High Court of Ireland Decisions

 


HC 169/04

THE HIGH COURT

Record Number: 2001 No. 2374P

Between:

Colm Carey

Plaintiff

And

Warren Mould and the County Council of the County of Donegal

Defendants

Judgment of Mr Justice Michael Peart delivered the 20^th April 2004:

On the day of this accident the plaintiff was aged 62 years. By trade he is a builder who has worked at that trade since he left school in his teenage years.

The accident giving rise to these proceedings took place at a junction at Slavery, near Buncrana, Co. Donegal where the plaintiff resides. He was driving to his home on the date in question at about 1pm. He knows the road intimately and has driven that way regularly for a great number of years.

As one drives along this main road from the direction of Buncrana, the road veers to the right. Another road, the minor road from the direction of Cleggan, meets this road at the point at which the main road veers to the right. The 1^st defendant was travelling along this minor road, towards the junction with that main road, in other words travelling towards the plaintiff.

The 2^nd defendant, Donegal County Council, ("the Council") had erected a Stop sign on the minor road close to the point at which that road meets the main road, in order to alert drivers on the minor road to stop, in order to let traffic on the main road continue along that main road, as the plaintiff was so doing on this day. However it appears that in some way, that Stop sign had been interfered with, as a result of which it was not facing in the intended direction on this date, but instead was turned 180 degrees so that it was in fact facing the direction from which the plaintiff was travelling.

Therefore on the date of this accident the plaintiff was travelling along the main road, and turned or veered around to the right as he was perfectly entitled to do, as he had right of way. But the 1^st defendant was travelling towards the plaintiff on what he thought was a straight road on which he could continue, as if he had a right to proceed past the junction to his left, in the safe knowledge that any traffic coming onto that road from the left would yield, and that any oncoming traffic, such as the plaintiff, would halt before making a turn to their right, or would simply continue in a straight direction past him in the Cleggan direction..

On this occasion the plaintiff proceeded to veer around to his right in the knowledge that any oncoming traffic would stop at the stop sign referred to. However, because the Stop sign was facing the wrong way, the 1^st defendant continued straight ahead through the junction. A factor also is that the plaintiff had, as was his entitlement, no indicator flashing in order to indicate his intention to veer to his right because he had the right of way. Therefore the 1^st defendant was not even aware that the plaintiff was intending to travel across his path in order to continue on his way along the main road. A collision was therefore inevitable, and so it happened.

The evidence has been that the Stop sign at the junction, which ought to have told the 1^st defendant that he was required to stop, had been interfered with, so that he was not aware of its existence. Because of this interference the evidence has been that the 1^st defendant assumed that he in fact was on the main road and could with impunity and in safety continue along what he thought was a straight main road. However there is also evidence that some 100 metres back from the junction there was in place on that date a yellow sign on the left with words in black informing a driver such as the 1^st defendant that there was a stop sign ahead at 100 metres. There was also a white stop line at the junction. These signs and markings had been placed at this point by the Council in order to alert drivers such as the 1^st defendant that they were required to stop in order to allow drivers such as the plaintiff to pass along the main road in front of them.

I am not required to decide whether the plaintiff has proven to the necessary degree that either the 1^st defendant or the Council breached the duty of care which they owed in their respective capacities to the plaintiff.. The defendants have agreed a quantum of damages in respect of the plaintiff's injuries and have let the plaintiff out so to speak, in the sense that the only issue for decision by me is the question as to which of the defendants is liable to the plaintiff, or if both are liable, then to what degree each is so liable as between them.

The 1^st defendant has accepted that the plaintiff was entitled to proceed along the main road, and to cross in front of him in so doing. In other words, he accepts that the road on which the plaintiff was travelling is the main road, and that the obligation was on him (the 1^st defendant) to stop before proceeding past the junction. However he says that the Council is liable because the sign was not facing in the correct direction, for whatever reason, and there was no other sufficient warning to him that he was obliged to stop at the junction to allow the plaintiff to pass along the main road across his path. He accepts that the yellow sign placed 100 metres before the junction was in place on this date, but he very fairly accepted that he did not see it.

The Council submits that if he had been keeping a proper lookout he would have seen that sign, and that even if the Stop sign was facing the wrong way he would and should have realised that he had an obligation to yield to the plaintiff and stop at the junction. The Council also submits that on the evidence the 1^st defendant was travelling at 25mph as he came down the incline towards this junction and there is no evidence that he slowed in any way as he came to the junction itself, and that he is therefore liable for the accident which occurred.

