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Cite as: [1999] IESC 74

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Doran v. Cosgrove [1999] IESC 74 (12th November, 1999)

THE SUPREME COURT

22/99

Keane J.

Lynch J.

Barron J.

BETWEEN

UNA DORAN

Plaintiff

AND

LUKE COSGROVE AND SEAN COSGROVE AND THERESE MURRAY

Defendants

Judgment delivered the 12th day of November 1999. by Keane, J. [Nem. Diss.]

1. This case arises out of a horrific accident which occurred in the early hours of the morning of February 27th, 1995, on the road between Monaghan and Clones. As a result of a collision between a motor car and a van, the driver of the van and a young woman who was a passenger in the back seat of the car were killed. Another young woman, who was also a passenger in the back seat of the car, suffered injuries in the collision. She is the plaintiff in these proceedings, the first and second named defendants being the owner and

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driver respectively of the car and the third named defendant being the personal representative of the deceased owner and driver of the van.

2. The accident happened on a relatively straight stretch of the road along which the motor car was driving in the direction of Clones. The garda sergeant who investigated the accident and was called as a witness on behalf of the plaintiff produced a sketch map showing the position of the two vehicles on the road as he found them when he arrived on the scene. The motor car was on the grass verge on the right hand side of the road as one looked towards Clones but was facing back in the Monaghan direction. The van was on the same verge but at right angles to the road, a distance of some 28 feet further on in the Clones direction. Debris found by the sergeant on the right-hand carriageway as one looks towards Clones, approximately 4 feet from the rough surface between the carriageway and the grass verge, indicated that the collision had taken place directly opposite the mouth of a junction with a minor road to Shankill. The distance from the point of impact so found to the mouth of the junction was approximately 9 feet 6 inches. The width of the carriageway at that point was approximately 24 feet 6 inches and the centre of the road was marked by a broken white line. The distance from the point of impact to the van was approximately 142 feet. The sergeant also gave evidence as to the damage to the two vehicles and produced photographs.

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3. They showed that the damage to the van was on the right hand side of the vehicle, whereas the damage to the motor car was to the front.

4. It was clear, accordingly, that the accident had happened when the van was making a right hand turn across the carriageway in order to enter the minor road to Shankill and that it was struck by the motor car before it had completed that manoeuvre at a stage when the motor car was on its incorrect side of the road.

5. The plaintiff in evidence said that “ we were driving fast before the accident ” and that she told the driver to slow down. However, she went to sleep after that and had no recollection of the accident itself.

6. Dr. Wood, an engineer who was called on behalf of the first and second named defendants, said that the damage to the motor car and the distance the van had been propelled indicated that the former was being driven at a “substantial speed”, or somewhere in the range between 55 mph and 75 mph. He thought the probable speed of the motor car at the time of the impact was 64 mph.

7. Neither the first named defendant nor the second named defendant gave evidence. The garda sergeant, in his evidence, said that he had interviewed the second named defendant after the accident. The latter admitted that he was driving the car at the time of the accident but said:-

“I can’t remember anything about the accident.”

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8. In addition to delivering defences denying liability, notices claiming an indemnity and/or a contribution were served on behalf of the first and second named defendants and the third named defendant respectively pursuant to s.21 of the Civil Liability Act 1961. At the conclusion of the evidence, the learned trial judge heard submissions on behalf of the first and second named defendants and the third named defendant. It was submitted on behalf of the third named defendant that there was no evidence of negligence on the part of the deceased driver. It was submitted on behalf of the first and second named defendants that, if the trial judge could not decide which party was negligent but was of the view that one or other must have been negligent, he should apportion the damages equally between them.

9. That submission was clearly wrong in law. Section 34(1) of the Civil Liability Act 1961 provides that, where the damage suffered by the plaintiff was caused partly by the wrong of the defendant and partly by the contributory negligence of the plaintiff and the court is unable to establish different degrees of fault, the liability is to be apportioned equally. In this case, no question of contributory negligence on the part of the plaintiff arose and the only issue as to apportionment that could have arisen would have been pursuant to s.21(2), where the amount of the contribution recoverable from a concurrent wrongdoer is to be such as may be found by the court to be “just and equitable”, unless any of the possible contributors is exempted

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from liability or, alternatively, required to indemnify a concurrent wrongdoer to the extent of a complete indemnity. It is, of course, an essential precondition to the operation of that provision that the court should have concluded that both parties were concurrent wrongdoers.

