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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Rogers -v- MIBI [2009] IESC 30 (31 March 2009)
URL: http://www.bailii.org/ie/cases/IESC/2009/S30.html
Cite as: [2009] IESC 30
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Judgment Title: Rogers -v- MIBI Composition of Court: Geoghegan J., Finnegan J. Clarke J. Judgment by: Finnegan J. Status of Judgment: Approved
Outcome: Allow And Set Aside | ||||||||||||||
THE SUPREME COURT APPEAL NO. 239/2004 Geoghegan J. Finnegan J. Clarke J. BETWEEN PATRICK ROGERS PLAINTIFF/RESPONDENT and THE MOTOR INSURERS’ BUREAU OF IRELAND DEFENDANT/APPELLANT Judgment of Mr Justice Finnegan delivered on the 31st day of March 2009 The respondent issued a plenary summons on the 21st October 1998 claiming damages for personal injury, loss and damage sustained by him owing to the negligence and breach of duty of a driver of a motor vehicle who remains unidentified and untraced. The action was heard over five days commencing on the 21st October 2003. The learned trial judge delivered judgment on the 5th December 2003 in which he held for the respondent and awarded him damages as follows:- Pain and suffering to-date €72,000 Pain and suffering in the future €40,000 Agreed special damages €8,700 ___________ €120,700 The respondent was awarded the costs of the action when taxed and ascertained. The appellant appeals the finding of the learned trial judge on liability. The evidence The respondent gave evidence that he was born on the 4th November 1945. At the relevant time he was employed in the Landscape and Public Gardens Section of Dundalk UDC and had been so employed for the previous twenty years. His work involved the planting and maintenance of grass areas and flower beds and in that capacity he had been involved in laying out and planting flower beds and shrubbery on the Newry Road leading from Dundalk including a flower bed in front of the Maxol service station. His home was at Dowdall’s Hill which is situate north of the Maxol service station and off the opposite side of the road. On the 26th May 1996 he walked to the Listoo Arms licensed premises which did not necessitate him crossing the Newry Road. He arrived at 8.45 p.m. and remained there until 9.30 p.m. during which time he drank two pints of Guinness. He met Ms Rose Waters by arrangement and they went together to Harry Duffy’s Bar which is on the opposite side of a continuation of the Newry Road, that is on the same side as the Maxol service station, at a distance of six hundred yards to the south of the Maxol service station. There was a party in Harry Duffy’s because the bar was closing down. He had some cocktail sausages and sandwiches and had five or at most six further pints of Guinness. Normally on a night out he would have five to six pints of Guinness. Ms Waters left the bar around midnight and he remained on until 1.30 a.m. He walked along the footpath of the same side and towards the Maxol service station. The footpath on that side of the road is intermittently separated from the carriageway by a grass verge or planted area. At the service station the forecourt of the service station joins directly onto the footpath and between the footpath and the carriageway there is a planted area enclosed in part within a kerb and in another part by a slightly higher wall some eighteen inches in height. He recalled passing the Listoo Arms where he greeted Mr Hackett, but at that point his memory ceased and his next memory was waking up in hospital. He regained some memory later: as he was passing the forecourt of the Maxol service station he saw “lights coming flying at me and I couldn’t get out of the way”. This was a car which came from the north and into the Maxol service station. It was a long time after the accident before he recalled the lights of a car coming towards him, approximately three years. He gave this account to Dr Séan Murphy on the 6th October 1999 and to Mr Jack Phillips on the 14th October 2000. He still has no recollection of events after seeing the lights. He also gave this account to Dr Maguire. In his confused state shortly after the injury and while in hospital he did give accounts of having been struck by a small green sand lorry owned by “Phillips” and by a red van. In cross-examination the respondent said that he had nothing whatsoever to drink in the hour and a half that he remained in Harry Duffy’s Bar after Ms Waters left. He was initially uncertain how far he had progressed towards home when he saw the car, but three or four years after the event he remembered that he was at the Maxol service station. He agreed that in September 1996 he informed his surgeon Ursula Mulcahy that he had absolutely no recollection of what happened to him and that his last memory was of being in Harry Duffy’s pub. On the 3rd November 2001 he saw his neurosurgeon Mr Pigeon who recorded that the respondent had no recollection of the events. The respondent was satisfied that he was not drunk. Rose Waters gave evidence. Normally on a night out the respondent would have five pints. She had never seen him affected badly by drink. He was never stone drunk and always able to look after himself. She