Supreme Court remits negligence case for retrial due to unresolved expert conflict and missing evidence.

[2002] IESC 29

THE SUPREME COURT

282/00

Murphy J.

Hardiman J.

Geoghegan J.

Between:

THERESA FUREY

Plaintiff/Appellant

and

HANS OTTO SUCKAU

Defendant/Respondent

JUDGMENT of Hardiman J. delivered the 26th day of April, 2002.

1. The plaintiff is the widow of the late James Furey who was killed in a traffic accident on the 8th May, 1998. She brought an action

on her own behalf and on behalf of the other dependants of the late Mr. Furey against the defendant who was driving the vehicle

with which the deceased’s vehicle collided. By order of the 14th July, 2000 the High Court (O Caoimh J.) held that both the defendant

and the deceased had been negligent and the degrees of fault were apportioned at 20% against the defendant and 80% against the

deceased Mr. Furey. Damages on the basis of full liability had been agreed in the amount of £247,000.00. The High Court granted the

plaintiff a decree against the defendant in the sum of £49,400.00 to include the statutory sum payable in respect of mental distress.

2. The appeal relates solely to the question of liability.

Background.

3. On the 8th May, 2000 the plaintiff was driving his almost new Astra motor car at a place called Barrymore, Kiltoom, Athlone. This is

on the main road between Athlone and Roscommon, about 5 miles from Athlone. The deceased had been driving towards Athlone. He

was a Sergeant in the Defence Forces and he was returning, with two colleagues to his home in Cork from Donegal where he had

partaken in the All Army Orienteering Championships. The accident in which he was killed occurred at the junction of the main road

with a road leading to the Hodson Bay Hotel. The width of the road is 23 feet and 2 inches excluding the hard shoulders. The hard

shoulder to the deceased’s left was 9 feet in width.

4. The defendant, Mr. Suckau was driving a Hymer camper van. He had been for some weeks on a touring holiday in Britain and

Ireland and was experienced in driving on the left of the road. He had driven from Athlone and intended to turn right into the Hodson

Bay complex.

5. The only eye witness testimony about the accident in which the deceased died was that of the defendant and his wife. The

deceased’s two passengers had no recollection of the events and there were no witnesses on the scene. It follows that the plaintiff’s

case depended entirely on circumstantial evidence.

The Eye Witness Accounts.

6. Mr. Suckau said that he drove along the road from Athlone and saw the sign for the Hodson Bay complex, where he planned to go.

He said:-

“I approached the centre line and while doing so I applied the brake. I put the car into neutral and I kept my foot on the

brake because there were two or three oncoming cars which I let past…. (the camper van) was at an angle to the centre

line because this vehicle is very large and you cannot go parallel when you come over from the left hand side, you have

to come across as a bias…... I would think the angle was approximately 15 degrees, it could have been somewhat more”.

7. In relation to the accident itself he said that he saw the deceased’s car when it was about 50 metres away from the junction. It

was being driven with “at least half of the width of the car over the centre line”. It was travelling at a very high speed, which he

estimated at 130 - 140 kilometres an hour, or about 85 miles an hour. It drove at his vehicle without stopping, slowing down or

swerving and struck it.

8. Substantially the same account was given by the defendant’s wife.

9. In cross-examination the defendant stated that he had allowed the cars to pass, had then looked into the junction with the hotel

property and had next turned somewhat to the left to look in the Roscommon direction, at which point he saw the deceased’s car. A

driver in the defendant’s position can see traffic 350 to 400 yards away, with a blind spot about 200 yards from the Hotel junction.

10. Both the defendant and his wife were adamant that their vehicle was stationary at the time of the impact, that it was on its

correct side of the road though adjacent to the white line and that the oncoming vehicle was travelling at very high speed.

11. It is an unfortunate aspect of the case that, in cross-examination, no specific version of the accident was put to the defendant.

Curiously, when his wife came to give evidence it was put to her, at Book II question 529:-

Q. “I suggest to you that your husband had made a mistake here and he drove across the road in front of this car when it

was very close to you and caused the crash?

A. I must say to you that it is not correct, my husband did not make a mistake, he did not start up the car, he was

stationary at the centre line”.

