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Cite as: [2019] IECA 273

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Whelan J.

McCarthy J.

Costello J.

BETWEEN/

THE COURT OF APPEAL

[2019] IECA 273

Record Number: 2017/548

EOGHAN GOUGH

PLAINTIFF/

FIRST NAMED RESPONDENT

- AND -

DARREN HURNEY

FIRST NAMED DEFENDANT/

SECOND NAMED RESPONDENT

- AND –

JOHN BRIGGS

SECOND NAMED DEFENDANT/

APPELLANT

JUDGMENT of Ms. Justice Máire Whelan delivered on the 30th day of October 2019

Introduction

This is an appeal against a judgment delivered in the High Court on the 24th July, 2017 and

orders made on the 2nd November, 2017 (perfected on the 3rd November, 2017) wherein the

High Court judge, having heard evidence over five days arising from a road traffic accident

which occurred on the 14th January, 2012 on the Monivea to Galway road, determined that the

defendants (being the appellant and second respondent to this appeal) were concurrent

tortfeasors.

The defendants cross-claimed inter se seeking a contribution and/or indemnity. The High Court

found, for the purposes of section 21 of the Civil Liability Act, 1961, that they were equally

blameworthy and equally liable in respect of the sums ultimately recoverable by way of

damages by the plaintiff (the first respondent).

The first respondent, at the time of the accident a back-seat passenger in the vehicle driven by

the second named respondent, suffered significant head injuries. He had not been wearing a

seat belt. It was conceded by the first respondent that he had been contributorily negligent to

the extent of twenty-five percent and the hearing proceeded on that basis. No issue arises as

to contributory negligence in this appeal.

The appellant appeals the determination of the trial judge contending, inter alia, that an

objective assessment of the witnesses and the evidence should have led to a finding that the

second named respondent was solely liable for the accident. It is argued that the trial judge

failed to engage with significant elements of the evidence adduced and made material and

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significant errors in the assessment of the evidence and her determination that the appellant

was equally liable with the second named respondent for the accident was against the weight of

the evidence and unjust. The trial judge’s conclusions as to the credibility of the second named

respondent as a witness is contested as are inferences drawn by her which are asserted to be

erroneous and unsupported by the evidence.

The appellant contends that the trial judge failed to engage fully with all aspects of the evidence

adduced at the hearing and as a result erred in reaching a conclusion that he had either caused

or contributed to the accident to any extent. It was contended that the sole cause of the

accident and ensuing injuries suffered by the first named respondent derived from the speed at

which the second named respondent’s vehicle was travelling when overtaking the appellant’s

Ford Transit van on the public highway.

Key grounds of appeal include:

(i)

that the trial judge erred in finding that the appellant did not have his right

indicator on prior to or at the time the accident occurred;

(ii)

the trial judge erred in determining that the appellant’s brake lights were not on at

and immediately prior to the accident;

(iii) she erred in concluding that the appellant’s Transit van had, shortly prior to the

accident, crossed the continuous white line on the highway at the locus in quo;

(iv) she attached insufficient weight to the fact that there was no contact or collision at

all between the appellant’s white Ford Transit Van and the second named

respondent’s Honda Civic in which the injured party was a back-seat passenger;

(v) the trial judge erred in attaching weight to matters or events which occurred

subsequent to the accident which the appellant contends were immaterial and

irrelevant to the question of liability;

(vi) she erred in impugning the credibility of the appellant;

(vii)

she further erred in preferring the testimony of the second named respondent

whom, the appellant contends, lacked credibility in relation to crucial aspects of his

evidence central to the issue of liability;

(viii)

it was argued that observations made by a Circuit Court judge when sentencing the

second named respondent after he pleaded guilty to a charge of careless driving at

Galway Circuit Criminal Court on the 7th July, 2015 and who had commented that

the accident could be “put down to youth, inexperience and speed or maybe all

three” ought to have led to the trial judge concluding that the second named

respondent was solely responsible for the accident.

The accident

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On the afternoon of the 14th January, 2012 at or about 15.45 the second named respondent,

then aged eighteen years and three months, was driving a black Honda Civic motor vehicle on

the public highway being the Monivea to Galway Road heading in the direction of Galway City.

There were four individuals in the motor vehicle. The driver and front seat passenger wore seat

belts. Seat belts were not worn by either of the back-seat passengers. The second named

respondent was driving on a provisional licence. The vehicle had a defective exhaust which

resulted in a very loud noise being emitted when it was being driven. This defect did not

contribute in any material manner to the accident. The highway on which the accident occurred

was a secondary road with a width of between three and three and a half metres on either side

of the continuous white line. The speed limit at the locus was 80 km/h. At a location known

locally as Raftery’s Cross, the second named respondent’s vehicle was noted to be travelling at

speed. The second named respondent’s statement to the gardaí twenty-four hours following the

accident suggested that he was probably travelling “at 75 miles per hour” at that junction. The

second named respondent had earlier overtaken another vehicle in which witness Gabriel Ryan

was a passenger at a junction about 500 metres before the locus of the accident. In the

distance ahead the appellant’s Transit van was visible.

The appellant at the time of the accident was making a short journey along the public highway

between the nearby residence of his brother whom he had been visiting to his own residence at

a mobile home, which was situated 200 to 220 metres further along the public highway in the

direction of Galway city. The vehicles accordingly were travelling in the same direction prior to

the accident. There was a continuous white line on the highway. The appellant’s vehicle was

noted to have been travelling slowly. The second named respondent remained behind the

appellant’s vehicle for some seconds and then using his indicators signalled an intention to

overtake and thereafter began to overtake it. The second named respondent’s evidence was

that he was doing a speed of about 60 miles per hour when he commenced the manoeuvre of

overtaking the appellant’s vehicle. The evidence of the engineer Mr. William O’Keeffe on the

issue of the likely pre-accident speed of the second named respondent’s vehicle was an

estimate: “..the best I can make it is sixty to seventy miles per hour”. (Transcript of the 20th

July, 2017, p. 103, line 21).