attended at the Louth Hospital shortly after he was taken there by ambulance. He was later taken to Beaumont Hospital and she saw him after he came out from surgery. She visited him again two days later and a conversation took place. Evidence of the same was allowed by the learned trial judge as evidence of what the respondent said but not as to the truth of what he said. The respondent told her that “he got a bat”. In cross-examination she agreed that at some point on the evening in question the respondent had got sick and that his face was black. His shoes were covered in mud and there was mud on his trousers. He was not in that condition when she left him. The respondent’s sister Ms Betty Rogers gave evidence. They lived together in the family home. She had never seen him come home incapable from the effects of drink. On the morning of the 27th May 1996 she found him lying on his back at the back door of the family home at approximately 11.30 a.m. He was unconscious. There was no sign of injury. She arranged for the ambulance to take him to the Louth Hospital. While he was in Beaumont Hospital he told her that he got “a bat of a small sand truck”. He was still confused at the time. In cross-examination she said that her belief was that he had fallen at the back door. She recovered his clothes from Beaumont Hospital and they included his wallet with money and his watch and it was clear that he had not been robbed. Harry Duffy gave evidence. He confirmed that the respondent was at the closing-down party of his licensed premises. He remembered the respondent partaking of cocktail sausages and sandwiches. He let the respondent out from the licensed premises at about 2 a.m. or 2.10 a.m. He had never seen the respondent incapable of walking home although he has known him for more than ten years. On the night in question he was capable of walking home on his own. A statement of Mr Hackett, the proprietor of the Listoo Arms, was admitted. At about 2.30 a.m. he was walking on the Newry Road towards Dundalk and at the Newry Bridge, and not at the Listoo Arms, he saw the respondent walking on the footpath on the opposite side of the road, that is on the same side as the Maxol service station, and in the direction of the Maxol service station. In his statement he said:-
A statement of Pádraig Grey was admitted. Between 2.50 a.m. to 3.10 a.m. he was with Tina McCaffrey near the Listoo Arms for some ten to fifteen minutes thumbing a lift. They got a lift and some time later walked back as far as the Maxol service station where they saw a man lying on the side of the footpath. His whole body was stretched out on the road. There is a Renault garage across the road from the Maxol service station and a car was parked there and a number of persons were present including a Mr McEvoy, a Mr Nardone, Ms Ashling Lee and another girl. He pointed out a man lying on the road to the others and they all went over to him. Mr Nardone and Mr McEvoy tried to get the man up and the man told them to f…off. They left him where he was. About ten minutes later another car stopped and a man exited the same and took the man in off the road and put him sitting against the wall surrounding the flower bed at the service station. There was no blood on the man but he was all dirty. The man had not been on the road when he was thumbing a lift earlier that morning. Stephen O’Connor gave evidence that he left his employment at the Carrickdale Hotel at about 5 a.m. and travelled to Dundalk. At the Maxol service station he saw the respondent lying on the road from his waist down; his upper body was on the flower bed. Together with Fiona Murphy he went across to the man to see if he was alright. There was no blood. He was concerned that his legs would be run over by a lorry or a car. They took him to the forecourt of the service station. He was mumbling. They left him beside the petrol pumps lying flat on his back on the ground. The respondent could not have been caused injury by being lifted. They placed him gently on his back on the forecourt. Had he though that the respondent was injured he would have called for an ambulance. He thought he was drunk. In cross-examination he said that the respondent was not sitting against the wall when he found him and was nowhere near the wall. The respondent told them to f…off. He saw no sign of injury to the respondent. There was muck on the respondent’s shoes and trousers, particularly at the bottoms of the legs. The respondent was unable to support himself on his legs. There was no smell of drink from the respondent but he presumed that the respondent had had too much to drink. The witness was shown a photograph of the respondent lying on the forecourt close to the pumps and confirmed that that was the position in which he had left him. Thomas Kirk gave evidence that he was the manager of filling stations in Dundalk, including the Renault filling station situate across the road from the Maxol service station. He arrived at the Renault filling station at approximately 5 a.m. on the morning of the 27th May 1996. He saw a man lying in the forecourt of the Maxol service station. He took a photograph of him. This was at approximately 5.30 a.m. He