Mc Comiskey v McDermott

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 26 July 1974
• Docket Number: [1969. No. 3181 P.]
• Date: 26 July 1974

McComiskey v. McDermott

ALAN McCOMISKEY

Plaintiff

and

JOHN McDERMOTT

Defendant.

[1969. No. 3181 P.]

Supreme Court

Negligence - Motorist - Motor rally - Driver and passenger acting as a team - Passenger injured in accident - Driver's duty to passenger - Whether passenger had waived his legal rights - Sequence of questions on jury's issue paper - Civil Liability Act, 1961 (No. 41), s. 34, sub-s. 1 (b).

The plaintiff and the defendant were travelling at night as passenger and driver in the defendant's motor car while taking part, as a team, in a motor rally in which the defendant was trying to maintain an average speed of 35 m.p.h. and to arrive at various checkpoints promptly at the times specified by the organisers of the rally. Having driven round a corner on a muddy laneway, the defendant was faced with an obstruction on the laneway ahead and downhill. The defendant believed that he could not stop his car before reaching the obstruction and so he drove his car into a ditch where it overturned and the plaintiff was injured. The dashboard of the defendant's car carried a notice stating that passengers travelled in the car at their own risk. The plaintiff claimed damages in the High Court for the negligence of the defendant. At the trial the jury, in answer to the first question on the issue paper, answered that the plaintiff had impliedly agreed to waive his legal rights in respect of injury caused by the negligence of the defendant; in answer to the second question on the issue paper, they found that the defendant had not been negligent. On appeal by the plaintiff it was

Held by the Supreme Court (Walsh, Henchy and Griffin JJ.), in disallowing the appeal, 1, that there was no evidence whatever to support the jury's answer to the first question, which should not have been placed on the issue paper.

O'Hanlon v. Electricity Supply Board [1969] I.R. 75 applied.

2. (Walsh J. dissenting) That the duty of care owed by the defendant to the plaintiff was to drive the car as carefully as a reasonably prudent competitive rally driver would be expected to drive in the prevailing circumstances.

3. That, owing to the clear directions of the trial judge, there was no reason to believe that the jury's answer to the second question had been coloured by the inclusion of the first question.

Appeal from the High Court.

The facts have been summarised in the head-note and they appear in the judgments, post. The plaintiff's action was tried before Murnaghan J. and a jury on the 25th and 26th November, 1970. The questions submitted to the jury, and their answers, were as follows:—

"1. Did the plaintiff impliedly agree with the defendant to waive his legal right in respect of any negligence of the defendant causing injury to the plaintiff? Answer: Yes.

2. Was the defendant negligent? Answer: No.

3. Was the plaintiff negligent? Answer: [None]

4. Assess the degrees of fault in percentages of:

• (a) the defendant Answer: [None]

• (b) the plaintiff Answer: [None]

  • 5. Assess damages Answer: [None]."

Upon the above findings the trial judge gave judgment for the defendant. The plaintiff appealed to the Supreme Court on the grounds that the learned trial judge should not have left to the jury the question whether the plaintiff had impliedly agreed with the defendant to waive his legal rights in respect of any negligence of the defendant causing injury to the plaintiff, and that the jury's finding that there had been no such negligence was perverse and was coloured and prejudiced by their consideration of, and answer to, the question of implied waiver which should not have been submitted to them.

Section 34, sub-s. 1, of the Civil Liability Act, 1961, provides (inter alia) as follows:—

"34 — (1) Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and defendant: provided that—

• (a) if having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally;

• (b) this subsection shall not operate to defeat any defence arising under a contract or the defence that the plaintiff before the act complained of agreed to waive his legal rights in respect of it, whether or not for value; but, subject as afore said, the provisions of this subsection shall apply notwithstanding that the defendant might, apart from this subsection, have the defence of voluntary assumption of risk; . . ."

Cur. adv. vult.

Walsh J. :—

On the 25th October, 1968, the plaintiff and defendant were participating in a motor-car rally in County Wicklow. The defendant was driving his motor car as a competitor in the rally and the plaintiff was his navigator and was a passenger in the motor car. The rally took place on the public road at a time when it was being used by other members of the public. The road was not closed to other users during the course of the rally and participation in the rally did not necessarily involve any breach of the road-traffic laws or regulations. The rally was a competition among the various motorists participating and was a test of driving ability and skill. One of the characteristics of this type of motor sport is that the competitors are penalised if they are late at arriving at various checkpoints and are penalised if they arrive there too early. They are also required to maintain an average speed of 35 m.p.h. which is only 5 m.p.h. more than half of the maximum speed permitted on the public roads in this country. There is therefore no question of either the plaintiff or the defendant being engaged in some unlawful act. The principles of law which relate to the liability of a defendant or the right of a plaintiff which have arisen in cases of motor cars racing on public highways do not arise in this case.

In the course of this particular rally the defendant's motor car overturned and the plaintiff was injured. The circumstances which led to the overturning of the motor car were that, as the motor car came around a bend, two cars were observed to be blocking the roadway about 45 yards ahead. One of these cars belonged to an official who was engaged in the rally, and the other belonged to a competitor. The defendant initially tried braking his motor car but, when he believed that this would not be effective to avoid a collision with the two parked cars, he directed his motor car into the ditch on the right-hand side of the road and this caused it to overturn.

The plaintiff instituted proceedings for damages for negligence against the defendant and the case was tried before Mr. Justice Murnaghan and a jury in the High Court on the 25th and 26th November, 1970. At the conclusion of the case the following questions were left to the jury by the learned trial judge.

"1. Did the plaintiff impliedly agree with the defendant to waive his legal right in respect of any negligence of the defendant causing injury to the plaintiff? Answer: Yes.

2. Was the defendant negligent? Answer: No.

3. Was the plaintiff negligent? Answer: [None]"

In the result no damages were assessed and judgment was entered for the defendant.

The circumstances which caused the judge to leave the first question to the jury were that there was attached to the instrument board of the defendant's motor car a notice to the effect that passengers travelled in the car at their own risk. In fact this notice was on the car when the defendant purchased it second-hand in England and he had not bothered to remove the notice. The plaintiff was aware that this notice was on the car when the defendant bought it and it is abundantly clear from the evidence in this case that neither the plaintiff nor the defendant regarded the notice as affecting their relationship. It was not intended by the defendant to be an intimation to the plaintiff of the terms or conditions under which he travelled in the car, nor was it accepted by the plaintiff as such. For the reasons given in O'Hanlon v. Electricity Supply Board11, the statutory defence afforded by s. 34, sub-s. 1, of the Civil Liability Act, 1961, did not arise in this case.12In so far as the plaintiff's appeal is being taken against the fact that the judge left this question to the jury, it should succeed. There was no evidence in this case which warranted leaving the question to the jury.

The plaintiff has also appealed on the grounds that the finding of the jury that the defendant was not negligent was without evidence and perverse, and that the jury's answer to this question was coloured and prejudiced by their consideration of the answer to the first question which ought not to have been left to them. The notice of

appeal also claimed that the learned trial judge was incorrect in law in not telling the jury that on the defendant's own evidence on the issue of liability they ought to have found him guilty of negligence, and that the judge did not adequately deal with or explain to the jury the evidence on the issue of the defendant's liability. In effect, the plaintiff also says that the evidence against the defendant on the issue of liability was so coercive that it was not open to a jury to acquit the defendant of negligence.

In the main, the submissions made on behalf of the defendant in the course of this appeal were to the effect that since a negligence action is an action for breach of duty, the duty is to be measured in the light of the circumstances governing the situation in which the act complained of happened. Reduced to simpler...