Judgment Title: Doyle v Banville
Neutral Citation:  IESC 25
Supreme Court Record Number: 181/09
High Court Record Number: 2003 7618P
Date of Delivery: 01/05/2012
Court: Supreme Court
Composition of Court: Denham C.J., McKechnie J., Clarke, J
Judgment by: Clarke J.
Status of Judgment: Approved
Outcome: Allow And Set Aside
THE SUPREME COURT
[Appeal No: 181/2009]
Judgment of Mr. Justice Clarke delivered the 1st May, 2012.
1.2 On the 14th October, 2000 the plaintiff/appellant ("Mr. Doyle") was involved in a most unfortunate accident at the village of Kilrane in Co. Wexford as a result of which he has been rendered a paraplegic. While the defendant is named in these proceedings as Catherine Banville, as a result of unhappy circumstances relating to her marriage, she is now known as Catherine O'Rourke (her name before marriage) and I therefore propose referring to her as Ms. O'Rourke.
1.3 The broad outline of the events which led to the unfortunate accident are not in dispute. On the day in question Mr. Doyle was travelling on his 100cc motorcycle behind Ms. O'Rourke's motor car as they both approached the village of Kilrane from the same direction. In the centre of the village there is a slightly staggered cross junction. At some point either a little before or just at that junction an incident occurred which led Mr. Doyle to cross onto his wrong side of the road and come into collision with a car travelling in the opposite direction which was driven by a Ms. Caroline Doyle and had in it as a passenger a Ms. Helen Power, a sister of Caroline Doyle. As the result of the incident Mr. Doyle suffered the significant injuries to which I have referred.
1.4 While it will be necessary to refer in somewhat more detail to the evidence in due course, in broad terms the competing accounts of the accident contended for on behalf of the parties were as follows. Mr. Doyle asserted that, as Ms. O'Rourke was virtually at the junction in question, she braked hard having, apparently it was suggested, made a last minute decision to turn to the left. On Mr. Doyle's case it was that manoeuvre by Ms. O'Rourke which caused him to lose control and cross onto the wrong side of the road thus leading to his impact with the oncoming car. On Ms. O'Rourke's case Mr. Doyle was simply travelling behind her as she approached the junction. She asserted that she indicated to turn left some 100 metres from the junction and slowed down through the gears to enable her to execute that turn. On her case Mr. Doyle simply emerged from behind her car as she was engaged in executing the turn. Against that background it is clear that the case turned on an analysis of events that occurred in a split second.
1.5 The case went to trial on a modular basis with liability being tried first. The trial judge (Lavan J.) came to the view that no negligence had been established against Ms. O'Rourke and, in so doing, largely based his findings on credibility. Against that decision Mr. Doyle appeals to this Court. Before dealing with the precise issues which arise on this appeal it is, perhaps, appropriate to address the general principles by reference to which this Court should analyse the determination of the Court below in a case such as this and indeed the manner in which a trial court should address the issues which arise in such cases. While there was only a limited difference between counsel on this question same was, nonetheless, the subject of some discussion during the hearing.
2. The Law – General Principles
2.1 The starting point for any consideration of the law in this area has to be the decision of this Court in Hay v. O'Grady  1 I.R. 210, where the judgment of the Court was given by McCarthy J. Placing reliance on the fact that an appellate court does not have the benefit of seeing and hearing witnesses or observing the manner in which evidence was given or the demeanour of those giving it, McCarthy J. came to the view that, if findings of fact made by a trial judge were supported by credible evidence, this Court was bound by them however voluminous and weighty any contrary evidence might seem. It is clear, therefore, that it is no function of an appellate court such as this to re-weigh the balancing exercise which any trial judge is required to do when sitting without a jury for the purposes of determining the facts. I do not understand either party to suggest that this Court should depart, in any way, from the principles outlined in Hay v. O'Grady.