tried to rouse the respondent. He saw no sign of injury. His face was clean. He was about to ring an ambulance when Mr McGahan arrived on the scene with Mr Conlon. They put the respondent into a newspaper delivery lorry. He would not think that they injured him in so doing as they were very careful. They drove away very slowly. In cross-examination he said that while he did not know the respondent by name he recognised him as a neighbour. His impression at the time was that the respondent was drunk. He was not asleep as such and was mumbling. Robert McGahan gave evidence. He was delivering newspapers. He arrived at the Maxol service station at about 5.30 a.m. He drove in. Colm Condon recognised the respondent. He tried to wake the respondent. The respondent was not a normal drunk and was obviously in some distress. His shoes and trousers were mucky and there was dirt on his face due, he thought, to diesel and oil stains on the ground. He and Mr Conlon gently lifted the respondent into the rear of the truck. The manoeuvre could not have caused a head injury. They put four bales of newspapers in front of him so that he could not fall out. They travelled at about five miles per hour to the respondent’s house. The respondent was holding out one of his arms as if it was sore. When he was being lifted the respondent told them to f…off. The respondent was a very funny colour. He and Mr Conlon carried the respondent to the front of his house and put him against the wall and rang the door bell and knocked at the door but received no answer. They then lifted the respondent around to the back door of the house. The witness said that he has a certificate in first-aid and knew what not to do. He knew not to leave a drunk man lying flat down but to leave him sitting up in case he should get sick and choke. He then went home. In cross-examination the witness said that if one were to walk through the flower bed one would get mud on one’s shoes at that time. He thought the respondent must have fallen. The respondent was in some distress other than just being drunk. On the trip to the respondent’s house he had made some deliveries and in that time he realised that the respondent’s condition had deteriorated and that he had wet his clothes and vomited. There were Guinness stains around the respondent’s mouth when he first went over to him. The respondent was a funny colour and seemed to be yellow. There was a strong smell of Guinness from the respondent and insofar as the witness was concerned he was stone drunk. He got the respondent to his house at 5.55 a.m. Sergeant Piper gave evidence. He investigated the circumstances of the injury to the respondent. Initially he considered that there were three possibilities as to the cause of the respondent’s injury: a road traffic accident, an assault or a fall. Counsel for the respondent invited him to speculate on the cause and to recount hearsay but the witness was careful to distinguish fact from speculation. As a result of his investigation he ruled out the possibility of an assault. As to the other possibilities it is important to have regard to exactly what he did say. He discussed the respondent’s injuries with Dr. Nanera a Registrar at Beaumont Hospital on the 7th June 1996. He was told that there were two skull fractures and as a result formed the opinion that Mr Rogers would have had to fall twice. He considered it was possible that the injuries were sustained arising out of the manner in which the respondent was carried into the Maxol service station and put down but there was no evidence that the injury was received in this way. There was no forensic evidence to support the possibility of a road traffic accident. He then said:-
He recounted exchanges with the respondent. He met him from time to time after the accident and every time the respondent could not recall what had happened to him. He met the respondent on the 12th February 1997 and he still had no recollection of what had happened to him. He again met him on the 13th June 1997 when the respondent informed him that his memory was coming back slowly and that he could then recall that he was hit by a red coloured vehicle in the forecourt of the Statoil garage. That vehicle came in from the Northern direction into the forecourt. That was the first indication he had that the accident did not happen on the roadway. In the early stage of the investigation he had been informed by Ms Betty Rogers that the respondent had stated that he was hit by a green sand truck. When the respondent had been returned to the Louth County Hospital in June 1996 the witness had spoken with him. The respondent was confused but said that he could remember a green sand truck belonging to “Phillips”. At an interview on the 21st July 1996 the respondent had no recollection of the matter but could see “flashes of a red coloured van”. A statement taken from Martina McCaffey was admitted on consent. The statement was taken on the 4th June 1996 and Sergeant Piper read the same. Very early on the morning of the 27th May 1996 she walked along the Newry Road with Pádraig Grey. They were thumbing a lift. They sat on a wall half way between the Listoo Arms and the Maxol service station. The statement continued: “We were there for about twenty minutes. Alan Toner drove out past me. He shouted at me and then spun around on the road and headed straight back up the town…He was driving a black greenish car…I did not see anything happen on the road. I did not see anyone lying on the road.” They then got a lift towards Jonesborough, but the car broke down and they walked back to Dundalk a distance of approximately two miles. At the Maxol service station she saw Mr Nardone and Mr Cooney and Ashling Lee. She saw a car stop and two young men get out of the same. They lifted something into the Statoil Garage. At the Statoil garage she saw the respondent lying on his back. He was stuttering. She did not see any injury. She continued:-
