a minor, suing by Morgan Donovan, her father and next friend; the sixth action was brought by James Wright; the seventh by Joseph Gerard Malone, an infant, suing by Mary Jane Malone, his mother and next friend; the eighth by Mary Alice Gaffney; and the ninth by the said James Ennis. The said James Wright was the driver of the car; all the other plaintiffs, except James Ennis, were passengers in the car. James Ennis was the owner of the car, but he was not in it at the time of the accident.

The facts have been summarised in the head-note, and are fully stated in the judgment of the Supreme Court.

Of the two appeals brought from the said order of Hanna J. one appeal was brought by the plaintiff in the seventh of the above-mentioned actions, viz., Joseph Gerard Malone, and the other appeal was brought by the plaintiffs in the first, second, third, fourth, and ninth of the above-mentioned actions, viz., Maureen Ennis and James Ennis, Thomas Ennis and James Ennis, Patrick Ennis and James Ennis, Jane Leavy, and James Ennis.

The order appealed from was made by Hanna J., on the application of the defendants, on the 14th November, 1930, he having delivered the following judgment:—

The material portion of the order made by Hanna J. was as follows:—

"It is ordered that the above-mentioned nine actions be tried together, the question of liability to be decided in the action, 1930, No. 3514, James Wright, plaintiff, Great Northern Railway Company (Ireland), defendants, all the plaintiffs and the defendants in all the actions to be bound by the finding on the issue of liability, and the damages (if any) in each action to be separately assessed; the costs of this motion of all the plaintiffs to be costs in the actions; and it is also ordered that these actions be entered in the list for trial during the present Michaelmas Sittings."

The appellant, Joseph Gerard Malone, applied to have the order of Hanna J. discharged in full; and the other appellants applied to have the order reversed, and that liberty be given to them to proceed with their respective actions against the defendants without being bound by the finding, or findings, on the question of negligence in the action brought by the said James Wright; or, in the alternative, that so much of the said order as directed that the said plaintiffs should be bound on the question of negligence in the above-mentioned action be deleted and reversed.

The grounds of the appeals were that the said order was made without, and in excess of, jurisdiction, and was contrary to justice; alternatively, that if the question of liability as to negligence was to be decided in any one of the actions it should be decided in one of the actions brought by one of the appellants.

Hanna J. :—

This case has given me some difficulty. As regards the first point raised—that there is no jurisdiction in this Court under either the new rules or the old to make an order that these actions be tried together or consolidated—I propose to accept the practice of this Court, accepted by myself and my colleagues, and to hold that there is power to consolidate actions of this description. If it is wrong so to do, the Supreme Court must decide it. The fundamental principle underlying this practice is to see that such a course is more convenient, and does not do any injury to any party.

Here there are nine actions pending against the defendant company in respect of a collision between a car and a train at a level crossing at Howth. The car contained the applicant, Wright, who was in the employment of Ennis; a messenger boy, Malone; and, I think, six or seven young children, three of whom were the children of Ennis, the owner of the car, and the others, I suppose, were friends of theirs. One of the first things which I have to consider is the priority of the various writs.

The first writ—that of Maureen Ennis—suing by her father, and also for the personal expenses incurred by the father, issued on 22nd July. On 28th July Wright brought his action; on 31st July and 6th August the writs of the other members of the Ennis family were issued. The persons most active at that date were Wright and the Ennis family. I think that, as between these two families, all I have to consider is which of them will carry my determination.

On 20th September the boy, Malone, started his action, and, though he was slow in commencing proceedings, once started he did not let the grass grow under his feet. Kathleen Donovan's writ was issued on 26th September, Leavy's writ was issued in October, and Gaffney's on 27th October.

Between Ennis and Wright I have to consider their readiness for trial. It has been impressed on me that all parties could be ready for trial, and that there is no difficulty in making a selection.

I have to consider whether the same issues are involved in these cases, and, if I come to the conclusion that they are, I have to consider which of these actions is the more appropriate to be tried. In the case of Wright, the questions to be answered would be:—Were the defendants guilty of negligence? Was the plaintiff guilty of contributory negligence? And, if so, could the defendants by the exercise of reasonable care have avoided the accident? Maybe, in the case of the children, if these questions were not answered satisfactorily, a further question might be:—Did the negligence of the company in any...