2.2 It does need to be recalled that the context in which the issues which came to be decided in Hay v. O'Grady were before the Supreme Court was the then recent abolition of jury trials in most personal injury actions brought about by s.1 of the Courts Act, 1988. There was a well established jurisprudence as to the circumstances in which it was possible for an appellate court to review and, if appropriate, overturn, what amounted to factual decisions by juries. This Court, in Hay v. O'Grady, was concerned with whether there had been any change to that position brought about by the move to trial by judge sitting alone. As noted by McCarthy J. the established jurisprudence in respect of jury trials was that issues of fact and the inferences to be drawn from the facts as found should not be disturbed by this Court if there was evidence to support such findings and inferences. The position, in respect of a trial by a judge alone, deriving from Hay v. O'Grady is somewhat different in that it is clear that this Court may, at least in certain circumstances, be in a position to review an inference of fact drawn by a trial judge (at least where such inference does not depend on oral evidence or recollection of fact and where the trial judge had an opportunity to assess the relevant witness(es)). It is also important to note that McCarthy J., at p.218, emphasised the importance of a clear statement by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows.
2.3 In addition it does need to be said that there are other consequences of the move to trial by judge alone. Any party to any litigation is entitled to a sufficient ruling or judgment so as to enable that party to know why the party concerned won or lost. Where a jury decides facts, an appellate court will only have the submissions and evidence of the parties, the judge's direction and the answers given by the jury to the questions submitted to them, to go on. Where a judge decides the facts there will be a judgment or ruling whether orally given immediately after the trial, or in writing after a period. To that end it is important that the judgment engages with the key elements of the case made by both sides and explains why one or other side is preferred. Where, as here, a case turns on very minute questions of fact as to the precise way in which the accident in question occurred, then clearly the judgment must analyse the case made for the competing versions of those facts and come to a reasoned conclusion as to why one version of those facts is to be preferred. The obligation of the trial judge, as identified by McCarthy J. in Hay v. O'Grady, to set out conclusions of fact in clear terms needs to be seen against that background.
2.4 In saying that, however, it does need to be emphasised that the obligation of the trial judge is to analyse the broad case made on both sides. To borrow a phrase from a different area of jurisprudence it is no function of this Court (nor is it appropriate for parties appealing to this Court) to engage in a rummaging through the undergrowth of the evidence tendered or arguments made in the trial court to find some tangential piece of evidence or argument which, it might be argued, was not adequately addressed in the court's ruling. The obligation of the court is simply to address, in whatever terms may be appropriate on the facts and issues of the case in question, the competing arguments of both sides.
2.5 In addition there may be cases where the court has nothing more to go on but the demeanour of the witnesses and where there will be little more to be said than that the court found one set of witnesses as being more credible than another. However where, as in a case such as this, there are factors surrounding the accident in question on which the parties lay emphasis for their argument as to which of two competing accounts should be accepted, then the court must, of course, address at least the broad drift of the argument on both sides so that the parties may know why the court came to its conclusions.
2.6 Sometimes the points made may concern reasons why a particular witness or witnesses are not to be treated as credible either because of an assertion that the witness is not being truthful or simply because it is said that the witness is mistaken. In many cases, and this again is one, there may be expert engineering evidence tendered which may, to a greater or lesser extent, dependant on the facts of the case, prove to be of assistance in attempting to reconstruct the circumstances in which the accident occurred. Sometimes there may be significant forensic findings which, when coupled with expert engineering evidence, lead to a clear picture from which the court can readily ascertain the likely sequence of events leading to the accident in question. On other occasions, and this case falls into this bracket, it is more likely that the expert evidence has to be seen in conjunction with eye witness accounts and may, in that context, be of some assistance to the court in assessing the likelihood of such eyewitness accounts being correct. The extent to which the trial court is influenced by the credibility of eye witness accounts, forensic evidence or expert engineering evidence is largely a matter for the trial judge in the assessment of that evidence. The trial judge should, however, address the main arguments put forward by the competing parties as to how the relevant accident actually occurred by reference to such evidence of the categories to which I have referred as the parties choose to place reliance on.
2.7 Finally, before moving on to the specific issues which arise in this appeal, it is also important to note that part of the function of an appellate court is to ascertain whether there may have been significant and material error(s) in the way in which the trial judge reached a conclusion as to the facts. It is important to distinguish between a case where there is such an error, on the one hand, and a case where the trial judge simply was called on to prefer one piece of evidence to another and does so for a stated and credible reason. In the latter case it is no function of this Court to seek to second guess the trial judge's view.
2.8 I have addressed these general principles largely because there was something of a debate between counsel as to the proper approach of this Court in analysing the way in which the trial judge reached his conclusions in this case. Having made those general observations I propose to turn to the grounds of appeal put forward on behalf of Mr. Doyle.