There was a discussion with Sergeant Piper about the possibility of a car performing a U turn on the carriageway while travelling at some speed. His view was that at a slow speed it was possible but that at a faster speed a handbrake turn would be necessary: the alternative was that a car would have to drive on to the forecourt of the Renault filling station or at the Maxol service station. He had examined the roadway on the 28th May 1996. Had a handbrake turn been executed he would have expected then to find tyre marks but did not find any. Alan Toner was well known to the Gardai for his driving exploits. He had interviewed Mr Toner who proved unco-operative. Taking account of Martina McCaffrey’s statement the events concerning Mr Toner at the Maxol service station occurred around 3 a.m. Ms McCaffrey and Mr Lee are acquainted with Mr Toner. He was then asked:-
He was asked if he was satisfied that the respondent was hit by a car and he answered that it is probable but that he could offer no evidence of contact with the car. He was then asked:-
The witness agreed that if the accident had occurred at the time that Mr Grey and MsCaffrey were thumbing a lift they and the people in the car with Mr Toner would know if he was involved. If Mr Toner had struck the respondent at that time it is unlikely that he would, as was Ms McCaffrey’s evidence, stop and exchange words with persons in the immediate vicinity. Mr Grey and Ms McCaffrey were forty two feet away from where the respondent was found and had an uninterrupted view of the area. If the respondent was struck where he was found the car responsible would have had to cross the wall at the flower bed to strike him: he did not infer that the car came into the filling station and hit the respondent. For the respondent to be thrown by impact over the wall would have required a serious blow. The learned trial judge asked a question at this point:-
Martina O’Connor-McEnroe, a clinical neurologist, gave evidence. She had nothing to say in relation to the respondent’s partial recall. Dr. James Maguire a consultant psychiatrist gave evidence. In his opinion it is possible to have fleeting memories of trauma and events prior to entering an unconscious state. The changes in description of a car given by the respondent could be a garbled memory. The statements made are not definitively correct statements and it is not possible to draw a definitive inference from the same but you could say that they would suggest that he was struck as he perceived it. If the recollections are changing all of the time they would be less reliable. All that can be said of the statements by the respondent is that that his recollection of trauma is a memory of being on a footpath and seeing lights. That is a subjective memory and, while it is possible for him to have that memory, it is not possible to tell if it is correct. The respondent’s recall after fourteen months could be genuine or not: without some objective account to corroborate it, it is not possible to say. There is a consistency in the account of lights. An account which is consistent is more likely to be accurate than one which is constantly changing. Statements made in a delirious state are unreliable. That concluded the respondent’s case. For the respondent three witnesses were called: Ashling Lee, Dr. Declan Gilsenan and Professor Jack Phillips a Consultant Neurosurgeon. Ms Lee said that on the 27th May 1996 near the Maxol service station she saw Mr Nardone and Mr McEvoy arrive. She saw the respondent lying in the flower beds in front of the service station, the lower part of his body was on the road and the upper part on the flower bed. She asked the respondent was he OK. She could not really hear his response but he was moaning and appeared to be in pain. About five minutes later she saw him being moved by two men, one to each side of the respondent. He was kind of walking himself. They let him go and he fell to his knees and landed on his elbows. She saw no blood or any other sign of injury on the respondent. He was left in that position on his elbows and knees. She saw Thomas Kirk and Colm Conlon go to the respondent in a jeep. She did not recall seeing Mr McGahan. She accepted that Mr Conlon took great care in dealing with the respondent. Dr. Declan Gilsenan, a pathologist, gave evidence. He had reviewed the documentation in the case including all medical reports. He was asked what in his view was the probable cause of