Kilty v Hayden

• Jurisdiction: Ireland
• Judgment Date: 28 July 1969
• Date: 28 July 1969
• Docket Number: [1968. No. 961 P.]
• Court: Supreme Court

Kilty v. Hayden

MARY KILTY

Plaintiff

and

ANTHONY HAYDEN, LIAM ROWLEY, BREFFNI McGRANE and PREMIER MEAT PACKERS IRELAND LIMITED

Defendants.

[1968. No. 961 P.]

Supreme Court

Practice - Procedure - Point of law - Preliminary issue - Facts in dispute - Rules of the Superior Courts, 1962 (S.I. No. 72 of 1962), Or. 25, r. 1.

Order 25, r. 1, of the Rules of the Superior Courts, 1962, does not apply where there is a dispute between the parties concerning any facts involved in the point of law which one of the parties seeks to have determined as a preliminary issue.

So held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh and FitzGerald JJ.).

Western Steamship Co. Ltd. v. Amaral Sutherland & Co. Ltd. [1914] 3 K.B. 55considered.

Appeal from the High Court.

The plaintiff, who sued on behalf of herself and the other dependants of her late husband, claimed damages from the defendants pursuant to s. 48 of the Civil Liability Act, 1961, for the loss resulting from the death of her husband on the 14th October, 1967, in a motor accident which she alleged had been caused by the negligence of one or more of the defendants. On that occasion the third defendant's motor car had collided with a lorry and trailer belonging to the first defendant and driven by the second defendant; subsequently the fourth defendants' motor car, in which the plaintiff's husband was travelling as a passenger, collided with the other vehicles and the driver of that car and the plaintiff's husband were killed. Each defendant delivered a defence denying liability. The fourth defendants pleaded that the driver of their motor car had not been acting with their consent and had not been their servant or agent as alleged since he had been acting outside the scope of his authority in making a tour of public houses in the course of a drinking spree at the relevant time. The defendants claimed indemnities or contributions from each other.

On the 24th March, 1969, the third defendant issued a motion seeking a direction that the liability of the fourth defendants to indemnify or make contribution to the third defendant be tried at or after the trial of the plaintiff's action. The motion of the third defendant was heard in the High Court (Murnaghan J.) on the 28th March, when all parties were represented, and was treated as if motions had been issued by the other defendants for directions relating to their claims inter se. At the hearing of the motion counsel for the fourth defendants applied for a direction pursuant to Order 25 of the Rules of the Superior Courts that the issue of whether or not the driver of the fourth defendants had been acting as their servant or agent should be tried by a judge alone before the trial of the plaintiff's action, and an order was made to that effect. The plaintiff appealed against that order to the Supreme Court.

Ó Dálaigh C.J. ó dálaigh :—

In these proceedings, which are brought under Part IV of the Civil Liability Act, 1961, the fourth defendants, Premier Meat Packers Ireland Ltd., have raised as a defence that the driver of the motor car, their property, in which the plaintiff's husband was a passenger when he was killed, was not using the said motor car with the consent, either express or implied, of these defendants, nor was he using the same on their order, but on the contrary he was using the same outside the terms of any consent given by them and contrary to their orders. The plaintiff, in her reply, has denied these several matters, and reiterated that the driver of these defendants' motor car was driving same as their servant or agent. The plaintiff in exercise of her statutory right has given notice of trial of the action by a judge with...