Iarnnód Éireann v Ireland

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 28 April 1995
• Neutral Citation: 1995 WJSC-HC 2405
• Court: High Court
• Docket Number: No. 4743 P./1993
• Date: 28 April 1995

1995 WJSC-HC 2405

THE HIGH COURT

No. 4743 P./1993

IARNROD EIREANN v. IRELAND

BETWEEN

IARNROD EIREANN - IRISH RAIL AND BERNARD PATRICK DOWLING

PLAINTIFFS

AND

IRELAND, THE ATTORNEY GENERAL, MICHAEL DISKIN, PATRICK DISKIN AND GIOVANNI GASPARI

DEFENDANTS

Citations:

IARNROD EIREANN V IRELAND UNREP JOHNSON 26.2.93

CIVIL LIABILITY ACT 1961 S21

CIVIL LIABILITY ACT 1961 S14(3)

CIVIL LIABILITY ACT 1961 S12(1)

CONSTITUTION ART 40.3

CONSTITUTION ART 43

TRANSPORT (REORGANISATION OF CORAS IOMPAIR EIREANN) ACT 1986 S7(7)

TRANSPORT (REORGANISATION OF CORAS IOMPAIR EIREANN) ACT 1986 S8(1)

PMPS & MOORE V AG 1983 IR 339

CHESTVALE PROPERTIES LTD V GLACKIN 1993 3 IR 35

CAHILL V SUTTON 1980 IR 269

AG V SOUTHERN INDUSTRIAL TRUST LTD 94 ILTR 161

BLAKE V AG 1982 IR 1171981 ILRM 34

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.1

SPUC V GROGAN 1989 IR 753

AG FOR ENGLAND & WALES V BRANDON BOOKS LTD 1986 IR 597

AMBIORIX LTD V MIN FOR ENVIRONMENT 1992 1 IR 277

CIVIL LIABILITY ACT 1961 S12

CIVIL LIABILITY ACT 1961 S14

COX V IRELAND 1992 2 IR 503

ART 26 OF THE CONSTITUTION & THE MATRIMONIAL HOMES BILL 1993, IN RE 1994 1 ILRM 241

HEANEY V IRELAND 1994 2 ILRM 420

HAUGHEY, IN RE 1971 IR 217

SWEENEY V DUGGAN 1991 2 IR 274

WAGON MOUND, THE 1961 AC 388

CIVIL LIABILITY ACT 1961 S21

GLANVILLE WILLIAMS JOINT TORTS & CONTRIBUTORY NEGLIGENCE (1951) 500 – 501 CH 22

MOYNIHAN V GREENSMITH 1977 IR 55

PINE VALLEY DEVELOPMENT V MIN FOR ENVIRONMENT 1987 IR 23

SALMOND & HEUSTON ON THE LAW OF TORTS 10ED

TORTFEASORS ACT 1951

MURPHY V AG 1982 IR 241

AG V SOUTHERN INDUSTRIAL TRUST LTD

EDUCATIONAL CO OF IRELAND V FITZPATRICK 1961 IR 345

EAST DONEGAL CO-OPERRATIVE V AG 1970 IR 317

INDUSTRIAL & PROVIDENT SOCIETIES (AMDT) ACT 1978

CONSTITUTION ART 43.1.1

CONSTITUTION ART 43.1.2

CONSTITUTION ART 43.2.1

CONSTITUTION ART 43.2.2

QUINNS SUPERMARKET V AG 1972 IR 1

CENTRAL DUBLIN DEVELOPMENT ASSOCIATION V AG 1969 109 ILTR 69

CHESTVALE PROPERTIES LTD V GLACKIN 1993 3 IR 35

DPP, PEOPLE V O'SHEA 1982 IR 384

TRANSPORT (REORGANISATION OF CORAS IOMPAIR EIREANN) ACT 1986 S6(1)

TRANSPORT (REORGANISATION OF CORAS IOMPAIR EIREANN) ACT 1986 S6(2)

TRANSPORT (REORGANISATION OF CORAS IOMPAIR EIREANN) ACT 1986 S8(1)

TRANSPORT (CORAS IOMPAIR EIREANN) ACT 1950

TRANSPORT (REORGANISATION OF CORAS IOMPAIR EIREANN) ACT 1986 S8(4)

TRANSPORT (REORGANISATION OF CORAS IOMPAIR EIREANN) ACT 1986 S8(8)

