O'Reilly v Lavelle

• Jurisdiction: Ireland
• Judge: MR. JUSTICE JOHNSON
• Judgment Date: 02 April 1990
• Neutral Citation: 1990 WJSC-HC 1107
• Docket Number: [Circuit Court Appeal]
• Court: High Court
• Date: 02 April 1990

1990 WJSC-HC 1107

THE HIGH COURT ON CIRCUIT

O'REILLY v. LAVELLE

MEL O'REILLY

PLAINTIFF/APPELLANT

AND

SEAMUS LAVELLE

DEFENDANT/RESPONDENT

Citations:

ANIMALS ACT 1985 S2(i)

ANIMALS ACT 1985 S2(a)

MULLEN V QUINNSWORTH LTD UNREP SUPREME 28.2.90

BENNETT V CHEMICAL CONSTRUCTION LTD 1971 1 WLR 1571

STRAYING ANIMALS THE BURDEN OF PROOF 1988 GILS 171

SCOTT V LONDON & ST KATHERINE DOCKS CO 3 H & C 596

ANIMALS ACT 1985 S2

MCCAFFREY V LUNDY 1988 ILT 245

Synopsis:

ANIMALS

Owner

Control - Absence - Cattle - Unfenced land - Calf strayed onto highway at night - Plaintiff motorist's car damaged in collision with calf - Judgment for plaintiff - Practice - Pleadings - ~Res ipsa loquitur~ need not be pleaded - Animals Act, 1985, s. 2 - (Appeal from Circuit Court - Johnson J. - 2/4/90)

|O'Reilly v. Lavelle|

PRACTICE

Pleadings

Negligence - Plea - ~Res ipsa loquitur~ - Maxim not pleaded - Maxim applicable - Unnecessary to plead maxim - (Appeal from Circuit Court - Johnson J. - 2/4/90)

|O'Reilly v. Lavelle|

1 THE HIGH COURT ON CIRCUIT, MONAGHAN ON THE 2ND DAY OF APRIL 1990 BEFORE HIS HONOUR MR. JUSTICE JOHNSON

2 Animals — Highway — Negligence — Res Ipsa Loquitur — Burden of Proof — Animals Act, 1985(No. 11) Section 2.

Facts;

3 S. 2 (i) of the Animals Act, 1985provides 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 on to a public road, is hereby abolished.

4 S. (2) (a) Where damage is caused by an animal straying from unfenced land on to a public road, a person who placed the animal on the land shall not be regarded as having committed a breach of the duty to take care by reason only of placing it there if -

5 (i) the land is situated in an area where fencing is not customary, and

6 (ii) he has the right to place the animal on that land.

7 The Plaintiff, while driving his motor vehicle after dark collided with animals the property of the Defendant which were straying on the highway.

8 The Plaintiff in evidence stated that as he was traveling towards Castleblayney at about 50m. p.h., suddenly between 8 and 10 cattle darted across his pathway from the left side of the carriageway. The Plaintiff collided with a fresian calf which was killed and he also believed he struck another animal which continued across the highway and disappeared up a laneway, which divided the Defendants lands, as did the other cattle. The Defendant denied that his cattle were straying and that only the calf that was killed had escaped from his lands and stated in evidence that his gates and fencing were stockproof. The Plaintiff not having specifically pleaded the doctrine of Res Ipsa Loquitur in his pleadings had sought in the Circuit Court to rely on the doctrine when Counsel for the Defendant, at the end of the Plaintiffs case, successfully obtained a direction to dismiss the action in that the burden of proof had not been discharged by the Plaintiff.

9 Held by Johnson J. in allowing the Appeal

10 (1) That the Doctrine of Res Ipsa Loquitur does not have to be specifically pleaded before a Plaintiff may rely on it if the facts pleaded and the facts proved show that the doctrine is applicable to the case.

11 (2) That there was no matter more appropriate for the applications of the doctrine of Res Ipsa Loquitur than cattle wandering on the highway.

12 (3) That the Animals Act, 1985had changed the law and that cattle properly managed do not wander on the highway where there is a duty to fence, and therefore it was up to the Defendant to show that he took reasonable care of his animals.

Cases referred to in Judgment

Mullen -v- Quinnsworth Limited (Supreme Court February 1990 Unreported)

Bennett -v- Chemical Construction Limited 1971, 1WLR 1571 Article: Straying Animals the Burden of Proof. Gazette ILSI July/August 1988.

13 Sean Moylan B.L. for the Plaintiff

14 Patrick Hanratty B.L. for the Defendant

15 Johnson J. Delivered his Judgment on the 2nd ay of April 1990 saying

16 This is an Appeal from a decision of the Circuit Court held at Castleblayney in the County of Monaghan on the 24th day of October 1989.

17 This is an action taken by the Plaintiff a motorist who after dark at about 10.00p.m. on the 25th June 1987 at Tullybruck, Clontibret in the County of Monaghan collided with an animal, a fresian calf. The animal was killed and the Plaintiff's motor vehicle was severely damaged and he is claiming costs of the repairs and damages. The Defendant claims that the accident was caused by the negligence or contributory negligence of the Plaintiff.

18 On the opening of the case Counsel for the Plaintiff submitted that while he had not specifically pleaded the Doctrine of Res Ipsa Loquitur he was entitled to rely on the Doctrine provided his pleadings were adequate and that the facts proved show the Doctrine to be applicable. This was strenuously opposed by Counsel for the Defendant.

19 In my opinion the submissions made on behalf of the Plaintiff are correct and the Law on this particular point of Law has been well stated by Griffin J. in Mullen -v- Quinnsworth S.C. 1990 at Page 6 where he states

"The principle was stated as long ago as 1865 by Erle C.J., in Scott -v- London and St. Katherine Docks Co. 3 H and C596. There the Chief Justice said at Page 601"

"There must be reasonable evidence of negligence, but where 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 use proper care it affords reasonable evidence, in the absence of explanation by the Defendants, that the accident arose from want of care"

20 In the instant case the floor was under the management of the Defendants or their servants and the accident was such as in the ordinary course of things, would not happen if the floors are kept free from spillage of this nature. The onus is therefore on the Defendant to show that the accident was not due to any want of care on their part. On hearing of the appeal, the Defendants objected to the Plaintiff relying on the maxim because it was not pleaded. In my opinion, this doctrine does not have to be pleaded before a Plaintiff may rely on it. If the facts pleaded and the facts proved show that the Doctrine is applicable to the case, that is sufficient — see Bennett -v- Chemical Construction Limited 1971 IWLR 1571

21 Section 2 (i) of the Animals Act, 1985provides

22 So much of the Rules of the Common Law relating to liability for negligence as excluded 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 the animal straying on to a public road, is hereby abolished.

23 Counsel for the Plaintiff...