Judge v Reape

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 30 July 1968
• Date: 30 July 1968
• Docket Number: [1964. No. 1517 P.]

Judge v. Reape.

WILLIAM J. JUDGE

Plaintiff

and

WILLIAM REAPE,Defendant.1

[1964. No. 1517 P.]

Supreme Court.

Negligence - Motor accident - Passenger injured - Driver of car intoxicated - Driver sued by passenger - Whether plaintiff negligent in being a passenger in the car - Civil Liability Act, 1961 (No. 41 of 1961), s. 34, sub-s. 2 (c).

The plaintiff, who had consumed a considerable amount of intoxicating liquor, voluntarily accepted a seat as passenger in the defendant's motor car at a time when the plaintiff know that the defendant was going to drive his car and when the plaintiff knew, or ought to have known, that the defendant was drunk. After the defendant had driven his car a short distance, the car collided with another vehicle and the plaintiff was injured. The plaintiff sued the defendant in the High Court and claimed damages for the defendant's negligence. The defendant did not deny that he had ben negligent, but he pleaded that the plaintiff had also been negligent. At the trial of the action the jury found that the plaintiff had not ben negligent, and judgment was entered in favour of the plaintiff for the full amount of the damages assessed by the jury. On appeal by the defendant it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Haugh and Budd JJ.), in allowing the appeal and directing a retrial, that the finding of the jury that the plaintiff had not ben negligent was perverse.

Appeal from the High Court.

The plaintiff's action for damages, resulting from the negligence of the defendant while driving his motor car, was heard before Mr. Justice McLoughlin and a jury in the City of Galway on the 7th and 8th March, 1967. The defendant did not deny that he had been negligent, but he pleadedvolenti non fit injuria and that the plaintiff had also been negligent in travelling as a passenger in the defendant's motor car when the defendant was driving and was intoxicated. The jury found that the plaintiff had not consented to incur the risk of injury knowing that the defendant was incapable of exercising control of his motor car; the jury also found that the plaintiff had not been negligent and, accordingly, did not apportion blame; and they assessed damages at £2,841 0s. 0d., for which sum judgment was entered for the plaintiff with costs. The defendant appealed to the Supreme Court on the ground that the jury's finding, that the plaintiff had not been negligent, was perverse.

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

This appeal, by the defendant against the jury's finding that the plaintiff was not guilty of negligence, is taken on the grounds that the finding was contrary to the evidence and the weight of the evidence and that it was perverse. The plaintiff was a passenger in a motor car, driven by the defendant, which collided with another car, and he brought an action in respect of the injuries and loss which he suffered as a result of that collision. The action originally was also against the owner of the second car, but at an early stage the owner of that car was dismissed from the proceedings by consent.

The defendant in his defence did not deny negligence but pleaded volenti non fit injuria and, in the alternative, contributory negligence. The pleas are made in the following terms:—

"1. The plaintiff prior to and at the time when he entered this defendant's motor car to travel therein as a passenger well knew or ought to have known that this defendant was incapable by reason of the consumption of intoxicating liquor of exercising proper control over the said motor car, and well knew or ought to have known that it was negligent of this defendant to attempt to drive his said motor car while...