High Court of Ireland Decisions

1. On 6th November, 1995 the Plaintiff was driving his motor car in the direction of Nenagh on the main Limerick to Nenagh road. I am satisfied that he was driving perfectly normally on a straight stretch of road. Suddenly, and for no reason which was apparent to the Plaintiff at the time, his car skidded and spun across onto the wrong side of the road and collided with a car travelling in the opposite direction. As a result the Plaintiff suffered injuries, the most serious of which was the dislocation of his right shoulder.

2. When the accident was investigated by the Gardai it was found that there was a patch of oil on the road about 50 feet in length and covering most of the side of the road on which the Plaintiff had been driving. The Garda evidence, which I accept, is that this was almost certainly either petrol or diesel fuel and that it would not have been seen by the driver of a car. I have no doubt that the direct cause of this accident was the oil on the roadway, and it is relevant that a second car appears to have skidded across the road very shortly afterwards, although fortunately it did not collide with another vehicle.

3. The source of the oil on the road is unknown, and if it came from another vehicle, the identity of that vehicle is also unknown. Accordingly, the Plaintiff has brought proceedings against the Defendant pursuant to the terms of an agreement, commonly known as the MIBI Agreement, dated 21st December, 1988 and made between the Minister for the Environment and the Defendant, which was entered into to ensure that persons suffering personal injury in road accidents involving uninsured or stolen vehicles and unidentified or untraced drivers would be adequately compensated. The relevant Clause in that Agreement under which the Plaintiff is claiming reads as follows:-

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

5. Unfortunately I can find no definition of the phrase “negligent driving”. Section 3 of the Road Traffic Act, 1961 defines “driving” as including managing and controlling, and the Act also defines “careless driving”, “dangerous driving ” and “ driving of dangerously defective vehicles ”. These definitions are useful in interpreting the Agreement, particularly as the Agreement itself refers to the Road Traffic Act, 1961 in several sections, and the whole scheme of the Agreement is linked to the compulsory insurance provisions of that Act. Interestingly Section 56 of the Road Traffic Act, 1933 required a person to be insured against liability for injury caused by negligent driving, but without defining the phrase. However Section 56, the equivalent section of the Road Traffic Act, 1961 has changed this to a requirement to have insurance covering the negligent use of the vehicle. In my view, it is reasonable to interpret “negligent driving ” in Clause 6 of the Agreement as including managing and controlling a vehicle.

6. The Defendant has referred me to several cases, and in particular Neill -v- Minister for Finance (1948) I.R. 88 and R. -v- MacDonagh (1974) 2 All E.R. 257. In the former case it was held that a person closing the back door of a van was not driving the van and in the latter case it was held that a person pushing a vehicle with his hand on the steering wheel was not driving. I am not sure that these cases have any great relevance to the present case, in that I have found as a matter of probability that the spillage was caused by fuel spilling from a vehicle which was been driven in the normal sense of that word.

7. There is no doubt that a person who knowingly drives a defective vehicle will be held to driving negligently if he was aware, or ought to have been aware, of that defect. A classic example would be a person driving a vehicle at night with no tail lights. In my view the situation in the present case is very similar. If the driver of the lorry or truck from which the fuel spilt was aware that there was no cap on the fuel tank, then, by driving the vehicle in that condition, he was driving it negligently. Similarly, he would be liable if he ought to have been aware that there was no cap on the fuel tank as, for example, if he himself had filled the vehicle with fuel and had not ensured that the cap was properly fitted back onto the tank. There would then be a somewhat grey area where somebody else had filled the tank and either failed to replace the cap or replaced it incorrectly. A case could be made, particularly if driving includes managing, that there was a duty of care on the driver to ensure that the cap was properly fitted before he drove off. Finally, there is the case at the other extreme where, for example, somebody maliciously removes the cap while the lorry is stopped at traffic lights, and the driver could not possibly have been aware that this had happened. In such a case quite clearly the driver has no liability.

8. In the present case, there is no way of knowing what happened. There was evidence which enabled the Court to find on a balance of probability that the spillage was caused from the fuel tank of a lorry or truck, but there is no evidence whatever as to why that spillage occurred, and in particular as to the circumstances in which the cap of the fuel tank either was missing or defective.

9. The Plaintiff has urged that this is a case of res ipsa loquitur . I cannot accept this submission, because, as I have sought to show, there may be circumstances in which a spillage of this nature occurs without any fault whatever on the part of the driver.

10. I think the problem can be best dealt with by considering the position in an ordinary case where the driver and owner of the vehicle are known, and are the Defendants. In those circumstances, once the Court was satisfied that the accident was probably caused by a fuel spillage from the Defendants vehicle, the onus would clearly shift on to the Defendant to show that the spillage had occurred under circumstances which did not constitute negligence on his part. In an ordinary case there clearly would be no onus on the Plaintiff to prove the negative, namely that there were no circumstances which would excuse the Defendant from liability. These would be matters solely within the knowledge of the Defendant and it would be for him to produce the necessary proofs. In the present case, in my view a similar situation arises. The Plaintiff is in the position that he does not know what happened and could not know what happened. He has been able to satisfy the Court that the probability is that this accident was caused by a fuel spillage, and there certainly are circumstances in which this could constitute negligent driving on the part of the driver of the vehicle from which the spillage occurred. Beyond that the Plaintiff cannot go. Of course, unlike the ordinary case, there is also no way in which the Defendant can know what happened, and therefore the Defendant is unable to produce any explanation which might excuse liability, and therein lies the real difficulty of this case.

11. I think this problem must be resolved in favour of the Plaintiff. The whole purpose of the MIBI Agreement and its predecessors is to compensate persons injured in road traffic accidents where no other compensation is available. In my view it would be quite wrong and quite contrary to the intention and purpose of the Agreement that a Plaintiff should be put in a position that he will not receive compensation if he cannot prove that the driver could have no defence, where he would not have to have this burden of proof if the identity of the driver or vehicle was known. Accordingly, I find the issue of liability in favour of the Plaintiff, and I do not find that there was any contributory negligence.

12. Very sensibly both parties to these proceedings are content to rely on the medical reports, and I have had the benefit of the evidence from the Plaintiff himself. The Plaintiff suffered some minor abrasions and bruising to his knees and chest, but the principal injury which will have some permanent effects is the dislocation in his shoulder region. Mr. Meehan, the surgeon, in his report described this as follows:-

13. All the medical evidence agrees that there would be some permanent discomfort as a result of this injury, but that it will not have any great effect either on the Plaintiffs ability to work or on his enjoyment of life. His own evidence is that he has some problems sleeping on his right side and that his shoulder gets sore after strenuous exercise. He was out of work for a couple of weeks with his arm in a sling and for sometime thereafter only was able for light work. His work as an industrial radiographer does involve the use of fairly heavy equipment and this may continue to cause him some inconvenience. I have to say that the Plaintiff himself was extremely positive and appeared to be prepared to put up with whatever inconveniences there might be without complaint. It should also be said that he has a noticeable deformity of his right shoulder as a result of this dislocation with a prominent bulge between his collar bone and his shoulder, and this will be permanent and is somewhat unsightly. There appears to be a slight risk of some further physical problems in the joint in the future, but not of a nature to cause him any great handicap.

14. The Plaintiff has no loss of earnings, and I do not think this is a case in which it is necessary to assess past and future damages separately. I will award him the sum of £30,000 and special damages of £100.