Little v Dublin United Tramways Company and Another

• Jurisdiction: Ireland
• Judgment Date: 01 January 1931
• Date: 01 January 1931
• Court: Supreme Court (Irish Free State)

Little v. Dublin Tram Co. & Another.

ELIZABETH LITTLE

Plaintiff

and

DUBLIN UNITED TRAMWAYS COMPANY (1896), Limited, and THOMAS O'BRIEN

Defendants

SHEILA GUNNING, Plaintiff,v. SAME, Defendants; EDWARD FLYNN

Plaintiff

and

SAME

Defendants

CHARLES O'ROURKE, Plaintiff,v. SAME, Defendants; LILLIE MURPHY

Plaintiff

and

SAME, Defendants (1)

Supreme Court.

Practice - Procedure - Costs - Jury action - Negligence - Personal injuries - Joinder of two defendants - Allegations of joint and several negligence - Denial of negligence by each defendant - Allegation by each defendant of other defendant's negligence as sole cause of occurrence - Verdict against one defendant and in favour of other defendant - Jurisdiction to order unsuccessful defendant to pay successful defendant's costs to plaintiffs - No issue between the defendants - "Special cause" for costs not following event - Rules of the Supreme Court (Ir.),1905, Or. LXV, r. 1 - Rules of the High Court and Supreme Court, 1926,Or. XXVIII, r. 4 - Judicature Act (Ir.), 1877 (40 & 41 Vict. c. 57),sect. 53 - Courts of Justice Act, 1924 (No. 10 of 1924), sects. 22, 94.

Five separate actions were instituted against two defendants for damages for injuries alleged to have been caused by the negligence of the defendants jointly, and, alternatively, by the negligence of each of the defendants severally. The actions arose out of a collision between a tramcar belonging to the defendant, the Dublin Tram Co., and a motor omnibus belonging to the other defendant, O'B. Four of the plaintiffs were passengers in the motor omnibus, and one was a passenger in the tramcar. Each of the defendants pleaded a separate defence to each of the actions, and each of them, in addition to traversing the injuries and the negligence alleged against himself, pleaded that the injuries were caused entirely by the negligence of the other defendant, and the Tram Co. gave particulars of that negligence. Upon an application by the defendant, the Tram Co., on the hearing of which all the parties were represented, it was ordered that the actions should be tried together, the question of liability to be decided in the first-mentioned action, that of E. L., all the plaintiffs and both the defendants to be bound by the finding on the issue of liability, and the damages (if any) in each action to be separately assessed. Pursuant to that order, the first-mentioned action came to trial, and was at hearing, three days. The other plaintiffs were represented at this hearing, but no witnesses were examined or cross-examined on their behalf. The jury found that the occurrence was caused solely by the negligence of the tram driver, and assessed damages. The Judge gave judgment for the plaintiff, with costs against the defendant, the Tram Co., and gave judgment for the other defendant, O'B., with costs against the plaintiff; and, being of opinion that the action of the Tram. Co. in attributing the blame for the occurrence solely to the defendant, O'B., from the earliest moment when the claim was made, and having failed therein, was "special cause" within the meaning of Or. LXV, r. 1, of the Rules of the Supreme Court (Ir.), 1905, for the costs not following the event, ordered that the Tram Co. should pay to the plaintiff the costs due to O'B. by the plaintiff, when taxed and ascertained. The assessment of damages in the other actions was made by the same jury on another day, and judgment was given for each plaintiff for the

amount assessed, with costs against the defendant, the Tram Co. A similar order to that in the first action was made in each case as to the defendant O'B.'s costs against each plaintiff.

The defendant, the Tram Co., served notice of appeal in each case, seeking to set aside the verdict of the jury on the question of liability, together with the judgments for damages and the orders as to costs. The notices of appeal challenged the findings of the jury on the evidence, and also alleged that there was no "special cause" to justify the special order of the Judge as to O'B.'s costs. Cross-notices of appeal were served by all the plaintiffs other than E. L., seeking to have the judgment and order in each case varied in so far as it deprived each such plaintiff of the costs of and incidental to the hearing on the days on which the question of liability only was at trial.