The 1^st defendant on the other hand, who lives in Northern Ireland and was on holidays in the area at the time, and was not therefore familiar with this junction, as the plaintiff was, says that he did nothing wrong since the sign was facing the wrong way, and he submits that the yellow sign was not sufficient to alert him to the necessity to stop at this junction.

There has also been evidence from Garda Wallace that she was called to the scene of this accident a short time after it happened. She confirmed that the Stop sign was turned around the wrong way, but she also gave evidence that the white stop line on the 1^st defendant's side of the junction was partially faded to the extent that immediately after the accident she contacted somebody by telephone at the Council to tell them about this. She also stated that she had also personally typed a letter to the Council informing them of the problem at this junction. The Council have denied ever receiving such a letter, and Garda Wallace has not produced a copy of the letter to the Court, but she was sure that she had sent such a letter. Whether the letter was sent or not, I am satisfied that she was of the opinion on that date that the road marking was somewhat faded through age.

As I have said what I have to decide is which defendant is liable to the plaintiff, or if both are partially liable, in what proportions.

The Council has submitted that by placing the Stop sign at the junction, it has fulfilled its statutory obligation to alert the public to the necessity to stop. It submits that there is no statutory obligation to place white lines on the road, and that in addition it placed a yellow warning sign which I have already referred to at a position about 100 metres back from this junction, and maintains that even if some person by whatever means had turned that Stop sign around the other way, that yellow sign ought to have been sufficient to alert the 1^st defendant to the necessity to stop at the junction. It is also submitted that the 1^st defendant in any event should have slowed as he approached this junction even if he did not appreciate that he needed to halt or stop at the junction.

Mr Donal Kelleher, an engineer in the employment of the Council gave evidence that there was no history of accidents at this junction, and that the priority of the roads at this junction had remained unchanged for many years. In other words, it has been the case for years that traffic coming from the direction from which the plaintiff was travelling could proceed to their right along what is the main road, and that traffic coming from the direction of the 1^st defendant must halt and yield to same. He also said that the manner in which this Stop sign was placed on the pole in question was in accordance with the method recommended in the Traffic Signs Manual. It had been suggested to him by Mr Ralston S.C. on behalf of the 1^st defendant, that a better method of fixing would be to place a bolt through the sign and the pole in order to ensure that it could not be turned round in the other direction as this one had been. However, Mr Walker was of the view that placing a bolt through the sign and the pole as suggested would in fact result over time in weather damage through corrosion and that this could affect adversely the clarity and efficiency of the sign in the future.

Mr Colm Smith S.C on behalf of the 2^nd defendant has submitted that the Council had done everything in its power to ensure that the public received adequate warning in respect of this junction. He accepted that it was potentially a dangerous junction in the total absence of any signage, but submitted that the Council had placed signage at the junction, and also 100 metres back from the junction, as well as placing white line markings on the road itself, and that it could not be expected to anticipate that some person would turn the sign around so that it faced the wrong way, and ceased to serve its intended purpose.

Mr Gavin Ralston S.C. on the other hand, on behalf of the 1^st defendant, submitted that his client had, in the circumstances, done nothing wrong, since the sign which was intended to warn him of the junction ahead at which he was to stop, was facing the other way, and that given the nature of this road, which reasonably appeared to his client to be a straight main road, he did not fail in any duty of care upon him to the plaintiff in the circumstances. He submitted that his client's speed at the time was reasonable and not excessive, and that it was not reasonable to find the 1^st named defendant culpable for not adverting to the yellow warning sign 100 metres back from the junction given its size and position.

What is not in doubt in this case is that the plaintiff is completely blameless for this accident. That is accepted by the defendants. What is also clear from the way in which the case developed is that the defendants accept that there has been negligence on the part of one or other defendant, or a combination of both, since the quantum of damages has been agreed, and the plaintiff was not required by the defendants to take any part in the issue arising as between the defendants. Had that not been the situation as the case developed, this Court would have had to decide whether the plaintiff was able to make out a sufficient case of negligence against either defendant. That interesting question, however, does not arise for determination by me.

