Hussey v Twomey

JudgeMr Justice Michael Peart
Judgment Date18 January 2005
Neutral Citation[2005] IEHC 17
Docket NumberRecord Number:No. 15591P/2001
CourtHigh Court
Date18 January 2005

[2005] IEHC 17


Record Number:No. 15591P/2001


Cynthia Hussey


Mary Twomey, Eugene Courtney and The Motor Insurers Bureau of Ireland





NEGLIGENCE: contributory negligence

Road traffic accident - Intoxicated driver - Personal injuries - Passenger - Whether contributorily negligent to travel with intoxicated driver - Civil Liability Act 1961 (No 41), s 34 - Award of damages of €83,309.00 reduced by 40% in respect of contributory negligence

Judgment of
Mr Justice Michael Peart

On the 20th July 1999 the plaintiff was a front seat passenger in a car belonging to the first named defendant, and being driven at the time by the second named defendant. The car went out of control at a bend and hit a lamp-post, as a result of which the plaintiff was injured.


Liability is admitted, save that the defendants allege that the plaintiff is guilty of contributory negligence because she allowed herself to be driven in the car on this occasion by the second named defendant when she knew or ought to have known that he had consumed more than the permitted amount of alcohol. It is appropriate to consider this issue ahead of dealing with the plaintiff's injuries and the other evidence related thereto.


At the time of the accident in 1999 the plaintiff was a student aged 21 years. It appears that she knew the first defendant, who was at that time the girlfriend of the second named defendant. She did not know the second named defendant other than that he was the boyfriend of the first named defendant.


According to her evidence, she and the first named defendant went to a bar in Parnell Street, Cork on the night of this accident at about 7pm, and the second named defendant arrived there sometime later, which she put at about 7.30pm. Her evidence has been that she spent most of the evening in an area, where there was a pool table, and which was away from the first and second named defendant and some other friends who were in the bar area.. She says that she did not see the second named defendant come into the pub and was in his company only for about half an hour at the end of the evening around 11 û 11.30pm. On cross-examination she accepted that he could have arrived at about 7.30pm. She had not seen him drinking during the course of the evening, and she herself consumed six or seven drinks during the course of the evening.


It appears that at some point during the evening the first and second named defendant had some sort of row or altercation which resulted in the first named defendant leaving the pub ahead of the others, and in particular ahead of her boyfriend. The plaintiff says that she had arranged to spend that night in the first named defendant's house, and that at closing time the second named defendant offered to drive her to that house. That is how she came to be in the first named defendant's car with the second named defendant on this occasion.


According to her evidence this accident occurred a few minutes after her journey in the car started. He was driving too fast at the time. She stated in cross-examination that before the accident happened she had asked him to slow down and even to stop but that he had not done so.


It was put to her that the Gardai had noted when they spoke to him after the accident, whereas she says in her evidence that as far as she was concerned he did not appear to be drunk. She says that she was surprised to learn that the Gardai were of the opinion that he was heavily intoxicated. She stated that even though it was a small enough pub, she had not seen him during the course of the evening and therefore did not know that he had been drinking. She accepted when it was put to her in cross-examination, that she had not attempted to establish his state of intoxication before getting into the car. She says that during the course of the evening in the pub she herself had consumed about 6 or 7 drinks, but that she was unaware that he had taken any drink, and that it was only during the final hour in the pub that she had seen him at all. She stated that she had not expected him to be drunk because he was a designated driver that evening.


This set of facts raises interesting questions concerning the possible culpability of a plaintiff, from the point of view of contributory negligence, who gets into a car about to be driven by a person either known to have consumed more alcohol than the legal limit, or by someone whom the plaintiff ought to have known had or might have consumed such a level. We know in the present case from the evidence that the plaintiff made no enquiry as to the state of sobriety or otherwise of the second named defendant. On the other hand there is no real dispute that he was present in the licensed premises from about 7.30pm that evening until closing time, and that the Gardai are satisfied, from speaking to him about one hour after the accident, that at the time of the accident he was "heavily intoxicated". She has stated that as far as she was concerned he did not appear to be drunk.


One question which arises certainly is whether the state of knowledge on the part of the plaintiff should be assessed subjectively or by reference to an objective test as to what is involved in the taking of reasonable care for one's own safety. Of course it goes without saying almost that a finding of contributory negligence is no longer, except in the most exceptional of cases, a complete defence to the plaintiff's claim. There can be the most rare of cases where there is so great an element of contributory negligence as to cancel out an award against the defendant. It follows that even if the plaintiff ought to have at the least made enquiry as to the sobriety or otherwise of the second named defendant before getting into his car, it cannot avail him of an absolute defence to the plaintiff's claim. In former times the defence of “volenti non fit injuria” could provide an absolute defence to a plaintiff's claim. But nowadays the doctrine of contributory negligence has been introduced on a statutory basis by s. 34 of the Civil Liability Act,1961 which provides a scheme for the reduction of damages in proportion to the degree of "negligence or want of care" on the part of the plaintiff. This phrase is interesting and bears some examination in the context of the facts of the present proceedings.


I should say first of all that I am not satisfied on any balance of probability to accept that this plaintiff was as unaware as she says she was as to whether the second named defendant had or had not been drinking. This was a small pub, and even though she says that she was in the area where the pool table was and therefore away from the bar area where her friends were, including the second named defendant, it is unreal to think that she would have had no contact during the evening with her friends and acquaintances in the pub throughout the four to five hours they were there.


I am certainly not satisfied as a matter of probability, that she had no knowledge of whether the second named defendant was drinking, or reasonable means of acquiring it had she had so endeavoured. The fact that she herself had, on her own evidence, consumed six or seven drinks may well have impaired her own judgment at the end of the night, as to the sobriety of the second named defendant, and the evidence of the Gardai is quite definite, and I accept it, regarding the state of intoxication of the second named defendant û albeit one hour following the accident. The evidence of Garda Ruttle is that the second named defendant confirmed to him that he had not consumed any alcohol between the time of the accident and his conversation with Garda Ruttle one hour later. Garda Ruttle's evidence was that this man was dishevelled, his eyes were blurred, his speech was slurred, he had to support himself with one hand on the jamb of the front door, and that when he brought him to the hospital from the house in Dominick Street, he had to link his arm to support him to the car. As far as Garda Ruttle is concerned, the second named defendant was "very drunk" one hour after this accident, and in his view any normal adult would have known that.


In crossûexamination, reference was made to the fact that the second named defendant had a cut to his head, and it was suggested that whatever blow to the head he had received in the accident, and the accident itself, could have resulted in the demeanour and appearance of the second named defendant. Garda Ruttle could not accept that proposition, and neither do I. Garda Ruttle also referred to a strong smell of drink from the second named defendant.


Given this evidence, I am of the view the plaintiff ought reasonably to have at the least suspected that he may have had drink taken during the evening, and have been upon enquiry as to that situation before entering the car he was going to drive, particularly on the basis of an objective test of reasonableness.


But given the evidence of Garda Ruttle and the other evidence as to the time he was in the pub, I do not accept that the plaintiff is being truthful when she says that she had no idea he had been drinking. On the balance of probability, it must have been obvious to any adult such as the plaintiff, if she had been concerned about the possibility, and certainly sufficiently obvious for her to make enquiry of him, which she says she did not, if she was in any doubt about it. In my view her evidence has lacked candour in this regard.


What consequence does this finding have at law, as far as contributory negligence is concerned?


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3 cases
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