The evidence of the second named respondent and Darren Duggan, a passenger in his vehicle

at the time of the accident, was that the appellant had not used his right-hand indicators and

had not deployed the brake lights of his Transit van at any time or prior to the point when the

second named respondent’s vehicle commenced to overtake the Ford Transit van. The second

named respondent and Darren Duggan gave evidence that while in the process of overtaking it,

the appellant’s van commenced without warning to cross the continuous white line on the

roadway onto the path of the second named respondent’s Honda Civic. The appellant’s vehicle

proceeded to cross the white line for the purpose of effecting entrance to a mobile home where

the appellant resided at the time. This unexpected manoeuvre caused the second named

respondent to take evasive action. He swerved to avoid colliding with the appellant’s vehicle

and while doing so the Honda Civic entered the grass margin/gravel area and went out of

control colliding with the dry-stone walls at two different locations causing the first named

respondent to be ejected through the windscreen of the vehicle into a nearby field. At the time

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he was eighteen years and six months. He suffered significant injuries, particularly head

injuries.

The decision of the High Court judge

10. The trial judge delivered a reserved judgment on the 24th July, 2017 which runs to twenty-

eight pages. She noted the admissions of the second named respondent that while driving

towards Carnmore Cross, about one mile from the scene of the crash, he was travelling at 75

miles per hour and he admitted to driving at 60 miles per hour at the point when he caught up

with the appellant’s van. This equates with a speed of 96km/h in an 80km/h zone. Thus, the

second named respondent was driving in excess of the speed limit. He had overtaken the

appellant on a continuous white line. He was driving on a provisional licence without a fully

licenced driver in the vehicle.

11. Issues to be determined were identified by her in the judgment to include: -

(a) Whether the appellant had veered onto the incorrect side of the road in his

manoeuvre to turn right into his mobile home thereby causing the second named

respondent to swerve, resulting in loss of control of the vehicle which led to the two

violent impacts with the stone walls.

(b) Whether the appellant had indicated an intention to turn right. She noted that the

appellant did not recall having ever looked in his mirror before commencing the

process of turning right. She noted inconsistencies in a statement made one year

later to his own engineer Mr. Corrigan.

(c)

She noted his statement to the gardaí two days following the accident admitted

having commenced the process of turning right and then turning his steering wheel

back to the left. In her judgment the trial judge reviewed the evidence of the

witnesses including Garda Crowe. She identified certain key elements of the said

Garda’s evidence as important including his view that for the manoeuvre of turning

right by the appellant to be rendered safe, he was required to check the mirrors to

see whether any vehicle was approaching. Further, that the defective exhaust in

the second named respondent’s vehicle was so loud that a person in the position of

the appellant would have heard it as it approached since it was broken and was

making “a very loud noise”. She noted the garda’s evidence that the second

respondent had pleaded guilty to careless driving causing injury at the Circuit

Criminal Court in Galway and that the road at the accident locus was narrow, being

three and a half to four metres each side of the continuous white line. The Court

noted that the appellant had made a statement on the 16th January, 2012 and the

terms of same, and that he subsequently revised his recollections and asserted that

he had checked his mirror. The judge noted, “The garda confirmed that a safe

manoeuvre would involve looking in the mirror first to see if there was a vehicle

coming.” She further noted the evidence of the garda that “If the car was

overtaking on the right turning right it would impinge on the overtaking lane and a

collision would be inevitable.”

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12. The Court noted that the investigating garda had not seen the appellant’s van at the scene. The

Court reviewed the evidence of Mr. Ronald Greene, forensic engineer, called on behalf of the

first named respondent and the testimony of Mr. William O’Keeffe, the engineer called on behalf

of the second named respondent. She noted that Mr. O’Keeffe had agreed that “One would

have to look in the mirror before crossing.” He agreed that “If the second named defendant had

checked the …. Honda Civic, the first named defendant’s motor vehicle would have been visible

even though approaching at high speed.” The Court noted there was a primary obligation on

the part of the second named respondent not to overtake on a continuous white line. The Court

considered in detail the witness evidence regarding the correct and safe manoeuvres required

on the part of the appellant to traverse the road for the purposes of gaining entry to the site of

his mobile home: -

“He set out the steps for a 90 degree turn for a van of the size of the second named

defendant’s … first of all there would be signalling showing an intention to turn right.

Secondly, there would be looking in the mirrors. … Thirdly, there would be a possibility of

movement to the centre line. Fourthly, the van should be using the side mirrors. Fifthly,

a view of a car might be obscured and Photograph 11 showed that there was no view

through the back window of the car.”

The Court noted that the second respondent’s Honda Civic would be visible to the appellant

from a good while back if using his side mirrors.

The Court noted that had the appellant’s van stopped his brake lights would have come on if

they were working.

13. The trial judge considered the evidence of Mr. Eamonn Barrett who had a watching brief at the

hearing at the Circuit Criminal Court in Galway and likewise reviewed the testimony of the

second named respondent Darren Hurney. The Court noted in detail the evidence of the second

named respondent relating to the seconds leading up to the accident:

“… The van was going slowly and he indicated to pass the van and the van swerved to the

right. He said he was about three seconds behind the van and he put on his indicator,

dropped his gear, continued to go forward, and he thought that the van was just driving

straight, that if he had seen an indicator he would have hit the brakes but the van was

moving left to right when he had him half overtaken. And he said he came pretty close to

him. He said that the van had crossed the line where he was driving. And he said, ‘I

pulled pretty hard to the right, there was loose gravel and I tried to straighten the car up

and lost control…’”

“He had also said that between a mile back and the actual locus that he had taken his

foot off the brake and that he had slowed considerably to in or about 60 miles per hour.

