Murray v Millar and Brady
| Jurisdiction | Ireland |
| Judgment Date | 14 November 2001 |
| Date | 14 November 2001 |
| Court | Circuit Court |
THE CIRCUIT COURT
Tort - Personal injuries - Novus actus interveniens - Causation - Duty of care - Agriculture - Litigation - Negligence - Damages - Whether negligence proved - Whether third defendant liable for accident to plaintiff by reason of novus actus interveniens - Whether act of third defendant broke chain of causation - Animals Act, 1985.
Facts: The plaintiff had been involved in an accident whilst driving a motor vehicle. The plaintiff had hit a cow owned by the first and second defendants which had strayed on to the road. The first and second defendants claimed that the third defendant, who had initially hit the cow, was negligent in that he had gone for help after colliding with cow and in the meantime the plaintiff had also collided with the cow. The first and second defendants claimed that the third’s defendant action was a novus actus interveniens which shifted liability for the plaintiff’s accident away from them and on to the third defendant.
Held by Judge McMahon in finding that the first and second defendants were entirely responsible for the damages suffered by the plaintiff. The conduct of the third defendant did not possess such defective qualities as would wrest responsibility entirely from the original perpetrators. The conduct of the intervenor was not so unreasonable as to hijack the causative aspect of the second collision. The straying animal was the sole cause of the plaintiff’s accident.
Judgment delivered by His Honour Judge Bryan McMahon, delivered on the 14th November, 2001, at Roscommon.
Introduction.
On the 14th January 2000, the plaintiff was driving on the main road from Roscommon to Lanesboro when he struck a black cow on the road. These proceedings are taken by the plaintiff against the owner of the animal and her husband (the first and second defendants) and against the third defendant, who had already collided with the animal some minutes prior to the plaintiffs accident, but had left the scene to summon help.
The Facts.
Mr Paul Brady, an employee of the Department of Agriculture, and the third defendant was driving home on the evening in question when he was suddenly confronted by a black pedigree Aengus cow which jumped out in front of his car from his left hand side of the road. Mr Brady immediately braked, but failed to avoid a collision. After hitting the cow,
he pulled into his own side of the road, turned his lights to dims, put on his hazard lights and went back to see what he had hit.
In his evidence, Mr Brady said that he saw the animal lying on the grass margin off the road and, as he saw no movement from the animal, he concluded that she was dead. Aware of the hazard that this represented, Mr Brady attempted to flag down the passing cars. Unfortunately, good Samaritans were not much in evidence on that evening, and at least six to eight cars passed without stopping. Naturally, Mr. Brady became concerned as the traffic was increasing and the evening was getting darker. Eventually, a small car pulled up and, with some trepidation, an elderly lady rolled down the window. Mr Brady enquired if she would phone the Gardai, but she said that she did not have a mobile phone. It became clear that the lady was somewhat reluctant to become involved, and Mr. Brady did not want to insist since she was somewhat apprehensive. She did indicate, however, that there was a house some three to four hundred yards further up the road from which Mr Brady could make a call. She then drove off.
Mr Brady then found himself in a predicament. Having waited for a further period he decided that he would leave the scene and drive up to the house to phone for help. He considered this to be the best course of action in the circumstances. When he returned some 10 minutes later, having made the phone call to the Garda station, he learned that the plaintiff Mr Murray had also collided with the animal while he was away. Mr.Brady was a credible witness and I accept in general his version of events. In one respect, however, Mr.Brady was in error: when he concluded that the cow was dead after his collision he was mistaken. The plaintiff gave evidence, which I also believe, that when he collided with the animal some short time after the first collision, the animal was some way out on the roadway. Further, the Garda who was called to the scene testified that when he arrived, immediately after the second collision, the cow was some way out on the road and still alive. The Garda had to send for a vet to have the animal put down. On the balance of probabilities, on this issue, I find that the cow moved forward onto the roadway when Mr.Brady left the scene to summon help.
The evidence of the plaintiff was that as he was driving on a familiar road, at approximately5.37pm on the 14th January 2000, (shortly after the initial impact), his vehicle suddenly collided with an object which protruded onto the road. The left side of his car jumped up in the air and it continued for some distance before the plaintiff succeeded in stopping. The road, up to that point, is relatively wide and clear on both sides, but as one
approaches the locus of the accident the road narrows and becomes over-arched with trees, making it dark and shadowy. There is no hard shoulder on either side of the carriage way, and the grass margin on the left of the plaintiff measures approximately three feet. The plaintiff said that he was driving at approximately 60 miles an hour up to that time, but as he entered this part he began to slow to 50 miles per hour and dipped his lights for an oncoming car. It was then that he hit something, low to the left hand side of his car .The plaintiff said that he had just got out of the car and had walked back when the Garda came on the scene. The Garda, who had been out patrolling in the squad-car, was responding to an earlier call from the Garda station. Some minutes later, Mr Brady the third defendant returned to the scene to find that a further collision had taken place in his absence.
The first named defendant Marven Miller gave evidence to the effect that his wife owned the dead cow and that the animal was kept in a field which Mr Miller rented for a number of years, and which at the time, held only two animals. Mr Miller said that he never had any previous trouble with the fencing of the field and that he used to keep horses there at one time, but not at the time of this incident. The field in which the animals were kept does not immediately adjoin the road, but is one field further back from the highway. Mr Miller admitted that since the animal ended up on the road, she must have broken out from his field into his neighbour’s field and then onto the road. Mr Miller gave no evidence that his field was stock-proof. Neither did he offer any photographic evidence of the fences, nor did he offer any engineering evidence. He was of the understanding, however, that the field was very safe and that the animal was in a secure holding.
The Law.
At common law there was immunity from liability for damage caused by animals that strayed on the highway. This immunity was expressly abolished by the Animals Act, 1985. Specifically, section 2 of the Act declares that “so much of the rules of the common law relating to liability for negligence as excludes or restricts the duty which a person might owe to others to take such care as is reasonable to see that damage is not caused by an animal straying onto a public road, is hereby abolished.”
The effect of this statutory provision is that reasonable care must now be taken to ensure that animals do not stray onto the highway and cause damage thereon. This normally translates into an obligation to ensure that the land is stock proofed and that the fencing is
sufficient to prevent animals from breaking out. Moreover, in relation to proof, the case law indicates that the onus of proof, that the land was properly fenced, is now on the landowner or the owner of the animal who seeks to evade liability. InO'Reilly v. Lavelle [1990] 2 IR 372 and again in O' Shea v. Anhold and Horse Holiday Farm Ltd.(unreported, Supreme Court, 23rd October, 1996) the courts in this jurisdiction have clearly accepted that the principle of res ipsa loquiturapplies to these situations. Accordingly, in cases such as the present, to escape liability, the first and second defendants must provide the evidence to show that they took reasonable care in the management of the land to ensure that the fencing was secure. As already mentioned, the first and second defendants in this case tendered no significant evidence in this regard, and on this ground, I have little hesitation in holding them liable for the damage which their straying animal caused to the plaintiff.
Recognising this to be the position, counsel for the first and second defendants advanced more vigorously another argument, namely, that the subsequent conduct of the third defendant was such that it relieved them of any liability they may have had for their...
To continue reading
Request your trial