TRANSPORT (REORGANISATION OF CORAS IOMPAIR EIREANN) ACT 1986 S2(1)

COMPANIES ACTS 1963 – 1991

KELLY ON THE CONSTITUTION 3ED 446–447

US CONSTITUTION ART III

O'DONOVAN V AG 1961 IR 114

RYAN V AG 1965 IR 294

BOLAND V AN TAOISEACH 1974 IR 338

MCMAHON V AG 1972 IR 69

CROTTY V AN TAOISEACH 1987 IR 713

SPUC V GROGAN 1989 IR 734

CAHILL V SUTTON 1980 IR 269

STATUTE OF LIMITATIONS 1957

CIVIL LIABILITY ACT 1961 PART III

CIVIL LIABILITY ACT 1961 S11

CIVIL LIABILITY ACT 1961 S12

CIVIL LIABILITY ACT 1961 S14

CIVIL LIABILITY ACT 1961 S38

CIVIL LIABILITY ACT 1961 S46

CIVIL LIABILITY ACT 1961 S12(2)

CIVIL LIABILITY ACT 1961 S14(4)

CIVIL LIABILITY ACT 1961 S21

CIVIL LIABILITY ACT 1961 S14(3)

MCMAHON & BINCHY ON THE IRISH LAW OF TORTS 2ED 74–76

HEYDONS CASE 1612 11 CO REP 5a, 77 ER 1150

COCKE V JENNOR 1614 HOB 66

MERRYWEATHER V NIXAN 1799 TR 186

WINFIELD & JOLOWICZ ON TORT 14ED 627

BETTS V GIBBINS 11834 2 AD & E 57

BURROWES V RHODES 1899 1 QB 825

LAW REFORM (MARRIED WOMEN & TORTFEASORS) ACT 1935 S6(1)(c)

WELLWOOD V KING 1921 2 IR 274

RSC 1905 O.15 r4

CIVIL LIABILITY ACT 1961 S12(1)

WILLIAMS JOINT TORTS & CONTRIBUTORY NEGLIGENCE

SALMOND & HEUSTON ON THE LAW OF TORTS 20ED 434

REPORT OF THE ONTARIO LAW REFORM COMMISSION ON CONTRIBUTION AMONG WRONGDOERS & CONTRIBUTORY NEGLIGENCE (TORONTO 1988)

CIVIL LIABILITY ACT 1961 S21(2)

KEEENAN V BERGIN 1971 IR 192

KELLY V JAMESON UNREP WALSH 1.3.72

O'SULLIVAN V DWYER 1971 IR 275

CIVIL LIABILITY (CONTRIBUTION) ACT 1978 S2(1) UK

LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945

DAVIES V SWAN MOTOR CO 1949 2 KB 291

STAPLEY V GYPSUM MINES LTD 1953 AC 663

BRITISH AVIATOR, THE 1965 1 LLOYDS REP 271

MIRAFLORAS & THE ABADESA, THE 1967 1 AC 826

BROWN V THOMPSON 1968 1 WLR 1003

MADDEN V QUIRKE 1989 1 WLR 702

CIVIL LIABILITY ACT 1961 S43

CIVIL LIABILITY ACT 1961 S34(1)

TWO NEGLIGENT SERVANTS, THE 1954 17 MLR 66

CHAPMAN, CAUSATION ITSELF IS DIFFICULT ENOUGH; DEGREES OF CAUSATION WOULD REALLY BE A NIGHTMARE 1948 64 LQR 26

CIVIL LIABILITY ACT 1961 S12

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.2.2

MADIGAN V AG 1986 ILRM 136

ART 26 OF THE CONSTITUTION & THE MATRIMONIAL HOME BILL 1993, IN RE 1994 1 ILRM 243

HEANEY V IRELAND 1994 2 ILRM 420

MCMAHON V AG 1972 IR 69

DE BURCA V AG 1976 IR 38

MURPHY V AG 1982 IR 241

THOMSON V ST CATHERINES COLLEGE CAMBRIDGE 1919 AC 468

HENDERSON V FOLKESTONE WATERWORKS CO 1885 1 TLR 329

CONSTITUTION ART 50.1

CONSTITUTION ART 50

CONSTITUTION SAORSTAT EIREANN ART 73

RYLANDS V FLETCHER

HOLMES THE COMMON LAW 161–162

Synopsis:

CONSTITUTION

Statute

Validity - Judgment - Enforcement - Damages - Recovery - Both defendants being concurrent wrongdoers - Joint and several judgment for entire damages entered against defendant corporation and defendant individual - Defendant individual being impecunious - Plaintiff's right to enforce judgment against defendant corporation only - Corporation found to be only 30% at fault for accident - Whether defendant corporation had ~locus standi~ to challenge constitutionality of enactment which permitted exercise of that right - Application of Article 50 to pre-existing common law - Civil Liability Act, 1961, ss. 12, 14 - Transport (Re- organisation of Coras Iompair Eireann) Act, 1986, ss. 6–8, 10–12 - Constitution of Ireland, 1937, Articles 40, 43 - Keane J. - 28/4/95) - [1996] 3 IR 321 - [1995] 2 ILRM 161

|Iarnrod Eireann v. Ireland|

1 Judgment delivered the 28th day of April, 1995 by Keane J.

THE ISSUES

2 On the 24th September, 1989, a train carrying a number of pilgrims to Knock was derailed between Ballyhaunis and Claremorris. This was the result of a collision between the train and a herd of cattle owned and driven by the fourth named Defendant (hereafter "the cattle owner"). As a result of the collision, a number of the passengers, including the fifth named Defendant (hereafter "Mr. Gaspari") suffered injuries. The cattle had come from land owned by the third named Defendant (hereafter "the land owner") on to a crossing known as "Diskin's crossing".

3 Mr. Gaspari issued proceedings claiming damages in respect of the injuries he had sustained and which, he alleged, were caused by the negligence and breach of duty of the first named Plaintiffs who operated the train service (hereafter "Iarnrod Eireann"), the land owner and the cattle owner.

4 The action was heard by Johnson J. who delivered a reserved judgment on the 26th February, 1993. He found that both Iarnrod Eireann and the cattle owner had been negligent and that Mr. Gaspari had suffered loss and damage as a result. He assessed the damages at £16,000. He further found that the land owner had not been concerned in the arrangements to drive the cattle and that, accordingly, he was entitled to be dismissed from the proceedings.

5 Having found that Mr. Gaspari's injuries had been caused by the negligence of Iarnrod Eireann and the cattle owner, the learned Judge apportioned liability pursuant to S.21 of the Civil Liability Act, 1961(hereafter "the 1961 Act") on the basis of 30% against Iarnrod Eireann and 70% against the cattle owner. Mr. Gaspari expressly declined to agree to accept an apportionment of the damages between Iarnrod Eireann and the cattle owner according to their degrees of fault pursuant to Section 14(3) of the 1961 Act.

6 In the result, under the provisions of S.12(1) of the 1961 Act, Iarnrod Eireann and the cattle owner, as "concurrent wrongdoers" within the meaning of the Act, were each liable for the whole of the damage. As the cattle owner is a person without any significant means, the right of contribution enjoyed by Iarnrod Eireann in respect of 70% of the damages is of no value. Counsel on behalf of Iarnrod Eireann indicated during the hearing that they wished to challenge the constitutionality of the relevant provisions of the 1961 Act and, the issues of liability and damages having ??? their pleadings so as to raise this issue. Johnson J was also informed at that stage that Mr. Gaspari had been paid his damages in full. Johnson J. gave leave to Iarnrod Eireann to make the proposed amendments on their undertaking to serve notice on the Attorney General. An appeal was taken from the order of Johnson J. and allowed by the Supreme Court who took the view that any challenge to the constitutional validity of the 1961 Act should be by way of independent proceedings. An appeal was also taken from the decision of Johnson J. in the substantive action, but his findings as to the liability of Iarnrod Eireann and the cattle owner and as to the apportionment of fault between them were upheld by the Supreme Court.

7 The present proceedings were then instituted by Iarnrod Eireann and the second named Plaintiff (hereafter "Mr. Dowling") who is the secretary of, and the holder of one share in, Iarnrod Eireann. Although the land owner had been named as a defendant, a notice of discontinuance was served as against him, and Mr. Fitzgerald S.C. applied at the outset on behalf of the cattle owner for an order dismissing him also from the proceedings on the ground that his presence was unnecessary. That application was not contested on behalf of Iarnrod Eireann and Mr. Dowling and, accordingly, the cattle owner was dismissed out of the action, the question of his costs being reserved until the conclusion of the proceedings. The action in the result proceeded solely against the first and second named Defendants (hereafter "The State") and Mr. Gaspari.

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