He denied that the second named defendant had his indicator on from a hundred yards

back; which is what the second named defendant put in his second statement to his own

engineer one year after the accident. He denies seeing brake lights. He said that the

second defendant crossed the line to turn right. He saw the van from the distance, he

said, for about 15 to 20 seconds maybe… He said that the second named defendant says

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that he did indicate but Mr. Hurney disputes this. He admits he didn’t know whether he

could have stopped or not had he wanted.”

14. The Court noted the candour of the second named respondent: -

“… He agreed that he was going at too fast a speed, in excess of the speed limit. And

that’s in line with the admissions he made at the start, he admitted freely that he was

driving on a provisional [licence] with no [licenced] driver in the car and that he was

driving too fast on the occasion of the accident…”

15. The Court noted the position of the second named respondent being that the appellant was

partly responsible for the accident. The Court observed the evidence of Mr. Hurney: -

“He said he told the gardaí two or three times that the second named defendant had no

indicator on but the gardaí did not put that in his statement. It was put to him that at no

stage did he make that claim. And he said he had no need to tell lies in court because he

had pleaded guilty to driving too fast and to overtaking on the continuous white line when

he shouldn’t have done this. And to not [having] a full [licence] without a full [licenced]

driver in the motor vehicle.”

16. The expert witness William O’Keeffe, engineer, had given evidence and the trial judge reviewed

that testimony at page 11 of the judgment onward. She noted his evidence given on the 20th

July, 2017: -

“If the second named defendant had checked the wing mirrors he would have had a good

sight distance going back 200 metres.”

She reviewed the evidence of Mr. O’Keeffe at p. 93 of the transcript of 20th of July, 2017 that

the appellant should have complied with the relevant rules of the road as follows: -

“One: To check the wing mirrors before signalling to take a right-hand turn.

Two: The necessity of taking up a position in the centre of the road.

And Three: The necessity to check the wing mirror again before turning.

Mr. O’Keeffe’s firm evidence was that in his opinion nothing would obscure an approach

over the 200 yards.”

The Court noted that this expert witness had disagreed with the evidence of Mr. Greene,

engineer “and he said that the impact was consistent with a 60 miles per hour pre-impact.” It

will be recalled that in his cross-examination of the engineer Mr. Greene, counsel for the

appellant on the 19th July, 2017 at page 98 in considering the statement made by the second

named respondent states: -

“First of all, it depends on the speed and it’s a matter for the Court – we will have

evidence from others. But the [first defendant] said he was back at 60 miles per hour as

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he caught up with him he was doing 70 miles an hour… he says he was behind the van for

three to four seconds and then began his overtaking manoeuvre in his statement.”

The Court considered the evidence of Mr. Greene regarding braking distances and the

attenuation of speed and the variations depending on the speed of the vehicle in question at the

time braking commences. The Court noted that the engineer William O’Keeffe:

“…puts the mile per hour pre-braking speed at either 60 or 70 miles an hour. He says it’s

a crude assessment, he refers to it as an educated guess…

Under re-examination objectively this witness says it was certainly 60 to 70 miles per

hour but he wouldn’t venture higher because he said ‘It’s a complex collision with a sort

of frontal and a sort of glancing.’” (page 14 of the judgment)

“… But he also says that the first named defendant’s evidence was to the effect that he

took his foot off the gas and dropped his speed to 60 miles per hour. And he said that

with the distances there was ample scope for a reduction from 75 miles an hour to 60

miles an hour. He was asked how many seconds would it take a car at 60 miles an hour

to cover the 200 yards between the two entrances. And he said at 60 miles an hour it’s

twenty-seven metres per second. And that time period is seven and a half seconds.”

(page 15 of the judgment)

17. The Court noted the evidence of Garda Eamon Donohue of Athenry Garda Station who had

agreed under cross-examination that nobody had invited the second named respondent Mr.

Hurney to come back into the station to comment on the assertions made by the appellant that

he was in fact using an indicator, “and perhaps not being sure whether he used his mirror, and

perhaps about seeing a glimpse of the car. He agreed he could see where [counsel on behalf of

the first defendant] was coming from.” The Court noted the evidence of Mr. O’Keeffe to the

effect that, “The exhaust noise of the Honda Civic would be very loud because of the defect.”

18. It is clear that the evidence of the witness Darren Duggan was considered significant by the trial

judge. He was a back-seat passenger seated beside the first named respondent in the second

named respondent’s Honda Civic at the time of the accident. It appears from the transcript that

difficulties had been encountered in tracing his whereabouts by the time the case came to trial

some five and a half years after the accident in the month of July 2017. The judge noted in her

judgment several salient factors in the evidence of Darren Duggan whom it will be recalled had

made a statement two days following the accident on the 16th January, 2012 at Athenry Garda

Station. At the time he was doing a training course in motor mechanics. The evidence of Mr.

Duggan was clear that prior to the accident the appellant had no indicator on and there were no

brake lights in use; “His evidence was that there were no lights and no indicator on the van and

no brake lights showing.” The Court noted that: -

“He denies absolutely the claim by the second defendant that he had his indicator on 100

yards from where he was going to take a right-hand turn. He said that the only option his

friend, the first named defendant, had was to swerve to the right. He thought that the

first named defendant was driving at 60 miles an hour… He said that the first named

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defendant was slowing down… He claimed he could see from his position in the vehicle.