the respondent’s head injury. He described the injury as a bilateral fracture of the temporal bones and a secondary fracture to the base of the skull. This was based on an examination of the hospital x-ray report. His opinion was that the probable cause of the injury was an impact of the head on some solid flat surface. A blow from an instrument such as a hammer would cause a more localised fracture. Basal fractures are caused by a general impact to the skull usually from falling backwards on the head. Because a skull depends for keeping its shape on its structural integrity such a fracture is usually in a slightly more remote area from the point of impact. If the respondent had been struck by a car and thrown up in the air and landed on his head, while this could cause the injury in fact sustained, he would expect extensive injuries below the neck. In his opinion the probable cause of the injury is a fall. The concrete and kerbs in the area are surfaces capable of causing the injury if he fell backwards and impacted his head. The witness found it difficult to accept that someone could suffer an impact to the head from a car without impact to the rest of their body. Because of the absence of significant injury below the neck, the injury was more likely to be a backwards fall on to the head rather than a road traffic accident. If the impact was a sliding impact he would expect abrasions but if the fall is straight and non-sliding he would not expect much other than perhaps very slight abrasions and perhaps within the hair. Professor Phillips, Consultant Neurosurgeon, gave evidence. On the respondent’s reporting to him he assumed in his report that there had been a road traffic accident. However he did not know how the injuries were sustained. The injuries are consistent with trauma and could have been sustained in a road traffic accident. If it had been a road traffic accident he would have expected to see joint injuries or on-going injuries and multiple abrasions. An isolated head injury would be unusual. Mr Pigeon, Consultant Neurosurgeon, was recalled on behalf of the respondent. He was asked were the injuries which he found in the respondent consistent with an injury from being struck by a car. He responded as follows:-
That concludes the evidence given. It is necessary to say that the evidence throughout tended to be discursive and in summarising the same I have attempted to concentrate on statements of fact within the knowledge of the witness and opinions of witnesses based on such facts. The Law Appeals to the Supreme Court are by way of re-hearing: Rules of the Superior Courts 1986 Order 58 Rule 1. The nature of such an appeal was explained by McCarthy J. in Hay v O’Grady [1992] I.R. 210 as follows:-
The role of this court, in my view, may be stated as follows:-
2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and apparently, weighty the testimony against them. The truth is not the monopoly of any majority. Holmes L.J. in “The Gairloch,” The S.S. Aberdeen Glenline Steamship Co. v Macken [1899] 2 I.R. 1 cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v Madden [1977] I.R. 336 at p.339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge. 4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference – in a case of this kind, was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found in either on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charge was erroneous, an order will be varied accordingly. 5. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows.” The passage cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v Madden from “The Gairloch” is as follows:- “When a judge after trying a case upon viva voce evidence comes to a conclusion regarding a specific and definite matter of fact, his finding ought not to be reversed by a court that has not the same opportunity of seeing and hearing the witnesses unless it is so clearly against the weight of the testimony as to amount to a manifest defeat of justice. The same rule does not apply, at least in the same degree, where the conclusion is an inference of fact. It often happens, as in the present instance, that the decisive finding is a deduction from facts hardly disputed or easily ascertained. In such a case the appellate tribunal is in as good a position for arriving at a correct conclusion as the judge appealed from, and it would be an undue restriction on the functions of the former if it were to hold itself bound by what has been found by the latter. Of course the view of the judge who tried the case is of the greatest weight, and for my own part I would only depart from it with much hesitation when, as here, we have not been furnished with a report or note of the judgment appealed from.” This appeal revolves around inferences drawn by the learned trial judge from primary facts. There are relatively few cases in which the Supreme Court has had reason to deal in detail with the third proposition enunciated in Hay v O’Grady. The People (Director of Public Prosecutions) v Madden is one and in that case inferences drawn by the Special Criminal Court from facts found were upheld, and in the case of one of the applicants, Bernard Lynch, the court upheld the