Heaphy v Murphy
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bronagh O'Hanlon |
| Judgment Date | 07 March 2018 |
| Neutral Citation | [2018] IEHC 141 |
| Court | High Court |
| Docket Number | [2012 No. 10878 P] |
| Date | 07 March 2018 |
[2018] IEHC 141
THE HIGH COURT
O'Hanlon J.
[2012 No. 10878 P]
AND
Road traffic accident – Join enterprise – Criminal activity – Plaintiff seeking compensation – Whether the defence of ex turpi causa was warranted in this case
Facts: A road traffic incident occurred on 15th May, 2010 at the entrance to Hollywood Estate, Cork City, Hollyhill, Cork. The third defendant, the Motor Insurers Bureau of Ireland (MIBI), was sued by the plaintiff, Mr Heaphy, on the basis of the MIBI Agreement of 29th January, 2009, which provides for compensation for victims of road traffic accidents, involving, inter alia, uninsured vehicles. The plaintiff submitted that the immediate and approximate cause of the collision was the driving of the Volkswagen vehicle by the first defendant, Mr Murphy. The plaintiff submitted that clause 5(2) of the MIBI Agreement of 29th January, 2009 did not exclude him from relying upon a right to compensation as against the first defendant. It was argued that there was no evidence of a joint enterprise between the plaintiff and the first defendant nor was there any authority in law or support on the facts of this case for the proposition that the first defendant owed no duty of care to the occupants of the Ford Mondeo vehicle driven by the second defendant, Mr Simms. The plaintiff repudiated the defence’s claim that he should be precluded from recovering damages by reason of the fact that he was engaged in a type of criminal activity. The plaintiff claimed that the injuries he sustained were caused by the collision of the Volkswagen into the back of the Ford Mondeo and not because of the swerve action of the Ford Mondeo into the Hollywood Estate. It was argued that there were no public policy reasons to exclude the plaintiff from recovering damages even if the facts as asserted by the MIBI were accepted, and that the outcome should be an apportionment of damages. The MIBI submitted that the plaintiff contributed to his own injuries and that the High Court ought to conclude that both vehicles were engaged in a high speed chase and that such activity carried with it a high probability that one or both cars would go out of control or cause a collision; each of the parties were fully aware of this probability but chose to proceed and to ignore the risks.
Held by O'Hanlon J that she did not accept the plaintiff’s engineer’s evidence when he declined to accept as a matter of probability that the Ford Mondeo would have lost control and probably hit something in any event, nor his evidence that the Ford Mondeo was travelling at an appropriate speed. O’Hanlon J concluded that the real and true cause of the accident was the fact that two vehicles were chasing one another over a long period of time in a joint enterprise in exceptionally dangerous circumstances. O'Hanlon J did not accept that the original role of the plaintiff in urging the second defendant to follow the first defendant’s motor vehicle was remote from the crash which occurred in the end. O'Hanlon J accepted in full the submissions made by the third defendant and dismissed the plaintiff’s claim against the first, second and third defendants on the basis that all were part of a thoroughly illegal venture, with aggression and revenge at its centre and a shared complete disregard for their own safety and for the safety of others to an extreme degree. O'Hanlon J held that the defence of ex turpi causa was warranted in this case.
O'Hanlon J held that in all the circumstances she could not conclude or decide a duty of care existed from the defendants to the plaintiff and that the plaintiff’s case must fail.
Relief refused.
A road traffic incident occurred on 15th May, 2010 at the entrance to Hollywood Estate, Cork City, Hollyhill, Cork.
The evidence of Martin O'Donovan, registrar of the Criminal Circuit Court, Cork, Co. Cork was of the recorded conviction against Philip Murphy on 16th December, 2017 of dangerous driving causing death under s. 51(1) of the Road Traffic Act, 1961 as amended by s. 51 of the Road Traffic Act, 1968. The particulars of the offence were that Philip Murphy did on the 13th May, 2010 at Harbour View Road in the County Borough of Cork, drive a mechanical vehicle in a public place in a manner, including speed, which, having regard to all of the circumstances, including the condition of the vehicle, the nature and condition and use of such space and the amount of traffic which there then actually was and might reasonably be expected to be therein, was dangerous to the public, thereby causing the deaths of Derry O'Callaghan and Cornelius Dolan deceased. This witness detailed the particulars in similar terms of the conviction handed down on 16th December, 2017, to James Simms in relation to his driving of a mechanically propelled vehicle.