While his friend, the first named defendant, was concentrating on driving he had a clear

view.”

19. The Court also considered the evidence of Gabriel Ryan and his daughter Amanda Ryan whose

vehicle had been overtaken by the second named respondent some 500 metres or so prior to

the accident occurring. The Court noted that when Mr Ryan came upon the scene of the

accident “He said he wasn’t sure where the white van was on the road, but he didn’t recall

seeing an indicator.” With regard to the evidence of the appellant the Court noted at page 21 of

the judgment: -

“He said he was slowing down almost to a stop. He said that he glimpsed in his mirror

before he took the actual turn when he saw a car on the right-hand side overtaking him

and that he had turned back again. He said that meant that he was moving out to the

centre of the road so he turned back in to give the other car room.”

Referring to his statement made on the 16th January, 2012 to the gardaí: -

“He agreed that at that stage in his statement he couldn’t remember whether he looked

in his mirror earlier or not and he confirmed that it was correct. He said that he usually

checked the mirror halfway. This is halfway between his brother’s house… and his own

house. He said that he saw a car on the right-hand side overtaking.”

20. In her judgment O’Hanlon J. notes that under cross-examination the appellant confirmed “That

he hadn’t heard the Honda Civic behind him.” The Court noted: -

“He thought that he had nothing to do with the accident and that it was all down to

speed. He couldn’t answer why it was that nobody at the scene ever saw an indicator on

his vehicle or why he hadn’t put his hazard lights on despite his 30 years driving

experience.”

The Court went on to note: -

“He agreed he seemed to have a little bit of restored memory between his first statement

on the 16th January, 2012 and his meeting with… his own engineer… Mr. Corrigan on

…11th January 2013.

He said he was going with his statement to the gardaí.”

The Court noted from his evidence as follows: -

“It was put to him ‘I was in the process of turning right, I had the steering wheel turned

when I got a glimpse of the car in the middle.’ He agreed that it wasn’t that he looked in

the mirror, he said he just happened to catch out of the corner of his eye – …. – a glimpse

of the car. And he agreed that that’s what happened as he was turning and before that he

knew nothing about the car and never knew it was there. He said he probably would

have continued turning but for that glimpse. He said it was probably likely. He agreed

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that if he used his mirrors he could have seen 200 yards and maybe a lot more back on

the road. He agreed that he had a good view of the road behind with each mirror.”

21. The Court noted the appellant’s response to cross-examination, particularly by counsel on behalf

of the second named respondent: -

“While this man persisted in saying that he couldn’t recollect whether he looked

beforehand in terms of his manoeuvre but that he knew that he glimpsed the other car

when he was turning in. It was put to him he couldn’t have used the mirrors before he

began the manoeuvre and he said maybe it was because he didn’t use his mirror and he

agreed that there was no other explanation.”

22. The trial judge observed at p. 25 of the judgment: -

“What is significant about this accident is that there appeared to be a view on the part of

many of those giving evidence that this was an accident simply and solely caused by

excessive speed on the part of the first named defendant. In that regard not only does

the first named defendant freely admit he was driving at an excessive speed in relation to

his own evidence and that of his engineer, but to my mind there is great logic in the

description of the speed and the pre-accident speed.”

She concluded that the second named respondent drove at sixty miles per hour pre-accident,

“...in accordance with the evidence of Mr. William O’Keeffe, engineer”. The judge concluded

that: -

“The first named defendant’s evidence is quite logical and he is quite consistent as to how

the accident happened. He says the second named defendant veered onto the incorrect

side of the road in a movement to turn onto his home place and that caused him to

swerve and caused him to have a loss of control. I believe he would never have

attempted to turn right had there been an indicator on in the van indicating a right hand

turn or had there been brake lights. So, in all the circumstances I prefer the evidence of

the first named defendant to that of the second named defendant.”

23. The trial judge proceeded to distil the evidence gleaned from the cross-examination of the

appellant, concluding that: -

“As a matter of probability … I think he accepted… he did not look in his mirrors before

attempting his manoeuvre, which he should have done. I don’t believe he ever indicated.

And I do believe he was over the continuous white line.”

She concluded in regard to concurrent fault for the accident that: - “it’s a fifty-fifty on liability.”

Consideration of the judgment and findings in light of authorities

24. The appellant contends that the judgment of the trial judge failed to apply common sense and

logic to the assessment of the evidence, failed to engage with a significant element of same and

made a finding on liability clearly so against the weight of the evidence as to be unjust. It is

also contended that she erred in her assessment of the credibility and quality of the evidence of

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the appellant through inferences from his evidence which are erroneous, unsupported by

evidence and fail to correctly and objectively assess the evidence of the witnesses which if

correctly approached could only have led to a conclusion that the second named respondent

alone was liable for the accident.

The applicable legal principles

25. It is clear from the authorities such as Hay v. O’Grady [1992] 1 I.R. 210 that findings of primary

fact by the trial judge, if supported by evidence, will not be revisited by this Court and neither

will this Court readily substitute its own inferences for those of the trial judge where such

inferences have been derived from facts or from oral evidence.

26. O’Donnell J. observed in Schuit v. Mylotte [2010] IESC 56 at p. 41: -

“The test in Hay v O'Grady, is derived from the fact that an appeal Court which does not

hear the evidence must give considerable deference to a trial Court's assessment of the

cogency and credibility of evidence given to it. This follows from the different functions of

a trial Court and the appeal Court. As a result, the question for a Court on appeal is

essentially a matter of logic: was there evidence, whatever its apparent credibility or

cogency, upon which the trial judge could come to the conclusion he or she did.”