inference where it was a possible though not an inevitable one. In Royal Bank of Ireland Limited v O’Rourke [1962] I.R. 159 at 170 the Supreme Court on one issue would have been prepared to allow the appeal on the principle laid down in “The Gairloch” but in fact did not do so, but allowed the appeal on that issue on other grounds. In J.M. & G.M. v An Bórd Úchtála [1988] I.L.R.M. 203 at 205 the Supreme Court dealt with inferences as follows:- “Secondly, there are secondary or inferred facts. These are facts which do not follow directly from an assessment or evaluation of the credibility of the witnesses or the weight to be attached to their evidence, but derived from inferences drawn from the primary facts. Once the primary facts had been established viva voce, their consequences or implications for the purpose of the matters in issue must be found by a process of deduction from the facts found or admitted, rather than by an assessment of the witnesses or the weight or the correctness of their evidence. In regard to such secondary facts, the advantage of the High Court judge who saw and heard the witnesses is of such minor importance that this court will feel free to draw its own inferences if it considers that the inferences drawn by the judge in the High Court were not correct. Such secondary facts include all matters which are evaluative of the primary facts.” Clause 6 of the Motor Insurers Bureau of Ireland agreement 1988 provides that:-
On appeal to the Supreme Court it was held that the agreement of 1998 did not identify the Bureau with an unknown or untraced driver prior to the conditions precedent to its liability being met. Negligence in driving is a condition precedent to a finding of liability on the part of the Bureau pursuant to Clause 6 of the agreement. Difficulty of proof did not call for a shifting of the onus of proof to the Bureau. The onus of proof would not shift unless the act or default complained of was peculiarly within the range of the Bureau’s capacity of proof. The appeal was allowed. Hardiman J. stated the issue on the appeal as follows:- “The plaintiff can show that the accident was caused by a fuel spillage. The judge has held, and there is no cross-appeal, that this does not give rise to an inference of negligence on the basis of res ipsa loquitur, but may be accounted for either with or without negligence. The plaintiff cannot go further. Is this sufficient in law to ground a finding of liability against the defendant? The plaintiff relied on res ipsa loquitur - in short that the circumstances themselves amounted to evidence of negligence. Hardiman J. referred to Hanrahan v Merck Sharp & Dohme [1988] ILRM 629 at 634 where Henchy J. said:- “The ordinary rule is that a person who alleges a particular tort must, in order to succeed, prove…all the necessary ingredients of that tort and it is not for the defendant to disprove anything. Such exceptions as have been allowed to that general rule seen to be confined to cases where a particular element of the tort lies or is deemed to lie pre-eminently within the defendant’s knowledge, in which case, the onus of proof as to that matter passes to the defendant. Thus in the tort of negligence, where damage has been caused to the plaintiff in circumstances in which such damage would not usually be caused without negligence on the part of the defendant, the rule of res ipsa loquitur will allow the act relied on to be evidence of negligence in the absence of proof by the defendant that it has occurred without want of due care on his part. The rationale behind the shifting of the onus of proof to the defendant in such cases would appear to rely on the fact that it would be palpably unfair to require the plaintiff to prove something which is beyond his reach and which is peculiarly within range of the defendant’s capacity of proof. Henchy J. went on to say at p.635:-
Hardiman J. having considered the foregoing passages from Hanrahan v Merck Sharp & Dohme went on to say at page 275:-
The Supreme Court in Rothwell v Motor Insurers’ Bureau of Ireland rejected the submission that it was not necessary to prove negligence at all in a claim against the Bureau. The onus is on the respondent here to satisfy the court of the following:- 1. That he sustained his injuries as a result of being struck by a motor vehicle the owner or user of which is unidentified or untraced. 2. That the owner or user was negligent. The legal burden of proof in all civil cases lies upon the person who asserts the affirmative on each issue in the case. If at the completion of the evidence the burden has not been discharged the decision must go against the party on whom the burden lay. To find for the plaintiff in an action such as the present the judge must be satisfied on the evidence that a particular fact or state of affairs is more likely to have occurred than not. If he is not so satisfied then he must find that the burden has not been discharged. In Cosgrove v Ryan [2008] IESC 2 the issue was whether the trial judge was correct in finding that the appellant had not established as a matter of probability that the accident was caused by the negligence of the E.S.B. In the course of his judgment Geoghegan J. said:- “Although the onus of proof is always on a plaintiff to prove negligence the requirements of that proof may vary. It would seem that those requirements would not be high where a dangerous substance such as electricity or gas is involved. Indeed quite apart from any special principles relating to dangerous things a plaintiff in a negligence action does not have to negative every possibility of absence of negligence. This does not mean that in answer to the plaintiff’s claim the defendant may not demonstrate that he was in no way to blame. In the 21st edition of Salmond and Heuston on the Law of Torts, the learned editors under the heading ‘The Proof of Negligence’ at op.240 say the following:-
