Rogers v Motor Insurers' Bureau of Ireland

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan
• Judgment Date: 31 March 2009
• Neutral Citation: [2009] IESC 30
• Court: Supreme Court
• Date: 31 March 2009

[2009] IESC 30

THE SUPREME COURT

Geoghegan J.

Finnegan J.

Clarke J.

APPEAL NO. 239/2004

Rogers v Motor Insurers' Bureau of Ireland (MIBI)

BETWEEN

PATRICK ROGERS

PLAINTIFF/RESPONDENT

and

THE MOTOR INSURERS' BUREAU OF IRELAND

DEFENDANT/APPELLANT

RSC O.58 r1

HAY v O'GRADY 1992 IR 210

PEOPLE, DPP v MADDEN 1977 IR 336 1977 111 ILTR 117

ROYAL BANK OF IRELAND v O'ROURKE 1962 IR 159 1963 97 ILTR 112

M (J) & M (G) v BORD UCHTALA 1987 IR 522 1988 ILRM 203 1987/7/1876

MOTOR INSURERS BUREAU OF IRELAND AGREEMENT 1988 CLAUSE 6

ROTHWELL v MOTOR INSURERS BUREAU OF IRELAND 2003 1 IR 268 2003 1 ILRM 521 2003/46/11196

HANRAHAN v MERCK SHARPE & DOHME (IRL) LTD 1988 ILRM 629 1988/5/1234

COSGROVE v RYAN & ELECTRICITY SUPPLY BOARD UNREP SUPREME 14.2.2008 2008 IESC 2

Abstract:

Tort - Negligence - Personal injuries - Liability - Motor Insurer’s Bureau of Ireland - Whether onus of proof on plaintiff to prove that injuries due to negligent driving of motor vehicle when MIBI defendant - Whether plaintiff proving that injuries sustained as result of negligent driving of motor vehicle.

Practice and procedure - Appeal - Nature of appeal to Supreme Court - Principles to be applied - Inferences drawn from primary findings of fact.

Facts: the plaintiff was awarded damages by the High Court for personal injuries which he alleged had been due to being struck by an unidentified motor vehicle. The evidence before the High Court was that the plaintiff was drunk at the relevant time and that his injuries were equally likely to have been caused by being struck by a motor vehicle or merely falling over on the pavement. There was an absence of any injuries to the plaintiff below the neck, which in the opinion of two doctors, was indicative of the absence of a collision with a motor vehicle. There was no forensic evidence of any collision between him and a motor vehicle. The defendant appealed the finding of liability to the Supreme Court.

Held by the Supreme Court (Finnegan J; Geoghegan and Clarke JJ concurring) in allowing the appeal, 1, that appeals to the Supreme Court were by way of re-hearing pursuant to Order 58, rule 1 of the Rules of the Superior Courts 1986 and the role of the appellate court was in as good a position as the trial court to draw inferences of fact.

2. That negligence in driving was a condition precedent to a finding of liability on the part of the Motor Insurer’s Bureau of Ireland and the onus of proof on a plaintiff to prove:

(a) that he sustained his injuries as a result of being struck by a motor vehicle the owner or user of which was unidentified or untraced; and

(b) that the owner was negligent;

did not shift unless the act or default complained of was peculiarly within the range of the Bureau’s capacity of proof.

3. That, to find for the plaintiff, the court of trial had to be satisfied on the evidence that a particular fact or state of affairs was more likely to have occurred than not. If it was not so satisfied it had to find that the burden had not been discharged. If at the conclusion of the evidence, the probabilities were equal then the required standard of proof had not been achieved. There was no burden on the defendant to prove a negative except where the doctrine of res ipsa loquitor applied. The medical or other evidence did not support the trial court’s inference that a motor vehicle accident was more likely than a fall as the cause of the plaintiff’s injuries.

Reporter: P.C.

1 Judgment of Mr Justice Finnegan delivered on the 31st day of March 2009

2 The respondent issued a plenary summons on the 21 ^st October 1998 claiming damages for personal injury, loss and damage sustained by him owing to the negligence and breach of duty of a driver of a motor vehicle who remains unidentified and untraced. The action was heard over five days commencing on the 21 ^st October 2003. The learned trial judge delivered judgment on the 5 ^th December 2003 in which he held for the respondent and awarded him damages as follows:-

Pain and suffering to-date	€72,000
Pain and suffering in the future	€40,000
Agreed special damages	€8,700
	€120,700

3 The respondent was awarded the costs of the action when taxed and ascertained. The appellant appeals the finding of the learned trial judge on liability.

The evidence

4 The respondent gave evidence that he was born on the 4 ^th November 1945. At the relevant time he was employed in the Landscape and Public Gardens Section of Dundalk UDC and had been so employed for the previous twenty years. His work involved the planting and maintenance of grass areas and flower beds and in that capacity he had been involved in laying out and planting flower beds and shrubbery on the Newry Road leading from Dundalk including a flower bed in front of the Maxol service station. His home was at Dowdall's Hill which is situate north of the Maxol service station and off the opposite side of the road. On the 26 ^th May 1996 he walked to the Listoo Arms licensed premises which did not necessitate him crossing the Newry Road. He arrived at 8.45 p.m. and remained there until 9.30 p.m. during which time he drank two pints of Guinness. He met Ms Rose Waters by arrangement and they went together to Harry Duffy's Bar which is on the opposite side of a continuation of the Newry Road, that is on the same side as the Maxol service station, at a distance of six hundred yards to the south of the Maxol service station. There was a party in Harry Duffy's because the bar was closing down. He had some cocktail sausages and sandwiches and had five or at most six further pints of Guinness. Normally on a night out he would have five to six pints of Guinness. Ms Waters left the bar around midnight and he remained on until 1.30 a.m. He walked along the footpath of the same side and towards the Maxol service station. The footpath on that side of the road is intermittently separated from the carriageway by a grass verge or planted area. At the service station the forecourt of the service station joins directly onto the footpath and between the footpath and the carriageway there is a planted area enclosed in part within a kerb and in another part by a slightly higher wall some eighteen inches in height. He recalled passing the Listoo Arms where he greeted Mr Hackett, but at that point his memory ceased and his next memory was waking up in hospital. He regained some memory later: as he was passing the forecourt of the Maxol service station he saw "lights coming flying at me and I couldn't get out of the way". This was a car which came from the north and into the Maxol service station. It was a long time after the accident before he recalled the lights of a car coming towards him, approximately three years. He gave this account to Dr Séan Murphy on the 6 ^th October 1999 and to Mr Jack Phillips on the 14 ^th October 2000. He still has no recollection of events after seeing the lights. He also gave this account to Dr Maguire. In his confused state shortly after the injury and while in hospital he did give accounts of having been struck by a small green sand lorry owned by " Phillips" and by a red van.

5 In cross-examination the respondent said that he had nothing whatsoever to drink in the hour and a half that he remained in Harry Duffy's Bar after Ms Waters left. He was initially uncertain how far he had progressed towards home when he saw the car, but three or four years after the event he remembered that he was at the Maxol service station. He agreed that in September 1996 he informed his surgeon Ursula Mulcahy that he had absolutely no recollection of what happened to him and that his last memory was of being in Harry Duffy's pub. On the 3 ^rd November 2001 he saw his neurosurgeon Mr Pigeon who recorded that the respondent had no recollection of the events. The respondent was satisfied that he was not drunk.

6 Rose Waters gave evidence. Normally on a night out the respondent would have five pints. She had never seen him affected badly by drink. He was never stone drunk and always able to look after himself. She attended at the Louth Hospital shortly after he was taken there by ambulance. He was later taken to Beaumont Hospital and she saw him after he came out from surgery. She visited him again two days later and a conversation took place. Evidence of the same was allowed by the learned trial judge as evidence of what the respondent said but not as to the truth of what he said. The respondent told her that "he got a bat". In cross-examination she agreed that at some point on the evening in question the respondent had got sick and that his face was black. His shoes were covered in mud and there was mud on his trousers. He was not in that condition when she left him.

7 The respondent's sister Ms Betty Rogers gave evidence. They lived together in the family home. She had never seen him come home incapable from the effects of drink. On the morning of the 27 ^th May 1996 she found him lying on his back at the back door of the family home at approximately 11.30 a.m. He was unconscious. There was no sign of injury. She arranged for the ambulance to take him to the Louth Hospital. While he was in Beaumont Hospital he told her that he got "a bat of a small sand truck". He was still confused at the time. In cross-examination she said that her belief was that he had fallen at the back door. She recovered his clothes from Beaumont Hospital and they included his wallet with money and his watch and it was clear that he had not been robbed.

8 Harry Duffy gave evidence. He confirmed that the respondent was at the closing-down party of his licensed premises. He remembered the respondent partaking of cocktail sausages and sandwiches. He let the respondent out from the licensed premises at about 2 a.m. or 2.10 a.m. He had...