The Supreme Court refused to disturb the judgment and verdict determining the liability of the Tram Co. to the several plaintiffs and the assessment of damages pursuant thereto. They held, upon the cross-appeals, that the meaning of the order as to the trial of the actions was that the first action was to be tried and disposed of as a test action, deciding the question of liability for the collision and binding all the plaintiffs by the result; and they dismissed these appeals. Upon the question of the special orders as to O'B.'s costs:

Held (by FitzGibbon and Murnaghan JJ.; Kennedy C.J. dissenting), that they were invalid, as there was no issue at the trial as between the two defendants, upon the result of which costs could depend; and the costs dealt with in the special orders had already followed the event as between the plaintiffs and the defendant O'B.; and, further, there was no ground for holding that the costs of the issue between the plaintiffs and the Tram Co. should include, as part of the plaintiffs' costs, the costs ordered to be paid by the plaintiffs to O'B.

Bullock v. London General Omnibus Co., [1907] 1 K.B. 264, andBesterman v. British Motor Cab Co., Ltd.,[1914] 3 K.B. 181, considered.

Motions on behalf of the defendant, the Dublin United Tramways Company (1896), Limited, for an order that the verdict of the jury found on 20th February, 1929, the judgment for damages entered on 25th February, 1929, and the order as to costs of the same date, be set aside with costs, and that in lieu thereof judgment be entered for the Tramways Company with costs; or, in the alternative, a new trial ordered. Five actions had been brought against the said company and Thomas O'Brien, as defendants, the facts relative to which have been summarised in the head-note.

The said motions were based on the following grounds:— That there was no evidence to support the findings of the jury, and the said findings were perverse; that the said findings were against evidence, and the weight of evidence; that the trial was unsatisfactory; and that there was no "special cause" within the meaning of Or. LXV, r. 1, of the Rules of the Supreme Court (Ir.), 1905, as adapted by the Rules of the High Court and Supreme Court, 1926, to justify the special order of the learned Judge that the defendant, the Tram Company, should pay to the plaintiffs the costs due by them to the defendant, Thomas O'Brien, when taxed and ascertained.

There were cross-motions on behalf of the plaintiffs, other than Elizabeth Little, for an order that the judgment and order pronounced and made on 25th February, 1929, be varied so far as it deprived the plaintiffs of their costs of the trial of the issue of liability in the action, and that in lieu thereof it be ordered that the plaintiffs recover from the defendant, the Dublin United Tramways Company (1896), Limited, their costs of and incidental to the hearing of the action on the 18th, 19th, and 20th days of February, 1929.

The facts of the case, and the relevant orders and documents, are fully set out in the judgment of Kennedy C.J.

The Court intimated, without calling upon counsel for the plaintiffs, that they rejected the appeal of the Tram Company in so far as it was concerned with the judgment and verdict determining the liability of the company to the several plaintiffs, and the assessment of damages in pursuance thereof. After hearing argument, they held that the meaning of the order of Sullivan P., dated 8th February, 1929, was that the action of Elizabeth Little was to be tried and disposed of in the first place as a test action, deciding the question of liability for the collision, and binding all the plaintiffs by the result; and they dismissed the cross-appeals of the plaintiffs, other than Elizabeth Little. The following arguments are confined to the question of the special orders as to costs made by Hanna J. on 25th February, 1929.

Cur. adv. vult.

Kennedy C.J. :—

This appeal arises out of a number of actions brought by passengers in a motor omnibus belonging to the defendant, Thomas O'Brien, which came into collision with a tramcar of the defendant Tramways Company on the 3rd September, 1928, at a point on the Strand Road at the junction of the Howth Road

and the Strand Road near Clontarf. The omnibus was emerging from the Howth Road on to the Strand Road, travelling to Dublin, and the tramcar was being driven from Dublin towards Dollymount at the moment of the impact. The collision took place on the outgoing tram line.

The plaintiff, Elizabeth Little, was a passenger in the motor omnibus travelling from Baldoyle to Dublin. She undoubtedly sustained, as a result of the collision, extremely severe personal injuries. The plaintiff, Sheila Gunning, was a passenger in the tramcar, and also sustained personal injuries in consequence of the accident. The plaintiffs, Edward Flynn, Charles O'Rourke, and Lillie Murphy, were all passengers in the omnibus, and each of them sustained personal injuries in consequence of the collision. Each of the plaintiffs instituted an action against the two defendants, claiming damages by reason of the injuries having been caused by the negligence of the defendants jointly, and alternatively by the negligence of each of the defendants severally. Each of the defendants pleaded a separate defence to each of the actions, and each of them, in addition to traversing the injuries and the negligence alleged against that defendant, pleaded that the injuries were caused entirely by the negligence of the other defendant.

On the 8th of February, 1929, an application was...