Sinnott v Quinnsworth Ltd

• Jurisdiction: Ireland
• Judge: McCARTHY J.,O'HIGGINS C.J.
• Judgment Date: 29 June 1984
• Neutral Citation: 1984 WJSC-SC 1719
• Court: Supreme Court
• Date: 29 June 1984

SINNOTT v QUINNSWORTH

SINNOTT

v.

QUINNSWORTH, CORAS IOMPAIR EIREANN and EDWARDDURNING

1984 WJSC-SC 1719

O'Higgins C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

245, 252 & 257/83 & 10/84

THE SUPREME COURT

Subject Headings:

DAMAGES: assessment; indemnity; jury; issues

NEGLIGENCE: motorist

1 JUDGMENT delivered on the 29th day of June 1984by O'HIGGINS C.J. [HENCHY J. GRIFFIN J & HEDERMAN J CONCURRING]

2 The Plaintiff in these proceedings was a passenger in a motor vehicle owned by the first-named Defendant (Quinnsworth) and driven by the third-named Defendant (Durning) who is an employee of Quinnsworth. The Plaintiff was a trainee manager and was also employed by Quinnsworth. At the time of the accident he was being driven to assist at the opening of a new Quinnsworth store. The car in which he was a passenger was in collision with a bus the property of the second-named Defendants (CIE). As a result of the collision the Plaintiff sustained very serious injuries. In these proceedings he has sued all three Defendants for damages and has been awarded against the three Defendants a total of£1,484,591.72. From this award, each of theDefendants have appealed both as to the findings of liability in which each is involved and as to the amount of damages awarded. Each Defendant has also appealed against the jury's apportionment of only 2 per cent in respect of the contributory negligence which was found against thePlaintiff.

3 The accident occurred on a bend on the road between New Ross and Enniscorthy. At the point at which it occurred, the road was 20 feet wide and there was a continuous white line down what was approximately its centre. The bus was travelling in the direction of Enniscorthy and for it the bend was a right-hand one. The car involved in the collision was a Fiat, and it was being driven in the opposite direction. For it the bend was a left-hand one. After the accident the bus was in on a low stone ditch on its left-hand side, facing Enniscorthy, with a clearance of 3¼ feet between its right-hand side and the continuous white line. The Fiat was also facing Enniscorthy and was on its correctside - it had turned completely around as a result of the impact. Both drivers gave conflicting accounts of what had happened. Edward Durning, the third-named Defendant and the driver of the Fiat car, said that, as he was driving at about 40 miles per hour around the left-hand bend, he was suddenly confronted by the bus on his side of the road and the collision occurred. He denied that he had any responsibility for the accident and put the entire blame on the bus driver. Patrick Malone, the bus driver, had a different story to tell. According to his evidence the bus approaching the bend was being driven at about 25 miles per hour, some 2 feet in from the continuous white line, on its correct side of the road. At this point the Fiat car came around the bend at a very fast speed, crossed over the white line and crashed into the bus. Mr. Malone said that, on seeing the approach of the Fiat, he applied his brakes and was almost stopped at the moment of collision. Following the collision the bus rolled on into the ditch on its left-hand side. The Plaintiff, who was a passenger inthe Fiat car, had no recollection of the accident. This was, of course, due to the injuries which he sustained. Apart from garda evidence as to the post-accident measurements and damage, there was no other evidence as to the occurrence of the accident. The position was, therefore, that, at the conclusion of the trial, the jury were faced with two conflicting and contradictory accounts of how the accident occurred. These two accounts involved each driver attributing the complete blame for the collision to the other for precisely the same reason - crossing the white line to the incorrect side of the road. In such circumstances one would expect that the jury would have determined responsibility for the accident by deciding which of the drivers they believed, and in so doing, determining which driver was on his correct side.