3. The Grounds of Appeal
(ii) The trial judge erred in law in attaching weight to the opinion of An Garda Síochána
(iii) The trial judge erred in law in failing to weigh the conflicting evidence and reach a conclusion thereon
(iv) The trial judge erred in law in failing to address the inconsistencies between the statement provided by the defendant to An Garda Síochána and the evidence which she gave in court
(v) The trial judge erred in law in failing to consider the extent of which even if he accepted the defendant's account the defendant had been negligent and in breach of duty
(vi) The trial judge erred in law in failing to draw an inference from the failure of the defendant/respondent to adduce expert evidence
3.3 In oral argument and without abandoning any of the points made in the written submissions, counsel on behalf of Mr. Doyle concentrated on three points. The first was the point concerning the reliance placed by the trial judge on the absence of an early complaint. The second point was the suggestion that the trial judge had failed to properly weigh up the conflicting evidence and reach a conclusion thereon. The third point was, perhaps, a particular aspect of the second, in which attention was drawn to what was said to be an inconsistency in the judgment of the trial judges in apparently accepting both the evidence of Ms. Doyle and also the evidence of an independent bystander being a Mr. Pierce Walsh when, it was argued, there was an important difference between the accounts given by both of those witnesses.
3.4 It seems to me that counsel was correct in emphasising those issues. Insofar as the other issues are concerned the question concerning what was said to have been the attaching of weight by the trial judge to the opinion of An Garda Síochána does not seem to me to be a proper interpretation of the trial judge's judgment. The trial judge heard evidence from the garda in question to the effect that, at all material times, the gardaí did not regard Ms. O'Rourke as anything other than a witness. However, no statements were made to An Garda Síochána at or around the time of the accident from which it might be inferred that Ms. O'Rourke was at fault. In circumstances to which I will return Mr. Doyle did not make a statement at any time. The position of An Garda Síochána is, therefore, in truth, directly linked to the point raised on behalf of Mr. Doyle concerning the trial judge's comments on the absence of an early complaint and it is more appropriate to deal with it under that heading.
3.5 Insofar as it was said that the trial judge failed to address what was said to be inconsistencies between the statement provided by Ms. O'Rourke to An Garda Síochána and the evidence which she gave in court, it seems to me that that argument was really part of the general complaint made on behalf of Mr. Doyle to the effect that the trial judge is said to have failed to adequately weigh up the conflicting evidence and reach a conclusion. While there may be cases where an inference can be drawn from a failure to call evidence of fact (see for example Doran v. Cosgrove & anor (unreported, Supreme Court, 12th November, 1999, Keane J.)), it is not clear that an equivalent inference can properly be drawn from a failure to call expert evidence. Of course, if a defendant fails to lead contradictory expert testimony to that led by a plaintiff, the court will proceed on the basis that the plaintiff's expert view went uncontradicted. However, in the light of the concessions made by the engineer called on behalf of Mr. Doyle under cross-examination, it does not seem to me that the failure of Ms. O'Rourke to call her own expert evidence is of any relevance in this case. For reasons which I hope will become obvious I propose dealing with the general point concerning the weighing up of the evidence first.
4. Was there a failure on the part of the trial judge to weigh up the conflicting evidence?
4.1 As pointed out earlier in this judgment a trial judge in a case such as this is required to form an overall view as to how the accident in question occurred by weighing up all relevant evidence be it eye witness, forensic or expert. The fact that the trial judge does not address each and every possible point that might have been canvassed, however tangentially, in the course of the evidence or argument is not a legitimate basis for maintaining an appeal in this Court. It must be recalled that most traffic accidents occur in a split second against the background of the fact that many of those who may either be involved in, or observe, the incident will have had no prior warning.
4.2 All courts are familiar with the fact that motorists responding to an emerging incident have a reaction time before the effects of any decision as to how to deal with the incident is put into effect. But it is equally true that persons whose attention is drawn to a sudden event, by noticing an incident, also have a reaction time before they can properly concentrate, and thus accurately recollect, the events as they unfold. As an illustration it is worth noting that the broad evidence in this case suggests that, as both Mr. Doyle and Ms. O'Rourke approached the village, they were travelling at approximately 25 mph which equates to 36 ft. per second. Thus vehicles at that speed would travel 20 feet in just over half a second. Attempting to place emphasis on a minute analysis of precisely where various vehicles were at the time when eye witnesses now recall having first noticed them is undoubtedly a factor which either party is entitled to explore. However, such question may ultimately be a matter which the trial judge legitimately considers to be of only limited assistance most especially in respect of witnesses who are not directly involved in the relevant accident or who have no particular reason to anticipate any form of incident and thus direct their concentrated attention on the events.