The plaintiff gave evidence that he is a married person with three children living at Blarney Street, Cork, Co. Cork and that his family of origin lives at 50 Hollywood Estate, Cork. The plaintiff confirmed that he was not staying at his mother's house on the night of the 15th May, 2010, that he and his friends had been drinking in the Hollywood Estate. They moved from the green to no. 49 because Cornelius Dolan (since deceased) was on curfew. The plaintiff describes what happened as follows: that at 11 or 11:30pm two vehicles came into the estate at high speed, skidded and suddenly stopped. The plaintiff described a scene which caused him fear and to run away and take cover. One vehicle was the black Volkswagen motor vehicle which was driven on the occasion of this accident by the first named defendant. He described three people getting out of the second vehicle with hoods on their faces shouting ‘Grab a Heaphy, grab a Heaphy’. This witness says he saw the boot of that motor vehicle open and he heard the cars revving, wheels spinning and people shouting. He later believed, from a discussion with his sister, that Darren Lenehan had been taken away in the boot of that car. This plaintiff agreed that he had given a statement to the gardaí (admitted for the purposes of this case) that 50 Hollywood Estate was his address for the purposes of his statement. The first vehicle, a red Ford Mondeo, was registered to a James O'Sullivan purporting to have an address at 50 Hollywood Estate, the plaintiff's mother's address. The plaintiff did not know who James O'Sullivan was and he says that he himself does not drive. He described his friend, the second defendant, Mr. Simms, living ‘everywhere, being honest,’ that he comes and goes, but he denied that Mr. Simms lived at 50 Hollywood Estate.
This witness describes his concern to assist Darren Lenehan whom he believed to have been taken in the boot of the Volkswagen car at that point. His evidence was that the second defendant did not want to drive at the start but that he encouraged him. This witness accepted that Mr. Simms, the second defendant, was ‘off the road’, had previous convictions, had escaped from Shelton Abbey and that he was delighted to have been let go when he and the said defendant were stopped earlier in the day at a Garda Síochána road check.
The plaintiff agreed that he got into the black Volkswagen being driven by the second defendant with his own young son and wearing no seat belt, knowing that the driver was not insured, knowing that this was a crime, accepting that he understood that if a person drives without insurance and is convicted, they will be disqualified from driving and denying that he knew that Mr. Simms had a history of that kind of driving. The plaintiff confirmed that he was a front seat passenger in the red Mondeo and that although he was charged with threatening a third party arising out of these events on that night, he was acquitted by direction of Cork Circuit Court jury on 28th June, 2011. The plaintiff, while he accepts that the second defendant was a family friend, contends that the first defendant wasn't a friend and he argues that he cannot understand how the case could be made that he knew that the first named defendant did not have insurance. The plaintiff in his evidence confirmed that he was a passenger in the red Ford Mondeo being driven up Kilmore Road by the second defendant and that Shane, his brother, was in the back seat, and that CJ Dolan and Derry O'Callaghan were also in the back seat of the car. He said that there was a black car just behind them with speed revving and he confirmed that it was the Volkswagen Golf in the photograph shown to him. He described them as being in Churchfield Way Lower at that point and said that the first named defendant was in the driver's seat of the second vehicle. At that stage the two vehicles were on Kilmore Road. He contends that the second vehicle started lowering the lights and the car was revving and that he was asking the second defendant to stop and let him out of the Ford Mondeo at that stage. He also claims that there was a taxi at the entrance to Hollywood Estate which ‘gave them the lights’. He describes the car in which he was a passenger being driven to the right into the entrance of Hollywood Estate and that they were nearly in there and that there was a kind of a ramp which slows you down. He said he doesn't remember any more and woke up in hospital. Prior to that, when they were in Churchfield Way Lower, he looked out of the window of the vehicle. He believed his friend to be in the boot of the other vehicle. He could not confirm whether he himself got out of the red Ford Mondeo, although under cross-examination he did describe them as getting out of the car. He described the other vehicle reversing, saying those in the first vehicle thought that the driver of the second vehicle was...
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