10. In this case, the learned trial judge accepted the submission advanced on behalf of the first and second named defendants. He then expressed his conclusions as follows:-

“Now, I have no evidence to suggest whether or not indication [of his intention to turn] was given by the late Mr. Mulligan [the van driver], so I cannot find fault on the part of either driver in that regard. However, I have evidence that the Cosgrove car was driving in excess of the speed limit and I can infer that, before he turned to the right, the late Mr. Mulligan was aware of a car behind him and aware of a car driving at speed. Without knowing whether indication was given or not by Mr. Mulligan, I think that I can infer that there was a lack of judgment amounting to negligence on the part of both drivers; on the part of the driver of the Cosgrove car, on the grounds that his speed was such that he assumed he had time to overtake and on the part of late Mr. Mulligan, although I regret to have to do so, on the grounds that not withstanding the speed of the

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car behind him, he felt that he could safely make the turn. As events happened, it seems that both of them were wrong and I cannot distinguish between their respective blameworthiness and accordingly I propose to apportion fault equally between them.”

11. From that decision, the third named defendant has now appealed to this court.

12. It should be said at the outset that the procedure adopted in this case, of calling all the evidence on behalf of both the plaintiff and the defendants before the court ruled finally on the liability of any party, was clearly correct and in accordance with the practice approved of by Finlay CJ, speaking for this court, in Hetherington v. Ultra Tyre Service Limited [1993] 2 IR 535 where he said (at p.542):-

“ ... I am quite satisfied that if two defendants are sued and if one of them makes an application for a non-suit at the conclusion of the plaintiff’s case ... it is open to a judge and, in my view, probably very desirable in the interests of justice, that he should enquire from the other defendants involved in the case as to whether it would be their intention, if they are left in the action, to present a case against the party seeking a non-suit at that time. If they are going to present a

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case by evidence or submission against their co-defendant, seeking to blame him, all the requirements of justice are that all that evidence should be heard before a final determination of the case.”

13. In this case, when the trial judge gave his ruling all the evidence had been led on behalf of the plaintiff and the first and second named defendants. No evidence was called on behalf of the third named defendant. The first matter that should have been addressed at that stage was as to whether either the first and second named defendants or the third named defendant or both of them were entitled to a dismiss of the case against them on the ground that the plaintiff had failed to establish any negligence on the part of the driver concerned. In the case of the third named defendant, I have no doubt that that should have led to a finding that no evidence of negligence had been adduced as against the driver of the van and that, accordingly, the case against the third named defendant should have been dismissed.

14. There was no evidence that the driver of the van had failed to give a signal of his intention to turn right into the junction and no basis in the evidence for the inference drawn by the trial judge that there was what he described as a “lack of judgment amounting to negligence on his part” in making the turn at the stage that he did. In these circumstances, the trial judge erred in law in treating the third named defendant as a concurrent

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wrongdoer and proceeding to apportion liability in the manner which he did. That is sufficient to dispose of this appeal, since it was conceded on behalf of the first and second named defendants that the accident in this case was caused by the negligence of either or both of the drivers, no notice to vary the High Court order so as to exonerate the first and second named defendants having been served. Apart altogether from that consideration, the position at the end of the evidence was that a Prima facie case against the first and second named defendants had been made out. The evidence had established that the motor car was on its incorrect side of the road, that the van had been struck when it was crossing the carriageway and about to enter the minor road and that the motor car was travelling at such a speed that it propelled the van a distance of 142 feet from the point of impact. The Prima facie case thus established might or might not have been displaced had the second named defendant given evidence. However, he was not called and no satisfactory explanation was given to the court as to why he was not called. The fact that he told the sergeant that he had no recollection of the accident could not be used as evidence against the plaintiff or the third named defendant: it was hearsay evidence not given on oath and the maker of the statement was not available for cross-examination. It did not come within any of the recognised exceptions to the rule against hearsay which would have made it admissible against either the plaintiff or the third named defendant.

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15. The law was thus stated by Lord Lowry in Reg. v. IRC, Exp. Coombs & Go, [1991] 2 AC 283 at p.300:-

“In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party, may be either reduced or nullified.”

16. Applying that statement of the law to the facts of the present case, it is clear that, even apart from the fact that the first and second named defendants have not sought to contest the finding in the High Court that the driver of the motor car was negligent, no other inference could have been drawn by the trial judge from the evidence actually adduced in the case, in the light of the failure of the second named defendant to give evidence and the absence of any credible explanation for that failure.

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17. I would allow the appeal and substitute for the order of the High Court an order giving judgment for the plaintiff against the first and second named defendants and dismissing the claim against the third named defendant.