4.3 With the exception of one point to which I will shortly turn it does not seem to me that any of the issues raised on behalf of Mr. Doyle under this general heading amount to a legitimate criticism of the way in which the trial judge analysed the facts of the case. The one point which does require further analysis is the specific ground, urged in oral argument, to which reference has already been made, and which concerns an alleged inconsistency in the trial judge's conclusions. I, therefore, turn to that point.
5. Was there an inconsistency in the Trial Judge's conclusions?
5.1 In order to understand this point it is necessary to restate some of the evidence at the trial and to set out why that evidence might be considered important to the trial judge's conclusions. As already pointed out the competing accounts of the accident involved an assertion on the part of Mr. Doyle that, while he might have to bear some responsibility for being too close to Ms. O'Rourke's car, nonetheless the primary cause of the accident was the sudden braking by Ms. O'Rourke as she was in or just at the junction. Given that there was no credible suggestion of any reason, other than a belated decision to turn left, as to why Ms. O'Rourke might have braked suddenly, it follows that Mr. Doyle's account is really only consistent with the incident concerned starting at, or at a minimum very close to, the left hand turn which Ms. O'Rourke ultimately executed. A possible problem with that theory of how the accident occurred stemmed from the location where Mr. Doyle on the ground and Ms. Doyle's car ultimately ended up after the accident. All of the evidence suggested that the finishing point of Ms. Doyle's car together with Mr. Doyle as he lay on the ground and indeed his motor cycle from which he had become detached, was at a point opposite a gate which is to be found on Ms. Doyle's side of the road but which is, on any view, some distance before the left hand turn which Ms. O'Rourke intended to execute (viewed from the perspective of both Mr. Doyle and Ms. O'Rourke as they approached the junction). Ms. Doyle gave evidence which suggested that Ms. Doyle's car had stopped, or virtually stopped, prior to impact so that Mr. Doyle would have slid into Ms. Doyle's car at more or less the point where all ended up post-accident. If that was so then it would be difficult to see how whatever incident led to Mr. Doyle going on to the wrong side of the road could have occurred at or in the immediate vicinity of the left hand turn which Ms. O'Rourke intended to take. On the contrary the incident would necessarily have occurred some way short of the junction so as to allow Mr. Doyle to come off his motor cycle, travel across the road into Ms. Doyle's oncoming and virtually stopped car and still be at a point where he had not reached the junction itself.
5.2 It does also need to be noted that the case was somewhat complicated in its conduct by the fact that it proved necessary to accommodate witnesses somewhat out of the turn in which they might normally have been expected to have been called. That is no criticism of any of the parties or the trial judge for all were simply trying to deal with legitimate personal difficulties which the witnesses concerned encountered. In that context it is appropriate to note that Mr. Pierce Walsh gave evidence very late in the day and introduced, for the first time, (and indeed after Mr. Doyle's engineer had finished his evidence) the possibility that Mr. Doyle may have been dragged along the roadway for some 20 to 30 feet by Ms. Doyle's car before it came to a halt. If that evidence were to be accepted it would provide a possible explanation as to how Mr. Doyle could have ended up where he did notwithstanding the incident which led to his coming off his motor cycle happening at or in close proximity to the relevant junction. The trial judge did not, of course, have to accept Mr. Walsh's evidence. Indeed Mr. Walsh was cross-examined on the basis that his recollection was not correct and that there were inconsistencies between the account which he gave in evidence and a statement which he had made to An Garda Síochána at the time of the accident.