27. It is clear from the dictum of McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210 at p. 217 that if

“the findings of fact made by the trial Judge are supported by credible evidence…” an appeal

court should take the findings of fact as decided by the trial judge “…however voluminous and,

apparently, weighty the testimony against them” because the “truth is not the monopoly of any

majority”. There is a material distinction between a trial judge making an erroneous finding of

fact and making an election between competing evidence of witnesses.

28. Before proceeding to consider the central disputed facts and the trial judge’s assessment of the

evidence before her it is appropriate to recall the observations of Clarke J. (as he then was)

concerning the principle settled in Hay v. O’Grady in the Supreme Court decision Doyle v.

Banville [2012] IESC 25 where he stated: -

“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.”

29. A finding as to credibility of a witness is a finding of fact and the role of an appellate court in

assessing same is accordingly subject to the principles set forth in Hay v. O’Grady and the later

decision of Doyle v. Banville. In the latter judgment it will be recalled that Clarke J. had

observed: -

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“…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”.

30. In assessing the appellant’s arguments it is necessary to have regard to the dicta in Doyle v.

Banville where Clarke J. held that the decision of a trial judge must demonstrate a consideration

of the key elements advanced by both parties and carry out an analysis of the case arising from

the competing version of facts and events and ought to come to a reasoned conclusion as to

why one version of events is preferred from the other. Clarke J. placed certain limitations on the

parameters of the exercise to be undertaken stating at para. 2.4 of the judgment: -

“… it does need to be emphasised that the obligation of the trial judge is to analyse the

broad case made out 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 evidence tendered or

arguments made in the trial Court to find some tangential piece of evidence or agreement

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 on the issues of the case in question, the competing arguments of both sides.”

31. In the instant case it has been necessary to consider the transcript to evaluate whether there

was evidence upon which the trial judge could reasonably have relied in reaching the

conclusions which she did regarding the circumstances leading up to the accident and

particularly including pertaining to: -

(a) Whether the appellant’s vehicle had deployed the brake lights.

(b) Whether the appellant had checked the vehicle mirrors as he testified to.

(c)

Whether the indicators signaling for a right turn had been deployed by the appellant

prior to the second respondent commencing to overtake his transit van just before

the occurrence of the accident.

(d) Whether the appellant’s vehicle had traversed the unbroken white centre line of the

highway and if so, whether this manoeuvre was a significant precipitating factor

which caused the second named respondent to swerve his vehicle to avert a

collision with ensuing loss of control and multiple collisions with the dry-stone walls

adjacent to the highway.

Did the appellant check his mirror?

32. The appellant takes issue with the trial judge’s findings on the issue of whether the appellant

checked his mirror. Within 48 hours of the accident the appellant made a statement to the

gardaí “I cannot remember whether I checked my mirror before I turned or not”. A year later,

on the 11th of January, 2013, at a time when the within proceedings had been instituted

wherein the appellant was named as a defendant and detailed particulars of negligence and

breach of duty were pleaded against him, he made a materially different statement to a

consulting engineer retained by his solicitors on his behalf, Mr. Corrigan. This time he stated

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that he had checked his mirror when he was about halfway between his brother’s property and

the entrance to his home.

33. As Primo Levi observes in his master work “The Drowned and The Saved”: “Human memory is a

marvellous but fallacious instrument. This is a threadbare truth known not only to psychologists

but also to anyone who has paid attention to the behaviour of those who surround him, or even

to his own behaviour.”

34. The trial judge was entitled to treat with a degree of circumspection the veracity and the

reliability of the memory recall of the appellant in circumstances where two inconsistent

statements as to recollection on a matter of crucial importance had been made by him at

different times. She was entitled to balance his later statement against the evidence of William

O’Keeffe, engineer, outlined above that given the straightness of the road for the extensive

distance behind him, had the appellant checked either mirror at any point from the moment the

Honda Civic came into sight, it would have been apparent to him. No explanation was

forthcoming for the fact that he did not hear the vehicle approach notwithstanding that it had a

defective exhaust. All witnesses agreed as to its loudness.

35. The trial judge clearly expressed a reasoned preference for the evidence of the second named

respondent, Mr. Darren Duggan and Mr. William O’Keeffe over that of the appellant pertaining

directly to the circumstances of the accident and the conduct of the appellant in the seconds

leading up to the accident. She had ample opportunity to observe the appellant’s demeanour in

Court and the fact that his changing recollections contrasted materially with the steadfast

recollections of Mr. Darren Duggan and the second named respondent regarding the issue of the

brake lights and the indicators and the non-use of same by the appellant. No valid basis to

interfere with her findings in this regard have been established.

Did the trial judge err in finding that the appellant’s van had commenced to cross the

continuous white line?

36. The appellant conceded that he had commenced to turn at the time of the accident and

probably would have seen the second named respondent’s Honda Civic had he used his side

mirrors. (See transcript of 21st of July 2017, p. 102, lines 14 to 21). In the appellant’s

statement to the gardaí he stated, “I was in the process of turning right. I had the steering

wheel turned when I got a glimpse of the car in the mirror.” There was thus clear evidence

before the trial judge from the second named respondent, the engineer Mr. O’Keeffe, and Mr.

