McEleney v McCarron

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-SC 3826
• Date: 01 January 1993
• Court: Supreme Court
• Docket Number: [1988 No. 6608P]

1992 WJSC-SC 3826

THE SUPREME COURT

Finlay C.J.

Hederman J.

O'Flaherty J.

61/92

75/92

MCELENEY v. MCCARRON

GERARD McELENEY

Plaintiff/

Respondent

and

JOHN McCARRON AND NEIL McCARRON

Defendants/

Appellants

Synopsis:

NEGLIGENCE

Motorist

Duty - care - Standard - Accident - Circumstance - Facts found by trial judge - Inferences drawn by trial judge - Defendant found negligent - Girls at side of road at night trying to stop defendant - Drunk plaintiff lying with head on roadside beside girls - Defendant drove car over plaintiff's head - Different inferences drawn by appellate court from same facts - (61, 73/92 - Supreme Court - 21/12/92)- [1993] 2 I.R. 132

|McEleney v. McCarron|

SUPREME COURT

Appeal

Facts - Assessment - Trial judge - Finding - Basis - Inferences drawn by trial judge - Opposite inference drawn by the appellate court - (61, 75/92 - Supreme Court - 21/12/92)- [1993] 2 I.R. 132

|McEleney v. McCarron|

1 JUDGMENT delivered on the 21st day of December 1992 by FINLAY C.J. [NEM DISS]

2 This is an appeal by the Defendants against an order of the High Court made on the 24th January 1992 in an action for damages for personal injuries brought by the Plaintiff against the Defendants arising out of a road traffic accident. The High Court order:

3 1. Found the Defendants negligent.

4 2. Found the Plaintiff guilty of contributory negligence.

5 3. Apportioned fault as to the Defendants 70 per cent and as to the Plaintiff 30 per cent.

6 4. Assessed gross damages at £1,164,583 and gave judgment to the Plaintiff for a sum of £815,208.10.

7 The Defendants appealed against the following:

8 (a) The finding of negligence against them.

9 (b) The proportions of fault contained in the judgment.

10 (c) Certain items of the damages awarded.

11 The Plaintiff served a notice to vary concerning one element of the damages awarded.

12 The Court decided to hear and determine first the issues of liability the subject matter of the Defendants" appeal.

13 The facts out of which this accident occurred were not in dispute, and the learned trial judge did not in the course of his judgment reject the credibility of the testimony of any of the witnesses.

14 In the course of his judgment on the issue of liability which he delivered separate to any judgment on the issue of damages, the learned trial judge described the happening of the accident in the following paragraphs. To that description and its accuracy no challenge was made by either party on the hearing of this appeal.

"On the 27th March 1988 the plaintiff who lives at 7, Gaddyduff Cottages, Clonmany, Co. Donegal, attended a disco at the Strand Hotel, Ballyliffen where he was very drunk. There's agreement on the plaintiff's condition as regards drink and he appears to have progressed to the comatose. At approximately 3 a.m. the plaintiff returned to his home village by bus. He slept on the bus and the bus stopped in Clonmany outside the Chapel on the Buncrana side. The plaintiff was helped off the bus by Terence McCarron who appears to have left him propped against the Church wall and to have gone off. Gaynor Gill and Elaine Doherty each knew the plaintiff, had been at the same disco and had travelled home on the same bus. The plaintiff was slumped against the Church wall and the girls realised that he needed help to get home. They tried to talk to him initially but got no response. They then tried to propel him home each supporting one arm. The plaintiff, who is very tall, kept falling backwards and finally fell out on to the road. He lay with his feet on the path and his torso on the road. The girls tried to lift the plaintiff from the road but were unable to do so. They then thought to drag him in off the road, one going on each side of him and pulling at a leg each. In that fashion they pulled him on to the path to at least the level of the waist but his head and probably most of his torso remained on the road. The second-named defendant ironically had been at the same disco and while there had...