Rothwell v The Motor Insurers Bureau of Ireland

• Jurisdiction: Ireland
• Judge: [NEM DISS],Mr. Justice Hardiman
• Judgment Date: 24 February 2003
• Neutral Citation: [2003] IESC 16
• Date: 24 February 2003
• Docket Number: [S.C. No. 252 of 2001]
• Court: Supreme Court

ROTHWELL v. MOTOR INSURERS BUREAU OF IRELAND (MIBI)

LIAM ROTHWELL

Plaintiff

and

THE MOTOR INSURERS BUREAU OF IRELAND

Defendant

[2003] IESC 16

252/01

THE SUPREME COURT

Synopsis:

- [2003] 1 IR IR 268 - [2003] 1 ILRM 521

The trial judge held that the most likely and probable cause of the fuel spillage which caused the plaintiff's accident was a truck or lorry on which the cap or cover of the fuel tank was either missing, defective or not properly fitted. The trial judge then held that that could occur with or without negligence on the part of the driver but that it did not amount to an inference of negligence on the basis of res ipsa loquitur. However, in the absence of an explanation by the defendant he found in favour of the plaintiff.

Held by the Supreme Court (Murray, Hardiman, Geoghegan JJ) in allowing the appeal: That negligence in the driving of the unknown vehicle by the untraced driver was a condition precedent to the liability of the defendant. However, the plaintiff failed to prove negligence and the onus of proof in that regard had not shifted to the defendant.

Reporter: L.O'S.

Citations:

MOTOR INSURERS BUREAU OF IRELAND (MIBI) AGREEMENT CLAUSE 6

ROAD TRAFFIC ACT 1961

ROAD TRAFFIC ACT 1968

ROAD TRAFFIC (AMDT) ACT 1978

ROAD TRAFFIC (AMDT) ACT 1984

ROAD TRAFFIC ACT 1994

ROAD TRAFFIC ACT 1995

ROAD TRAFFIC ACT 2002

BYRNE V BOADLE 1863 2 H & C 722

SCOTT V LONDON & ST KATHERINE DOCKS CO 1865 3 HC 596

HANRAHAN V MERCK SHARP & DOHME 1998 ILRM 629

WHITE V MIB 2001 2 CMLR 1

EC DIR 84/5

1 JUDGMENT of Mr. Justice Hardimandelivered the 24thday of February,2003. [NEM DISS]

2 On the 6 ^thNovember, 1995 the plaintiff was involved in an accident while driving his BMW motorcar on the public road near a place called Daly's Cross, Co. Limerick. He says the accident was caused by a spillage of oil on to the road which made it slippy and caused him to lose control over his car, leave the correct carriageway, and strike an oncoming vehicle. The specific cause of the accident was pleaded as follows in the Statement of Claim:-

"...A vehicle the owner and/or user of which remains unidentified and/or untraced was driven on the public highway at or near Daly's Cross in the County of Limerick in such a manner that oil was caused to leak and/or to spill on to the carriageway giving rise to a dangerous and slippery surface".

3 On that basis, it is alleged:-

"The said collision and the plaintiff's said personal injuries loss damage and expense were caused as a result of the negligence and breach of duty including breach of statutory duty of the owner and/or user of the aforementioned vehicle (which said owner and/or user remain unidentified and/or untraced)".

4 The defendant has sued pursuant to the provisions of an agreement dated the 21 ^stDecember, 1998 and made between the Minister for theEnvironment on the one part and the defendant on the other( "The MIBI Agreement").

The evidence.

5 The relevant evidence is that of Garda Laing who came to the scene of the accident and of an engineer, Mr. Buckley.

6 Garda Laing said that he attended the scene and found both vehicles stationery on the plaintiff's incorrect side. He saw that there was oil on the roadway, on the left hand carriageway as one goes towards Armagh. He said that this oil was a slick about 50ft long. It had a tinge of "red and bluey colour of oil on the roadway, maybe diesel oil.... it wasn't motor oil anyhow". He said he noticed no smell from the substance and concluded that "it wasn't petrol". He could not say whether it was a non motor oil. He did not check as to whether there was any other oil spilled beyond the 50ft length of the slick he observed. He agreed that it might have spread to some limited extent through "the flow of the land orwhatever".

7 The engineer, Mr. Buckley, said he was a consulting automotive engineer and assessor and was an associate of the Institute of Automobile Engineer Assessors. He was retained by the Plaintiff on the opening dayof the trial to listen to the evidence and to use his expertise in relation to motor vehicles and how they operate for the assistance of the Court. He was asked to assume that the substance on the road was petrol or diesel. He recalled that the substance was blue and red, which he said indicated that the substance had been mixed with water. He was categorical that the substance was not engine oil, in which case it would be black. He said his enquiries had given him dimensions of about 50ft by 10ft for the slick on the road. He said this did not assist quantifying the quantity of oil involved because a small amount of oil once mixed with water would spread over the dimensions in question. He said "....Piecing this together, you are probably talking in the region of a couple of pints of oil, rather than largequantities".

8 On the assumption that there was no oil other than the slick in the location he believed "We are talking about a single spill". He believed the source of the spill to be a lorry or truck because "in a car you have got a long nozzle going down to a lower tank so you don't get spills out of that...". In a "lorry diesel tank" on the other hand "there is no neck of any significance in these tanks and they would carry anything up to 100 gallons of diesel". He then said:-

"To get a single spill of fluid, it is potentially possible, I think if the diesel cap were left off with the slushing of the vehicle going onthe road, you would get a spill. Why would you get a single spill then, as against a continuous spill? Well it would be a sudden movement of the vehicle or an acceleration or braking which would cause the movement of fuel. You may not get that in any other point on the road, you may have to brake at that point for some particular reason and it can spillout".

9 He then agreed that the tank would require to be quite full for this to happen and, more significantly, that it would be necessary for the cap to be left off. He agreed that this hypothesis would not occur if the correct cap were fitted and was on properly. Accordingly, he said:-

"So it would have to be a couple of things like: incorrect cap, which fell off, the correct cap that was not put on properly or the correct cap that was taken unknown to the driver".

10 He was then asked "That happens?" and relied "Yes. So that would be on that scenario". He went on to discuss, and to effectively dismiss, the possibility of a leak from the hoses of an oil tanker. He concluded:-

"So I would suggest the probability is a spill from a diesel tank would be the most likely explanation.... everything else seems to give you a longer spread or a greater quantity and the vehicle having to be stopped".

11 In cross-examination he agreed that it was common for fuel depot staff to fill the tank and put the top back on. He agreed that that might be hard for the driver to observe - it would appear to be on but it might not be on fully. He said that the question of whether this would give rise to a single leak or spills or a number of them would "all depend on the severity of the acceleration and the amount of fuel in the tank at the time. Also the gradient of the road". There were, he agreed, a lot of imponderables.

12 In further cross-examination he agreed that there were a number of other industrial compounds capable of accounting for the slick, including "other industrial petroleum products that might not be used for driving vehicles". He said that kerosene would be another thing that would give you the same effect. Kerosene would, in being transported on the road, be in a bulk tank container. His evidence, however, assumed that the substance was petrol or diesel.

13 He agreed that if tanker were stopped for some time in a particular place there might be a drip from it. These drips could accumulate and their movement then would depend on the gradient. This hypothesis required not only a leak, but the tanker to be stopped and he wondered why it would stop at that particular point. This, he said "has tobeconsidered, it is just thrown into the pot". He also agreed that a spill might happen if somebody was trying to pour fuel into a vehicle which had run out of it, without a funnel.

High Court Findings.

14 The learned High Court judge held as follows in relation to the source of the oil:-

"While the origin of this spillage is unknown, I have had the benefit of evidence from Mr. Edmund Buckley, a motor assessor and I accept his evidence as being expert evidence on the topic. I accept his evidence that the spillage itself was probably quite small, being limited to a couple of pints, and that, because it was an isolated patch of oil, it is most unlikely that it was caused by any form of leakage, for example, from an oil tanker. As the whole basis of the plaintiff's claim is that the spillage was caused by a person and a vehicle unknown, I can only make a finding on the balance of probabilities of the evidence before me. I think the most likely and probable cause of this spillage was a truck or lorry on which the cap or cover of the fuel tank was either missing, defective or not properly fitted. In such circumstances, particularly if the cap were missing and the tank was reasonably full, a spillagesuch as this could easily take place if there was a sudden movement by the vehicle, such as a sudden braking".

15 The learned trial judge then held that that state of fact could occur either with or without negligence on the part of the driver of the...