High Court of Ireland Decisions

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Cite as: [2001] IEHC 238

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THE HIGH COURT

1999 No. 9145 P

Between

PATRICK BRESLIN

-Plaintiff

-and-

NOEL CORCORAN and THE MOTOR INSURERS' BUREAU OF IRELAND

-Defendants

Judgment of Mr. Justice Paul Butler delivered the 17^th. day of July. 2001.

These proceedings arise out of a road traffic accident which occurred on the 5^th of August, 1998 at Talbot Street in the City of Dublin. The agreed facts are that the first named Defendant left his car outside the Tea Time Express Coffee Shop unlocked and with the keys in the ignition. He had dropped into the shop to get a sandwich. As he emerged there from an unknown person jumped into the car and drove it off at speed. It turned into a lane and struck and injured the Plaintiff.

It has been agreed that the Plaintiff is entitled to recover the sum of £65,000 damages together with costs against one or other of the Defendants.

Mr. Nugent, Senior Counsel on behalf of the first named Defendant, while acknowledging that his client was negligent and in breach of statutory duty in leaving his car unattended with the keys in the ignition, argues that the Plaintiff is not entitled to recover against the first named Defendant on the basis that the negligent driving of the car was a novus actus and was the sole cause of the Plaintiffs injuries. He said that the question to be decided was whether a duty was owed by his client to the person who was ultimately injured by the act of a third intervening party.

Mr. Robbins, Senior Counsel on behalf of the second named Defendant argued that, in the circumstances, it was probable that the first named Defendant's car was going to be stolen and that the fact that the person who stole it would injure someone was reasonably foreseeable.

(At this point I would like to say that I have not got a full note of the submissions of Counsel and I hope that I have done them justice in the brief summary above.)

I was referred to two cases. The first, Dockery -v- O'Brien¹ was a decision of the late Mr. Justice Me William sitting as, as he then was, a Judge of the Circuit Court. The material facts (car left with the keys in the ignition stolen and causing damage to the Plaintiff) were identical to those in this case but only the owner of the car was sued, as one could not recover from the Bureau in the case of an untraced motorist then. Judge Mc William rejected the plea of novus actus interveniens and found that the damage suffered by the Plaintiff was reasonably foreseeable on the basis of the test laid down by Lord Atkin in Donohue and Stephenson.

The second case that I was referred to was Topp -v- London Country Bus (South West) Ltd.². Again the material facts were similar to those in the present case. In that case the Plaintiffs action against the owners of the vehicle, a bus, was dismissed by May J. The Court of Appeal dismissed the appeal on the basis that the Defendant owed no duty of care to the Plaintiffs wife because the vehicle did not fall within the special category of risk as a source of danger on the highway, since the acts of the wrongdoer were to be regarded as a novus actus interveniens which broke the chain of causation.

I am bound by neither of the foregoing decisions. I do not know what arguments were adduced in the Circuit Court in the Dockery case but I must say that I have no hesitation in finding that the chain of causation was clearly broken in this case. It is, of course, the case that, had the first named Defendant not left his car locked with the keys in the ignition, the Plaintiff would not have been injured but, as far as the negligence that resulted in the injury is concerned, the negligence and breach of statutory duty of the first named Defendant was a causa sine qua non and not a causa causans. (I borrow the language of Henchy J in Conole -v-Redbank Oyster Company³). The only type of circumstances in a case such as this where I could envisage a Plaintiff succeeding against the owner of a stolen vehicle would be where there was actual and clear evidence that the vehicle was left in an area where it should be known to the owner that people routinely stole cars for the purpose of driving them around in a reckless and dangerous fashion.

Accordingly, I find against the second named Defendant and I shall make whatever Order in favour of the Plaintiff as has been agreed.

¹[1975] ILTR 127

²[1993] 3 All ER 448

³[1976] IR 191 (SC)

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2001