O’ Brien (plaintiff) v Derwin and (by order) O’ Hare (Administrator ad litem for the estate of the late Francis Derwin, Senior)

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 14 January 2009
• Neutral Citation: [2009] IEHC 2
• Court: High Court
• Docket Number: No. 14715 P/2001
• Date: 14 January 2009

[2009] IEHC 2

THE HIGH COURT

No. 14715 P/2001

O'Brien v Derwin & O'Hare

BETWEEN

JOHN O'BRIEN

PLAINTIFF

AND

FRANCIS DERWIN AND (BY ORDER) RONAN O'HARE (ADMINISTRATOR AD LITEM FOR THE ESTATE OF THE LATE FRANCIS DERWIN, SENIOR)

DEFENDANTS

MILLER v MIN OF PENSIONS 1947 2 AER 372

WAKELIN v LONDON & SOUTH WESTERN RAILWAY 1887 12 AC 41

JONES v GREAT WESTERN RAILWAY 1930 144 LT 194

ANIMALS ACT 1985 S2

SEARLE v WALLBANK 1947 AC 341

ANIMALS ACT 1985 S2(1)

O'SHEA v ANHOLD & HORSE HOLIDAY FARM LTD UNREP SUPREME 23.10.1996 1998/9/2817

O'REILLY v LAVELLE 1990 2 IR 372 1990/4/1107

MCMAHON & BINCHY LAW OF TORTS 3RD ED 2000 PARA 27.42-27.66

N (M) v M (S) 2005 4 IR 461 2005 43 9078 2005 IESC 17

REDDY v BATES 1983 IR 141

TORT

Negligence

Animals - Road traffic accident caused by wandering horses - Whether horses owned and controlled by defendants - Whether negligence in manner of keeping of horses - Burden of proof - Standard of proof - Balance of probability - Circumstantial evidence - Application of circumstantial evidence in civil cases - Duty to first consider each piece of evidence in isolation - Obligation to consider all proved pieces of evidence together - Evidence of witnesses - Hoof prints - Fencing - Identification of horse - Prior inconsistent statements - Credibility of witnesses - Assessment of damages - Medical evidence - Special damages - Whether entitlement to damages for home care or allowance for home care - Quantum - Book of Quantum - Cap on award of general damages - Skull fracture and brain injury - Loss of earnings - Uncertainties of labour market - Miller v Minister for Pensions [1947] 2 All ER 372, Wakelin v London and South Western Railway (1886) 12 App Cas 41, Jones v Great Western Railway (1930) 144 LT 194, Searle v Wallbank [1947] AC 341, O'Shea v Anhold and Horse Holiday Farm Limited (Unrep, SC, 23/10/1996), O'Reilly v Lavelle [1990] 2 IR 372 and M(N) v M(S) [2005] IESC 17, [2005] IESC 30, [2005] 4 IR 461 considered; Reddy v Bates [1983] IR 141 applied - Defendants found jointly and severally liable and damages awarded (2001/14715P - Charleton J - 14/1/2009) [2009] IEHC 2

O'Brien v Derwin

Facts: The plaintiff was seriously injured and suffered brain damage when horses collided with his motor vehicle on a motorway. The first named defendant was the owner of the lands and had been involved with the deceased second defendant in horse buying and selling. The issue arose as to whether the plaintiff could prove as a matter of probability that the horses were owned and controlled by the defendants so that the manner of the keeping of the horses had been negligent when the horses escaped onto the highway and caused the accident.

Held by Charleton J. that the defendants were each and jointly and separately liable for the injuries of the plaintiff. In all probability it appeared that the horses had been rounded up and put hurriedly away in a field. The evidence convinced the Court that the fencing was inadequate. The horses had been leaning over the fencing to eat a grass verge. The plaintiff could not now work and had been a skilled tradesman and could have been gainfully employed for the last ten years. The amount of special damages that the Court would award would be €177,394.02. Having regard to the quantum of damages as set out in the Book of Quantum with respect to general damages, the plaintiff would be awarded €160,000 in general damages also.

Reporter: E.F.

