McKenna v Lewis and Laoighis County Council

• Jurisdiction: Ireland
• Judgment Date: 07 July 1945
• Date: 07 July 1945
• Court: Supreme Court

McKenna v. Lewis and Laoighis Co. Council

MARY FRANCES McKENNA

Plaintiff

and

MICHAEL LEWIS and the LAOIGHIS COUNTY COUNCIL,Defendants (1)

Supreme Court

Negligence - Nuisance - Action against local authority - Claim laid alternatively in negligence and nuisance - Claim arising out of reconstruction of a highway - Accident alleged to be caused by ditch built at side of highway - Highway prima facie presumed to extend from fence to fence - Jury finding no negligence by local authority - Finding that road as reconstructed by local authority constituted a nuisance - Findings not necessarily inconsistent - Application for new trial.

Evidence that a ditch lies so close to the metalled portion of a road that a motor lorry, accidentally leaving that portion of the road, fulls into the ditch may be evidence that the ditch is a danger to motorists driving on the metalled road. There is no rule of law that such a ditch cannot be dedicated as part of a highway. The prima facie presumption is that the highway extends from fence to fence and includes the ditch.

A local authority in the course of reconstructing a road built up a retaining wall in a ditch at the roadside. The road was fringed by grass margins, at the edge of one of which the retaining wall made a sharp drop into the ditch. A lorry, travelling on the road, ran into the ditch and a passenger was killed. The widow of the deceased brought an action under the Fatal Accidents Act against L., the driver of the lorry, and the local authority. The claim was laid in negligence and nuisance. The jury found that L. had not been guilty of negligence and the claim against him was dismissed. They also found that the local authority had not been guilty of negligence but that the road, as reconstructed by the local authority, constituted a nuisance, and they awarded damages to the plaintiff.

On an application by the local authority for a new trial, they contended that there was no evidence of nuisance, or, alternatively, that the proximate cause of the accident was not the nuisance but the negligence of L. in driving the lorry off the metalled part of the road on to the grass margin, or was some inevitable accident to the lorry which rendered it uncontrollable, and, further, that the finding that they had not been guilty of negligence was inconsistent with the finding that the road, as reconstructed by them, constituted a nuisance.

Held by the Supreme Court that the jury were entitled to take the view that occasions may arise when a motor driver is entitled to drive on to the grass margin, or on which, through no fault of his, he is unable to control the movements of his car and keep it on the road, and if they took that view they were entitled to find that as a result of the work done by the local authority the ditch constituted a danger to persons lawfully using the highway, and therefore a nuisance for the creation of which the local authority were responsible; that the jury were also entitled to find that the nuisance was the cause of the death, even if they were satisfied that it was not the sole cause further, that the findings of the jury were not necessarily inconsistent, having regard to the trial Judge's charge, and accordingly the application for a new trial must be refused.

New Trial Motion.

The plaintiff, Mary Frances McKenna, brought an action under Lord Campbell's Act for the loss of her husband, Joseph McKenna, who-died from injuries received when travelling as a passenger in a motor lorry driven by the defendant, Michael Lewis. The accident happened at Kilmullen, County Laoighis.

The plaintiff sued both the Laoighis County Council and the said Michael Lewis, alleging that her husband's death

was caused by:—1, the negligence of Lewis, and 2, the negligence of the County Council, and 3, a nuisance constituted by the roadway and ditch as erected and maintained by the said County Council. The facts are stated in the judgment of the Chief Justice.

Cur. adv. vult.

Sullivan C.J.:—

This action was brought under the Fatal Accidents Act, 1846, to recover damages for loss occasioned by the death of the plaintiff's husband, Joseph McKenna, who died as the result of injuries sustained by him on the 8th September, 1942, when travelling as a passenger in a motor lorry driven by the defendant, Michael Lewis.

The accident happened at Kilmullen, on the main road between Portarlington and Monasterevan, when the motor lorry left the roadway upon which it had been travelling and ran into an adjoining ditch.

The plaintiff sued both the Laoighis County Council and Michael Lewis, alleging that the death of her husband was caused by:—(1) the negligence of Lewis, and (2) the negligence of the County Council, (3) a nuisance constituted by. the roadway and ditch as erected and maintained by the County Council.

The action was tried by the President of the High. Court and a jury and the findings of the jury on the questions submitted to them were as follows:—

(1) Was the defendant, Michael Lewis, guilty of negligence causing the accident? Answer: No.

(2) Were the defendants, the Laoighis County Council, guilty of negligence causing the accident? Answer: No.

(3) Was the road, containing wall and ditch, as left by the Laoighis County Council, a nuisance causing the death of the plaintiff's husband, Joseph McKenna? Answer: Yes.

(4) Assess damages. £1,062.

On these findings the learned President gave judgment

for the plaintiff for £1,062 against the County Council with costs, and for the defendant, Michael Lewis, against the plaintiff with costs; and ordered that the County Council pay to the plaintiff in addition to the plaintiff's own costs, the costs which the plaintiff is liable to pay and pays to the defendant, Michael Lewis.

The County Council have taken this appeal, in which they seek an order that such part of the verdict of the jury and the order and judgment of the President of the High Court as found for the plaintiff against them and ordered them to pay to the plaintiff the costs paid by her to Lewis be set aside, and that the action as against them be dismissed, or that there be a new trial.

The grounds of appeal, as advanced in this Court, were:—

1. That the third question should not have been left to the jury, as (a) there was no evidence of nuisance, or, alternatively, (b) the proximate cause of the accident was not the nuisance but the negligence of Lewis or some inevitable accident to the lorry which rendered it uncontrollable.

(2) That the answers to the second and third questions are inconsistent, and the trial was therefore unsatisfactory.

(3) That the answer to the first question indicated that the jury were perverse.

The section of the road upon which the accident happened had been reconstructed by the County Council in the year 1936, as it had not been wide enough to accommodate bus traffic. Prior to its reconstruction the road was approximately 10 feet wide and had a grass margin on each side. On the northern side of the road the grass margin was about 5 feet in width, and it sloped slightly from the road into a ditch which ran between it and the bank and fence which bounded the road on...