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Cite as: [2008] IEHC 120

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Neutral Citation No: [2008] IEHC 120

THE HIGH COURT

2003 No. 10140P

BETWEEN

CHARLES BOYLE

PLAINTIFF

AND

LIAM KELLY HAULAGE LIMTED AND JAMES CLARKE

DEFENDANTS

Extempore Judgment of Mr. Justice Eamon de Valera delivered on the 1^st May, 2008.

Mr. Boyle, the plaintiff, has suffered the most serious injuries as a result of this accident and the fact that he was such a poor candidate for such damage has made the effects of his injuries more difficult for him. Anybody must sympathise with him and his family as a result of the situation in which he now finds himself.

I have examined all the evidence very carefully, both the witnesses' recollections and the physical evidence available at the scene and recorded in photographs and maps and also the expert opinions of the engineer and Gardaí.

On the basis of all this evidence, particularly the physical evidence of the skid marks and point-of-impact scuff marks (which I accept as indicating the actual point-of-impact between the truck and the motorcycle) I am satisfied:-

(i) The impact occurred approximately three feet on the plaintiff's incorrect (and therefore the defendant's correct) side of the central white line on the roadway.

(ii) At all material times the articulated truck was on its correct side of the road and significantly on its correct side of the central white line.

(iii) At all material times the plaintiff was on the incorrect side of the road and across the central white line in the path of the defendant's oncoming lorry.

(iv) The second named defendant was not driving at an excessive speed in the circumstances.

(v) On the balance of probabilities the plaintiff was going too fast at this particular bend.

(vi) The second defendant had no opportunity to avoid the collision.

(vii) The sole cause of this collision was the plaintiff's negligence.

(viii) There was no contributory negligence by the defendants.

Point-of-impact

(i) I am satisfied that the point-of-impact as identified by Garda Brennan by scuff marks on the roadway, shown in the photographs at the end of an extended skid mark, indicates the actual place where the plaintiff's motorcycle came into contact with the defendant's articulated truck. The photographs and Garda Brennan's evidence, both as given in Court and on his sketch map of the accident site, establish this beyond any reasonable doubt.

Position on roadway (defendants)

(ii) I am also satisfied that at all material times the articulated truck was on its correct side of the road. This is the evidence given by the second defendant, which I accept, and is demonstrated by the skid mark which shows that the vehicle was always on its correct side of the road and a proper distance from the centre white line. The only evidence purporting to contradict this is that of the plaintiff himself and I am not satisfied that the recollection which he claims is accurate.

Position on roadway (plaintiff)

(iii) At all material times the plaintiff was on his incorrect side of the road. As I have already indicated I do not think his evidence, which was vague, can be relied upon and I prefer and accept the evidence of the second named defendant which is entirely consistent with the physical marks on the roadway and the damage to the vehicle which he was driving.

Defendant's speed

(iv) I am satisfied that the second named defendant was not going too fast in the circumstances which obtained as he approached the bend where the collision occurred. Ms. Kelly, the plaintiff's engineer, gave evidence that a safe speed, in a car, to negotiate this bend was in the region of twenty five to thirty miles per hour. I do not accept this. I prefer Garda Brennan's view and on this point I would consider him to have more expertise that Ms. Kelly, whose expertise is that of an engineer.

Plaintiff's speed

(v) The plaintiff himself claimed that he was driving at twenty five to thirty miles per hour "taking my time". I have already indicated that I did not find the plaintiff's evidence entirely satisfactory and I prefer the evidence of the second defendant who described the plaintiff as going "too fast" and "he couldn't hold the road".

The collision

(vi) On the evidence I am satisfied that the second defendant had no opportunity to avoid the collision. As he entered a bend he was presented with an oncoming motor cycle at least three feet across the centre white line on his (the second defendant's) side of the road and travelling too fast. There was nothing, in these circumstances, that the second defendant could do to avoid the collision.

Plaintiff's negligence

(vii) The sole cause of this collision was the plaintiff's negligence in allowing his motorcycle to cross onto the incorrect side of the road into the path of an incoming articulated truck which had no opportunity to avoid him; and there is no explanation of any kind why this occurred. On the balance of probabilities it can only have been the plaintiff's negligence.

Defendant's negligence

(viii) There was no contributory negligence by the defendants. The articulated lorry was not, as I have already indicated, driving too fast in the circumstances and in any event was at all material times on its correct side of the road. It did not "cut the corner" as was suggested and the impact occurred on the defendant's correct side of the road. There was nothing the driver of the defendant's vehicle could do to avoid the collision.

Approved: de Valera J.