Merriman v Greenhills Foods Ltd

JudgeBLAYNEY J.,Mr Justice Francis D Murphy
Judgment Date01 January 1997
Neutral Citation1996 WJSC-SC 4202
Docket Number[S.C. Nos. 3 & 4 of 1990]
CourtSupreme Court
Date01 January 1997

1996 WJSC-SC 4202


O'Flaherty J.

Blayney J.

Murphy J.



Third Party







Vehicle - Maintenance - Standard - Accident - Driver - Injury - Offside front spring - Fracture of upper leaf of spring - Steering mechanism of vehicle uncontrollable - Vehicle swerved off road into ditch - Failure of defendant employer to establish that vehicle had been properly maintained - Evidential rule that ~res ipsa loquitur~ available to plaintiff - Plaintiff employee's appeal allowed - (3,4/90 - Supreme Court - 28/6/96) [1996] 3 IR 73 - [1997] 1 ILRM 46

|Merriman v. Greenhills Foods Ltd.|


JUDGMENT delivered on the 28th June 1996by BLAYNEY J. [O'FLAHERTY CONC]


This is an appeal by the plaintiff/appellant (to whom I shall refer as the appellant) against the dismiss of his action for damages for personal injuries sustained in an accident which occurred on the 24th September 1985.


At the time of the accident the appellant was employed by the defendant/respondent (to whom I shall refer as the respondent) as a truck driver. On the day the accident occurred he was driving one of the respondent's trucks between Ballybofey and Donegal town. As the appellant was coming out of Ballybofey he heard a noise in the truck which he described as a clunk, a noise of metal, heavy metal clunk. He stopped the truck and went around all four wheels and could not see anything wrong. He then drove on and after he had gone about five miles the truck suddenly turned straight off the road to the right-hand side and ran into the adjoining bog. In the impact theappellant suffered a fractured wrist and damage to the muscles and ligaments of his neck.


In the course of his judgment the learned trial judge made the following findings of fact in regard to what caused the accident:-

"There was an examination of the truck by Mr. Kirwan (the engineer). It appears from his evidence that one of the leaves of the off side front spring fractured. He says that after a fracture, the leaf could separate. I accept the plaintiff's account of what happened and therefore that the fracture of the leaf spring occurred before the impact (into the ditch). Mr. Horan (the metallurgist) could find no evidence of a pre-existing defect in the leaf. What happened was consistent with the driving of the truck for some time after the fracture. "


The learned trial judge then went on to give his reasons for dismissing the action:-

"There is no evidence of a defect in the truck. I am satisfied that the accident occurred because of a fracture after a single incident. With regard to the evidence about the shackle pin, I am satisfied that the shackle pin did not contribute to the accident. The maintenance of the truck was of a reasonable standard. I am dismissing this claim. The principle of "res ipsa loquitur" does notapply."


In his notice of appeal the appellant claims that the learned trial judge misdirected himself in law and fact in a number of different respects in dismissing the action and he seeks an order finding that the respondent is liable to the appellant in negligence and an order remitting the matter to the High Court for the assessment of the damages to which in that event the appellant would be entitled.


The principal ground relied upon by the appellant in his notice of appeal, and in the argument before this Court, is that the learned trial judge was mistaken in holding that the doctrine of res ipsaloquitur did not apply. It was submitted that the principle did apply because the truck was under the management of the respondent and the accident was one which would not happen in the ordinary course of events if proper care were taken.


On behalf of the respondent Mr. Hedigan submitted that the principle did not apply because there was an explanation as to how the accident occurred: it had been shown by the evidence of the appellant's witnesses that the cause of the accident was the breaking of the top leaf of the off side front spring. He further submitted that, as there was no explanation of why the leaf fractured, it would be unfair to put on the respondent the burden of explaining the inexplicable.


For the reasons which I will now elaborate, it seems to me that the appellant's submission on this issue is correct. Once there was no evidence, as was the case, that there was any negligence on the part ofthe appellant which caused or contributed to the accident, the position then was, and was found by the learned trial judge so to be, that the cause of the accident was the breaking of the top leaf of the off side front spring. But the respondent has not provided any explanation as to why this happened. In view of this, it seems to me that the case comes within the much cited principle set out in the judgment of the Court of Exchequer Chamber in Scott v. London and St. Katherine, Docks Company (1865) 3 HC 596:-

"There must be reasonable evidence of negligence, but, when the thing is shown to be under the management of the defendant, or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management of the machinery used proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want ofcare."


Mr. Hedigan submitted that the principle did not apply because the respondent had provided an explanation for the accident. I am unable to agree. The explanation proffered did not go far enough. It did not explain why the leaf of the spring broke. And in this respect the case is distinguishable from Barkway v. South Wales Transport Company Limited 1950 1 All E.R. p. 392 on which Mr. Hedigan relied. The facts there were that the plaintiff's husband had been killed while a passenger in the defendant's bus. The off side front tyre of the bus had burst and as a result the bus had veered across the road and fallen over an embankment. The expert evidence established that the cause of the bursting of the tyre was an impact fracture due to one or more heavy blows on the outside of the tyre leading to the disintegration of the inner parts. It was held by the House of Lords that as the evidence had established the cause of the accident, res ipsaloquitur did not apply. Lord Porter, after citing the passage from Scott v. St. Katherine Docks Company, to which I have just referred, said in his opinion at p. 394:-

"The doctrine is dependent on the absence of explanation, and, although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one when the facts speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not.""


And Lord Normand said in his opinion at p. 399:-

"The fact that an omnibus leaves the roadway and so causes injury to a passenger or to someone on the pavement is evidence relevant to infer that the injury was caused by the negligence of the owner, so that, if nothing more were proved, it would be a sufficient foundation for a finding of liability against him. It can rarely happen when a road accident occurs, that there is no other evidence, and, if the cause of the accident is proved, the maxim res ipsa loquitur is of little moment. The question then comes to be whether the owner has performed a duty of care incumbent on him, or whether he is by reason of his negligence responsible for the injury. The maxim is no more than a rule of evidence affecting onus. It is based on commonsense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant. "


In the instant case the facts bearing on causation and on the care exercised by the respondent are unknown to the appellant and are or ought to be known to the respondent. All that the appellant knows is that the leaf of the spring broke. He does not know why it broke and he does not know what care the respondent exercised in the maintenance and servicing of the truck. I am satisfied that to enablejustice to be done doctrine should be applied so as to throw the onus on the respondent to prove that they were not negligent.


Mr. Hedigan submitted that it was unfair to ask the respondent to explain the inexplicable. But it is not entirely correct that they are being asked to do this in the sense that if they are unable to give an explanation they will be held liable. If the respondent is unable to provide an explanation, it does not follow that they would be held liable. It will always be open to them to prove that they had taken all reasonable care in ensuring that the truck which they provided for the appellant would be safe, and accordingly that they were not negligent. But, if in fact they are in a position to give an explanation as to why the leaf of the spring broke, provided this explanation is consistent with their not having been negligent, they would also avoid liability. But, if they are unable to provide an explanation, it does not followthat they must be held to be liable, and so there is no unfairness on calling on them to provide one.


At the trial in the High Court the respondents were not called upon to offer any explanation. When the appellant's evidence had concluded, the respondents applied for a direction. This was refused by the learned trial...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT