Hussey v Twomey

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 21 January 2009
• Neutral Citation: [2009] IESC 1
• Court: Supreme Court
• Docket Number: [S.C. No. 103
• Date: 21 January 2009

[2009] IESC 1

THE SUPREME COURT

Geoghegan J.

Kearns J.

Finnegan J.

[S.C. No. 103 of 2005]

Hussey v Twomey & Ors

BETWEEN

CYNTHIA HUSSEY

PLAINTIFF/APPELLANT

AND

MARY TWOMEY, EUGENE COURTNEY

& THE MOTOR INSURERS BUREAU OF IRELAND

DEFENDANTS/RESPONDENTS

CIVIL LIABILITY ACT 1961 S34(1)

MCMAHON, BINCHY IRISH LAW OF TORTS 3ED 2000 559-60 PARA 20.14

MALONE v ROWAN 1984 3 AER 402

SNELL v HAUGHTON 1971 IR 305

JUDGE v REAPE 1968 IR 226

OWENS v BRIMMELL 1977 QB 859

FROOM & ORS v BUTCHER 1976 QB 286 1975 3 WLR 379 1975 2 LLOYD'S REP 478 1975 RTR 518

HALL v HEBERT 1993 2 SCR 159

CIVIL LIABILITY ACT 1961 S34(1)(B)

PHIPSON PHIPSON ON EVIDENCE 13ED 1982 69-73

KAJALA v NOBLE THE TIMES 13 MARCH 1982 1982 75 CAR 149

PHIPSON PHIPSON ON EVIDENCE 13ED 1982 PARA 5.04

VESEY v BUS EIREANN 2001 4 IR 192 2001/24/6453

SHELLY-MORRIS v BUS ATHA CLIATH (DUBLIN BUS) 2003 1 IR 232 2002/25/6368

HAY v O'GRADY 1992 1 IR 210

NEGLIGENCE

Contributory negligence

Passenger - Driver of motor vehicle intoxicated - Decision to travel in motor vehicle - Whether contributory negligence - Test to be applied - Whether plaintiff aware or ought to be aware driver intoxicated - Whether best evidence rule applied - Liability - Apportionment - Extent of apportionment - General Damages - Quantum - Subsequent accident - Whether court entitled to have regard to non disclosure by plaintiff of subsequent accident - Owens v Brimmell [1977] QB 859, Froom v Butcher [1976] QB 286 and Hall v Hebert [1993] 2 SCR 159 approved; Judge v Reape [1968] IR 226 and Malone v Rowan [1984] 3 All ER 402 distinguished; Kajola v Noble (1982) 75 Cr App Rep 149 considered; Vesey v Bus Eireann [2001] 4 IR 192 and Shelley-Morris v Bus Átha Cliath [2003] 1 IR 257 applied; Hay v O'Grady [1992] 2 IR 210 approved - Civil Liability Act 1961 (No 41), s 34 (1) - Plaintiff's appeal dismissed (103/2005 - SC - 21/1/2009) [2009] IESC 1

Hussey v Twomey & Ors

Facts: The plaintiffs suffered injuries in a road traffic accident when she travelled in a motor vehicle where the defendant driver had consumed alcohol. The trial judge concluded that the plaintiff had been guilty of contributory negligence and her award was reduced by 40%. The proceedings related to a road traffic accident and the manner in which contributory negligence was to be assessed in the case of a person who elected to travel as a passenger in a motor car when the driver had consumed alcohol.

Held by the Supreme Court per Kearns J. (Geoghegan, Finnegan JJ. concurring), that the Court could, where a passenger voluntarily elects to travel in a motor vehicle where they knew that the driver had consumed alcohol, could penalise them in contributory negligence. The Court had to approach the issue on an objective basis although the test was not absolutely objective. Self-intoxication could not be used to avoid a finding of contributory negligence. There were changes in society as to how such behaviour was perceived. The plaintiff must have been aware that the ability of the defendant driver had been impaired. The apportionment of 40% liability for contributory negligence was not to be disturbed. The trial judge had ample grounds for doubt and unease as to the plaintiff's candour as to her injuries and the significance of a second accident that had occurred to her after the immediate accident. The award made was generous and the appeal would be dismissed.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Kearns delivered on the 21st day of January, 2009

2 Judgment delivered by kearns J [nem diss]

3 These proceedings arise out of a road traffic accident which occurred on 20 ^th July, 1999 in the City of Cork. They give rise to an important issue as to how contributory negligence is to be assessed in the case of a person who elects to travel as a passenger in a motor car when the driver has consumed alcohol.