Duggan that this accident was caused by a combination of two key elements: the speed at

which the second named respondent was driving coupled with the need to take sudden evasive

action to avoid colliding with the appellant’s vehicle at a point when, without warning, it

swerved right and commenced crossing over the continuous white line. The statement of

Darren Duggan which accorded entirely with his evidence will be recalled “… we had nearly

passed the van out when it swerved to the right onto our car. Darren Hurney swerved to the

right to avoid him and lost control of the car.” There was ample evidence before the trial judge

on which she was entitled to rely to reach a conclusion that it was in taking this evasive action

precipitated by the negligent conduct of the appellant that the second named respondent’s

vehicle entered the grass verge/gravel area and went out of control.

Page 13 ⇓

The absence of a collision between the Ford Transit and the Honda Civic as proof of absence

of liability on the part of the appellant.

37. The appellant contends that it is material to the issue of liability that there was no collision

between the vehicles. This submission is misconceived. No collision occurred on the evidence

before the High Court because the second named respondent took evasive actions swerving the

Honda Civic onto the grass margin/gravel area precipitating the vehicle going out of control. It

appears clear, as set out in the judgment, that the appellant first became aware of the presence

and position of the Honda Civic on the highway when he physically glimpsed the vehicle in the

process of overtaking him at a time when he was in the process of turning right and had moved

across the white line, manoeuvring the Transit van to turn into the site of his mobile home. On

observing the Honda Civic, by then almost alongside him, he turned back to his left. His

conduct contributed to and precipitated the accident in the manner as found by the judge.

It is noteworthy that the appellant in his evidence admitted that the reason he did not see the

Honda Civic before he commenced his manoeuvre to the right is because he did not use the side

mirrors. (Transcript of 21st July, 2017, p. 104, line 14 to 21).

Was the trial judge erroneous in concluding that the Honda Civic was travelling at 60 miles

per hour?

38. The evidence of Amanda Ryan and Gabriel Ryan is of limited value as to the relative

blameworthiness of the two drivers insofar as their vehicle had been overtaken by the Honda

Civic some 500 metres prior to the locus of the accident. Neither Ms. Ryan nor Mr. Ryan was in

a position to give evidence as to the actual speed at which the Honda Civic was travelling at the

point when the accident occurred, the second named respondent having slowed down as he

approached the rear of the appellant’s Transit van. The second named respondent was

consistent in his evidence, which reflects his statement of January 2012 to the gardaí that his

immediate pre-accident speed was 60 miles per hour. This is also reflected in the evidence of

Mr. Duggan which was consistent with his garda statement. It is within the ambit of the best

estimate made by the engineer Mr. William O’Keeffe whose evidence the trial judge preferred

who had placed the ambit of speed at between sixty and seventy miles an hour. The judge had

the opportunity the observe the demeanour of the key witnesses particularly under cross-

examination. I am satisfied that there was evidence upon which the trial judge was entitled to

rely, which supported her conclusions on each material aspect and her judgment identifies them

adequately.

Credibility of the Appellant and Second Named Respondent

39. Did the trial judge appropriately assess the credibility of the second named respondent, Mr.

Hurney, regarding key elements of the case pertaining to the determination of liability? I am

satisfied that there was evidence before the trial judge as identified in her judgment on which

she was entitled to rely in support of her conclusion that the recollections of the second named

respondent and his witnesses regarding the pre-accident speed of the Honda Civic were to be

preferred to that of the appellant and his witnesses.

40. The appellant attaches significant weight to the fact that there was a dispute between the

second named respondent’s evidence and that of Garda Eamon Donohue of Athenry Garda

Station who took a statement from the second named respondent on the day following the

accident. That statement contains no reference to the fact which the second named respondent

Page 14 ⇓

contended in his evidence that the appellant’s right indicator and brake lights were not in

operation and not in use. Garda Donohue in his evidence relied on the fact that he had read

back the statement to Mr. Hurney prior to the latter signing it and had asked whether the

second named respondent wished to make any amendments and the respondent indicated that

he did not. The appellant had contended that the second named respondent had effectively

changed his account of his evidence to the Court. However, the trial judge also had the

evidence of Darren Duggan regarding the non-use of the brake lights and indicators on the part

of the appellant in his Ford Transit, “The van didn’t have an indicator or brake light on.” This

potentially undermined the appellant’s credibility.

41. In evaluating the evidence of the second named respondent context is all. At the date of

making of the statement the second named respondent was eighteen years and three months

old. Although his father was present in the Garda Station he was not with him at the time when

he made the statement. It was clearly a traumatic time for all the parties and the trial judge

was entitled to decline to impute mendacity to the second named respondent or draw any

adverse inferences from the fact that he (a teenager at the time) failed to advert to these two

elements when the statement was being read over to him. The judge had a first-hand

opportunity to observe his demeanour in the course of giving testimony and the stance and

demeanour of Garda Eamon Donohue. She preferred the evidence of the second named

respondent – which as to its substance was entirely corroborated by the statement given by

Darren Duggan on the 16th January, 2012 and by the latter’s evidence at trial.

42. The absence of reference to the indicator and brake lights not being on in the statement of the

second named respondent is not evidence per se that the second named respondent did not

state as much to the investigating Garda Eamon Donohue on the 15th January, 2012.

43. I am of the view that the learned trial judge was correct in the manner in which she identified

the issues before her. In the course of her judgment, O’Hanlon J. sets out her findings clearly.

Her findings are supported by credible evidence and in that regard the testimony of the second

named respondent and Mr. Darren Duggan as well as the engineer William O’Keeffe are of

particular importance.

44. I am satisfied the trial judge engaged with the key elements of the case advanced by both sides

and carried out an analysis of the facts and arguments advanced for each competing version of

the accident. Ultimately, she reached a reasoned conclusion and identifies in her judgment why

she prefers the second named respondent’s version of events over that of the appellant. I am

satisfied that her determination ought not to be interfered with.