5.3 However, it is clear that there was a significant difference between the evidence of Mr. Walsh and that of Ms. Doyle on what turns out to be an important aspect of the case being whether Ms. Doyle's car was largely stationary by the time Mr. Doyle slid into it, or whether it was still moving to the extent that Mr. Doyle was dragged back in the direction from which he had come for some 20 to 30 feet. For the reasons which I have sought to analyse that distinction was an important one. Unfortunately, the trial judge, in the course of his ruling, stated in terms (in respect of the evidence of both Ms. Doyle and Mr. Walsh) that they were "too important and independent witnesses in this case and I accept their evidence in full". Given that the two witnesses had differed on a point that was of some significant moment in the case, there can be little doubt that the trial judge was in error in accepting the evidence of both in full. For the reasons which I have already analysed that was not a mere tangential error but one which related to a point of some significance in the case. It does also need to be noted that the trial judge did find that Ms. Doyle "did not drag the plaintiff any distance". It might be said that that finding indicates that the trial judge did, in reality, accept the evidence of Ms. Doyle and reject the evidence of Mr. Walsh on the point in question. However, the problem remains that that finding too is inconsistent with the acceptance by the trial judge of Mr. Walsh's evidence. When all issues of fact in cases such as this were determined by juries it was not, of course, open to this Court to analyse the precise reasoning by which a jury came to its conclusions of fact. The situation is now different. While there are, as I have set out, limitations on the extent to which it is appropriate for this Court to seek to second guess the view which a trial judge takes of the evidence on the facts, nonetheless where there is a clear error in respect of an important fact which has the potential to materially effect the result of the case, this Court can and should intervene. That there was an error on this point was not disputed by counsel on behalf of Ms. O'Rourke.
5.4 However, it was said by counsel on behalf of Ms. O'Rourke that the trial judge had, when Mr. Walsh was under cross-examination, appeared to be unhappy with suggestions being made by counsel to the effect that Mr. Walsh's evidence ought not be accepted. In that context it is suggested by counsel that it may be that the trial judge was anxious to ensure that Mr. Walsh was not criticised as to his evidence in the judgment. Whether that is a correct characterisation of what happened does not seem to me to be relevant. If, in truth, the trial judge came to the view that Mr. Walsh, while doing the best he could, was mistaken, then however gently it was put, the trial judge had an obligation to say so, at least in sufficient terms that would allow a reasonable person reading the judgment to understand that the trial judge preferred Ms. Doyle's account to Mr. Walsh's on the point on which they differed. I will return to the consequences of that error when I have dealt with the other significant point in the case being the issues which arise out of the trial judge's reliance on the undoubted late complaint. I turn to that issue.
6. The Lateness of the Complaint
6.3 Against that background counsel on behalf of Mr. Doyle made two arguments. First, it was said that that approach was in conflict with the decision of this Court in Mannix v. Pluck  I.R. 169. On that basis it was said that the relevant delay was not a factor that could properly, as a matter of law, be taken into account at all.
6.4 As a fall back position it was argued that, even to the extent that it was appropriate for the trial judge to take delay into account, the trial judge had not addressed the explanations given by Mr. Doyle for the delay in question. In evidence Mr. Doyle had indicated that he was in rehabilitation for a significant period after the accident, that a member of his family had instructed, while he was in rehabilitation, a firm of solicitors to progress a possible claim against Ms. O'Rourke on his behalf but that the solicitors concerned, for reasons unknown to him, appeared to do very little about it and that the matter was not progressed until he changed to his current solicitors. In addition, so far as the facts are concerned, it should be noted that, for obvious reasons, Mr. Doyle was not interviewed by the gardaí on the day of the accident. There was evidence, to which I will shortly refer, of a telephone conversation between the investigating garda and Mr. Doyle which appears to have taken place some considerable time after the accident although probably within the six month time period within which any proceedings under the Road Traffic Acts would need to have been commenced.
6.5 Counsel argues that against that factual background, and in circumstances where the trial judge did not make any findings of fact which would dispute the accuracy of the account given by Mr. Doyle, any delay was not open to an inference adverse to Mr. Doyle's account of the accident. I propose dealing first with the legal question.
6.6 At p.173 of his judgment in Mannix v. Pluck, O'Dalaigh C.J. (who spoke for the majority) said the following:-
6.8 Having regard to the fact that evidence by a party or his advisers as to whether it was felt that the party concerned had a strong or weak case would not be admissible in the ordinary way it followed that the jury could not be asked to draw an inference as to whether the plaintiff in the case concerned felt he had a weak case.
