Gilroy v McLoughlin

JurisdictionIreland
JudgeJustice Blayney
Judgment Date08 March 1988
Neutral Citation1988 WJSC-HC 1150
Docket NumberNo. 9282p/1985,[1985 No. 9282P]
CourtHigh Court
Date08 March 1988

1988 WJSC-HC 1150

HIGH COURT

No. 9282p/1985
GILROY v. MCLOUGHLIN
PATRICK GILROY
PLAINTIFF
.V.
DENNIS McLOUGHLIN
DEFENDANT

Citations:

SHAW V SLOAN & ORS 1982 NI 393

MARGINSON V BLACKBURN BOROUGH COUNCIL 1939 1 AER 273

ORD V ORD 1923 2 KB 432

DONOHOE V BROWNE & MCCABE 1986 IR 90

Synopsis:

ACTION

Issue

Estoppel - Judgment - Contents - Evidence - Extempore decision - Solicitor's note - Admissibility - Submission that issue raised in current action had been decided in prior action between the same parties - Order of court in prior action not informative about issue decided - Solicitor's note admitted in evidence - ~See~ Evidence, estoppel - (1985/9282 P - Blayney J. - 8/3/88)

|Gilroy v. McLoughlin|

JUDGE

Judgment

Contents - Evidence - Extempore decision - Solicitor's note - Admissibility - Submission that issue raised in current action had already been decided in prior action between the same parties - Order of court in prior action not informative about issue decided - Solicitor's note admitted in evidence - ~See~ Evidence, estoppel - (1985/9282 P - Blayney J. - 8/3/88)

|Gilroy v. McLoughlin|

EVIDENCE

Estoppel

Issue estoppel - ~Res judicata~ - Traffic accident - Two actions - Same parties - Whether the issue sought to be excluded in second action was the same as one finally determined in the first action - Order of court in first action uninformative in regard to issue decided - Order made pursuant to extempore judgment - Solicitor's note of oral judgment - Solicitor's note admitted as proof of issues decided in first action - On 3/9/84 two cars collided at cross-roads which were controlled by traffic lights - One of the cars was owned by the plaintiff - The other car was owned by the defendant and driven by his brother, and they claimed damages from the plaintiff or his agents in causing the collision - The Circuit Court judge held that the collision was caused partly by the negligence of the plaintiff and partly by the negligence of the defendant; the judge assessed the damages payable to the defendant at #3,800 but apportioned 10% of the fault for the accident to the defendant and gave judgment in his favour for 90% of the said damages - At the hearing of an appeal by the plaintiff to the High Court against the order of the Circuit Court, the High Court judge allowed the appeal, discharged the order of the Circuit Court and dismissed the defendant's action - The order of the High Court merely stated that the appeal was allowed, that the order of the Circuit Court was discharged and that the plaintiff should recover from the defendant the plaintiff's costs of the Circuit Court action and of the appeal to the High Court - The defendant's solicitor made a note in longhand of the extempore judgment delivered by the judge in allowing the plaintiff's appeal - The plaintiff commenced this action against the defendant in the High Court while the plaintiff's appeal to the High Court in the defendant's action was still pending - In this action the plaintiff claimed damages from the defendant for his, or his agent's, negligence in causing the said collision and thereby causing the plaintiff to suffer loss - In his defence the defendant denied that he had been negligent as alleged and pleaded that "the collision was caused entirely, or alternatively contributed to, by the negligence and breach of duty of the plaintiff" - In his amended reply the plaintiff pleaded that "the Defendant is estopped by reason of the decision of the High Court in the Circuit Appeal... Between Denis McLoughlin and Don McLoughlin plaintiffs and Patrick Gilroy defendant from alleging negligence and breach of duty or contributory negligence and breach of duty as against the Plaintiff" - The High Court directed, with the consent of the parties, that the estoppel issue should be tried as a preliminary issue by a judge without a jury - Held that the question to be determined was whether an issue which arose for determination in the plaintiff's action had already been determined finally by a court of competent jurisdiction in a manner which bound the parties to the plaintiff's action: ~Shaw v. Sloan~ [1982] N.I. 393 considered - Held that, there being no question in the plaintiff's action of a duty owed by the plaintiff to the defendant, the defendant's pleadings of negligence and contributory negligence on the part of the plaintiff amounted solely to a plea of contributory negligence on the part of the plaintiff in regard to an alleged failure on his part to take reasonable care for his own safety - Held that the next step was to enquire whether the issue of the discharge of the plaintiff's duty to take such care had been determined in the defendant's action - Held that the order of the High Court gave no information in relation to that issue - Held that the said note of the High Court judgment was admissible in evidence to establish whether or not the issue of the discharge by the plaintiff of his duty to take reasonable care for his own safety had been determined in the defendant's action: ~Marginson v. Blackburn Borough Council~ [1939] 1 All E.R. 273 considered - Held that the said note established that the judge had been faced with a complete conflict of evidence in relation to the state of the traffic lights at the cross-roads at the relevant time, that he had stated that he was unable to resolve that conflict, and that he had allowed the appeal on the single ground that, in such circumstances, he was compelled to hold that the defendant had failed to discharge the onus of satisfying the judge that the collision had been caused by the plaintiff's negligence - Held that the issue of the discharge by the plaintiff of his duty to take reasonable care for his own safety had not been decided by the High Court in the defendant's prior action and that, accordingly, the defendant was not estopped from raising that issue in the plaintiff's action: ~Donohoe v. Browne~ [1986] I.R. 90 distinguished - (1985/9282 P - Blayney J. - 8/3/88)

|Gilroy v. McLoughlin|

1

Judgment of Mr. Justice Blayney delivered the 8th day of March 1988

2

What falls to be decided in this case is a preliminary issue which MacKenzie J., by consent of the parties, directed to be tried by a Judge without a jury. It arises in the following way.

3

A collision occurred on the 3rd September 1984 at the junction of Lower Kilmacud Road and Stillorgan Road between a motor car owned by the Plaintiff (whom I shall call Mr. Gilroy) and a motor car owned by the Defendant (whom I shall call Mr. McLoughlin) which was being driven by the latter's brother Don McLoughlin. Proceedings were instituted in the Circuit Court against Mr. Gilroy by Mr. McLoughlin and his brother, the former claiming damages for damage to his motor car and the latter claiming damages for personal injuries. The action was heard on the 24th of January 1986 in the Circuit Court by his Honour Judge Clarke who held that the damage suffered by the McLoughlins "was caused partly by the negligence of the Defendant and the Plaintiff". He assessed damages at £3,800.00 and directed that such sum should be reduced by 10% by reason of the McLoughlin's negligence and that 90% should be payable by Mr. Gilroy.

4

From this decision Mr. Gilroy appealed to the High Court and on the 13th May 1986 Lardner J. reversed the Circuit Court Order and dismissed the action. The relevant part of the High Court Order was as follows:

"IT IS ORDERED that this appeal be allowed and that the said...

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