Wade v Connolly

• Jurisdiction: Ireland
• Judge: KENNYJ.:,O'HIGGINS C.J.
• Judgment Date: 21 January 1977
• Neutral Citation: 1977 WJSC-SC 1419
• Date: 21 January 1977
• Docket Number: (97/104-1976)
• Court: Supreme Court

1977 WJSC-SC 1419

THE SUPREME COURT

O'Higgins C.J.

Kenny J.

Parke J.

(97/104-1976)

WADE v. CONNOLLY

BAR

WADE

v.

CONNOLLY

REVERSING HIGH-21.5.76

1 JUDGMENT delivered the 21st day of January 1977by O'HIGGINS C.J.

2 On the night of January 21st 1973 the late Jonathan Wade while travelling on his motor-cycle along Monastery Road, Clondalkin, fell therefrom on the roadway and was run into and killed by a motor vehicle owned and driven by the Defendant. His fall from the motor-cycle occurred immediately opposite the entrance to premises owned by the South of Ireland Asphalt Company (hereinafter referred to as the Third Party) and used by them for the purpose of their business. The roadway where he fell and the entrance to the Third Party's premises immediately beside it was broken into several pot-holes and was in addition covered by ice. Proceedings were taken in the High Court by the Plaintiff, as the widow of the late Jonathan Wade, against the Defendant claiming damages by reason of his death. These proceedings were compromised between the parties on terms whichrecognised that the late Jonathan Wade had been guilty of a degree of contributory negligence and the settlement having been approved by the High Court no question arises in relation thereto. The Defendant had under the provisions of the Civil Liability Act 1961issued against the Third Party a claim for a contribution and following the settlement of the Plaintiff's claim the Defendant's claim for a contribution was heard by Mr. Justice Murnaghan sitting without a jury. Mr. Justice Murnaghan having decided that the Defendant was not entitled to claim a contribution from the Third Party an appeal has been brought by the Defendant to this Court against this decision. The Defendant claims to be entitled to a contribution from the Third Party under the Provisions of Section 21(1) of the Civil Liability Act 1961. This Section provides as follows in subsection (1):-

3 "Subject to the provisions of this Part, a concurrent wrongdoer (for this purpose called the claimant) may recover contribution from any other wrongdoer who is, or would if sued at the time of the wrong have been, liable in respect of the same damage (for this purposecalled the contributor), so, however, that no person shall be entitled to recover contribution under this Part from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought."

4 Applying this subsection to this case and to the Defendant's claim against the Third Party involves a consideration of whether the Third Party can be said to be "liable in respect of the same damage" in the same way as the Defendant was liable. The "damage" here is the loss of the life of the late Jonathan Wade and "liable" means, in the circumstances, legally liable to the Plaintiff. Is the Third Party liable in respect of this death in the same manner as the Defendant was? Put in another way the question is whether the Plaintiff, conceding contributory negligence on the part of her husband, could succeed, in an action brought against the Third Party alone, in recovering damages for his death reduced only on account of his contributory negligence. Had the Plaintiff taken such an action because, let us suppose, the identity of the motorist who had collided with her husband had never been discovered,could such an action succeed? The answer to this question must be considered in the light of the evidence adduced before the learned trial Judge and the facts as found by him on such evidence. Let us examine these facts.