Civil Liability Act 1961

45. With regard to the issue of apportionment of liability on a 50:50 basis it is clear from the

jurisprudence, including the decision of the Supreme Court in O’Sullivan v. Dwyer [1971] I.R.

275 and the Supreme Court decision in Carroll v. Clare County Council [1975] I.R. 221 that in

determining what is “just and equitable” having regard to the degree of the concurrent

wrongdoers’ fault, the key factor is the respective blameworthiness of the concurrent

wrongdoers rather than the extent of the causative link between their actions and the loss or

injury. As was observed by Walsh J. in O’Sullivan v. Dwyer at p. 286: -

Page 15 ⇓

“… A judge, in directing a jury, must direct their minds to the distinction between

causation and fault and that they should be instructed that degrees of fault between the

parties are not to be apportioned on the basis of the relative causative potency of their

respective causative contributions to the damage, but rather on the basis of the moral

blameworthiness of their respective causative contributions.”

46. Section 21 of the Civil Liability Act, 1961 at subs. 2 provides: -

“In any proceedings for contribution under this Part, the amount of the contribution

recoverable from any contributor shall be such as may be found by the court to be just

and equitable having regard to the degree of that contributor's fault, and the court shall

have power to …. direct that the contribution to be recovered from any contributor shall

amount to a complete indemnity.”

47. Clarke J. in ACC Bank Plc. v. Johnston (t/a Brian Johnston and Company Solicitors) and Ors.

[2011] IEHC 501 at para. 5.3.4 stated that: -

“… in Irish law, the court does not attempt to disentangle the causal effect of the

wrongdoing of two concurrent wrongdoers.”

It follows that in the instant case it is not the causative effect of the actions of the appellant and

the second named respondent that is relevant so much as the question of their relative

blameworthiness.

48. The determination of the High Court judge was based on clear evidence that the appellant and

the second named respondent were both blameworthy for the accident which caused injury to

the first named respondent. The appellant was a concurrent tortfeasor. A road-user may not

proceed on the assumption that other road users will not act negligently without at the same

time keeping a reasonable look-out to see if they are so acting (O’Connell v. Shield Insurance

Co. Limited [1954] I.R. 286). The fact that the second named respondent was driving at a

speed exceeding the limit and attempting to overtake on a continuous white line does not

absolve the appellant of his own duty to take reasonable care and appreciate the risk whereby

his own omissions and acts contributed to the ensuing accident as found by the trial judge that

they demonstrably did. Had the appellant used his mirrors appropriately he would have

observed the second named respondent’s vehicle approaching. Had the appellant been listening

there was some evidence which appeared to suggest that he would have heard the loud noise of

the broken exhaust on the second named respondent’s vehicle. Had the appellant indicated

that he was turning right and used his brake lights, the second named respondent would have

been put on notice of his intended manoeuvre to traverse the public highway for the purpose of

entering into the field where his mobile home was situated. Had these steps been taken by the

appellant the second named respondent, according to his evidence, would in all probability not

have attempted to overtake him and the accident and subsequent injury to the first named

respondent would not have occurred.

49. Blameworthiness for this accident as the trial judge correctly concluded flowed from a

combination of the excessive speed of the second named respondent coupled with his attempt

Page 16 ⇓

to overtake the appellant at a point where overtaking was not permissible together with the

appellant’s failure to check his mirrors competently, to use his indicators and brake lights and

his conduct in proceeding to traverse without warning the continuous white line towards the

path of the overtaking Honda Civic. The appellant failed to have proper regard to the potential

presence and position of the vehicle in which the first named respondent was a passenger thus

creating an emergency which precipitated the accident.

50. The statement by Clarke J. in ACC Bank Plc. v. Johnston that it is not necessary “… to

disentangle the causal effect of the wrongdoing of two concurrent wrongdoers…” is particularly

apposite in the instant case where the appellant and the second named respondent each

possess significant levels of blameworthiness for the ensuing accident. An immediate

precipitating cause of the accident, as the trial judge found – and was entitled to find – was that

the second named respondent was forced to take a measure – a sudden swerve to the right

onto the gravel – to avert colliding with the appellant’s van.

51. It is of course true that the second named respondent’s vehicle ought not to have been in the

place where it was, namely across the white line and overtaking. However, had the appellant

checked his mirrors at all, or in the manner which he alleged to his engineer in January 2013,

the presence and position of the Honda Civic would have been manifest. In such circumstances

the appellant would have refrained from proceeding to cross the white line. Had the appellant

been using his indicators or brake lights it is reasonable to conclude that the second named

respondent would have not commenced the overtaking manoeuvre in the first place. Therefore,

they were both at fault. Whilst I might have reached a different conclusion on the proportions

of fault it would not have been so radically different from what the trial judge did as to cause

any intervention at this stage. I agree with the observations of Flaherty J. in Grace v.

Fitzsimons and O’Halloran, 14th June, 1996, Supreme Court (Ex Tempore) affirming the order

of Barr J. that unless the apportionment would be radically different there is no basis to

interfere.

Conclusions

52. I am satisfied that the trial judge fulfilled the criteria set out by Clarke J. in Doyle v. Banville

[2012] IESC 25. She did enter into a consideration of the key elements of the case and the

arguments advanced by both parties and analysed the competing versions of facts and events

advanced by the parties and their witnesses.

53. She identified cogent reasons for preferring the evidence of the second named respondent,

including the consistency of the evidence given by him and his witnesses.

54. It must be borne in mind that the decision in Doyle v. Banville itself limits the obligation of the

trial judge in the process of evaluation. Evaluation of evidence is not required to extend beyond

“… the broad case made out on both sides”. It will be borne in mind that in general “trial judges

do not make a practice of elaborate explanations for their apportionment” as was observed by

Fleming in the leading text “The Law of Torts” 10th ed. at p. 312.