12. It is of course essential that the plaintiff’s case be put to the defendant so that he can comment on it. As will appear below,

there was clearly scope for considerable comment on the suggestion made to the defendant’s wife. Furthermore no particular point of

impact was ever suggested to the Defendant or his wife. The omission is significant having regard to the circumstantial evidence.

The circumstantial evidence.

13. The circumstantial evidence was established by members of the Garda Síochána who attended the scene.

14. On their arrival the Astra vehicle was in the entrance of the roadway leading to the hotel, having gone over the Athlone side kerb

of that road at a point more than 30 feet from its junction with the main road. The Hymer camper van was spun around so that it

faced Athlone and ended up on the hard shoulder, on the left hand side looking towards Athlone with its front beside the Athlone side

of the hotel road’s junction with the main road. All the glass and debris found by the guards were between the two vehicles, inside

the mouth of the hotel road. This mouth was itself some 37 feet 6 inches wide i.e. considerably wider than the main road. Across the

main road from it, there was another junction. There were also found scrape or gouge marks on the deceased’s side of the road, near

the yellow line and roughly in line with the car’s eventual position. No one seems to have attributed much significance to these until

after the hearing commenced.

15. Both vehicles were observed to be extensively damaged. The damage to the Astra was mainly on the front right hand side, the

driver’s side, extending rearwards so that the entire frontal section had basically been crushed in the impact. The point of impact

seems to have been on the right front corner of the vehicle. The camper van was 9 feet 4 inches wide and 21 feet 3 inches long. It

was a left hand drive vehicle. The impact was from the passenger side of the vehicle across to the driver’s side. In the opinion of the

public service vehicle inspector the impact happened on the driver’s right hand side, that is the passenger side of the vehicle. This

accords with the defendant’s account. But the evidence became ambiguous, due I think to confusion between the driver’s right side

and that of the vehicle. The next words are “Sorry, I think I have it the wrong way round” and later “The impact is actually from the

left extending across to the right hand side”.

The findings of the learned trial judge.

16. The learned trial judge’s fundamental findings were:-

(a) A major contributing factor to the accident was the excessive speed of the car being driven by the deceased.

(b) That the camper van was stationary at impact “very much at an angle to the road centre and not parallel to the

white line in the middle of the road”.

(c) The portion of the vehicle which would be on the passenger side of the road would have been over the white line and

at the centre of the road and occupying a position of at least 3 feet on the carriageway on which the vehicle being

driven by Mr. Furey was travelling.

(d) The debris was carried forward after impact and did not indicate the point of impact.

(See pages 13 and 14 of the judgment)

17. On that basis the learned trial judge held that the “essential liability for the accident must rest with the deceased”. The learned

trial judge then made the apportionment set out above, the 20% against the defendant being on account of his “failing to position his

vehicle in the correct position on the road”.

Grounds of appeal.

18. The notice of appeal of the 3rd November, 2000 claimed that the learned trial judge had misconstrued the evidence of two of the

garda witnesses and two experts. More specifically it challenged finding that the camper van was stationary at the time of the

accident; that the accident happened near the centre of the road; that the camper van was occupying a portion of only about 3 feet

of the other carriageway; and that the absence of debris in the centre of the road was not material. It claimed that the alleged

finding “that the accident did not occur on the deceased’s side of the road” was contrary to the weight of the evidence and that the

learned trial judge had erred in rejecting evidence that the impact happened somewhere near the yellow line separating the

deceased’s carriageway from the hard shoulder on his side. It also challenged the apportionment. Finally, the notice of appeal

complains that the learned trial judge made no finding as to the speed of the deceased’s vehicle; the actual position of the

defendant’s vehicle; whether it was moving or stationary and whether it was moving immediately prior to the impact.

Observations on the foregoing.

19. The plaintiff naturally carries the onus of proof, and she had a manifest difficulty in this case arising from the absence of direct

evidence on her side. Confronted with the evidence of two witnesses whose veracity was not in doubt, her case depended on a view

of the circumstantial evidence which, on the balance of probability, established that the account of the defendant and his wife could

not be true but that (in the words of the only specific case put to either of the eye witnesses) the defendant “drove across the road

in front of this car when it was very close to (him) and caused the crash”.