As far as the 1^st defendant is concerned, I am satisfied that he was not travelling at an excessive speed as he proceeded towards this junction. However I am satisfied that the yellow sign placed 100 metres back from the junction was placed there for a purpose, which was to give an early warning to a driver, such as him, that he was approaching a junction at which he was required to stop. The 1^st defendant very fairly accepted that he did not remember seeing that sign. If he had seen it, I am satisfied that he would at least have been aware of the junction and the need to stop, and would at the least have become puzzled that there was no Stop sign visible. He would undoubtedly have been alerted to the fact that there was no question of just proceeding along this otherwise straight road, as if it was one continuous main road. He would have been put on some sort of lookout if he had seen the yellow sign. Why he did not see the sign is of no concern to me. The fact is that he did not, and this transformed the mishap to the Stop sign itself into a far greater misfortune than it would have been had the yellow sign been observed.

However the fact that the 1^st defendant failed to observe the yellow sign does not absolve the County Council from blame. It has the statutory obligation to main a safe road system. While it cannot be expected to be aware automatically of every occasion on which a sign is turned around the wrong way, perhaps by mischief, it retains an overall responsibility to ensure that roads are safe and that all traffic users are aware of potential dangers, including persons such as the 1^st defendant, a tourists, who would not be familiar with a potentially dangerous junction, such as that involved in this accident. I am satisfied that this junction is, and was on this date, even ignoring the fact that the Stop sign was facing the wrong way, an inherently hazardous junction, and one requiring that very clear warnings be apparent to any road user, particularly one such as the 1^st defendant who was a visitor to the area. It is an unfortunate fact of everyday life that signs such as this Stop sign can become turned in the wrong direction for whatever reason. No doubt this is why the Council felt it was desirable to give road users an early warning of the junction by placing the yellow sign 100 metres back from the junction. However it is also clear to me that the Council would not have regarded that yellow sign alone as an adequate warning to a road-user such as the 1^st defendant, to stop at the junction, hence the fact that it placed the Stop sign, and also the white Stop line at the junction itself. That white line marking was partially faded on this date, according to the evidence of Garda Wallace, which I accept in that regard.

Mr John Mooney, Consulting Engineer on behalf of the 1^st defendant, has suggested a number of ways in which a junction, such as the present one, could be improved as far as safety is concerned. He is of the view that without the Stop sign this is a hazardous junction, and that for instance, some sort of island design could be placed at the junction which would mandate traffic such as the first defendant to stop and wait till traffic such as the plaintiff had passed. He also suggested that at the Stop sign there could also be white lettering on the road itself saying "STOP", as often happens. He also suggested that the Council could have placed a larger type of yellow warning signing indication the need to stop at the junction which would not be subject to the possible hazard of being turned the wrong way by accident or otherwise.

I am satisfied that while the Council had fulfilled the letter of their statutory obligation by erecting the Stop sign at this junction, that is not the full extent of its obligations to the public. Firstly, this is an inherently dangerous junction requiring special steps to be taken in order to ensure as far as possible that an accident such as the present one did not happen. In recognition of this it went further than its statutory obligation by providing a white Stop line at the junction, and a yellow warning 100 metres back from the junction. However the white line was partially faded, and the yellow sign, it has to be said, from the photographs, is not a large, unmissable type of sign. Nevertheless, I believe that the 1^st defendant ought to have seen it, and if he had, he might possibly have realised that he was at a junction at which he was required to stop and give way to the plaintiff.

I am satisfied that, as between the defendants, while the 1st defendant was at fault in that regard, he is at fault to a much lesser extent than the Council, whose duty it is to ensure the safety of the roads. I am particularly mindful of the fact that the 1^st defendant was a tourist and was therefore completely unfamiliar with this junction. The Council was in a position to ensure the safety of this junction to a much greater degree than was the case, such as in the manner suggested by Mr Mooney, to which I have referred. Having said that, I have a degree of sympathy for the Council which cannot reasonably and fairly be expected to be aware of the fact that some person has turned a sign around so that it ceases to serve the purpose for which it was intended.

In all the circumstances, I find the 1^st defendant liable to the extent of 15%, as he ought to have at least seen the yellow sign. It was there and he ought to have at least noted it and been on the look-out. The Council is liable to the extent of 85% for the plaintiff's damages, since I am of the view that they are primarily liable as between the defendants for the fact that this junction presented a greater hazard than it ought to have on the day in question.

I give judgment accordingly.