55. I am satisfied that on any fair assessment of the decision delivered by the trial judge she did

engage with the key elements of the case made by both sides and considered the evidence of

Page 17 ⇓

the witnesses and then explained why she preferred the evidence of the second named

respondent and Mr. Duggan to that of the appellant. She engaged with the contentions

advanced by both sides and did analyse the case advanced by each broadly before coming down

on the side of the second named respondent with regard to the likely sequence of events

leading up to the crash. At para. 20 of the written legal submissions filed on behalf of the

appellant 20 different facts are advanced as “facts not in dispute on the evidence”. Even if each

“fact” is correctly stated, same cannot be considered probative of relative blameworthiness as

between the second named respondent and the appellant. They appear to be predicated on a

proposition that the admitted fact that the second named respondent was driving his vehicle at

an excessive speed at or above 60 miles per hour immediately prior to the accident is

determinative in and of itself of his sole liability and should exonerate the appellant from any

liability whatsoever precluding any concurrent liability for the accident. This is manifestly an

unsound argument.

56. It is not material that the vehicles did not come into contact with one another. There was clear

evidence before the trial judge, which she accepted, that this was averted only by the

emergency evasive actions of the second named respondent in swerving to avoid the appellant’s

Transit van. Neither is it probative of liability that no damage was caused to the appellant’s

own Transit van. At issue is whether the trial judge had before her probative evidence on which

she was entitled to rely to satisfy herself on the balance of probabilities that the appellant in the

process of turning right without checking his mirror, moved without indication across the white

line onto the path of the second named respondent’s highly audible vehicle at a time when it

was being driven at around 60 miles per hour having crossed a continuous white line and was

engaged in the manoeuvre of overtaking the appellant’s vehicle. I am satisfied that there was.

57. The appellant attaches significant weight to the fact that the second named respondent is not

recorded in his statement to the gardaí made on the day following the accident that the

appellant’s right indicator light and brake lights were not on. A perusal of the statement shows

that there is no reference whatsoever in it to the appellant’s right indicator light or brake lights.

It was the evidence of the second named respondent that he had stated to Garda Donohue who

took the statement that the indicator light and brake lights of the appellant’s vehicle were not in

use.

58. This contention appears to be based on the fallacious proposition that absence of evidence is

evidence of absence. The trial judge had the opportunity to consider the witness and his

evidence in its totality and to evaluate his veracity and integrity which she carefully did. She

did not have to rely on the evidence of the second named respondent alone in this issue or at

least as to whether either brake lights or indicators were deployed by the appellant. There was

clear evidence from Mr. Darren Duggan, the trainee mechanic who was seated in the rear of the

vehicle and who was cross examined regarding the speed at which the Honda Civic was

travelling, the non-use of indicators by the appellant and the non-use of brake lights by the

appellant in the seconds leading up to the crash occurring. This witness also gave evidence

regarding the appellant’s Transit van veering across the centre white line of the highway. Thus,

I am satisfied that the trial judge had cogent evidence on which she was entitled to rely in

reaching her conclusions in regard to these specific matters. The witnesses whose evidence she

Page 18 ⇓

preferred were cross examined in detail by highly experienced counsel and they maintained

their position notwithstanding rigorous cross-examination.

59. A review of the judgment makes it clear that the trial judge was satisfied on the evidence that

both the appellant and the second named respondent respectively were equally to blame for the

accident. She clearly states that whilst the second named respondent was speeding in

attempting to overtake on a continuous white line and was also driving on a provisional licence

she was satisfied that he would not have attempted to overtake the appellant had the appellant

used his indicators or used his brake lights and thus, but for the failures on the part of the

appellant to use his mirrors appropriately, to deploy his brake lights and use his indicator, the

accident causing serious injury to the first named respondent would never have occurred in the

first place. (See page 25, lines 27-30, page 26 lines 1-30 of the transcript of the judgment).

60. It is arguable that further reasons might be expected were a trial judge to apportion liability

differently as between concurrent wrongdoers whose relative blameworthiness differs, with a

more detailed assessment of same being necessitated as is clear from the decision of Clarke J.

in ACC Bank Plc. v. Johnston [2011] IEHC 501 where he observed: -

“I view [the first named third party’s] breach of undertaking as being at the higher end of

the relevant range while viewing [the defendant’s] negligence as being at the middle level

of the range, it seems to me that it is appropriate, as and between them, to apportion

blame as to seventy percent to [the first named third party] and thirty percent [to the

defendant].”

However, the approach adopted in ACC is reflective of the fact that it pertained to a professional

negligence suit and involved an evaluation of the issue as to whether a breach of an

undertaking by a solicitor constituted a more serious matter than a merely negligent act, with

Clarke J. finding that it did. This is materially different from the current scenario where the

second named respondent and the appellant had engaged in negligent driving to a substantially

equivalent extent and where the trial judge was satisfied that they were joint tortfeasors

possessing equivalent levels of blameworthiness for the accident.

61. In conclusion, I am satisfied that neither the trial judge’s reasoned determinations regarding

liability nor her findings with regard to apportionment of damages as between the appellant and

the second named respondent as joint tortfeasors were such as ought reasonably to be

interfered with on appeal. I am satisfied that the trial judge had cogent evidence on which she

was entitled to rely in reaching her conclusions in regard to these specific matters. The trial

judge identified a reasoned basis for her conclusions and no valid grounds for interfering with

same have been established.

62. I would dismiss this appeal.

Result: Appeal dismissed