O'Flynn v Buckley
Jurisdiction | Ireland |
Judge | Mr. Justice Kearns |
Judgment Date | 22 January 2009 |
Neutral Citation | [2009] IESC 3 |
Docket Number | [S.C. No. 429 of 2005] |
Court | Supreme Court |
Date | 22 January 2009 |
BETWEEN
AND
[2009] IESC 3
Denham J.
Hardiman J.
Kearns J.
THE SUPREME COURT
INSURANCE
Motor insurance
Motor Insurers' Bureau - Road traffic accident - Fatal claim - Claim involving both identified and uninsured driver and unidentified or untraced driver - Interpretation of M.I.B.I.I. agreement - Whether permissible under M.I.B.I.I. agreement to join M.I.B.I.I. as co-defendant where claim also against unidentified or untraced driver - Delay in moving for relief - Disjoinder of issues - Gilroy v Flynn [2004] IEHC 98, [2005] 1 ILRM 290, Stephens v Flynn [2008] IESC 4, (Unrep, SC, 25/2/2008) and Desmond v MGN Ltd [2008] IESC 56, (Unrep, SC, 15/10/2008) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 18 - Motor Insurers' Bureau of Ireland Agreement, 1988 - MIBI's appeal dismissed (429/2005 - SC - 22/1/2009) [2009] IESC 3
O'Flynn v Buckley & others
Facts: The plaintiffs were the parents of the deceased who died in a road traffic accident. The first three plaintiffs claimed damages for nervous shock. The second named defendant was insured on the occasion in question. The first named defendant was not insured. The Motor Insurers Bureau of Ireland (MBI) agreement provided that the MIB could be joined as a co-defendant where the offending motorist was identified and traced but uninsured. The MIB asked in 2002 that a co-defendant be joined but then in 2004 contended that the proceedings were improperly constituted on the basis of a possible involvement of an untraced driver in the accident. The MIB sought to dismiss the plaintiffs claim against the MIB for noncompliance with the MIB agreement.
Held by the Supreme Court per Kearns J. ((Denham, Hardiman, JJ. concurring), in dismissing the appeal, that in the interests of justice an order would be appropriate prior to trial providing for the disjoinder of issues pursuant to Order 18 RSC. It would be a superfluous requirement to require the plaintiffs to institute a second set of proceedings where the MIB had been validly joined in a particular capacity in the first instance and where the possible involvement of an untraced motorist had been flagged from the time of the originating letter. There was no irregularity in the form and constitution of the proceedings. The delay in moving for reliefs in the case was such as to disentitle the MIB to the reliefs sought. The appeal would be dismissed.
Reporter: E.F.
DEVEREUX v MIN FOR FINANCE & MOTOR INSURERS BUREAU OF IRELAND UNREP O'SULLIVAN 10.2.1998 (EX TEMPORE)
KAVANAGH v REILLY & MOTOR INSURERS BUREAU OF IRELAND UNREP MORRIS 14.10.1996 2004/24/5599
JONES COUNSEL'S NOTE - CITING THE MIB OF IRELAND AS A CO-DEFENDANT: DEVEREUX v THE MINISTER FOR FINANCE & THE MOTOR INSURERS' BUREAU OF IRELAND 1998 3(9) BR 450
RSC O.18 r1
RSC O.18 r8
GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269
STEPHENS v PAUL FLYNN LTD UNREP SUPREME 25.2.2008 2008 IESC 4
DESMOND v MGN LTD UNREP SUPREME 15.10.2008 2008 IESC 56
JUDGMENT of Mr. Justice Kearns delivered on the 22nd day of January, 2009
Judgment delivered by kearns J. [nem diss]
This is an application brought by the Motor Insurers Bureau of Ireland ('the M.I.B. ') to dismiss the plaintiffs' claim against the M.I.B. in these proceedings for non-compliance on the part of the plaintiffs with the terms of an agreement in writing dated 21 st December, 1988 made between the Minister for the Environment and the Motor Insurers Bureau of Ireland ('the M.I.B. Agreement'). The application which was brought pursuant to Order 19 Rule 28 of the Rules of the Superior Courts was dismissed by the High Court (Johnson J.) on 7 th November, 2005. The matter comes before this Court by way of appeal from such order.