5 It appears that the Third Party's premises in Monastery Road, Clondalkin, were situated on the left hand side as one travelled from the Naas Road towards Clondalkin. This was the direction in which the Plaintiff's husband was travelling. These premises were approached from the roadway by an entrance some 50 yards wide which narrowed to a gate-way set some distance back from the road. The Third Party's business entailed the constant use of large lorries both laden and unladen which travelled to and from these premises over this entrance and the roadway immediately thereby. As a result of this traffic of heavy lorries portion of this entrance and the immediately adjoining roadway was damaged in such a manner that a line of pot-holes appeared on the Dublin or Naas Road side of the entrance to the Third Party's premises. These pot-holes or breaks hadappeared on numerous occasions prior to the fatality and in wet weather became filled with rain water which was splashed around by the wheels of passing vehicles. On the night of the accident rain water so splashed had by reason of a heavy frost turned into ice and an icy patch from 1 ft. to 2 ft. in width extended from the edge of the entrance out on to the roadway in the immediate vicinity of this line of pot-holes. The position therefore was that on the night of the accident anyone travelling on this road towards Clondalkin would be using a road which in the vicinity of the Third Party's premises was broken along its left edge into a line of seven pot-holes and which was also at this place covered in a sheet of ice from one to two feet in width extending out on to the roadway. It appears from the evidence that some of the pot-holes were ice covered while others contained broken ice. In this condition it seems obvious that this portion of this road was unsafe and dangerous in certain circumstances. Perhaps not to a motorist, perhaps not in daylight but very probably so to a cyclist, whether pedal or motor who travelled thereon atnight-time not observing either the holes or the ice. It seems reasonably foreseeable that such a cyclist could very easily over-balance or fall if a wheel of his bicycle skidded on the ice or entered one of the holes. In his very careful analysis of the evidence this is what the learned trial Judge found had happened to the Plaintiff's husband. He found that he was caused to over-balance and to fall on to the roadway as a result of coming in contact with this danger on the road. His finding in this respect is amply supported both by the evidence of the three Gardal officers in the patrol car which was stationary opposite the scene of the accident and by the condition of the roadway and the proper inference to be drawn therefrom. While so on the roadway and while occupied in picking himself up and recovering his bicycle the Plaintiff's husband was driven into and killed by the Defendant's vehicle which approached him from the same direction as he had travelled. The learned trial Judge rejected, as he was fully entitled to do, the Defendant's explanation of his failure to avoid colliding withthe deceased as being due to his vehicle skidding on the icy patch on the roadway. The learned Judge concluded that the Defendant was not keeping a proper look-out and that he failed to see the deceased ahead of him on the road when he ought to have done. On his findings, which I of course accept, the collision between the Defendant's vehicle and the deceased was not due to the condition of the roadway but to the Defendant's own negligence.

6 These facts as found by the learned trial Judge seem to me to establish negligence both on the part of the deceased, which was not in issue, and on the part of the Defendant in the absence of which in either case there would have been no fatality and no damage. These facts also establish that despite the existence of this negligence in the case of either or both there would have been no fatality and no damage had the roadway not been dangerous and had the deceased not been caused thereby to fall from his bicycle.

7 It is on these facts that the question of the Third Party's possible liability to the Plaintiffought to be considered. The Defendant in his Statement of Claim against the Third Party alleged a liability both in nuisance and in negligence. It seems to me appropriate that the question should be considered under each of these headings.

8 It has been said that actionable nuisance is incapable of exact definition. The term nuisance contemplates an act or omission which amounts to an unreasonable interference with, disturbance of or annoyance to another person in the exercise of his rights. If the rights so interfered with belong to the person as a member of the public the act or omission is a public nuisance. If these rights relate to the ownership or occupation of land, or of some easement, profit or other right enjoyed in connection with land, then the acts or omissions amount to a private nuisance. In this case we are concerned with the allegation that the Third Party was guilty of causing a public nuisance. The Third Party used heavy lorries for the purpose of its business which travelled laden and unladen, to and from its premises, over the junction of theentrance with the roadway. This in itself was a lawful exercise of the Third Party's right to carry on its business and to use for that purpose lorries of its own choosing. What the Third Party did however resulted in damage to the roadway upon which these lorries travelled at the point where the entrance joined the public road on the Dublin side of their premises. At this point it was clear that the lorries used either because of their weight or their number could not be supported by the road surface. The result was that breaks and holes appeared, not rarely but on numerous occasions. Was the Third Party entitled to carry on regardless of the damage so caused merely because of its proprietary rights? The maxim "sic utere tuo ut alienum non laedas" expresses the view that people should have regard to the rights and conveniences of others in the way they use what is theirs. While it may lack preciseness it has here a sufficient application to prescribe a limit to what it was permissible for the Third Party to do in pursuance of its ligitimate business interests. In my...