Moore (an Infant) v Fullerton

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,O'Flaherty, J.,[HEDERMAN CONC]
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-SC 2762
• Court: Supreme Court
• Date: 01 January 1991

1990 WJSC-SC 2762

THE SUPREME COURT

Finlay C.J.

Hederman J.

O'Flaherty J.

59/89

MOORE v. FULLERTON

IVAN WILLIAM MOORE, AN INFANT

Planitiff

and

JOHN FULLERTON

Defendant

Citations:

MCDONNELL V CIE 89 ILTR 181

Synopsis:

NEGLIGENCE

Motorist

Pedestrian - Injury - Schoolboy - Lorry - Boy darted onto road from behind lorry - Busy street - Accident opposite entrance to cattle mart - Boy's action dismissed - (59/89 - Supreme Court - 7/11/90) - [1991] ILRM 29 - [1991] I.L.T. 128

|Moore v. Fullerton|

1 JUDGMENT delivered on the 7th day of November 1990by FINLAY C.J. [HEDERMAN CONC]

2 This is an appeal brought by the Plaintiff against the Order of the High Court dated the 27th January 1989, made by Costello J. dismissing the Plaintiff's claim for damages for personal injuries arising from a road traffic accident. The trial of the Plaintiff's action was had before Costello J. sitting without a jury, and at the conclusion of all the evidence, having refused anapplication for a direction at the conclusion of the Plaintiff's evidence, the learned trial Judge held that no evidence of negligence against the Defendant had been established. It is against that decision that this appeal was taken.

3 The grounds of appeal were as follows:

4 2 "1. That the learned trial Judge misdirected himself on the evidence and in law in holding that there was no negligence on the part of the Defendant herein.

5 2. That the learned trial Judge erred in law and on the evidence in failing to consider the question of an apportionment of liability as between the Plaintiff and the Defendant."

6 In the submissions made to this Court on the appeal, these two grounds were interpreted and put in the following manner:

7 (a) It was firstly submitted by Counsel on behalf of the Appellant that the learned trial Judge should have preferred the Plaintiff's version of the accident as distinct from accepting, as he did, theDefendant'sversion of the accident. Secondly, it was submitted that even if the learned trial Judge was entitled, as he undoubtedly did, to accept the Defendant's version of the accident, that in all the circumstances surrounding the place where the accident happened and the traffic being experienced at the time of the accident that on the Defendant's own version of the accident he was negligent.

8 The conflict between the Plaintiff's version of the accident and that given by the Defendant was so clearly a conflict of primary fact that this particular ground of appeal was not seriously pursued in the course of the argument before this Court. The main submission, therefore, remaining to be made was to the effect that even though the learned trial Judge accepted the Defendant's version of the accident he should have concluded that on that version the Defendant was guilty of negligence which to some extent contributed to the happening of thisaccident.

The facts

9 The accident occurred during the daytime, at around 3 p.m. on a fine day on the 22nd October 1985 in the village of Burnfoot in County Donegal. The collision which occurred was between the infant Plaintiff who was at the time of the accident approximately nine and a half years of age, and a motor lorry the property of and being driven by the Defendant. As a result of the accident the Plaintiff suffered very severe injuries indeed, necessitating the amputation of his right leg.

10 The collision occurred on a perfectly straight stretch of road, the available highway of which measured approximately 24 feet. It occurred upon the day of a holding of a sheep mart in the village of Burnfoot, and happened almost exactly opposite the entrance to that mart. The general evidence was that there was a considerable amount of traffic on the occasion and that parked vehicles consisting of trucks and motor cars andtrailers, were extensively placed on the road surface, on both sides, for most of the area concerned. The centre of the roadway was apparently marked by a broken white line.

11 The Plaintiff's version of the accident was that having crossed the street from where the mart was being held he was returning, crossing an area on which cars were parked on both sides of the street. He came out between two cars and a white lorry was coming out towards the middle of the road from the mart, turning to his (the Plaintiff's) left. He could not see anything coming from his left by reason of the lorry. There was nothing coming from his right, and he walked out. As that lorry turned around he just saw a lorry coming towards him and it hit him. He was then standing in the centre of the road and when he saw the other lorry which he reckoned to be about 10 feet or so away he turned to his left to face it and he froze and it then struck him.

12 The Defendant's version of the accident may thus be summarised. He was travelling from the Plaintiff's left and came into the village travelling at about 23 or 24 miles per hour in a large, laden lorry. As he approached the entrance to the mart he observed the white lorry crossing the road and slowed down further to a speed of about 12 to 14 miles per hour. Just as the white lorry had straightened out, coming towards him on the opposite side of the road he described what happened at follows:

"As I came on down into Burnfoot a lorry came out of the mart, on the left-hand side across the road. He was turning towards Derry, and as he turned towards Derry, I was passing him out and the wee fella came running out and ran into the side of my lorry, and just as I saw the wee fella running out I put on the brakes."

Judgment of the trial Judge

13 The learned trial Judge in the course of his judgment, with regard to the issue of liability, stated as follows:

"My judgment must depend on the view I take of Mr. Fullerton's evidence in so far as it is corroborated by other evidence corroborating it, and the evidence of the Plaintiff himself on the other hand. I found Mr. Fullerton to be a very impressive witness indeed. It can happen that when an accident happens very quickly the driver of a vehicle can be under the impression that a pedestrian who suddenly appears before him was in fact running. I don't think that this was this case. I think Mr. Fullerton saw the little boy running and that his evidence is corroborated by Mr. McGeehan who also saw him running. The fact that Mr. McGeehan thinks there were two boys does not necessarily mean he is wrong in that, because there may have been another boy there too. The important point is that Mr. Fullerton impressed me as being an accurate witness. I think it is fully understandable why the little boy's recollection is not accurate: he sufered a very great trauma and must have been thinking of this accident ever since, and no doubt has persuaded himself ithappened in the way he now recalls it. As I have said, Mr. Fullerton's evidence is borne out by Mr. McGeehan, and also corroborated by the Garda evidence in that it shows the position of his lorry on the road, and shows he was on his correct side at all times. It is corroborated further by Dr. Woods who showed the speed as being from the tachograph chart as that which was given in evidence by Mr. Fullerton. So in the light of these findings there is no evidence of negligent driving on Mr. Fullerton's part, so I must dismiss the case."

14 As already indicated, the evidence given by Mr. Fullerton, confirmed by Dr. Woods" examination of the tachograph chart, was that the lorry at some distance from the scene of the accident was travelling at about 23 or 24 miles per hour, and that it had slowed down to 12 or 14 miles per hour immediately before the brakes were applied. The evidence of the sergeant of the Garda Siochana who investigated the accident was that the width of the lorry was 7 feet 9 inches, and the length was 50 feet 3 inches, and that it was slightlyinclined to the left from the rear to the front, and was on its own left-hand side of the centre marking on the road. The infant Plaintiff was found by him immediately behind the tyres at the rear of the cab...