4 Faced with this conflict of evidence the Judge originally intended to put the issue to the jury by asking them to decide, in relation to each driver, whether he had crossed the white line or was driving on his incorrect side of the road. Unfortunately, followinga discussion at the Bar, the Judge decided to add a further question in relation to each driver. This question was whether he was driving as close as practicable to the left-hand side of the road. A question to this effect appeared on the issue paper with the word "practicable" used in relation to Edward Durning and the word "possible" used in relation to the CIE driver. Questions on liability so framed must have had the effect of inviting the jury to conclude that although one driver had driven his vehicle across the white line and so collided with the other vehicle, the driver of that other vehicle, although driving on his correct side of the road at the time of the accident, could also have been responsible if he was not as close as practicable or possible to his left-hand side. An invitation to impute fault to either driver on this basis was not, in my view, justified by the evidence. In particular, I note that no suggestion had been made in the course of the trial to either driver that, assuming he was on his correct side at the time of the collision, he was neverthelessat fault by failing to drive or keep as close as practicable or possible to his left-hand side. The clash and conflict at the trial was concerned, and solely concerned, with the issue as to which driver was driving at the time of the collision, on his correct side. To suggest to a jury, by a question to that effect, or, otherwise, that a driver of a vehicle on the roadway has at all times general duty to drive as close as practicable or possible to his left side is to mislead.

5 I do not overlook the fact that there may be circumstances, as envisaged by the Road Traffic General Bye-laws, when a driver is obliged to drive clsoe to the left-hand side of the roadway. Such circumstances are referred to in Regulation 17 of Part III of these bye-laws (S.I. 294 of 1964). In my view, this Regulation had no application in the circumstances of this case and, of course, imposes no general duty on a driver to drive at all times as close as practicalbe to his left-handside.

6 In the result the jury answered the questions put to them by the Judge to the effect that Edward Durning,the driver of the Fiat, was negligent in crossing the white line in the centre of the road and in failing to keep as close as practicable to his left-hand side. As to Patrick Malone, the driver of the bus, the jury held that he was not driving on his incorrect side of the road but was negligent in failing to drive as close as possible to his left-hand side. The jury, further, apportioned responsibility for the collision as to 78 per cent on Edward Durning and 20 per cent on the bus driver. It follows from these findings that the jury determined the conflict of evidence which was before them in favour of the bus driver and that, if the issue of negligence were confined to the determination of this conflict, they must necessarily have adjudged that Edward Durning was solely responsible for the collision.

7 As parties to this appeal, CIE, in their notice of appeal, have questioned the jury's findings on fault in the following terms:

"That the finding of the jury that the second-named Defendant was at fault to the degree of 20 per cent or at all, was perverse andagainstthe weight of the evidence, and inconsistent with the replies given by the jury in relation to the questions 1(a) and 2 (a) on the issue paperherein."

8 The reply to question 1(a) was the finding that Edward Durning had crossed the white line, and the reply to question 2(a) was the finding that the bus driver had not driven on his incorrect side of the road. Counsel for CIE submit that in reality this ground of appeal calls in question the leaving of a question as to the bus driver's failing to drive as close as possible to his left-hand side and, of course, the jury's finding thereon. While this ground of appeal could have been couched in clearer language, I am of the opinion that this submission is correct and that this ground of appeal does put in issue the leaving of this question. It is, therefore, on this basis that I propose to consider this ground of appeal.

9 I may say at once, having regard to the matters which I have already mentioned, that there should be no difficulty in these Appellants succeeding on this ground.There should not be, but there is. This difficulty arises from the conduct of the trial in so far as these Appellants are concerned. I have read with care the portions of the transcript which deal with the discussion between the Judge and the Bar as to the questions which he contemplated putting to the jury. It is apparent from this discussion that the disputed questions were proposed by the Judge and no objection to his proposal was raised by Counsel for any of the Appellants. In such circumstances, the Judge was entitled to conclude that the questions, as suggested by him, were being put to the jury with the consent of all parties. The Judge's charge, which followed the questions which he left to the jury, opened up the possibility of a finding of joint negligence on the part of both drivers, even if the jury found one of these drivers to have been on his correct side. Again, no objection was taken to the Judge's charge in this respect. Normally, in such circumstances, this Court would not interfere, but would conclude that all parties remain bound by the manner in which they contrived oragreed that particular issues be decided by a jury. This certainly should always be the rule where alternative issues on the evidence may go to the jury or where there may be alternative ways of...