The standard of proof in civil proceedings is on the balance of probabilities. If at the conclusion of the evidence the probabilities are equal then the required standard of proof has not been achieved. There is no burden on the defendant to prove a negative: an exception is where res ipsa loquitur applies and the proper inference to draw from the proven facts is that the defendant (in this case the unidentified or untraced owner of user) was negligent. Findings of fact made and inferences drawn by the learned trial judge The learned trial judge made findings of fact or drew inferences as follows:- 1. The respondent consumed seven pints of Guinness up to midnight and did not drink thereafter. 2. As a result of that consumption he was not mentally or physically impaired. 3. The respondent left Harry’s bar at 1.30 a.m. 4. On the evidence of Mr Hackett the respondent was making his way slowly along the footpath at Dundalk Bridge. 5. The respondent continued to progress as described by Mr Hackett until he reached the Maxol service station. This would not have been possible for the respondent to do had he sustained his injury before reaching the Maxol service station. 6. The respondent was walking on the public footpath in or about the middle of the same. 7. The respondent saw lights coming towards him and his next memory is of being an in-patient in Louth County Hospital; he recovered this memory some three years after the accident and gave this account to Dr. Séan Murphy on the 6th October 1999 and later to Dr. Murphy and Mr Phillips. 8. The respondent was next seen by Pádraig Grey, Ashling Lee, Garry Nordone, Stephen O’Connor and others some time about 5 a.m. on the morning of the 27th May lying partly on the carriageway and partly on the flower bed at the Maxol service station. 9. It is unlikely that the respondent, a gardener who had assisted in laying out the particular grass areas and flower bed would walk into or across the flower bed. 10. On his route the respondent passed other areas where the footpath was bounded by flower beds, grass borders and shrubbery on both sides. 11. The respondent suffered his injury at or near the location where he was first seen by Mr O’Connor and Ms Lee. 12. On the balance of probabilities the injuries were caused by the respondent being struck by a mechanically propelled vehicle which was driven on the footpath in a negligent manner. Discussion The findings of fact made and inferences drawn by the learned trial judge caused me some difficulty having carefully reviewed the transcript. It is difficult to find support in the evidence for some findings and justification for some of the inferences drawn. The learned trial judge found that the respondent was not physically or mentally impaired by drink. There was evidence of the amount of drink consumed. Mr Hackett saw the respondent across the road and was conscious that he had drink taken. It is difficult to see how from this evidence it could be either found or inferred that the respondent was not, to some extent at least, physically impaired as there must have been something in his appearance, his bearing or his gait to enable Mr Hackett to conclude as he did. There is no doubt on the evidence that the respondent is habituated to drink but clearly there were signs of his having taken drink. He was walking slowly. Some affectation by drink can be inferred from the foregoing. However the respondent was not “stone drunk”. He did not present to Mr Duffy or friends to whom he spoke outside Harry Duffy’s bar as being a danger to himself and incapable of making his way home. These are factors to be considered in weighing the evidence as a whole. There was evidence, which if accepted would put the time at which the respondent left Harry Duffy’s bar at 2 .15 approximately rather than at 1.30 as he himself gave in evidence and as the learned trial judge accepted. I consider it appropriate to give the respondent the benefit of that later time. However at 3 a.m. he was not seen by any of the witnesses who were in the vicinity of the Maxol service station and who could be expected to see him. The distance between Harry Duffy’s bar and the Maxol service station was given in engineering evidence as six hundred yards. From the map admitted in evidence the distance from the bar to the Dundalk Bridge where Mr Hackett passed the respondent is approximately one hundred and fifty yards. He had not reached the Maxol service station on the evidence by 3 a.m.: the distance in