Kellie Quinlivan v Motor Insurers Bureau of Ireland

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Noonan
Judgment Date13 May 2022
Neutral Citation[2022] IECA 110
Docket NumberRecord Number: 2021/216
Between/
Kellie Quinlivan
Plaintiff/Appellant
and
Motor Insurers Bureau of Ireland
Defendant/Respondent

[2022] IECA 110

Noonan J.

Ni Raifeartaigh J.

Binchy J.

Record Number: 2021/216

High Court Record Number: 2017/8614P

THE COURT OF APPEAL

Negligence – Liability – Personal injuries – Appellant seeking damages – Whether the trial judge applied the wrong standard to his assessment of the appellant’s evidence

Facts: The case of the appellant, Ms Quinlivan, was that her car skidded on a spillage of diesel oil negligently deposited on the road by an untraced motorist, causing her to collide with a bridge. Her claim was dismissed by the High Court (Twomey J) on foot of a written judgment delivered on the 6th July, 2021, against which she appealed to the Court of Appeal. The appeal was concerned with the liability of the respondent, the Motor Insurers Bureau of Ireland, under the MIBI Agreement of 2009 for personal injuries suffered by the appellant as a result of the alleged negligent use of a vehicle in a public place, where the owner or user of the vehicle remained unidentified or untraced. The appellant advanced the following grounds of appeal: (a) the trial judge failed to take the evidence of Mr Fogarty, a liability witness called on behalf of the appellant, into account which established a prima facie case of negligent use of the untraced vehicle; (b) the judge failed to give proper weight to the evidence of the three witnesses called by the appellant regarding the location of the diesel spillage; (c) the judge applied the wrong standard to his assessment of the appellant’s evidence and was unfairly skeptical of that evidence; and (d) he failed to distinguish the judgment in Rothwell v MIBI [2003] 1 IR 268 which was concerned with negligent driving rather than negligent use.

Held by Noonan J that, having assessed the evidence and explained his reasoning for that assessment, the judge was not merely entitled but obliged to conclude that the appellant had not established on the balance of probabilities that the cause of her accident was the spillage. Noonan J held that this conclusion was perfectly sound and could not be interfered with by the Court of Appeal.

Noonan J dismissed the appeal. His provisional view was that as the Bureau had been entirely successful in the appeal, it should be entitled to its costs.

Appeal dismissed.

UNAPPROVED
NO REDACTION NEEDED

JUDGMENT of Mr. Justice Noonan delivered on the 13th day of May, 2022

1

. This appeal is concerned with the liability of the respondent/defendant (“the MIBI” or “the Bureau”) under the MIBI Agreement of 2009 for personal injuries suffered by the appellant/plaintiff (Ms. Quinlivan) as a result of the alleged negligent use of a vehicle in a public place, where the owner or user of the vehicle remains unidentified or untraced. Ms. Quinlivan's case is that her car skidded on a spillage of diesel oil negligently deposited on the road by the untraced motorist, causing her to collide with a bridge. Her claim was dismissed by the High Court (Twomey J.) on foot of a written judgment delivered on the 6 th July, 2021, against which she appeals.

The Evidence before the High Court
2

. The accident occurred on the 6 th July, 2015 at about 9.30 am on the road from Rathdowney to Borris-in-Ossory in County Laois. Ms. Quinlivan was at the time 23 years of age and a care assistant. Although she had been driving for a few years and had some driving lessons, she had never taken a driving test and consequently had a provisional driving licence. On the day of the accident, she was driving her own car unaccompanied by a fully licenced driver, which she accepted was unlawful. As she approached a humpback railway bridge, the road surface was wet. The parties accepted that this was a dangerous bridge which constituted an s-bend on the road.

3

. Ms. Quinlivan was driving from the Rathdowney direction to visit a client in the course of her employment, and this necessitated her negotiating a fairly sharp right hand bend into the bridge which was inclined on both sides although the centre or apex of the bridge was flat. As she approached the bridge, she described her car going out of control in a “snake like motion” which appears to have caused the car to commence a spin and strike the right hand wall of the bridge head on, before coming to rest sideways across the road. It is important to note that the plaintiff's evidence was that she lost control on the approach to the bridge rather than on the apex or flat part of the bridge. She made a statement to the Gardaí on the 30 th July, 2015 in which she said she lost control “around the middle of the bridge”. She made a further statement to the Bureau investigator, Mr. Ganly, on 29 th September, 2015 in which she suggested that the loss of control occurred as she “was coming close to a little bend to a railway bridge.”