The proceedings arise out of a fatal accident which occurred during the hours of darkness on 7 th August, 1999 in which one Kieran O'Flynn, who was aged nineteen years, died on the public roadway close to his home in Mallow, County Cork. The first and second named plaintiffs are the parents of the deceased. The third named plaintiff is a sister of the deceased. The fourth named plaintiff is a company effectively owned by the O'Flynn family which at the time engaged in joinery work and which employed some nineteen people. It had been hoped that the deceased would make a meaningful contribution to the growth and development of the firm. However it is alleged that as a result of the death of Kieran O'Flynn the first named plaintiff lost interest in the business which has since closed down with a total loss of employment for those who worked there.
In addition to the fatal claim the first three plaintiffs claim damages for nervous shock.
The first and second named defendants are drivers of separate motor vehicles which collided with Mr. O'Flynn on the night of his death. It is contended that the second named defendant collided with the deceased, who was lying on the roadway, some time after the first named defendant had come in contact with him. The fourth named defendant, Aidan Horan is the owner of the vehicle driven by Padraig Buckley, the first named defendant. The driving of Padraig Buckley was not covered by the particular policy of insurance which the fourth named defendant had in place with Hibernian Insurance. The second named defendant was insured in respect of his driving on the occasion in question.
In those circumstances the M.I.B. was joined to the proceedings under Clause 2 of the M.I.B. Agreement. The Agreement imposes or extends, with certain exceptions, the liability of the M.I.B. to compensate victims of road accidents involving uninsured or stolen vehicles and unidentified or untraced motorists to the full range of compulsory insurance in respect of injury to person and damage to property under the Road Traffic Act, 1961. Clause 2(2) of the Agreement provides that M.I.B. may be cited as co-defendants in any proceedings against the owner or user of the vehicle giving rise to the claim except where the owner and user of the vehicle remains unidentified or untraced. In that latter situation the M.I.B. may be cited as a sole defendant under clause 2(3) of the Agreement.
The difficulty in the present case arises from the fact that the defence delivered on behalf of the first named defendant contained the following allegation:-
"18. Further and in addition to the foregoing and without prejudice to the entirety of this defence, this defendant shall specifically allege that in so far as he was travelling on the public road highway at the material time and place and in so far as the deceased body was on the said public highway, the said deceased was, in fact, dead prior to the arrival of this defendant and/or his motor vehicle to the scene of the accident the subject matter of these proceedings and the said death of the deceased was not in whole or in part caused by the matters complained of by the plaintiffs as against this said defendant, it, in fact, having been caused by either the negligence or breach of duty of another person or an untraced motorist or alternatively some other misadventure of which this defendant is not aware."
From the filing of this defence, it became apparent that there were a number of possibilities which would explain the death of the said Kieran O'Flynn on the night in question. These would include:-
(a) Kieran O'Flynn died at the location in question for some reason unconnected with the driving of any motor vehicle and was struck thereafter by a number of vehicles who passed on the roadway. This possibility in reality only arises because the Defence as filed puts the plaintiffs on full proof of everything alleged in the Statement of Claim
(b) Kieran O'Flynn was first struck, injured or killed by a vehicle driven by a person other than the first or second named defendant û that is to say, an unidentified and untraced driver.
(c) Kieran O'Flynn was struck, injured and/or killed by the vehicle driven by the first named defendant.
(d) Kieran O'Flynn was struck and injured by the vehicle driven by the first named defendant and was further struck, injured and killed by the vehicle driven by the second named defendant.
In these circumstances, the M.I.B. in filing its Defence raised the following preliminary objection:-
"Without prejudice to the matter set out hereafter the third named defendant objects to these proceedings and pleads that the claim of the plaintiffs herein is misconceived and fails to disclose any cause of action in so far as it is not in accordance with Clause 2 of the M.I.B. Agreement of 21 st December, 1988 and an application will be made to dismiss these proceedings as against the third named defendant."
The point of concern to the M.I.B. is simply this. Clause 2(2) of the M.I.B. Agreement provides that the M.I.B. may be joined as a co-defendant in circumstances where the offending motorist is identified and traced but uninsured. Clause 2(3) permits the M.I.B. to be sued as a sole defendant where the owner and user of a vehicle, the subject matter of the proceedings, remains unidentified or untraced. It was argued on behalf of M.I.B. that Clause 2 as a whole does not permit of both scenarios being litigated in the same proceedings. Mr. Edward Comyn, senior counsel on behalf of the M.I.B., argued that the High Court had erred in law in placing an inappropriate burden on the third named defendant in relation to its responsibilities pursuant to the Agreement when he refused to grant...
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