McCauley v McDermot

JurisdictionIreland
CourtSupreme Court
JudgeKeane J.
Judgment Date24 April 1997
Neutral Citation1997 WJSC-SC 3253
Date24 April 1997
MCCAULEY v. MCDERMOT

BETWEEN

ROSEMARY McCAULEY (A MINOR SUING BY HER FATHER AND NEXTFRIEND) JOHN McCAULEY
Plaintiff

AND

NOEL McDERMOT
Defendant

AND

PATRICK McCAULEY
Third Party

1997 WJSC-SC 3253

Hamilton, C.J.

Barrington,J.

Keane,J.

1/94

THE SUPREME COURT

Synopsis:

Practice & Procedure

Third Party Notice; Appeal; Order of High Court granting liberty to issue and serve third party notice; multiple party collision; in earlier proceedings Circuit Court found no liability on part of car owner; further proceedings against tractor owner and application by tractor owner to issue third party notice on motorist; res judicata; whether identity of interest between car owner and motorist; whether proceedings should be struck out as abuse of process. Held: appeal allowed; Order granted setting aside Order of High Court giving liberty to issue third party notice. (Supreme Court; Hamilton CJ, Barrington and Keane JJ 24/04/97)

McCauley v McDermott and McCauley

[1997] 2 ILRM 486

Citations:

RSC O.16 r7

ROAD TRAFFIC ACT 1961 S118

DONOHOE V BROWNE 1986 IR 90

REAMSBOTTAM V RAFTERY 1991 1 IR 531

SHAW V SLOAN 1982 NI 393

LAWLESS V BUS EIREANN 1994 1 IR 474

MCSHANE V MCGINN UNREP KEANE 18.5.1995

STEPHENSON V GARNETT 1898 1 QB 677

REICHEL V MCGRATH 1889 14 AC 665

GILROY V MCLOUGHLIN 1988 IR 44

STEIFUNG V RAYNER & KELLER LTD (NO 2) 1967 1 AC 853

BELTON V CARLOW CO COUNCIL UNREP SUPREME 25.2.1997

CIVIL LIABILITY ACT 1961

RAMSAY V PIGRAM 1967 118 CLR 271

PETRIE V NUTTALL 1886 11 EX CH 569

BENTHAM RATIONALE OF JUDICIAL EVIDENCE

BRUSZEWSKI V UNITED STATES 1950 181 F 2d 419

MCILLKENNY V CHIEF CONSTABLE OF WEST MIDLANDS POLICE 1980 1 QB 283

HUNTER V CHIEF CONSTABLE OF WEST MIDLANDS POLICE 1982 AC 529

KELLY V IRELAND 1986 ILRM 318

BREATHNACH V IRELAND 1989 IR 489

1

24th day of April, 1997by Keane J.[NEM DISS]

2

On the 20th June 1992, a collision occurred between a motor car and a tractor at Ballyconnell, County Cavan. The minor Plaintiff (hereafter "the passenger") was a passenger in the motor car which was owned by her fatherand next friend (hereafter "the car owner") and driven by the third party (hereafter "the motorist"). The tractor was owned by the defendant (hereafter "the tractor owner") and driven by Joseph McLoughlin (hereafter "the tractor driver"). As a result of the impact between the motor car and the tractor, there was a further collision between the tractor and another car which was parked on the road at the time and was owned by Deirdre Forde (hereafter "Ms. Ford").

3

The car owner instituted proceedings in the District Court against the tractor owner claiming damages in respect of the damages caused to his motor car. The District Judge found that both the motorist and the tractor driver were negligent on the occasion in question and apportioned liability equally. That decission was the subject of an appeal to the Circuit Court which was heard and determined on the 28th October 1992 by His Honour Judge Sheehy. The learned Circuit Court judge also found that the collision between the motor car and the tractor was due to the negligence of the tractor driver but found that there was no contributory negligence on the part of the motorist.

4

Ms. Forde then instituted proceedings in respect of the damages to her parked motorcar against the car owner, the motorist, the tractor owner and the tractor driver. Following the determination of the appeal in the earlier proceedings in the Circuit Court, Ms. Forde served notice of discontinuance of the proceedings as against the motorist and the car owner. Ms. Forde's claimagainst the tractor owner and the tractor driver was then the subject of a settlement between her and those parties. The solicitors for the tractor owner and the tractor driver wrote as follows to the solicitor for the car owner and the motorist as follows on the 6th November1992:-

"We refer to our letter to you dated 28th September last and note that we never subsequently heard from you in response other than your letter of 1st ult. Which did not really deal with theissue."