4 Shortly after midnight on the date in question, the plaintiff who was then a twenty-one year old commerce student, was travelling as a front seat passenger in a motor vehicle owned by the first named defendant which at the time was being driven by the second named defendant. The second named defendant was the boyfriend of the first named defendant who in turn was a friend of the plaintiff. As the driving of the second named defendant was not covered by a valid policy of insurance the third named defendant was joined as a second co-defendant. Liability for the accident was admitted, but the defendants raised a plea of contributory negligence against the plaintiff for allowing herself to be driven in a motor vehicle when she knew or ought to have known that the driver was incapable of driving, or had reduced capability for so doing, by reason of the consumption of alcohol.

5 The action was heard in the High Court in Cork (Peart J.) in January, 2005 and the learned trial judge delivered a comprehensive written judgment within a week of the conclusion of the hearing. He held that the plaintiff was guilty of contributory negligence and reduced the plaintiff's damages by 40%. The plaintiff has appealed that finding.

6 The plaintiff has also appealed the finding by the learned trial judge that the plaintiff did not sustain a low back injury as a result of the accident the subject matter of these proceedings. It was the defendants' case that the plaintiff's injury to the lower back arose as a result of her involvement in a further road traffic accident which occurred in the month of June, 2000.

BACKGROUND

7 The plaintiff was born on the 6 ^th October, 1977. Having obtained her Leaving Certificate with four honours and three passes in 1996, she initially pursued a two year course in business studies in Tralee. However, due to a medical complication, she did not complete her second year and commenced a further course in financial services in the College of Commerce in Cork in the autumn of 1998. She completed her summer examinations in 1999 and went to work in a hotel in St. Helier in Jersey. She returned to Cork shortly before the accident to repeat a number of subjects which she had failed in her summer examination and was on a night out with her friend, Mary Twomey, the first named defendant, when the accident occurred. Both she and Mary Twomey had gone to a bar known as "Chevies" in Blarney Street in Cork. They arrived at about 7 p.m. in the evening. She was unsure what time Mary Twomey's boyfriend, Eugene Courtney, arrived in the bar. The plaintiff admitted to having had maybe six or eight alcoholic drinks during the evening. It was common case that the bar in question was quite a small premises and while the plaintiff maintained she spent a great deal of the evening at the pool table and not in the immediate vicinity of Eugene Courtney, she also accepted that there was no obstruction of her view of him or of her friend's group whilst they were all present on the premises. She accepted she had sat at the same table as Eugene Courtney for between half an hour and an hour towards the end of the evening when some sort of row occurred between Eugene Courtney and Mary Twomey as a result of which Mary Twomey went home on her own. Shortly before midnight Eugene Courtney said he would drive the plaintiff down to Ms. Twomey's house on Dominic Street in Cork City.

8 Both in direct examination and cross-examination, the plaintiff was adamant that Eugene Courtney appeared to be "fine" and did not appear drunk to her. She maintained that if she had thought he was drunk she would not have gone in the car with him. She maintained she had not seen Eugene Courtney drink any alcohol during the evening. Despite the fact that Mary Twomey was her friend, she also maintained that she had never met Mr. Courtney prior to that particular occasion.

9 There were two backseat passengers in the Ford Fiesta motor car which Eugene Courtney drove that night. In cross-examination, the plaintiff accepted that the route taken by the driver was not one which would lead by the shortest route to her friend's home. Apparently Eugene Courtney and one other occupant in the car wanted to visit a chipper. Asked if there was not one closer to their destination, the plaintiff replied that "the boys just preferred that chipper". When asked in cross-examination if that knowledge was indicative of the fact that she knew Eugene Courtney better than she was admitting in evidence, the plaintiff again maintained she had not met him before the night in question and was not aware for how long he had been in the public house on the night in question, other than in respect of the period she spent in his company.

10 It is perhaps of some importance to record also that when the gardai arrived at the accident scene at 12.20 a.m., the accident having occurred some ten minutes after the party left the licensed premises, the vehicle in which the accident had occurred had been abandoned by its occupants. Eugene Courtney had gone to the home of Mary Twomey and the plaintiff had walked to the Mercy Hospital to seek medical treatment. Detective Garda Liam Ruttle gave evidence of arriving at the scene of the accident and finding the abandoned vehicle. He found out that the car was registered to the first named defendant and her address. He went to that address and knocked on the door until he got an answer. The person who came to the door was Eugene Courtney. Garda Ruttle noted he had a bruise on his forehead and had a dishevelled appearance. He noted the following:-

"His eyes were blurred. His speech was slurred. He was holding the door with one hand and the jam of the door with the other and he was being supported by the door and the jam. I was outside the door at this time. It was quite obvious to me that he was in a drunk state and had been in a drunk state....