Mr. Justice Charleton

1 The plaintiff John O'Brien is a carpenter. On the 21^st October, 1998, he drove in his van from his home, midway between Athlone and Moate, to Athlone. There, he picked up his son Dominic from his work at the MSL factory and drove back on the N6 roadway in the direction of Moate. The evening was damp, though it was not pouring rain. Nothing is to be inferred in this case from the timings, but it is as well to record that since his son left the factory after a shift that ended at 8.00pm, that they were probably in the vicinity of the landfill site operated by Westmeath County Council beside the N6 somewhat around 8.15pm. The evening was then particularly dark. John O'Brien had no memory of the accident that then happened. His son Dominic, however, described it. He remembers a very dark night and that both he and his father were wearing seatbelts. As this is a good straight road, now less used because of the opening of the M6 motorway, they were travelling quite fast, though not excessively. They were about 7 kilometres from Athlone. Suddenly, he saw horses pass by on his father's side of the road. He said "horses". Before there was any time to react there was a bang. The windscreen came in, a huge impact. There was an awful smell. There was another impact and their vehicle halted by colliding with a concrete fence post. Both he and his father were covered in blood. He tried to take his father's hand, but it came away. As it turned out, this was a lump of horse flesh. There was an injured horse beside the road and a dead one in the middle of it. The plaintiff's son called an ambulance for his father. He was brought to Portiuncula hospital. He was seriously injured having suffered brain damage in the collision.

2 The first named defendant is the owner of lands adjoining the N6 which are situated a little under 1.5 kilometres from the scene of the accident. The second named defendant, now deceased, is his father. At all material times they were both involved in horse buying and selling. About 20 to 40 horses were kept by them on the land of the first named defendant beside the N6, and in other places other members of the family had further land and kept further horses. The second named defendant also owned land in nearby places, where horses were kept. He is now dead and is represented in this action, pursuant to a court order, by a solicitor. The second named defendant played no part in defending these proceedings. Among the land that he owned or used was a property within about two kilometres of the accident site on the N6 off that roadway and down a side road in an area called Glen Wood.

3 Both defendants deny that they had anything to do with the collision between the plaintiff and the horses on the N6 roadway. The issue in this case is whether the plaintiff has proved as a probability that the horses were owned and controlled by one, or other, or both of them and that the manner of the keeping of the horses by the defendants was negligent so that they escaped onto the highway, thereby causing the accident.

4 This case is to be decided on the balance of probabilities. Various cases have been cited by counsel. From these, I am satisfied that there are only two standards of proof that are applicable in judicial determinations. The beyond reasonable doubt standard is that which the prosecution is required to meet in criminal cases. The probability standard is that which applies in civil cases. I note, as well, from the judgments that have been cited, that is important for this Court not to glibly reach a conclusion that may involve a determination of serious wrongdoing against a defendant. To this end, during the hearing of this case, I visited and walked all of the locations that are relevant to this judgment.

5 InMiller v. Minister of Pensions [1947] 2 All E.R. 372, Denning J. said this about the standard of proof in civil cases:-

"…[T]he degree of cogency…required to discharge a burden in a civil case…is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the Tribunal can say: 'we think it is more probable than not' the burden is discharged, but, if the probabilities are equal, it is not."

6 Where the circumstances of the case are such that the available evidence is so scanty as to render it impossible to reach a definite conclusion one way or the other, the party to suffer from this state of affairs must be the one on whom the general burden of proof lies, namely the plaintiff;Wakelin v. London and South Western Railway (1886) 12 App. CAS. 41 and see Jones v. Great Western Railway (1930) 144 L.T. 194.

7 Section 2 of the Animals Act1985, reversed the rule in Searle v. Wallbank [1947] A.C. 341. This gave immunity from negligence principles where damage is caused by animals that strayed onto the highway. The 1985 Act provides at s. 2(1):-

"So much of the rules of the common law relating to liability for negligence as excludes or restricts the duty with 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 on the public road is hereby abolished."

8 An exception arises where a roadway runs through an area where fencing is not customary, as in commonage. It does not apply here. InO'Shea v. Anhold and Horse Holiday Farm Limited (Unreported, Supreme Court, 23^rd October, 1996) it was held to be self evident that a horse will not normally escape from its pasture and onto the public highway if the gates are closed and the fencing is maintained in an adequate condition. In O'Reilly v. Lavelle [1990] 2 I.R. 372, Johnson J. held that where cattle trespass on the roadway a plaintiff is entitled to rely on the doctrine of res ipsa loquitur, meaning that the facts themselves imply negligence, stating:-

"Cattle properly managed should not wander on the road and therefore the burden of proof in this case shifts to the defendant to show that he took reasonable care of his animals. I believe that there is no matter more appropriate for the application of the doctrine ofres ipsa loquitur than cattle wandering on the highway."

9 I take judicial notice of the fact that cattle are required by law to wear ear tags and that the identification of their ownership is thereby rendered easy. Horses are not so easily...