question is approximately 450 yards. He was not found at the Maxol service station until at the earliest 5 a.m. Where he was or what he was doing from the time that Mr Hackett saw him on the Dundalk Bridge at approximately 2.30 a.m. until 5 a.m. is a mystery. The evidence does not admit of the learned trial judge’s inference that the respondent continued walking slowly from Dundalk Bridge to the Maxol service station approximately four hundred and fifty yards away. The presence of mud on the respondent’s shoes and trousers is relevant to the learned trial judge’s finding that the respondent was walking along the centre of the footpath. At some point he deviated from the footpath into a muddy area. I regard the learned trial judge’s finding that the respondent was more unlikely to have walked into the flower bed in front of the Maxol service station because he is a gardener and had involvement with that flower bed as conjecture rather than a legitimate inference from the evidence. The learned judge accepted as true the respondent’s recovered memory of lights coming towards him. On the medical evidence he was entitled to find that such recovered memory had occurred. However none of the medical evidence went so far as to say that such recovered memory is more likely to be true than otherwise. The medical evidence did not at any point suggest that a motor vehicle accident was more likely than a fall as the cause of the respondent’s injuries. The absence of significant lower body injuries made a severe impact with a car unlikely. Should a car brush against him this could have caused him to fall and sustain the injuries. Equally likely however is a fall without any impact resulting in such injuries. There was no forensic evidence according to Sergeant Piper, who clearly was diligent in his investigation, that a car was involved. In his evidence Sergeant Piper said that his view as to whether a car was involved or not would depend on the evidence to be given by Ms McCaffrey. Her evidence related to the driving close to the Maxol service station by Mr Toner at 3 a.m. some two hours before the respondent was found. Her evidence was that Mr Toner stopped to speak to her and Sergeant Piper agreed that it would be unlikely that Mr Toner would do so had he just been involved in an accident. The learned trial judge quite correctly discounted the evidence of Sergeant Piper relating to Mr Toner. Miss McCaffrey’s evidence from the respondent’s point of view is at best neutral on the cause of his injuries. I can find no evidence to support the learned trial judge’s inference that the respondent was struck by a car while on the footpath adjacent to the forecourt of the Maxol service station, and by that impact was thrown across the low wall surrounding flower bed. The medical evidence is clear that such an impact would probably result in injuries other than those in fact sustained by the respondent. The fact that the respondent was found partially on the road and partially on the flower bed would justify an inference that the respondent was not on the footpath inside the wall surrounding the flower bed, that is an inference contrary to that made by the learned trial judge. The learned trial judge found, and was entitled to find, that the apparent drunken state of the respondent while on the flower bed and on the forecourt and his truculent response to offers of assistance, which was out of character, was attributable to his injuries and not to drink. This, however, cannot counter the clear evidence of the amount of alcohol consumed from which this court can infer that the respondent was not cold sober at relevant times. My conclusion is that on the evidence adduced at the trial the injuries sustained by the respondent may have been sustained as a result of impact with a motor vehicle and, if so, more likely by a fall resulting from a motor vehicle brushing against him rather than direct impact. Equally, however, they may have been caused by a fall, however precipitated, without any involvement of a motor car. The bruise to the hip and the laceration to the hand do not point to one cause or the other. The mud does not lead to a probability of impact with a car rather than to a fall. There is an unexplained time gap between 3 a.m. and 5 a.m. Where did the respondent sustain his injury? How did he sustain his injury? When did he sustain his injury? These questions are all unanswered by the evidence. It is not permissible to resort to conjuncture to answer these questions. Resort to res ipsa loquitur does not provide any answer. Consequently the applicant has failed to establish causation as a matter of probability. His claim must fail. I would allow the appeal. I have considerable sympathy for the respondent. That he is decent and honest clearly comes across from the transcript and the learned trial judge was so satisfied. This notwithstanding, it remains the case that he has failed to overcome the evidential problems which he faced in bringing this claim. The evidential deficit cannot be overcome by conjuncture. I am happy to be able to record that the respondent made a remarkable and virtually full recovery.
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