6.9 Counsel for Ms. O'Rourke sought to distinguish Mannix v. Pluck from the facts of this case by suggesting that the issue with which the trial judge was involved here stemmed from the assertion that Mr. Doyle could not even have regarded Ms. O'Rourke as a "party involved" by reason of the fact that no complaint of any sort to any authority was made.
6.10 There can be no doubt that the underlying principle identified in Mannix v. Pluck represents the common law position. It is not open to a party to give evidence as to the strength or weakness of that party's case; less still could such a party's legal adviser give evidence to like effect. Indeed, in that context it is appropriate to refer to the position that now pertains by virtue of s.8 of the Civil Liability and Courts Act, 2004 which deals with the circumstances where a letter of claim is not sent within two months from the date of the cause of action in a personal injury action (which in the context of the section includes the date of knowledge where later). In such circumstances, s.8(1)(a) allows the court to draw such inferences from the failure as appear proper. Counsel for Mr. Doyle suggested that that section was intended to modify the effect of Mannix v. Pluck in relation to such cases. The section does not apply to the facts of this case which predated the legislation in question.
6.11 It does seem that the trial judge did draw an adverse inference from the failure of Mr. Doyle to commence proceedings in early course in a manner which Mannix v. Pluck says is impermissible. It seems clear that much of the trial judge's view on the credibility of Mr. Doyle's evidence (which was a significant factor both in the case as argued and in the trial judge's reasoning) stemmed from that inference. On that basis alone it seems to me that this Court would necessarily have to find that the trial judge was in error.
6.12 There may, of course, be some cases where, in the light of all the circumstances, the conduct of a party subsequent to an incident (including accounts given of the incident or omissions from such accounts) can legitimately be taken into account in assessing the credibility of evidence subsequently tendered by the party concerned. However, the height of the contention that is made in that regard on behalf of Ms. O'Rourke on this appeal is that the gardaí did not even regard Ms. O'Rourke as a party concerned with the accident notwithstanding that there had been a telephone conversation between the investigating garda and Mr. Doyle.
6.13 The evidence in respect of this telephone conversation was extremely brief. The garda in question had made no note of it. In the absence of any real evidence as to what transpired between the garda in question and Mr. Doyle it is impossible to assess the context in which that conversation took place and, therefore, it follows that no inference adverse to Mr. Doyle should be drawn. In addition the learned trial judge did not deal with the explanation given for the fact that no warning letter to Ms. O'Rourke issued until a late stage. On the face of it Mr. Doyle's explanation was capable of being accepted. In the absence of the rejection of that explanation for some logical reason it is difficult to see how the trial judge could have reached the inference which he did.
6.14 I am satisfied that the trial judge was in error in drawing an inference from the failure to commence proceedings in a timely fashion and also, and perhaps equally importantly, in failing to adequately examine the explanation which Mr. Doyle gave for no complaint having been communicated to Ms. O'Rourke at an earlier stage.
6.15 It is next necessary to turn to the consequences of both that error and the previous error identified in accepting as correct the conflicting accounts of Ms. Doyle and Mr. Walsh.
7. The Consequences
7.1 It is clear from the ruling of the trial judge that both matters were of significance. The question of delay was not necessarily a significant issue in the case, but it is clear that the trial judge placed significant weight on it, and it, therefore, must be treated as being, in itself, significant. For the reasons already analysed I am more than satisfied that the conflict between Ms. Doyle and Mr. Walsh as to whether Ms. Doyle's car was actually stopped at the time of impact (or nearly so) was also a matter of significance. It follows that this Court has identified two errors in the ruling of the trial judge, both of which relate to significant matters in the context of the narrow issues on which liability in this case turns. In the circumstances it seems to me that the only proper course of action to adopt is to direct a retrial.
7.2 In that regard it is appropriate that I record that I cannot agree with the submission of counsel for Ms. O'Rourke which suggested that there was no point in directing a retrial because Mr. Doyle's case was bound to fail. Doubtless the same issues as to credibility argued on all sides are again likely to be canvassed at a retrial. However, it does not appear to me that it could safely be concluded that Mr. Doyle might not persuade the trial judge at a retrial that his account of how this accident occurred is correct. I should also comment that I agree with counsel for Mr. Doyle that this is not the sort of case where this Court could safely reach its own conclusions. It is not clear that, in the absence of the errors which I have identified, Mr. Doyle would have succeeded.