20. In approaching the appeal the Court must apply the principles in Hay v. O’Grady [1992] IR 210. Having set out, at page 217 of the

report in four numbered paragraphs the manner in which this Court should approach an appeal such as the present McCarthy J.

concluded:-

“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”.

Conclusions.

21. In my view, the learned trial judge’s findings in relation to the excessive speed of the deceased’s vehicle were rationally open to

him on the evidence and I am of the same view in relation to the findings in relation to the van being stationary and to the debris. I

would not upset this aspect of the judgment. I am, however, more dubious about his findings in relation to the point of impact. He

says:-

“I reject as improbable the suggestions made on behalf of the plaintiff that the impact in question occurred somewhere

near the yellow line, that is the line dividing the main carriageway from the hard shoulder on the side of the road which

was occupied by the car driven by Mr. Furey. I am of the opinion that had that been the case the damage to the vehicle

would not have been at the angle (at) which it did occur and furthermore the damage would essentially have been to the

left hand side or wing of the defendant’s vehicle. I conclude that the absence of debris in the centre of the road is

essentially due to the fact that the two vehicles in question were new and therefore would not have carried much in the

way of mud which might otherwise be present in vehicles and furthermore the roadway had been cleared up following the

accident by members of the fire service, and in addition mud may have been scattered by traffic. Much of the debris was

carried forward in the impact having regard to the relative speed of the car as opposed to the camper van which I

conclude was in a stationary position on the road”.

22. However, in addition to the arguments based on the location of the debris, Mr. Algar and Mr. O’Mahony gave further evidence on

behalf of the plaintiff. This was to the effect that the post accident position of the vehicles, and particularly the camper van, was

uniquely consistent with a point of impact much further on the deceased’s side road of the road than might otherwise be thought.

This conclusion was hotly disputed by Mr. O’Brien, an engineer called on behalf of the defendant. I have to say that the evidence on

each side of this important issue is somewhat vague. It is particularly hard to appreciate on a transcript because the engineers all

engaged in illustration by hand movements, the making of sketches which have not been preserved for this Court, and the moving of

objects about on the courtroom table which is equally inaccessible to us. The plaintiff’s experts core position was that a vehicle in the

position of the camper van on the defendant’s account, if struck in the manner alleged, would have been propelled directly backwards

and not spun around to 180 degrees and moved across the road. This was stated to be obvious to anyone with a school boy

appreciation of physics. However, the defendant’s engineer said that it simply failed to take a number of factors into account

including that the two vehicles merged with each other, the car being at one point under the front of the camper van causing the

latter to rotate on its back wheels. It appears to me that the conflicting expert testimony was couched in terms of first principles.

Ironically, one of the engineers expressed the confident view that computer simulation would support his position on this issue but

neither he nor anyone else had attempted anything of the sort. The position of the learned trial judge was not assisted when he

asked counsel whether they wished to make any submissions to be told that “It is an issue of fact for your Lordship to decide”. This

Court has already in at least two written judgments, expressed the opinion that in personal injuries actions which are not straight

forward the Court should be assisted by brief submissions from each side and reiterates that opinion now. It is also essential that all

documents, including photographs and sketches which were before the trial Court should be available to the Court on the hearing of

an appeal. This did not occur in the present case. This court was initially given only one set of photographs. During the hearing more

were produced, but we never saw all that were before the High Court. Still worse, there were missing maps, including three which had

been marked by witnesses during the hearing. It is obviously essential that all exhibits be preserved for an appeal.

23. However, on a perusal of the judgment it appears that this important dispute between the engineers was not considered at all.

Nor was the possibly related matter of the scrape or gouge mark on the road. Since on the expert evidence for the plaintiff these

might if accepted, be regarded as establishing of the proposition that the impact took place much further into the deceased’s

carriageway than the other evidence suggested, this is a matter of importance. I am very conscious of the force of the point made

by the learned trial judge that had the impact occurred close to the yellow lines one would expect the damage to the camper van to

be on its left side. The significance of this depends on how one resolves the ambiguity in the PSV inspector’s evidence, set out

above. This does not appear to have been addressed and indeed is easy to miss. This, combined with the unresolved dispute between

the engineers, leads me to propose to set aside the Order of the High Court and remit the matter for retrial. This may not lead to a

different result but in fairness to the Plaintiff, it is important that all relevant issues be properly considered.