4

. She was clearly injured and quite shocked in the immediate aftermath of the accident, getting out of the car and collapsing onto the ground. Other people arrived at the scene, who gave evidence, and Ms. Quinlivan, in oral evidence, said that as she was assisted by one of the witnesses after the accident, she “could see all rainbows on the road”. She was unable to state where this rainbow effect was on the road, other than she saw it.

5

. Three witnesses who were driving their own vehicles arrived at the scene of the accident shortly thereafter and gave evidence in the High Court. These were John Kirwan, Martin Daly and Adrian Deegan. The first to arrive was Mr. Kirwan who was travelling in the same direction as the plaintiff. His evidence was that when he got out of his car, he noticed oil on the road but he was unable to say how big the oil patch was because he did not remember, nor did he identify where precisely it was located. This evidence is noted by the judge in his judgment.

6

. Mr. Martin Daly, a truck driver and mechanic, also gave evidence. He was coming from Borris-in-Ossory, in the opposite direction to Ms. Quinlivan, and when he arrived at the scene and saw the condition of the road, he said to himself “no need to ask what happened to that poor unfortunate”. He described a bad spill of diesel which was on both sides of the road but more on the plaintiff's side of the road and the middle of the road. He said that there was diesel on the slope up to the bridge on the plaintiff's side. It was put to him that this was inconsistent with a statement he made to the Gardaí in which he said there was diesel on the top of the bridge. He agreed he had said this. The trial judge noted this conflict in his judgment.

7

. Evidence was also given by Mr. Adrian Deegan, who was a member of Laois Fire Brigade but off duty at the time. He said that as he approached the bridge in the same direction as the plaintiff, he saw a big spill of oil or diesel. It was across the road. Mr. Deegan, unlike the other witnesses, appeared to suggest that there were two separate patches of oil spill on the road, one on the upward slope to the bridge on the plaintiff's side where there was a visible change of road surface He was the only witness to suggest that there were two separate patches of spillage. The judge observed that Mr. Deegan did not make a statement to the Gardaí and his evidence was given six years after the accident.

8

. The last liability witness called on behalf of the plaintiff was Mr. Michael Fogarty, a consulting engineer, who subsequently carried out the usual survey of the locus of the accident. Mr. Fogarty gave evidence that the likely cause of the spillage was that it came from a reasonably large diesel fuel tank with a short neck which would allow the fuel to spill or splash out on movement, in the absence of a cap. This would likely be a lorry, a tractor or a bowser, the latter being a diesel tanker brought from place to place to fuel principally agricultural vehicles. A car was unlikely to be the source of the spillage because car diesel tanks typically are located under the rear seat and have a long neck which would be unlikely to account for such a spillage.

9

. In cross-examination, it was put to Mr. Fogarty that the evidence of the investigating garda would be that the diesel was located not in the plaintiff's lane but on the opposite lane and if that was correct, the presence of diesel could be discounted as having any involvement in the circumstances of the accident. Mr. Fogarty agreed with that proposition and further with the suggestion that if that were correct, the obvious explanation for the accident was driver error.

10

. Garda Aidan Greene, the investigating officer, was called to give evidence by the MIBI, although listed on the plaintiff's disclosure schedule also. Garda Greene was called to the scene of the accident, arriving at approximately 10.30am, an hour or so after it had occurred. He made some notes in his official notebook and took some photographs on his mobile phone. The first note in his notebook was “diesel on opposite lane” being the lane opposite the plaintiff's direction of travel. He described the diesel as being at the apex of the bridge and said he got down on his hands and knees to smell it to confirm that it was what he recognised as diesel. He said it was several feet in length and predominantly on the oncoming lane from Borris-in-Ossory, the opposite lane to that in which Ms. Quinlivan had been travelling. The vast majority was on that side of the road.

11

. He supported his conclusion in that regard by a photograph of the spillage and confirmed that the photograph represented the only location where he saw possible diesel on the road. The Fire Brigade was present when Garda Greene arrived at the scene and it was put to him in cross-examination that it was possible that they were involved in cleaning up the road before he arrived. The garda disagreed with that proposition saying he did...

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