"In the interim, events have been overtaken this correspondence. The Plaintiff has served notice of discontinuance against your client and we have agreed to settle the Plaintiff's claim. The settlement provides for an indemnity by us to the Plaintiff in respect of any costs properly arising to be paid to your client on foot of the aforementioned proceedings. Will you please furnish to us particulars of such costs so that we may seek to agree same. In this respect we will expect you to bear in mind that the real negligence issue was dealt with and is being paid for by our clients in the proceedings brought forward by John McCauley and that in reality the issues arising in the Deirdre Forde claim did notto any significant extent arise to be dealt with on behalf of yourclients."

"If these costs can be agreed it will save having to argue the issue in Court."

5

The present proceedings were instituted on behalf of the passenger, claiming damages in respect of injuries allegedly substained by her in the collision with the tractor, against the tractor owner. We were informed during the hearing of the present appeal that proceedings have also been instituted in the High Court by the motorist against the tractor owner, claiming damages in respect of personal injuries alleged to have been substained by him as a result of the collocsion with the tractor. It would appear that, while the pleadings in these last mentioned proceedings have been closed and the action set down for hearing, they have been adjourned from time to time and remain to beheard.

6

On the 24th May 1993, the tractor owner (the defendant in these proceedings) was granted liberty by the High Court to issue and served a third party notice against the motorist claiming contribution or an indemnity. On the 20th October 1993, a notice of motion was served on behalf of the motorist applying for an order pursuant to Order 16 Rule 7 of the Rules of the SuperiorCourts striking out the third party notice on the grounds that the issues arising between the tractor owner and the motorist which were the subject of the third party proceedings were resjudicata or, alternatively, that the third party proceedings constituted an abuse of the process of the court.

7

In an ex tempore judgment delivered on the 3rd December 1993, the High Court (Murphy J) dismissed the application of the motorist. From that judgment and order, the motorist now appeals to this court.

8

On behalf of the motorist, Mr. John Finlay, S.C. submitted that the tractor owner was estopped from litigating in the third party proceedings the precise issue which had been determined against him by the Circuit Court. This was not affected by the fact that the third party proceedings had been initiated against the motorist only: by virtue of s.118 of the Road Traffic Act 1961, the car owner was vicariously liable for the negligences (if any) of the motorist and hence there was a privity of interest between the car owner and the motorist which made the application of the principle of estoppel per rem indicatam appropriate. He cited in support of these propositions the decissions of the High Court in Donohoe v. Browne [1986] IR 90 and Reamsbottam v.Rattery [1991] 1 IR 531, of the Northern Ireland Court of Appeal in Shaw v. Sloan &Ors. [1982] NI 393 and of this court in Lawless v. Bus Eireann [1994]1 IR 474. He also cited an unreported judgment which I gave as a High Court judge in a case of McGinn & Anor. v. McShane &Anor. (May 18th, 1995).

9

Mr. Finlay submitted that if, contrary to that submission, the motorist and the car owner should not be regarded as being in privity so as to attract the issue estoppel doctrine, the proceedings should nevertheless be struckout as an abuse of the process of the court. He said that, had the third party proceedings been issued against the car owner, they would inevitably have been dismissed since issue estoppel would clearly apply. The sole reason for instituting proceedings against the motorist was to avoid that consequence and to relitigate an issue which had already been determined by a court of final jurisdiction against the tractor owner, a proceeding which should not, he said, be countenanced by the court. He cited in support of this submission the decisions of the English Court of Appeal in Stephenson v. Garnett [1898] 1 QB 677 and of the House of Lords in Reichel v. McGrath, [1889] 14 Ap. Cas. 665.

10

On behalf of the tractor owner, Mr. Kidney, S.C. submitted that it was quite clear from the decissions in Shaw v. Sloan & Anor.that the motorist was not privy of the car owner and, accordingly, there was no ground for invoking issue estoppel, since the issue in question had never been litigated between these parties, i.e. the motorist and the tractor owner. That could not be described as an abuse of the process of thecourt: the issue of the tractor driver's negligence had been raised by the passenger in the present proceedings and the motorist in the pending High Court proceedings and there was no logical reason why the tractor owner alone should be precluded by an unwarranted invocation of issue estoppel from litigating the issue of liability in the third partyproceedings.

11

The issues as to liability which had to be determined by the Circuit Court in the earlier proceedings were:-

12

(1) Was the damage to the motor car caused by the negligent driving of the tractor driver?

13

(2) If so, was the damage also caused or contributed to by the negligence of the motorist?

14

(3) In the event of the Court finding that both the motorist and the tractor driver were negligent, in what degrees should their liability beapportioned?

15

In the proceedings instituted by the passenger, the only issue as to liability will be as to whether her alleged injuries were caused by thenegligence of the tractor driver. In...

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